NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-3475-16T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CARLTON T. JAMES, a/k/a JAMES CARLTON, and TASHON MOORE,
Defendant-Appellant. _______________________
Submitted May 7, 2019 – Decided June 4, 2019
Before Judges Fisher and Geiger.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 13-08-2362.
Joseph E. Krakora, Public Defender, attorney for appellant (Alyssa A. Aiello, Assistant Deputy Public Defender, of counsel and on the brief).
Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Patrick D. Isbill, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM The Supreme Court recognized in State v. Branch, 182 N.J. 338, 350-51
(2005), that an accused's constitutional confrontation rights are violated when
police officers suggest or imply during trial testimony that they possess
"superior knowledge, outside the record, that incriminates the defendant" or
when they convey "directly, indirectly or by inference, [incriminating]
information from a non-testifying declarant." Defendant claims the State
violated these rights during his trial through testimony elicited from an
investigating officer. Satisfied after careful review that the trial judge's rulings
and instructions adequately steered the police testimony away from these pitfalls
and sufficiently cautioned the jury about drawing such an inference, we affirm,
although we must remand for a correction of the judgment of conviction .
Testimony adduced at trial revealed the nature of the December 29, 2012
incident that led to this prosecution. After Devon Williams hit Anthony Graham
over the head with a bottle, Anthony's two brothers – Gregory and Jermaine –
drove from Philadelphia and, with Anthony, arrived at a Camden bar late that
evening to confront Williams. The Graham brothers entered the bar and asked
Williams to talk with them. They all went outside, but Williams first walked
around the corner and spoke to another group while the brothers waited out front.
Williams then walked back to the Graham brothers with the other group in tow.
A-3475-16T4 2 Gregory later testified that the brothers tried to pull Williams aside to talk,
but Williams' group wouldn't allow it. During the ensuing argument, Gregory
noticed a "short dude" with a "long beard" in the group wearing a white shirt
and hoodie who, with hand on waist, was walking behind his brothers. Williams
told the man to "Chill, Cool."
Taking a cue from Jermaine, Gregory, according to his own trial
testimony, turned and began to walk away. Within seconds, he heard four or
five gunshots as Gregory ran toward Jermaine's car; once in the car, Gregory
realized he had been shot. The brothers drove to a nearby hospital, where
Gregory was treated for gunshot wounds to his leg, arm and knee.
That night, police interviewed Gregory, but he was unable to identify the
shooter because he had been walking away when the shots were fired. He did,
however, provide Detective Shawn Donlon with a description of the short, dark -
skinned man with the long beard. Jermaine advised the detective that he
believed that man's nickname was "Cool C," and he later testified that he heard
Williams refer to that same man as "Cool C."
After interviewing the Graham brothers, Detective Donlon spoke about
the case with Lieutenant William Frampton, who recognized "Cool C" as an
alias for defendant and so informed Donlon. Jermaine was able to identify
A-3475-16T4 3 defendant from a photo array as the shooter. He also made an in-court
identification of defendant as the shooter during the trial.
Defendant was indicted on six counts, including second-degree
aggravated assault, N.J.S.A. 2C:12-1(b)(1), third-degree aggravated assault,
N.J.S.A. 2C:12-1(b)(2), fourth-degree aggravated assault, N.J.S.A. 2C:12-
1(b)(4), second-degree possession of a weapon for an unlawful purpose,
N.J.S.A. 2C:39-4(a), second-degree unlawful possession of weapons, N.J.S.A.
2C:39-5(b), and second-degree certain persons not to have weapons, N.J.S.A.
2C:39-7(b). Prior to trial, defendant unsuccessfully moved to suppress the out-
of-court identifications made by Jermaine and Anthony Graham.
