NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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 NOS. A-5229-18 A-5707-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JAMIRE D. WILLIAMS, a/k/a JAMERE WILLIAMS, and JAH JAH,
Defendant-Appellant.
TYSHON KELLY, a/k/a TYSHON KELLEY,
Argued November 1, 2021 – Decided December 23, 2021 Before Judges Accurso, Rose, and Enright.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 17-07- 0947.
Kevin S. Finckenauer, Assistant Deputy Public Defender, argued the cause for appellant Jamire D. Williams (Joseph E. Krakora, Public Defender, attorney; Kevin S. Finckenauer, of counsel and on the briefs).
Catherine J. Djang, Designated Counsel, argued the cause for appellant Tyshon Kelly (Joseph E. Krakora, Public Defender, attorney; Catherine J. Djang, on the briefs).
Melinda Harrigan, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Lori Linskey, Acting Monmouth County Prosecutor, attorney; Maura K. Tully, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the briefs).
PER CURIAM
These two appeals, calendared back-to-back and consolidated for
purposes of our opinion, arise from a single Monmouth County indictment
charging defendants Jamire D. Williams and Tyshon Kelly with second-degree
unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count one), and fourth-
A-5229-18 2 degree possession of a prohibited weapon, N.J.S.A. 2C:39-3(f) (count two).1
Williams also was charged in count three with fourth-degree resisting arrest,
N.J.S.A. 2C:29-2(a).
The charges ensued from a motor vehicle stop by local police on a cold
winter evening in late December 2016. Deal Police Officer Jeffrey Kless
stopped the car after a random license plate query revealed the driver's license
of the car's registered owner – a woman – was suspended. At the time of the
stop, only two men occupied the car: Williams, the driver; and Kelly, the front
seat passenger.
Upon approaching the car, Kless smelled raw marijuana and called for
backup to confirm his suspicions. Officer Daniel Lokerson arrived with his
canine partner, who alerted for the presence of narcotics. Williams protested
the search; Kelly called the car's owner in an effort to have her respond. Body
cameras worn by the arresting officers captured their on-scene encounters with
defendants.
1 In addition, both defendants were charged by complaint-summons with unlawful possession of less than fifty grams of marijuana, N.J.S.A. 2C:35 - 10(a)(4). A disorderly persons offense at the time of their arrest, effective February 22, 2021, this subsection has been decriminalized. After the jury was dismissed, the trial judge found defendants not guilty of the charge.
A-5229-18 3 The warrantless search of the car resulted in the seizure of a .22 semi-
automatic pistol, loaded and cocked with hollow point bullets; a small quantity
of marijuana; two ski masks; and a multitude of non-contraband items. Williams
ran from the scene but was stopped by the canine unit in a nearby stream.2 Kelly
was arrested without incident.
Contending only that the motor vehicle stop was invalid, defendants
moved pretrial to suppress the evidence seized from the car. Following denial
of their motion, the matter was scheduled for trial before another judge.
Pertinent to this appeal, the trial judge denied defendants' motions in limine to:
redact Williams' statements that were recorded on the body camera video,
protesting the search; and sanction the State for failing to provide transcripts of
the body camera audio. Upon the State's representation that it would refrain
from moving the ski masks into evidence, the judge denied as moot defendants'
motion to bar the introduction of that evidence or any reference to it.
During defendants' joint jury trial, the State presented the testimony of
five law enforcement witnesses and introduced in evidence partially redacted
audio-video recordings from the body cameras worn by Kless and Lokerson at
2 Although most references in the record indicate the masks were found in the car, on at least one occasion, Kelly's trial counsel advised the trial judge that one ski mask was found along the path taken by Williams en route to the stream. A-5229-18 4 the time of the incident. After Kless mentioned the ski masks on direct
examination, the judge immediately issued a curative instruction and thereafter
denied defendants' motion for a mistrial. Defendants neither testified nor called
any witnesses.
The jury convicted both defendants of unlawful possession of a weapon,
acquitted them of possessing a defaced weapon, and convicted Williams of
resisting arrest. After granting the State's motion for a mandatory extended
term, the trial judge sentenced Williams to a fifteen-year prison term with a
parole disqualifier of seven and one-half years pursuant to the Graves Act,
N.J.S.A. 2C:43-6(c), on the weapons charge and a concurrent prison sentence of
eighteen months for resisting arrest. The judge granted the State's motion for a
discretionary extended term and sentenced Kelly to the same prison term on
count one.
