NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-4937-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
COSON D. TAYLOR,
Defendant-Appellant. __________________________
Submitted January 6, 2021 – Decided March 30, 2021
Before Judges Whipple, Rose and Firko.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 18-02- 0078.
Helmer, Conley & Kasselman, PA, attorney for appellant (Patricia B. Quelch, of counsel and on the brief).
Gurbir S. Grewal, Attorney General, attorney for respondent (Steven K. Cuttonaro, Deputy Attorney General, of counsel and on the brief).
PER CURIAM Defendant Coson Taylor, appeals from a June 12, 2019 judgment of
conviction after a jury trial. We affirm.
Defendant raises the following issues on appeal:
POINT I THE ASSISTANT PROSECUTOR'S SUMMATION CONSTITUTED PROSECUTORIAL MISCONDUCT (not raised below).
POINT II THE TRIAL COURT ERRED IN ADMITTING THE DEFENDANT'S STATEMENTS AND IN THE USE OF THE TRANSCRIPTS, REQUIRING A NEW TRIAL (partially raised below).
POINT III THE TRIAL COURT ABUSED ITS DISCRETION BY ADMITTING CERTAIN PHOTOGRAPHS INTO EVIDENCE AND, THUS, UNDULY PREJUDICING THE DEFENDANT.
POINT IV THE TESTIMONY FROM THE DETECTIVE DESCRIBING THE CONTENTS OF SURVEILLANCE VIDEOS CONSTITUTED PLAIN ERROR (not raised below).
POINT V DEFENDANT IS ENTITLED TO A NEW TRIAL DUE TO CUMULATIVE ERROR.
POINT VI DEFENDANT'S SENTENCE IS EXCESSIVE.
A-4937-18 2 On the evening of October 18, 2017, defendant Coson Taylor, as well as
Damonte Smith, Kyree Hill and Voshon McCray drove to Devon Green's
house in Ewing Township. Prior to departing, Hill had placed a three -foot
duffle bag in the trunk of the car. Smith parked the car near Green's driveway
where they waited for him to come home. After twenty minutes, Green and his
friend, Ray Tift, pulled into Green's driveway.
Green and Tift walked up the driveway and sat down to smoke
marijuana on Green's porch. Defendant, Hill, and Smith had exited the car and
gone to the trunk where Hill retrieved a rifle from the duffle bag, and donned
masks and gloves. The three walked toward the house while McCray waited in
or near the car. After a brief encounter while attempting to rob Green, Hill
pulled the trigger shooting him three times.
Defendant and Smith ran back to the car with McCray, and they picked
up Hill, who was running down the block. As they drove away, the camera
system in Officer Nicholas Lamson's police cruiser captured their vehicle
travelling away from the scene. Lamson passed the vehicle but did not stop
them. Hill told McCray he shot Green because he had "disrespected" him.
They dropped defendant off at home and the four separated for the night.
A-4937-18 3 The Ewing Township Police Department found Green on the ground in a
pool of blood. An officer called for an ambulance, but Green was pronounced
dead. Ewing police officers took photographs of the scene, while Green's body
was still there, and found three shell casings in the area. Police also canvassed
the area to find witnesses and security camera footage, which they located
from nearby homes, including a video showing the four men parking and
exiting the car.
Detective Nancy Diaz was the lead investigator. After Theresa Cribb,
one of Green's relatives who lived near him came forward, the Ewing police
interviewed several people who provided information that led police to
identify the suspects. Diaz and another investigator traveled to South Carolina
and secured a statement from McCray who had returned to college. McCray
implicated himself and the three others.
On November 19, 2017, defendant was brought to the prosecutor's office
for questioning. Diaz read defendant his Miranda1 rights prior to his interview.
Defendant did not speak with detectives, initially invoking his right to remain
silent, stating "so we done here?" But after his mother and grandmother spoke
with him, defendant requested a second interview on his own prerogative.
1 Miranda v. Arizona, 384 U.S. 436 (1966). A-4937-18 4 Between the first and second interviews, the assistant prosecutor decided to
bring charges against defendant for robbery, possession of a weapon and
possession of a weapon for an unlawful purpose. Detective Diaz re-
Mirandized defendant and told him about all his charges. He agreed to speak
with them again. In his second recorded interview, defendant acknowledged
his presence at the robbery, but maintained he thought the four went to buy
drugs, not to rob Green.
