NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0400-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
FRANCIS BRACE, a/k/a FRANCIS BRACE, JR., and JAZMEIR JACKSON,
Defendant-Appellant. ___________________________
Submitted October 28, 2019 – Decided February 18, 2020
Before Judges Fasciale and Moynihan.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 15-04-0352.
Joseph E. Krakora, Public Defender, attorney for appellant (Richard Sparaco, Designated Counsel, on the brief).
Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Ali Y. Ozbek, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM After trial with two codefendants, Gregory Oliver and Jahmad Green,
defendant Francis Brace appeals from his conviction by jury and sentence for
first-degree aggravated manslaughter of Jaleek Burroughs, N.J.S.A. 2C:11-
4(a)(1), as a lesser-included offense of first-degree murder, N.J.S.A. 2C:11-
3(a)(1) or (2), N.J.S.A. 2C:2-6, and N.J.S.A. 2C:2-3(d) (count one); two counts
of second-degree possession of a weapon for an unlawful purpose, N.J.S.A.
2C:39-4(a) (counts two and nine); second-degree aggravated assault of Alaysia
Chambers, N.J.S.A. 2C:12-1(b)(1), as a lesser-included offense of first-degree
attempted murder, N.J.S.A. 2C:5-1, N.J.S.A. 2C:11-3(a), and N.J.S.A. 2C:2-
3(d) (count eight); and second-degree unlawful possession of a weapon, N.J.S.A.
2C:39-5(b) (count three). Both victims were shot in an early-morning incident
on August 31, 2014. The State alleged defendant and his codefendants shot at a
gold Ford Taurus from which shots were also fired. Burroughs was shot in the
head and pronounced dead on the sidewalk where he fell. Chambers, who was
seated in Brace's BMW in which he had earlier picked her up, was also shot in
the head; she survived her wound. Neither of the victims were the intended
targets of the shootings.
On appeal, defendant argues:
POINT I
A-0400-17T4 2 THE VERDICT OF AGGRAVATED MANSLAUGHTER WAS NOT SUPPORTED BY THE EVIDENCE AND SHOULD IN THE INTEREST OF JUSTICE BE SET ASIDE, AND DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL DUE TO TRIAL COUNSEL'S FAILURE TO MOVE TO SET ASIDE THE VERDICT.
POINT II
DEFENDANT WAS DENIED THE RIGHT TO A FAIR TRIAL WHEN THE STATE PUBLISHED TO THE JURY A GRUESOME PHOTOGRAPH OF THE HOMICIDE VICTIM, PARTICULARLY WHERE THAT EXHIBIT WAS LATER RULED INADMISSIBLE UNDER N.J.R.E. 403.
POINT III
THE COURT ERRED IN WEIGHING THE AGGRAVATING SENTENCING FACTORS, AND THEREFORE THE SENTENCE OF [TWENTY- SEVEN] YEARS WAS MANIFESTLY EXCESSIVE.
POINT IV
THE COURT ERRED IN SENTENCING . . . DEFENDANT TO CONSECUTIVE SENTENCES BY MISAPPLYING THE GUIDELINES SET FORTH IN STATE V. YARBOUGH.1
For the reasons we now discuss, we affirm.
I.
1 100 N.J. 627 (1985). A-0400-17T4 3 Defendant moved for and was denied a directed verdict after the State
rested its case. Defendant now contends counsel was ineffective for failing to
renew the motion pursuant to Rule 3:18-2 following the guilty verdict because
the trial judge would have vacated his conviction for aggravated manslaughter
had the issue been presented. Specifically, defendant submits there was no
evidence he recklessly "caused" Burroughs's death within the strictures of
N.J.S.A. 2C:11-4(a)(1),2 and codefendant Oliver admitted to shooting
2 N.J.S.A. 2C:11-4(a) provides:
Criminal homicide constitutes aggravated manslaughter when:
(1) The actor recklessly causes death under circumstances manifesting extreme indifference to human life; or
(2) The actor causes the death of another person while fleeing or attempting to elude a law enforcement officer in violation of subsection b. of N.J.S.[A.] 2C:29-2. Notwithstanding the provision of any other law to the contrary, the actor shall be strictly liable for a violation of this paragraph upon proof of a violation of subsection b. of N.J.S.[A.] 2C:29-2 which resulted in the death of another person. As used in this paragraph, "actor" shall not include a passenger in a motor vehicle. A-0400-17T4 4 Burroughs in the eye. Accordingly, defendant maintains this court should find
plain error and vacate his conviction of the manslaughter charge.