Defendant was convicted on all counts at the conclusion of an eight-day
jury trial. At sentencing, the judge found defendant to be a persistent offender
and imposed an extended term. N.J.S.A. 2C:44-3(a). The judge imposed a
fifteen-year prison term, subject to an eighty-five percent period of parole
ineligibility on the second-degree aggravated assault conviction, and a
consecutive seven-year term, with a forty-two-month period of parole
ineligibility, on the second-degree unlawful possession conviction. The judge
also imposed lesser concurrent prison terms on those other convictions that did
not merge.
A-3475-16T4 4 In appealing, defendant argues in his multi-faceted first point that his right
to a fair trial was prejudiced by police testimony elicited by the prosecution:
I. REVERSAL IS REQUIRED BECAUSE THE TRIAL COURT ERRONEOUSLY DENIED [DEFEN- DANT'S] MOTION FOR MISTRIAL MADE WHEN GREGORY TWICE TESTIFIED TO DAMAGING HEARSAY. IN THE ALTERNATIVE, REVERSAL IS REQUIRED BECAUSE THE CUMULATIVE PREJUDICE RESULTING FROM GREGORY'S HEARSAY TESTIMONY AND DAMAGING INFERENTIAL HEARSAY ELICITED BY THE PROSECUTOR DURING HER EXAMINATION OF DETECTIVE DONLON DEPRIVED [DEFENDANT] OF HIS CONSTITUTIONAL RIGHTS TO A FAIR TRIAL AND DUE PROCESS OF LAW.
We reject this.
Defendant also complains about the sentence imposed, arguing:
II. THE AGGREGATE SENTENCE – TWENTY YEARS OF IMPRISONMENT WITH MORE THAN SIXTEEN YEARS OF PAROLE INELIGIBILITY – CONSTITUTED AN ABUSE OF DISCRETION.
III. THE MATTER MUST BE REMANDED FOR THE TRIAL COURT TO CORRECT AN ARITHMETIC ERROR CONTAINED IN THE JUDG[]MENT OF CONVICTION.
We reject Point II, but the State concedes, and we agree, that for the reasons
asserted in Point III a remand is necessary to correct the judgment of conviction.
A-3475-16T4 5 I
In his first point, defendant contends that Gregory Graham testified to
what his brother Jermaine saw and, in so doing, impermissibly bolstered
Jermaine's credibility with hearsay testimony. He also argues that Detective
Donlon's testimony inferentially conveyed information provided to him by
Devon Williams, who did not testify, thereby injecting impermissible hearsay
into the record. We first discuss the general principles that apply to defendant's
contentions and then discuss the two subparts to defendant's Point I separately.
A
In a criminal proceeding, both the United States Constitution and the New
Jersey Constitution guarantee an accused the right of confrontation. U.S. Const.
amend. VI; N.J. Const. art. I, ¶10. The right to confront witnesses is an essential
element of a fair trial and requires that the accused be given the opportunity to
defend against any accusers through cross-examination. Branch, 182 N.J. at
348-49. The admission of hearsay generally violates an accused's confrontation
rights. Crawford v. Washington, 541 U.S. 36, 51 (2004). But, if an out-of-court
statement falls within a recognized exception to the hearsay rule and is non -
testimonial, this constitutional right is not infringed. Davis v. Washington, 547
U.S. 813, 821 (2006).
A-3475-16T4 6 A defendant's right to confrontation is generally implicated when "a
witness refers to specific information from a non-testifying third party." State
v. Weaver, 219 N.J. 131, 152 (2014). That is true even when a witness implies
the possession of "superior knowledge, outside the record, that incriminates the
defendant." Branch, 182 N.J. at 351. But it is permissible for a police officer
to testify about the reasons for approaching a suspect or investigating a crime
scene when explaining it was done "upon information received." State v
Bankston, 63 N.J. 263, 268 (1973). Such an explanation is admissible for the
sole purpose of showing "that the officer was not acting in an arbitrary manner
or to explain his subsequent conduct." Ibid.
In Bankston, for example, detectives received a tip and went to a Newark
bar to question the defendant, who matched a description given by an informant.