Defendant's trial was severed from the other defendants on June 28,
2018. Both of defendant's interviews were played for the jury, entered into
evidence and transcripts were provided to the jury. At trial, the State called
Tift, as well as Cribb, who was inside the home on the evening of the shooting,
several responding officers and the medical examiner, Laura Thoma, M.D., to
testify. McCray and Detective Diaz also testified.
The jury convicted defendant of first-degree armed robbery, N.J.S.A.
2C:15-1(a)(1); second-degree possession of firearms for an unlawful purpose,
N.J.S.A. 2C:39-4(a)(1); third-degree unlawful possession of a weapon,
N.J.S.A. 2C:39-5(c)(1); and conspiracy to commit robbery, N.J.S.A. 2C:5-2,
N.J.S.A. 2C:15-1(a)(1). Defendant's motion for a new trial was denied on June
6, 2019. Defendant was sentenced to a fifteen-year aggregate term, with an
A-4937-18 5 eighty-five percent parole ineligibility, pursuant to the No Early Release Act,
N.J.S.A. 2C:43-7.2. This appeal followed.
I.
We review defendant's Points I, II and IV under a plain error standard
because they were not raised below. We first address defendant's assertion of
prosecutorial misconduct. "When a defendant fails to object to an error or
raise an issue before the trial court, we review for plain error. We may reverse
on the basis of unchallenged error only if the error was 'clearly capable of
producing an unjust result.'" State v. Ross, 229 N.J. 389, 407 (2017) (quoting
R. 2:10-2). "The possibility of an unjust result 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. Williams, 168 N.J. 323, 336
(2001)).
Defendant argues the assistant prosecutor declared the defendant as
guilty during summation. "Prosecutors are afforded considerable leeway in
closing arguments as long as their comments are reasonably related to the
scope of the evidence presented." State v. Frost, 158 N.J. 76, 82 (1999) (citing
State v. Harris, 141 N.J. 525, 559 (1995); State v. Williams, 113 N.J. 393, 447
(1988)).
A-4937-18 6 When a defendant raises prosecutorial misconduct for the first time on
appeal, our concern is "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." State v. Johnson, (Johnson I), 31 N.J. 489, 510 (1960). Even
where a prosecutor has been guilty of misconduct, reversal of a defendant's
conviction is not necessary unless the conduct was so egregious that it
deprived the defendant of a fair trial. State v. Wakefield, 190 N.J. 397, 437
(2007).
Defendant asserts multiple comments by the assistant prosecutor rise to
this level. The comments include an inference that because McCray pled
guilty pursuant to a cooperating plea agreement with the State, his testimony
had to be truthful; McCray's comments noting he was sad about Green's death;
and the prosecutor's request for the jury to find defendant guilty on all cou nts,
given the evidence. First, although the assistant prosecutor did infer that
McCray's plea agreement required cooperation and truthful testimony, he was
stating a fact rather than personally endorsing McCray's credibility. Moreover,
the comments defendant argues garnered sympathy for Green during a video
playback were factual comments and we discern no prejudice.
A-4937-18 7 We also reject defendant's arguments regarding the assistant prosecutor's
summation when he stated:
Ladies and gentlemen, when you consider all of the evidence in this case, Ray Tift, Theresa Cribb, police investigation, Voshon McCray's testimony, and don't ignore the defendant's statements, there is only one thing that makes any sense in this case, and that is to find the defendant guilty on all counts. And I ask you to return that verdict of guilty on all counts in this case. Thank you very much for your service.
"[I]f a prosecutor's arguments are based on the facts of the case and
reasonable inferences therefrom, what is said in discussing them, 'by way of
comment, denunciation or appeal, will afford no ground for reversal.'" State v.
Smith, 167 N.J. 158, 178 (2001) (quoting Johnson I, 31 N.J. at 510) (internal
citations omitted). The assistant prosecutor's final comments here did not
violate this principle because they were made directly after delineating
evidence.
II.
We also reject defendant's arguments regarding his recorded statement.
Defendant contends the audio recording of his statement was inaccurate and
his statement was not made voluntarily, thus the judge erred by admitting them
into evidence. We review this argument under an abuse of discretion stan dard
based on the court's rulings. An "abuse of discretion only arises on
A-4937-18 8 demonstration of 'manifest error or injustice[,]'" Hisenaj v. Kuehner, 194 N.J.