Claims of ineffective assistance of counsel are not typically reviewed on
direct appeal. See State v. Hess, 207 N.J. 123, 145 (2011) ("[W]e routinely
decline to entertain ineffective-assistance-of-counsel claims on direct appeal
because those claims 'involve allegations and evidence that lie outside the trial
record.'" (quoting State v. Preciose, 129 N.J. 451, 460 (1992))). "However,
when the trial itself provides an adequately developed record upon which to
evaluate defendant's claims, appellate courts may consider the issue on direct
appeal." State v. Castagna, 187 N.J. 293, 313 (2006).
As the record in this case reveals, defendant's counsel moved for a
judgment of acquittal, R. 3:18-1, after the State rested. The trial judge denied
the motion. If counsel had moved under Rule 3:18-2, the trial judge would have
applied the same standard
as that which applies when a motion for acquittal is made at the close of the State's case or at the end of the entire case. The trial judge must decide whether the evidence is sufficient to warrant a conviction. More specifically, the trial judge must determine whether the evidence, viewed in its entirety, be it direct or circumstantial, and giving the State the benefit of all of its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, is sufficient to enable a jury to find that the State's
A-0400-17T4 5 charge has been established beyond a reasonable doubt. On such a motion the trial judge is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the State.
[State v. Kluber, 130 N.J. Super. 336, 341-42 (App. Div. 1974) (citations omitted).]
Under that lens, the record also reveals sufficient evidence to support a
jury's finding that the State proved beyond a reasonable doubt that defendant
was guilty of aggravated manslaughter as Oliver's accomplice. A person is an
accomplice of another if: "[w]ith the purpose of promoting or facilitating the
commission of the offense; he (a) [s]olicits such other person to commit it; [or]
(b) [a]ids or agrees or attempts to aid such other person in planning or
committing it." N.J.S.A. 2C:2-6(c)(1).3
Bianca Reeves testified at trial that she, defendant, Oliver, Chambers and
another woman named Aniya were "riding around" in defendant's BMW when
they were fired upon. She further testified as to her perceptions that evening.
Defendant and Oliver "called [their] friends and they left" with the five or more
friends who came to the codefendants' location. Later, after defendant called
3 The statute also provides a third avenue of accomplice liability, not applicable here: "(c) [h]aving a legal duty to prevent the commission of the offense, fails to make proper effort so to do." N.J.S.A. 2C:2-6(c)(1). A-0400-17T4 6 for his car to be brought to him, Chambers drove it to a location at which
defendant, Oliver and "a lot of other people" congregated. About five or ten
minutes after Oliver used the keys to access the BMW's trunk, Reeves heard
gunshots. After the shooting ended, Reeves discovered Chambers had been shot.
Defendant, upon seeing Chambers, said, "I can't believe these dumb[-]ass
niggers shot her her fucking head." 4 Defendant left with his friends.
During their investigation of the shootings, Paterson police detectives
twice interviewed Jocelyn Suggs. Video recordings of both interviews—the
first, four days after the shooting and the second on December 3, 2014—were
admitted into evidence and played for the jury. 5 In the statements, Suggs
explained to the detectives that a large crowd of people had congregated in the
area around a parked BMW in which Chambers sat prior to the shooting. Suggs
was warned there was going to be a shooting. She placed defendant at the scene,
at the side of the BMW, and described defendant as Chambers's boyfriend.