Id. at 265. The officers arrested the defendant after finding sixteen envelopes
of heroin under a pair of gloves near the defendant's seat at the bar. Ibid. At
trial, one of the arresting officers was allowed to testify that the police went to
the bar "based on information received," that they were looking for a "certain
individual," and that they had a "description of his clothing." Id. at 266. The
Court affirmed the reversal of the defendant's convictions because the State led
the jury to believe that an informant, who did not testify, told the police that the
A-3475-16T4 7 defendant had committed a crime. Id. at 271. The State argued that the
statement was admissible to offer an explanation for why the police went to that
tavern, but the Court determined there was no need to explain their actions
because the defendant did not allege they were acting arbitrarily, id. at 271-72,
and, so, testimony that the police went to the bar based "upon information
received" would have been sufficient, id. at 272.
In Branch, the Court held that a detective's testimony explaining that the
suspect's picture was included in a photo array because of "information
received" constituted inadmissible hearsay and violated the Confrontation
Clause. 182 N.J. at 342. The Court reasoned that because the detective received
the tip before the identification and because there was no testimony or evidence
other than that identification, the jury could only speculate that the detective had
superior knowledge obtained through hearsay. Id. at 347-48. The defendant's
right to confrontation was violated because the nameless informant did not
testify and was not subject to cross-examination.
B
Unlike Bankston and Branch, the jury here was not left with the
inescapable inference that defendant's identity was provided by an unnamed,
non-testifying witness. The jury, for instance, heard Jermaine testify that he
A-3475-16T4 8 heard defendant referred to as "Cool C" on the night of the shooting and
"assumed that . . . was [defendant's] name." Jermaine also testified he told
Detective Donlon about the nickname and provided a physical description. At
some point after the interview, Detective Donlon spoke to Lieutenant Frampton
who knew defendant from his community policing activities. At trial,
Lieutenant Frampton testified that defendant was known in the community as
"Cool C."1 Rather than being left with an inference that the police chose to
investigate defendant because a shadowy declarant – not presented for cross-
examination – implicated defendant in the crime, the jury heard witnesses link
defendant to the shooting, and defendant had the opportunity to confront and
cross-examine those witnesses.
Bankston and Branch also recognize that the State should be allowed some
leeway in this manner so that it might describe the investigative process when
the defense has questioned its investigatory tactics. Branch 182 N.J. at 349-50;
Bankston 63 N.J. at 271-72. Defense counsel's opening statement questioned
1 The State recognized it would be prejudicial to allow Detective Donlon to testify about personal knowledge of defendant's nickname through prior investigations. Instead, the State called Lieutenant Frampton who had personal knowledge that defendant's friends and other community members called him "Cool C." This evidence was admissible under N.J.R.E. 803(c)(19). See State v. Perez, 150 N.J. Super. 166, 170-71 (App. Div. 1977). A-3475-16T4 9 the validity of the investigation, asserting that the brothers could not identify the
shooter; counsel also argued that the brothers went to the hospital where Gregory
was being treated but never got the opportunity to speak with the investigating
officer. Yet, as the defense continued to argue,
days later mysteriously, the police decided they knew who did it. As a result, the police went over the bridge and went into Philadelphia, armed with a picture of [defendant] because they had decided, the police, that he had done it.
Defense counsel also questioned the professionalism of the photo array
procedure and the reliability of the identification.
Although effective advocacy for defendant, this opening statement
afforded grounds for the State's elicitation of evidence about the investigation
without violating Bankston and Branch. Under different circumstances, it may
have been impermissible for an officer to describe his investigation by testifying
that he spoke to a non-testifying witness. But the defense's challenge to the
adequacy or propriety of the investigation presented a legitimate purpose for the
testimony in question.
To the extent that any error seeped into defendant's trial, we find it
harmless because there can be no "reasonable doubt" about whether, in light of
all the other evidence properly elicited, the inferential references to other out-
A-3475-16T4 10 of-court statements or information "led the jury to a result it otherwise might not
have reached." Bankston, 63 N.J. at 273; see also Fahy v. Connecticut, 375 U.S.