On appeal, defendants challenge their convictions, raising the following
substantially similar points, which we renumber for the reader's convenience:
POINT I
BECAUSE OFFICERS COULD IMMEDIATELY RECOGNIZE THAT THE DRIVER OF THE CAR WAS NOT THE REGISTERED OWNER, IT WAS UNREASONABLE AND UNLAWFUL FOR POLICE TO SEIZE THE CAR AND ITS OCCUPANTS ON THE BASIS THAT THE REGISTERED OWNER
A-5229-18 5 HAD A SUSPENDED LICENSE. ALTERNATIVELY, THE OFFICERS LACKED REASONABLE SUSPICION INDEPENDENT OF THE SUSPECTED MOTOR VEHICLE OFFENSE TO CONDUCT A CANINE SNIFF. [(Partially raised below)]
POINT II
OFFICER KLESS'S REFERENCE TO THE EXCLUDED SKI MASKS IN CONJUNCTION WITH THE HANDGUN FOUND IN THE CAR WAS IRREPARABLY PREJUDICIAL, AND THE TRIAL COURT ERRED IN DENYING [DEFENDANTS'] REQUEST FOR A MISTRIAL. MOREOVER, THE TRIAL COURT'S BARE-BONES CURATIVE INSTRUCTION WAS INADEQUATE, AND THE TRIAL COURT SHOULD HAVE GRANTED WILLIAMS'S APPLICATION FOR A MORE DETAILED INSTRUCTION.
POINT III
THE TRIAL COURT COMMITTED PLAIN ERROR BY CONTRADICTING THE BEYOND-A- REASONABLE-DOUBT STANDARD AND INSTRUCTING THAT THE JURORS COULD CONVICT IF THEY INFERRED THAT POSSESSION WAS "MORE PROBABLE THAN NOT." U.S. CONST. AMEND. XIV; N.J. CONST. ART. I, ¶ 1. [(Not raised below)]
Williams separately seeks reversal of his convictions on two additional
grounds:
A-5229-18 6 POINT IV
THE NUMEROUS REFERENCES, OVER DEFENSE OBJECTION, TO . . . WILLIAMS'S REFUSAL TO CONSENT TO THE CAR SEARCH IS REVERSIBLE ERROR BECAUSE IT INVITED THE JURY TO INFER – AND BECAUSE THE PROSECUTOR AFFIRMATIVELY TOLD THE JURY TO INFER – CONSCIOUSNESS OF GUILT. [(Partially raised below)]
POINT V
THE TRIAL COURT ERRED IN HOLDING THAT THE STATE WAS NOT OBLIGATED TO PROVIDE TRANSCRIPTS OF THE BODYCAM FOOTAGE CONTAINING THE RECORDED STATEMENTS OF . . . WILLIAMS, HIS CO[-]DEFENDANT, AND TESTIFYING OFFICERS. BECAUSE THE STATE'S CASE RELIED ENTIRELY ON THE CONTENT OF THE FOOTAGE IN PROSECUTING . . . WILLIAMS, THIS ERROR WAS REVERSIBLY PREJUDICIAL.
Alternatively, defendants raise separate points, claiming their sentences
are excessive. More particularly, Williams argues:
POINT VI
THE TRIAL COURT GAVE UNDUE WEIGHT TO THE SOCIAL PROBLEM OF GUNS GENERALLY IN GIVING DEFENDANT A FIFTEEN[-]YEAR SENTENCE FOR THE CONSTRUCTIVE POSSESSION OF A HANDGUN.
And Kelly raises the following point:
A-5229-18 7 POINT VII
THE DISCRETIONARY EXTENDED TERM FOR GUN POSSESSION – FIFTEEN YEARS WITH A SEVEN-YEAR AND SIX-MONTH PAROLE DISQUALIFIER – WAS EXCESSIVE.
We are not persuaded by the arguments raised in points I through VI and,
therefore, affirm the convictions and Williams's sentence. We also are not
persuaded that the trial judge erred in the imposition of Kelly's sentence, but we
nevertheless remand his sentence for further consideration in light of the
Supreme Court's opinion in State v. Pierce, 188 N.J. 155 (2006).
I.
We commence our review with defendants' common arguments, raised in
points I through III.
As they did before the motion judge, defendants maintain Kless lacked
reasonable suspicion to stop the vehicle and, as such, all evidence seized from
the car must be suppressed. For the first time on appeal, defendants argue that
even if the stop was valid, the canine sniff of the vehicle violated their
constitutional rights by improperly prolonging the stop. Defendants' contentions
are unavailing.