Someone retrieved a gun from the BMW's interior. The first shots were fired
4 The trial transcript indicates Reeves twice repeated the double "her" used in her quotes of defendant. 5 The statements were admitted as inconsistent statements under N.J.R.E. 803(a)(1), per the trial judge's ruling after conducting a hearing pursuant to State v. Gross, 216 N.J. Super. 98, 110 (App. Div. 1987), aff'd, 121 N.J. 1 (1990). A-0400-17T4 7 from the gold Taurus as it drove by the group gathered near the BMW. Suggs
observed defendant return fire with the smaller of the guns used. She told
detectives an individual named Jahmad was at the scene, and that she heard him
state that he had a gun. Suggs also told detectives a week or two after the
shooting, she heard Oliver state that he "shot him in the eyeball."
Under those circumstances, where the evidence suggests defendant and
Oliver had been together all evening, been shot at, left with "friends" and were
together when fired upon a second time, whereafter defendant was seen firing a
gun, and Oliver also admitted shooting Burroughs in the eye during the gunfight,
there was sufficient evidence for the jury to find beyond a reasonable doubt that
defendant either solicited Oliver to shoot Burroughs, or aided or agreed or
attempted to aid him in planning or committing aggravated manslaughter, or
both. We thus determine a motion presented pursuant to Rule 3:18-2 would
have been denied.
As such, defense counsel was not ineffective under the dual-pronged test
formulated in Strickland v. Washington, 466 U.S. 668, 687 (1984), and adopted
by our Supreme Court in State v. Fritz, 105 N.J. 42, 52 (1987). Because there
was enough evidence presented to thwart a Rule 3:18-2 motion, defendant
cannot establish his counsel "made errors so serious that counsel was not
A-0400-17T4 8 functioning as the 'counsel' guaranteed . . . by the Sixth Amendment," ibid.
(quoting Strickland, 466 U.S. at 687), especially considering that defendant
must overcome the "'strong presumption' that counsel exercised 'reasonable
professional judgment' and 'sound trial strategy' in fulfilling his
responsibilities," Hess, 207 N.J. at 147 (quoting Strickland, 466 U.S. at 689-90).
For the same reason, defendant cannot demonstrate the second prong: "a
reasonable probability that, but for counsel's unprofessional errors, the result of
the proceeding would have been different." Castagna, 187 N.J. at 315 (quoting
Strickland, 466 U.S. at 694). We discern no reason to set aside the jury's verdict.
II.
Defendant next contends he was denied the right to a fair trial because a
color6 crime scene photograph depicting Burroughs, lying dead in a pool of
blood, was twice shown to the jury, and because the prosecutor later told the
jury in summation that Burroughs "died in a halo, a bloody halo of his own
blood." The photo, which apparently was shown on a screen visible to the jury,
was identified by two officers who each testified that it depicted Burroughs as
they found him at the scene. None of the defense counsel objected when the
photo was displayed to the jury during each officer's testimony. Only when the
6 The record contains only a black and white copy of the photograph. A-0400-17T4 9 State moved the photo into evidence with numerous other exhibits, did all three
defense counsel object. The trial judge ruled the photo inadmissible because the
prejudice it engendered outweighed its probative value.
Defendant argues the display of the "gruesome" photo was unduly
prejudicial and deprived defendant of a fair trial because it served no purpose
other than to inflame the jury's passion. According to defendant, this error was
especially prejudicial because of the alleged dearth of evidence supporting his
conviction.
Because no objection was made, we will not reverse unless the error was
"clearly capable of producing an unjust result," R. 2:10-2; that is, unless there
is a "reasonable doubt as to whether the error led the jury to a result it otherwise
might not have reached," State v. Macon, 57 N.J. 325, 336 (1971). We do not
perceive that to be the case.
The record reveals the photo was briefly displayed during each officer's
testimony before the prosecutor moved on to another exhibit. The first officer
testified the photo depicted "the male that we found on the corner who was shot";
and confirmed that the condition of the man in the photo was as the officer found
him. When the second officer was shown the photo, he was asked, "Is this what
A-0400-17T4 10 Mr. Burroughs looked like when you arrived at the scene?" He simply
responded affirmatively.
During an in-chambers colloquy among counsel and the judge prior to the
redirect examination of the first officer, the judge commented, "[w]ith regard to
the pictures that were published, . . . my . . . assumption that . . . if I didn't hear
any objection, which means you're fine with them. And do me a favor. If there
are pictures that are going to be published . . . just make sure you guys are all in
agreement." The prosecutor responded that he spoke to defense counsel about
the photographs in advance and "told them if you're going to have any objection
to publish[ing] them[,] . . . let me know."