6, 20 (2008) (quoting State v. Torres, 183 N.J. 554, 572 (2005)), and occurs
when the trial judge's "decision is made without a rational explanation,
inexplicably departed from established policies, or rested on an impermissible
basis." Jacoby v. Jacoby, 427 N.J. Super. 109, 116 (App. Div. 2012) (quoting
Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002)).
Defendant argues there were audibility issues that prevented the
recorded interviews from meeting the Driver standards. State v. Driver, 38
N.J. 255, 287 (1962) requires:
[T]he speakers should be identified and it should be shown that (1) the device was capable of taking the conversation or statement, (2) its operator was competent, (3) the recording is authentic and correct, (4) no changes, additions or deletions have been made, and (5) in instances of alleged confessions, that the statements were elicited voluntarily and without any inducement.
Having reviewed the videos, we conclude the trial judge did not abuse
his discretion by admitting the statements. This is because the State satisfied
the first four Driver factors and the State's proffered transcript of the
interviews adequately reflects the conversations.
Further, the transcript of the pretrial hearing during which the video was
played in court, contains significant portions that are described as
A-4937-18 9 indiscernible. We agree, portions of the transcript were not complete.
However, the video was shown to the jury and the judge instructed the jury to
focus on the videos and use the transcripts as guides, a procedure to which
both parties consented. Defendant failed to present a single instance where the
State provided transcript does not match the videos.
Next, the admissibility of defendant's statement hinges on when
defendant asked if he was "done here" followed by continued questioning.
Crucially, there was a window between defendant's first interview, before
speaking with his mother and grandmother, and his second, when he requested
to continue the interview himself.
The State admits the officers continued the interview after defendant
made an arguable Miranda invocation by asking: "so we done here?" But the
court found the invocation was ambiguous, stating "[w]hether they had a duty
to end the interview right away is one argument but it is also just as clear that
you could interpret what Mr. Taylor said as a question, are we done here , as
opposed to a statement, I'm done." Regardless, the detectives ended the
interview. The parties and court agree defendant's family members spoke with
defendant. Thereafter, defendant's second interview was markedly different in
A-4937-18 10 tone, and as noted above, defendant re-initiated the interview on his own
volition.
Accordingly, we consider this argument under the State v. Johnson,
(Johnson II), three-part taint-attenuation test. 118 N.J. 639, 653 (1990). To
determine whether any taint was attenuated we must address (1) the temporal
proximity between the illegal conduct and the challenged evidence; (2) the
presence of intervening circumstances; and (3) the flagrancy and purpose of
the police misconduct. Ibid. (citing Brown v. Illinois, 422 U.S. 590, 603-04
(1975)).
Johnson II's first question focuses on the temporal proximity between the
illegal conduct and the challenged evidence. Ibid. Both parties agree this is
the least determinative factor. State v. Worlock, 117 N.J. 596, 622-23 (1990).
And generally, our question is whether the confession was "sufficiently an act
of free will to purge the primary taint." Worlock, 117 N.J. at 621 (quoting
Wong Sun v. United States, 371 U.S. 471 (1963)). We agree that it was.
Defendant originally accompanied detectives for questioning on
November 19, 2017. After the first interview, where he ambiguously asserted
his right to remain silent, his stepfather then called, and his family came to
speak with him. In the meantime, Detective Diaz and the assistant prosecutor
A-4937-18 11 decided to bring charges against defendant while he spoke with his family.
Shortly after, defendant re-initiated discussions and continued the interview
with the detectives. That being so, there was no significant break, but there
was also no significant taint from the detectives failing to clarify his
invocation.
Next, and particularly applicable here, is the presence of intervening
circumstances. Johnson II, 118 N.J. at 650. There is no question defendant
spoke with his family and decided to comply with the detectives afterwards.
Johnson II instructs courts to focus on intervening circumstances, as it can be
the most important factor in determining exclusion. Ibid. Focusing on a break
in the chain of events is crucial and may include consultation with counsel.