During the August 16, 2018 suppression hearing, the State presented the
testimony of Kless and Lokerson and introduced into evidence their body
A-5229-18 8 camera videos from the incident. Defendants did not testify or call any
witnesses; they moved a few photographs into evidence.
Kless explained the events that led to the stop and seizure. On December
21, 2016, Kless was parked along the shoulder of Norwood Avenue in Deal in
his marked police vehicle, conducting random queries of passing cars by
entering their license plate characters into his onboard computer. Around 7:21
p.m., Kless's query of a gray Nissan revealed the driver's license of the registered
owner was suspended. The computer identified the owner as Willande Lavarin,
a twenty-eight-year-old woman, who was five feet, seven inches tall, and
weighed between 181 and 225 pounds.
Kless pursued the Nissan, which was traveling about thirty-five miles per
hour, and appeared to run a red light at the intersection of Norwood and Brighton
Avenues.3 Because it was dark, Kless was unable to observe the Nissan's driver
while in pursuit. Kless activated his overhead emergency lights and the Nissan
pulled over just south of the intersection without incident.
3 Because the motor vehicle recording later revealed Williams had not run the red light, Kless voided the traffic summons he had issued for that violation. During her closing argument, the prosecutor advised the motion judge that even though the motor vehicle stop was not based on a red-light violation, "it [wa]s something to consider in the totality of the circumstances." A-5229-18 9 Upon approaching the passenger's side of the Nissan, Kless introduced
himself, and Williams apologized for "trying to beat the light." Williams
produced his driver's license and the car's registration, but defendants could not
locate a valid insurance card. Defendants called Lavarin, who indicated she
would respond with the insurance card. Because Lavarin's license was
suspended, Kless told her not to drive. Kless believed he "detected the odor of
marijuana emanating from the vehicle," but he was unsure because his nose was
congested. Kless called a senior officer to the scene for a second opinion on the
marijuana odor. Defendants remained in the car while a warrant and criminal
history check of Williams revealed a narcotics and firearms record. "Within five
minutes," Lokerson arrived with his canine partner.
Lokerson testified that upon approaching the Nissan, he did not detect the
odor of marijuana, but noticed multiple air fresheners throughout the car and a
metal spoon with white residue in the center console. Williams appeared
"nervous; he was . . . shifting in his seat [and] . . . wasn't making eye contact."
Kelly "was staring straight ahead"; he was not interacting with Lokerson.
Based upon these circumstances, police asked defendants to exit the
vehicle while Lokerson conducted a canine search of the exterior of the car. The
canine alerted for the presence of narcotics at both the driver's side window and
A-5229-18 10 passenger's side door. The ensuing canine sniff of the car's interior resulted in
a positive indication of narcotics under the front passenger seat. Police seized
a bag of marijuana from that area. Police later recovered the loaded handgun
under the driver's seat. Williams became increasingly agitated as the search was
conducted, protesting law enforcement's authority for proceeding with the
search in the owner's absence.
Following summations, the motion judge reserved decision. On August
31, 2018, the judge issued a written opinion, squarely addressing the issues
raised in view of the governing law. Crediting the testimony of both officers,
the judge's detailed factual findings concerning the propriety of the stop were
supported by the record evidence.
Citing this court's decision in State v. Pitcher, 379 N.J. Super. 308, 314
(App. Div. 2005), the judge correctly recognized "license plate checks followed
by motor vehicle stops based on reasonable suspicion that the driver's license is
suspended are constitutionally permissible." Id. at 314. Further, law
enforcement may conduct a license plate check randomly, "without any prior
reasonable suspicion of a violation of the motor vehicle laws." Id. at 314-15.
In reaching his decision, the motion judge rejected defendants' argument
that "Kless should have confirmed the identity of the driver before effectuating
A-5229-18 11 a stop of the motor vehicle," finding their reliance on State v. Davis, 104 N.J.
490 (1986), misplaced. Noting Davis requires an officer to "use[] the least
intrusive investigative techniques reasonably available to verify or dispel his
suspicion in the shortest period of time reasonably possible," id. at 504, the
judge found our State's case law does not require an officer to verify the driver's
identity before effectuating a random stop pursuant to a license plate query.