We also discern that in the judge's final jury charge, when discussing "the
evidence that [the jury] may consider in judging the facts of this case," he told
the jury that the term, evidence, included "any exhibits that have been admitted
into evidence," and that "any exhibit that has not been admitted into evidenc e
cannot be given to you in the jury room even though it may have been marked
for identification. Only those items admitted into evidence can be given to you."
The jury is presumed to have followed that instruction. See State v. Loftin, 146
N.J. 295, 390 (1996) ("That the jury will follow the instructions given is
presumed.").
A-0400-17T4 11 Under those circumstances, the brief display of the photo, albeit twice,
was not clearly capable of causing an unjust result, leading the jury to an
outcome it might not have otherwise reached.
Further, the prosecutor's remarks were untethered to the photograph.
Although defendant ascribes the prosecutor's description to the photo, the
prosecutor did not mention it. We also note the prosecutor's statement could
have been fair comment on the first officer's testimony that, upon arrival at the
crime scene, he "saw a male down on the sidewalk bleeding heavily." He
described the victim's condition as "laying face up on the sidewalk bleeding
from his head." "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). "Generally, if no
objection was made to the improper remarks, the remarks will not be deemed
prejudicial." Id. at 83.
We, therefore, find meritless defendant's contention that he was deprived
of a fair trial because the photo was twice displayed.
III.
Defendant was sentenced to a twenty-year prison term, subject to an
eighty-five percent period of parole ineligibility pursuant to the No Early
A-0400-17T4 12 Release Act (NERA), N.J.S.A. 2C:43-7.2, for the lesser-included offense of
aggravated manslaughter; a seven-year concurrent term for unlawful possession
of a weapon; and a consecutive seven-year sentence, also subject to a NERA
parole ineligibility period, for aggravated assault.
The trial judge applied aggravating factors one, three, six and nine,
N.J.S.A. 2C:44-1(a)(1), (3), (6) and (9), to all counts, and applied aggravating
factor two, N.J.S.A. 2C:44-1(a)(2), separately, to the aggravated assault charge.
The court attributed "medium weight" to aggravating factor one, "[t]he
nature and circumstances of the offense," N.J.S.A. 2C:44-1(a)(1), noting the
shots were fired at a moving target—the Taurus—in the dark in a residential
neighborhood, when numerous young people congregated. The judge
concluded: "the senseless nature of the shooting and the fact that . . . defendants
fled the scene . . . leads this [c]ourt to find that the aggravated manslaughter and
the aggravated assault were committed in a depraved manner."
With respect to the aggravated assault of Chambers, the court attributed
"somewhat low weight" to aggravating factor two, "[t]he gravity and seriousness
of harm inflicted on the victim," N.J.S.A. 2C:44-1(a)(2), due to the severity of
the injury she suffered. The judge acknowledged defendant remained on the
A-0400-17T4 13 scene to ensure paramedics were called, but also noted defendant fled the scene
before they arrived.
The judge gave "medium weight" to aggravating factor three, "[t]he risk
that the defendant will commit another offense," N.J.S.A. 2C:44-1(a)(3),
recognizing defendant had accumulated a criminal record consisting of six prior
arrests, two municipal court convictions and a felony conviction, as well as
defendant's lack of employment history and substance abuse. The judge also
noted various witnesses mentioned defendant's affiliation with a local street
gang;7 but acknowledged he did not have any: "independent evidence or
substantial evidence as to the extent of . . . defendant's involvement[.]"
Accordingly, the judge gave "minimum to low weight" to defendant's gang
affiliation in his analysis of aggravating factor three.
Defendant argues the judge improperly found aggravating factor one,
because the jury—in acquitting defendant of murder and attempted murder, but
convicting on the lesser-included charges—concluded the injuries to Burroughs
and Chambers were unintentional; and "there was no intentional infliction of
any additional pain or suffering." Defendant also asserts the trial judge should
7 A pretrial ruling barred the prosecutor from mentioning defendant's gang affiliation at trial. A-0400-17T4 14 not have considered evidence of gang affiliation because the judge
acknowledged a lack of independent evidence of defendant's gang involvement.