Ibid. (citing Brown, 422 U.S. at 611). But instead of legal counsel, consulting
with his family broke the chain of events here, as the tenor of the interview
changed drastically. Further, the detectives read him his rights again. See
State v. Chippero, 164 N.J. 342, 355 (2000) (finding the presence or absence
of Miranda warnings are persuasive, but not dispositive). The trial court
found:
I'm satisfied [that] there’s [sic] beyond a reasonable doubt that . . . defendant reinitiated contact with police after he met with family. Police permitted the meeting but . . . defendant made his own choice. Letting . . .
A-4937-18 12 defendant meet with his family was not in my judgment the functional equivalent of further interrogation by the police. The family were not agents here. And I think that argument was made expressly by defense counsel. They were not agents, and there was no element of compulsion here.
Because the family were not agents of the police, and because defendant was
eager to accept his Miranda warnings, these positive intervening events weigh
heavily towards dissipating any taint.
Last, the flagrancy and purpose of the police misconduct should be
considered. Johnson II, 118 N.J. at 658. Here, the only misconduct was
failing to inquire as to what defendant meant when he asked, "so we done
here" and continuing questioning. The court found:
At minimum then, in my judgment, the first time the defendant uses the phrase, so we done here, the police had an obligation to clarify. They did not. And, as a result, in my judgment, the failure to clarify and the failure to either stop the interrogation there entirely or to a bare minimum ask questions as to what the defendant meant. Admittedly, so we done here, can be a question or it can be a statement. And, the [detectives] had an [obligation] to clarify . . . defendant's position, and they did not. So, their failure to do so, again in my estimation, requires suppression of [every] statement made by . . . defendant in the first interrogation past, so we done here.
A-4937-18 13 So under either standard, as this argument was partially raised below, the court
outlined ample and competent support for his determination that the second
session was free and voluntary, while everything past "so we done here" from
the first statement was inadmissible.
Thus, under the three Johnson questions, the majority of defendant's first
interview and his entire second interview were voluntary and admissible.
III.
Next, defendant argues that certain images of the crime scene were
unduly prejudicial. Multiple photos showing Green in a pool of blood on his
porch, some directly, some indirectly, were shown to the jury. Defendant
argues he attempted to stipulate to Green's death, but the State refused. The
trial judge found the probative value of admitting the photos was not
outweighed by a risk of prejudice. While defendant maintains the shooter was
known and it was undisputed Green was shot, the State's use for the
photographs was to prove the elements of defendant's charges beyond a
reasonable doubt, which is not only allowed, but necessary.
Indeed, we will not reverse the trial court in the absence of a palpable
abuse of discretion. State v. Johnson, (Johnson III), 120 N.J. 263, 297 (1990).
These photographs show the physical force necessary to convict defendant of
A-4937-18 14 robbery, and its associated felony murder, coupled with witness testimony.
See State v. Abdullah, 372 N.J. Super. 252 (2004). Our Supreme Court has
said "[t]he presence of blood and gruesome details are not ipso facto grounds
for exclusion." State v. Morton, 155 N.J. 383 (1998) (alteration in original)
(quoting State v. DiFrisco, 137 N.J. 434, 500 (1994)).
Even if we agreed with defendant regarding exclusion, reversal is only
proper when defendant was substantially prejudiced. State v. McDougald, 120
N.J. 523, 583 (1990). But defendant was not convicted of felony murder, thus
we reject his contention that introducing gruesome photographs of Green's
body was substantially prejudicial, as the only plausible prejudice did not
occur.
IV.
Defendant asserts it was plain error to have allowed Detective Diaz to
narrate the details of the vehicle she observed from the passing officer's in-car
camera, along with the surveillance footage she reviewed and commented on.
Diaz was asked to compare what she observed from each video:
State: Did you compare this surveillance video against Officer Lamson's video?
Diaz: I did.
A-4937-18 15 State: And what did you make -- what observation did you make?
Diaz: There's a little wing on the back of the vehicle on the top roof. The molding on the bottom is all black. The side mirror's all white. There's a slant in the window in the back, and I believe the plate is in the middle kind of like in the center between the molding and the frame of the front of [the] vehicle.