85, 86-87 (1963) (expressing the harmless error test as requiring an examination
into "whether there is a reasonable possibility that the evidence complained of
might have contributed to the conviction"). And, even when inadmissible
evidence is elicited, the harmful effect may be avoided through curative
instructions that are "firm, clear, and [uttered] without delay." State v. Vellejo,
198 N.J. 122, 134-35 (2009); see also State v. Prall, 231 N.J. 567, 586 (2018).
In this regard, we note that defendant argues on appeal that Gregory was
erroneously permitted to utter two hearsay statements. He testified, "I guess my
brother seen that he had a pistol or a gun . . .," and, a short time later, "[s]o like
my brother seen that the guy had a gun . . . ." The judge sustained the defense
objections and instructed the jury after each statement. The judge's immediate
instructions clearly directed the jury to disregard Gregory's statements about
what his brother might have said or seen. These instructions sufficiently
protected defendant against any manifest injustice.
A-3475-16T4 11 C
We reach the same conclusion as to defendant's arguments about the
alleged seepage of hearsay information during Detective Donlon's testimony in
a way that violates the principles established in Branch and Bankston.
Defendant argues that this seepage occurred perniciously, first with the
detective's testimony that his role as primary investigator was to "conduct[]
interviews" and look for witnesses. Then, as the direct testimony evolved into
more specific areas, the detective revealed that he spoke with the victim and his
brothers, including Anthony, who did not testify at trial:
Q. And who was [Gregory] with? Was he with –
A. At the hospital, Jermaine and Anthony.
Q. And when you met with them, what did you do?
A. I took a statement from them.
....
Q. And how cooperative were they at the time?
A. Very cooperative.
He also revealed that as part of his investigation he interviewed Devon Williams,
who also did not testify at trial.
A-3475-16T4 12 The problem, according to defendant, is that the detective not only
correlated what he learned from them as part of his testimony – thereby
providing hearsay information to the jury – but also that he conveyed that
information through his testimony about a surveillance video that captured the
disputants outside the Camden bar. For example, the detective was asked about
whether the video captured images of "[t]he possible suspect," and he added that
the video "coincide[d] with what the brothers told [him] that evening." So, while
defense counsel had the opportunity to cross-examine two of the brothers about
the information provided to the detective, he did not have that opport unity with
the third brother who did not testify.
Defense counsel objected when any of the detective's testimony suggested
he was aware of statements that were not going to be subjected to cross-
examination. For example, one defense objection was followed by the
prosecutor's agreement to limit the scope of the direct examination. When the
judge inquired of defense counsel whether she had any objection to the
prosecutor's proposal, defense counsel again pressed her point, arguing that "if
the Branch rule is violated, yes, [I object to] any reference to information
[coming from the detective] outside of the ken of the jurors."
A-3475-16T4 13 To avoid the problem, the judge instructed the prosecutor to "simply go to
the next step in [the detective's] investigation without saying how he got there,"
and what followed reveals the effectiveness of the objection in avoiding a
Branch violation:
Q. Okay. I'll show this to the jury on the overhead. And if you may, Detective, can you point out the person who you believed was the shooter in the still shot?
A. You want me to get up or – the one with the white T-shirt, his head would be facing I guess to the right, has a beard.
Q. And how did you come to believe that?
[DEFENSE COUNSEL]: I'm gonna object to the hearsay.
THE COURT: All right, the question doesn't necessarily call for hearsay.
[PROSECUTOR]: No, Your Honor.
A. Through statements and description given.
[DEFENSE COUNSEL]: Inferential hearsay.
Yet, defense counsel understandably persisted after that last answer to claim that
the testimony included "[i]nferential hearsay." That led to another discussion at
sidebar:
A-3475-16T4 14 THE COURT: Well, he can testify to whether as he looks at this photo there's anybody there that has characteristics with what descriptions were that he received. Would you not agree with that?