In addition, defendant argues the judge misapplied State v. Carey, 232 N.J.
Super. 553 (App. Div. 1989), in considering evidence of gang affiliation that
was not admitted at trial.
Applying a deferential standard of review to the judge's sentencing
determination, we find no error in the judge's identification and balance of the
"aggravating and mitigating factors that are supported by competent credible
evidence in the record." State v. Grate, 220 N.J. 317, 337 (2015) (quoting State
v. Lawless, 214 N.J. 594, 606 (2013)).
Recognizing the judge's application of aggravating factor one "must be
based on factors other than the death of the victim and the circumstances
essential to support a finding that the defendant has acted with extreme
indifference to human life," State v. Fuentes, 217 N.J. 57, 76 (2014), we
conclude the judge properly analyzed facts that went beyond the essential
elements of the crime. Multiple shots were fired in the dark at a moving target
in a residential neighborhood in an area populated by numerous bystanders. This
combination of facts transcends the requisite basis for reckless indifference and
buttresses the application of aggravating factor one. Defendant placed
A-0400-17T4 15 numerous people at risk of bodily injury or death by wantonly and repeatedly
firing. See Lawless, 214 N.J. at 609-10 ("[C]ourts applying aggravating factor
one focus on the gravity of the defendant's conduct, considering both its impact
on its immediate victim and the overall circumstances surrounding the criminal
event.").
We determine the remainder of defendant's sentencing arguments to be
without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).
We note only that the judge credited the testimony of several witnesses about
defendant's involvement in a local gang, and who "testified that [the] shooting
was a retaliation and a response to gang activity," in finding defendant's gang
affiliation. See State v. Smith, 262 N.J. Super. 487, 530 (App. Div. 1993)
("[S]entencing judges may consider material that otherwise would not be
admissible at trial, as long as it is relevant and trustworthy."). The judge
attributed only "minimum to low weight" to that affiliation because there was
no evidence establishing the extent of defendant's involvement. Further, the
presentence report contained the following: "During the course of the
investigation detectives ascertained that members of a local street gang named
'Brick Squad' were involved in this incident. Two members of the gang; Francis
Brace AKA Fat Fat and Jahmad Green . . . were identified as suspects."
A-0400-17T4 16 Moreover, defendant's lengthy record alone warranted the "medium weight" the
judge attributed to aggravating factor three.
Finally, the judge properly applied the Yarbough8 factors in imposing a
consecutive sentence for the aggravated assault of Chambers. As the judge
noted, Burroughs and Chambers were in "two separate locations" when they
were shot; Chambers was seated inside the BMW, and Burroughs was shot "on
the sidewalk some ways away." Accordingly, the judge concluded, "[t]o issue
8 In Yarbough, 100 N.J. at 644, the Court delineated factors upon which a sentencing court should focus in determining whether a sentence should run concurrent or consecutive:
(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.
A-0400-17T4 17 concurrent sentences would not adequately take into account the distinct nature
of the two harms inflicted by these defendants."
"[A] trial court has the discretion to impose consecutive sentences in cases
where . . . the only factor supporting consecutive sentencing is multiple victims."
State v. Molina, 168 N.J. 436, 442 (2001). "Although that principle resonates
most clearly in cases in which a perpetrator intentionally targets multiple victims
. . . it also applies to cases in which, as here, the defendant does not intend to
harm multiple victims but it is foreseeable that his or her reckless conduct will
result in multiple victims." State v. Carey, 168 N.J. 413, 429 (2001).
We perceive no violation of the sentencing guidelines; the aggravating
and mitigating factors found by the judge were based upon credible evidence in
the record; and the sentence imposed for these multiple crimes is not "clearly
unreasonable so as to shock the judicial conscience." Fuentes, 217 N.J. at 70
(quoting State v. Roth, 95 N.J. 334, 365 (1984)).
Affirmed.
A-0400-17T4 18