In any event, the motion judge found Kless lacked the opportunity to
ascertain the owner's identity prior to stopping the Nissan in view of the
circumstances presented. The judge elaborated:
Officer Kless testified that when he ran the query of [the Nissan] on the evening of December 21, 2016, that it was dark outside and he was unable to observe who was driving the vehicle or even whether there was more than one occupant in the vehicle. Moreover, Officer Kless testified that his vehicle was positioned on the side of the road facing the same direction that [the Nissan] was traveling. [The Nissan], therefore, came up from behind Officer Kless' vehicle and he did not have the opportunity to view the driver of the vehicle.
Accordingly, the judge concluded the motor vehicle stop was valid.
Noting defendants did not challenge the validity of the search, 4 the motion
4 We glean from the record that law enforcement obtained a search warrant for the Nissan's trunk after the handgun was recovered from the car's cabin . Defendants have not asserted – before the motion judge or this court – that police
A-5229-18 12 judge nonetheless upheld the exterior and subsequent interior canine sniffs, and
the seizure of contraband. Relevant to defendants' belated claims on appeal,
having concluded the motor vehicle stop was valid, the judge found the canine
sniff was not a search "trigger[ing] constitutional protections" under State v.
Dunbar, 229 N.J. 521, 538 (2017), because the sniff did not prolong the traffic
stop "beyond the time required to complete the stop's mission," id. at 540.
Crediting Kless's testimony, the judge found Lokerson arrived on the scene five
minutes after the Nissan was stopped; referencing the time stamp on Kless's
body camera video, the judge further noted the canine sniff was then completed
within seven minutes. The judge found that "extremely brief period of time" did
not "unreasonably prolong the stop."
Alternatively, the judge found that "even if the canine sniff could be
deemed to have prolonged the stop" police nonetheless established "reasonable
and articulable suspicion that narcotics were present to warrant continued
detention to conduct the sniff." That suspicion was supported by Lokerson's
lacked probable cause or exigent circumstances to search the car before the warrant was issued. See State v. Witt, 223 N.J. 409, 447 (2015) (authorizing a warrantless search of an automobile if: "police have probable cause to believe that the vehicle contains contraband or evidence of an offense and the circumstances giving rise to probable cause are unforeseeable and spontaneous"). A-5229-18 13 observations upon approaching the Nissan: multiple air fresheners; a metal
spoon with white residue; and "Williams shifting nervously." Lokerson's
observations, in view of his training and experience, suggested the presence of
narcotics in the car.
On appeal, defendants reprise their argument that the stop was invalid
because Kless was unable to ascertain Lavarin was driving the Nissan before
conducting the stop. In a new argument, not presented to the trial court,
defendants challenge the propriety of the canine sniff, asserting police
improperly prolonged the stop. More particularly, defendants now contend
because Kless immediately realized upon approaching the car that Lavarin was
not the operator, Kless improperly prolonged the stop by requesting Williams's
credentials, conducting a criminal background check, and requesting a second
opinion on his purported detection of the odor of marijuana. Finally, defendants
challenge the State's counter-argument that Kless's visual and olfactory
observations were made contemporaneously when he approached the Nissan. In
that context, defendants alternatively argue a remand is warranted because the
motion judge failed to make specific findings as to the sequencing of Kless's
observations upon approaching the Nissan.
A-5229-18 14 Our review of a trial judge's decision on a motion to suppress evidence is
"highly deferential." State v. Gonzales, 227 N.J. 77, 101 (2016). We must
uphold a trial court's factual findings, "regardless of whether the evidence is live
testimony, a videotaped statement, or documentary evidence" if they are
supported by sufficient credible evidence in the record. State v. S.N., 231 N.J.
497, 514 (2018). We do so "because those findings are substantially influenced
by [an] opportunity to hear and see the witnesses and to have the 'feel' of the
case, which a reviewing court cannot enjoy." State v. Gamble, 218 N.J. 412,
424-25 (2014) (internal quotation marks omitted). "We owe no deference,
however, to conclusions of law made by trial courts in suppression decisions,
which we instead review de novo." State v. Sencion, 454 N.J. Super. 25, 31-32
(App. Div. 2018); see also Dunbar, 229 N.J. at 538.
Having considered defendants' reprised contentions in view of the
applicable law and the motion record, we affirm the motor vehicle stop
substantially for the reasons stated by the motion judge. Because our review is
generally limited to matters "presented to the trial court," and thereby "preserved
for appellate review," Witt, 223 N.J. at 419, we decline to address defendants'
A-5229-18 15 belated contentions that the stop was unreasonably prolonged, and the ensuing
motor vehicle search was invalid. 5 We add the following comments.