[DEFENSE COUNSEL]: I actually don't agree with the [c]ourt. In other words, what's the purpose of that? Why not get it from the people who gave . . . the descriptions and they –
THE COURT: All right, so I'm gonna strike his answer and have [the jury] disregard anything and move on in the other direction that we just discussed, if you choose to.
[PROSECUTOR]: Is it proper to say did you come to determine that that was a suspect, what did you base it on, it would have been the descriptions provided.
[DEFENSE COUNSEL]: Your Honor, I just don't know why this needs to come from the detective. Isn't what the State wants to show coming from the witnesses who were there?
THE COURT: But [the detective] can describe the investigation he undertook, what he's doing step by step, and that's what he does, he does gather information from people and does take other steps based on that. And the State wants to show he did, I'm assuming, a sensible investigation. They're allowed to put that on, and that's not a hearsay problem.
With that, the prosecutor informed the judge that she would "just . . . go in
another direction," and the judge instructed the jury to "disregard the witness's
A-3475-16T4 15 answer to the question about the basis for identifying that person that he just
talked about."
Certainly, the manner in which the prosecution sought to proceed
throughout the detective's testimony had the potential to violate the
constitutional principles outlined in Branch. But sound objections were
interposed and hearsay seepage was prevented by the judge's sustaining of those
objections and his instructions to the jury. We see no error. 2
II
In his second point, defendant argues that the judge abused his discretion
in finding and applying aggravating factors one and two, and also that we should
remand count five for the trial court to reconsider whether that count should run
consecutively to count one. We find insufficient merit in Point II to warrant
further discussion in a written opinion. R. 2:11-3(e)(2). We add only the
following few comments.
A sentencing judge enjoys "a far-ranging discretion as to the sources and
types of evidence used to assist him or her in determining the kind and extent of
punishment to be imposed." State v. Davis, 96 N.J. 611, 619-20
2 To the extent other sub-arguments might be discerned from defendant's contentions in his Point I, we find they have insufficient merit to warrant further discussion. R. 2:11-3(e)(2). A-3475-16T4 16 (1984). Although we may modify a sentence when a sentencing judge is "clearly
mistaken," State v. Jabbour, 118 N.J. 1, 6 (1990), we may not replace that
judgment with our own. State v. Lawless, 214 N.J. 594, 606 (2013). Beyond
that, a sentence will be reversed only if it "shocks the judicial conscience." State
v. O'Donnell, 117 N.J. 210, 215-16 (1989).
When passing sentence, a judge must "state on the record the reasons for
imposing the sentence." N.J.S.A. 2C:43-2(e); accord R. 3:21-4(g). When a
prison sentence is imposed, the court must also consider "the defendant's
eligibility for release under the law governing parole and the factual basis
supporting its findings of particular aggravating or mitigating factors affecting
sentence." N.J.S.A. 2C:43-2(e); accord R. 3:21-4(g). The sentence must be
reasonable "in light of all the relevant factors considered." State v. Natale, 184
N.J. 458, 488 (2005). To arrive at a reasonable sentence, the judge must balance
the factors and determine "whether there is a preponderance of aggravating or
mitigating factors." State v. Kruse, 105 N.J. 354, 359 (1987). This calls for a
thoughtful analysis of each applicable aggravating and mitigating factor not
merely "counting [ ] one against the other." State v. Denmon, 347 N.J. Super.
457, 467-68 (App. Div. 2002).