Defendant contends this identification of the vehicle was improper lay
witness testimony, which would usurp the jury's duty. He cites State v. Lazo,
209 N.J. 9, 12-13 (2012), where the State chose to have an officer testify,
because he included a photo of defendant in a photo array, as he believed it
matched the image drawn by a sketch artist. However, Lazo is not analogous
to this situation because Diaz did not identify the vehicle as carrying defendant
and explained her reason for reaching such a conclusion. She noted the
similarities between the in-car video and surveillance videos but did not
conclude it necessarily carried the defendant. 2
2 We note, on January 21, 2021, during the pendency of this appeal, our Supreme Court decided State v. Singh, 245 N.J. 1 (2021). In Singh, the Court considered whether the trial court impermissibly permitted a detective to narrate a surveillance video, noting identifiable characteristics of Singh's sneakers, constituted plain error under N.J.R.E. 701. Id. at 4. The detective also noted "the defendant" was in the video wearing the sneakers. Id. at 4-5.
Singh argued the sneakers were admitted into evidence, so there was no need for the detective to identify them. Id. at 19. But the Court noted N.J.R.E. 701 A-4937-18 16 V.
Finally, defendant claims his sentence is excessive, especially
considering the sentences of his two former co-defendants. He also argues the
trial court failed to properly account for, and weigh, the applicable aggravating
and mitigating factors.
We review a judge's sentencing decision under an abuse of discretion
standard. State v. Fuentes, 217 N.J. 57, 70 (2014). Moreover, our review of a
sentence is limited. State v. Miller, 205 N.J. 109, 127 (2011). Our basic
responsibility is to assure that the aggravating and mitigating factors found by
the judge are supported by competent, credible evidence in the record. State v.
Bieniek, 200 N.J. 601, 608 (2010).
With these principles in mind, we conclude defendant's sentence is not
excessive. Primarily, defendant takes exception to the court's failure to find
only requires the "witness's testimony must 'assist in understanding the witness'[s] testimony or determining a fact at issue.'" Ibid. (citing N.J.R.E. 701). In this case, Diaz did not testify defendant was in the vehicle; she only noted features of the vehicle. Although the Court's holding in Singh was not implicated, here, even if it was, "the jury was free to discredit Detective [Diaz]'s testimony and find that the [vehicle described was] dissimilar to [the one] on the surveillance video." Id. at 20 (citing State v. LaBrutto, 114 N.J. 187, 199 (1989) ("rejecting the argument that testimony based on an officer's first-hand perceptions as to a point of impact should be excluded if the jury has the means to reach its own conclusions about the point of impact")). A-4937-18 17 defendant's youth as a mitigating factor and failing to find mitigating factor
twelve for cooperating with the police.
Under N.J.S.A. 2C:44-1(b)(13), a court may consider whether "[t]he
conduct of a youthful defendant was substantially influenced by another
person more mature than the defendant." Defendant fails to enunciate how his
co-defendants or anyone else affected his decision to participate in the
robbery. Rather, he argues that being nineteen when the crime occurred meant
he was youthful enough to deserve leniency.
Defendant cites several cases to support the mitigation a defendant's
youth calls for. However, the cases themselves delineate between those under
eighteen years old and those above eighteen. See Roper v. Simmons, 543 U.S.
551, 569 (2005) (explaining how the differences in consideration appear
between juveniles under eighteen and adults). While the exponential effects of
sentencing and the judicial process are felt when a citizen turns eighteen,
defendant was at no point a juvenile, or even more, or less mature than the
other three defendants.
Second, defendant asserts an abuse of discretion by the trial court for
failing to find mitigating factor twelve, which evaluates the willingness of the
defendant to cooperate with law enforcement authorities. N.J.S.A. 2C:44-
A-4937-18 18 1(b)(12). Here, the court did consider defendant's cooperation and concluded
it was insufficient to trigger that mitigating factor and rejected it because
factor twelve requires more than a police interview and voluntary testimony
against his co-defendants. See State v. Dalziel, 182 N.J. 494 (2005).
Defendant also contends his co-defendant's shorter sentences suggests a
lack of uniformity. However, the plea agreements his co-defendants entered
occurred after defendant had been sentenced, and Hill and Smith pled guilty to
different crimes.
Based on our review, the court did not violate the sentencing guidelines
and the record amply supports his findings on aggravating and mitigating
factors. The sentence is clearly reasonable and does not shock the judicial
conscience. We do not address the defendant's remaining arguments as they
lack sufficient merit to warrant discussion in a written opinion. R. 2:11-
3(e)(1)(E).
Affirmed.
A-4937-18 19