A-3475-16T4 17 In sentencing defendant, the judge found and applied aggravating factors
one, two, three, six and nine. N.J.S.A. 2C:44-1(a)(1), (2), (3), (6), and (9). In
weighing the first and second aggravating factors, the judge explained "there
really was minimal interaction" between defendant and the victim, that "[t]here
was no heated exchange or provocation justifying a shooting." Relying on
evidence adduced during the trial, the judge explained that defendant "fired four
shots at the back of the victim," who suffered wounds to his arm, knee, and
thigh. The judge also recognized from the trial testimony that the victim
"suffered both physical and mental distress," noting he incurred "physical
scarring" and a "bullet remains in his arm." Consequently, the judge concluded
the first two aggravating factors were entitled to "high weight." 3
Defendant argues that the first aggravating factor – the nature and
circumstances of the offense, N.J.S.A. 2C:44-1(a)(1) – requires an offense that
is malicious or carefully calculated. We disagree; factor one allows for the
consideration of "conduct in excess of that required to commit the crime." State
v. Locane, 454 N.J. Super. 98, 124 (App. Div. 2018). The jury found that
defendant fired four shots on a public street at three fleeing men. The
3 The judge stressed, however, that he considered the victim's mental distress "only in [a] very limited[,] general sense" and gave "it extremely light weight relative to everything else." A-3475-16T4 18 surveillance video may not have shown the shooting itself, but it does reveal a
large number of bar patrons, some of whom exited the bar to observe the
disturbance before it turned violent. The footage also reveals that the bar is
located on a busy city street with considerable car and foot traffic,
notwithstanding the late hour. Given this level of activity and the danger
defendant's actions posed to the public, the excessiveness of defendant's conduct
amply supported a finding of aggravating factor one.
Aggravating factor two is implicated when a victim is "substantially
incapable of exercising normal physical or mental power of resistance."
N.J.S.A. 2C:44-1(a)(2). When considering factor two, a sentencing judge
should undertake a "pragmatic assessment of the totality of harm inflicted" on
the victim. State v. Kromphold, 162 N.J. 345, 358 (2000). A victim's
vulnerability may warrant application of this factor. State v. Kruse, 105 N.J.
354, 362-63 (1987) (holding the trial court properly considered the victim's
vulnerability as an aggravating factor because he was unarmed when the
defendant acted with a bat). Beyond defendant's obvious advantage of having a
gun against three unarmed and retreating men, Gregory was not even facing
defendant when shot. The judge was entitled to apply aggravating factor two.4
4 We find no error in the judge's application of the other aggravating factors. A-3475-16T4 19 The only mitigating factor the judge found was that the victim induced or
facilitated the commission of the crime. N.J.S.A. 2C:44-1(b)(5). Defendant
argues that its application is inconsistent with the judge's findings on
aggravating factors one and two. We disagree. The judge expressed that he
interpreted this factor broadly and gave defendant the benefit of that broad
interpretation because the case was distinguishable from "those where the
perpetrator plans an attack over time and then carries it out against a particular
victim or lies in wait for a potential victim to appear." To be sure, the record
reveals that the Graham brothers sought out Williams to confront him about his
earlier fracas with Anthony, so the judge had a factual basis for applying the
fifth mitigating factor. But that doesn't mean that such a finding precludes the
judge's findings on aggravating factors one and two.
III
Defendant argues in Point II, and the State concedes, that the judgment o f
conviction incorrectly identifies the period of parole ineligibility. The judge
sentenced defendant to a fifteen-year prison term on the second-degree
aggravated assault conviction, which also carried an eighty-five percent period
of parole ineligibility under the No Early Release Act, N.J.S.A. 2C:43-7.2. The
judge accurately calculated defendant would be ineligible for parole under this
A-3475-16T4 20 count for twelve years and nine months. He also imposed a consecutive seven-
year term on the fifth count, with forty-two months of parole ineligibility, to run
consecutively to the other count. The aggregate prison term is twenty-two years,
and the aggregate period of parole ineligibility is sixteen years and three months
of that term. The judgment of conviction mistakenly identifies the latter period
as seventeen years and nine months. We remand for the limited purpose of
correcting the judgment of conviction on this point.
***
The judgment of conviction is affirmed but the matter remanded for a
correction of the mistake in the judgment referred to in Section III of this
opinion. We do not retain jurisdiction.
A-3475-16T4 21