It is axiomatic that "[a]s a general rule, the decision to stop an automobile
is reasonable where the police have probable cause to believe that a traffic
violation has occurred." State v. Dickey, 152 N.J. 468, 475 (1998) (internal
quotation marks omitted). A "brief traffic stop [also] is constitutionally
permissible under a less stringent standard." Pitcher, 379 N.J. Super. at 314. "A
police officer is justified in stopping a motor vehicle when he has an articulable
and reasonable suspicion that the driver has committed a motor vehicle offense."
Ibid. (internal quotation marks omitted). Reasonable suspicion also may arise
where a random license plate check reveals the registered owner's license is
suspended. See State v. Donis, 157 N.J. 44 (1998).
5 We recognize defendants' assertions on appeal – that upon approaching the Nissan and observing a female was not behind the wheel, Kless impermissibly prolonged the stop by requesting Williams's credentials, running a background check and calling Lokerson to confirm whether he too, detected the odor of marijuana – may have been a close call. But those issues were not raised before the motion judge and, as such, they were not preserved for our review. See Witt, 223 N.J. at 419. Accordingly, the State "was deprived of the opportunity to establish a record that might have resolved the issue through a few questions to [the o]fficer," ibid., during the suppression hearing. Indeed, at trial, Kless clarified that "immediately, on [his] initial approach of the passenger side of the vehicle [he] was met with an odor of raw marijuana emanating from the vehicle." A-5229-18 16 In Donis, our Supreme Court upheld the constitutionality of law
enforcement's utilization of a mobile data terminal to conduct a random query
of a license plate. Id. at 54-55. Although the officers subsequently "determined
through a 'match-up' that the drivers were the registered owners," the Court
nonetheless held the initial random query indicating their licenses were
suspended "itself gave rise to the reasonable suspicion that the vehicle was
driven in violation of the motor vehicle laws and was in itself sufficient to justify
a stop." Id. at 58. See also Pitcher, 379 N.J. Super. at 318 (recognizing a
"license suspension is simply factual information that leads to a suspicion of a
violation of the motor vehicle laws, i.e., one articulable fact").
Relying on dicta in the United States Supreme Court's decision in Kansas
v. Glover, 589 U.S. ___, 140 S. Ct. 1183 (2020), defendants urge us to
"re[e]valuate" our Supreme Court's decision in Donis.6 Specifically, defendants
contend police should be required to obtain a "visual" of the driver after a
random license plate inquiry reveals the registered owner's license is suspended .
Decided nearly two years after the motion judge rendered his decisi on in
the present case, the Court in Glover held that a stop based on a license plate
6 Defendants also cite articles that were not presented to the motion judge. As such, the material is inappropriate for consideration on appeal. See Zaman v. Felton, 219 N.J. 199, 226-27 (2014). A-5229-18 17 check revealing a registered owner's license is revoked is reasonable even when
the "officer lacks information negating an inference that the owner is the driver."
140 S. Ct. at 1186. Defendants in the present case, however, cite the concurring
opinions filed by Justices Kagan and Ginsberg, who would reach a different
result if the driver's registration had been suspended and not revoked, reasoning
"Kansas suspends licenses for matters having nothing to do with road safety,
such as failing to pay parking tickets, court fees, or child support." Id. at 1192.
Further, defendants cite Justice Sotomayor's dissent, disfavoring the majority
view, which "absolve[s] officers from any responsibility to investigate the
identity of a driver where feasible." Id. at 1196. (Emphasis added).
Because we are bound by our Supreme Court precedent – and because it
is not clear Glover calls into question the validity of Donis – we decline
defendants' invitation to depart from the principles enunciated in Donis and its
progeny. Kless's random license plate query revealed Lavarin's driver's license
was suspended. Accordingly, "that information [wa]s sufficient to give rise to
a reasonable suspicion that the vehicle [wa]s being driven in violation of the
motor vehicle laws and to warrant a stop of the vehicle." Pitcher, 379 N.J. Super.
at 314-15. Further, as the motion judge found, it was not feasible for Kless "to
confirm the identity of the driver" on the dark December evening.
A-5229-18 18 Given those circumstances, we discern no basis to disturb the motion
judge's conclusion that the stop was reasonable. The stop was reasonable under
the Court's decision in Donis, and its progeny.7
II.
In point II, defendants argue the trial judge erroneously failed to grant their
motion for a mistrial after Kless mentioned the ski masks on direct examination.
They further contend the judge's immediate curative instruction was insufficient.
We disagree.
At issue is the following brief exchange after Kless explained he was
processing defendants on the drug charges at headquarters, while other officers
remained at the scene completing their search of the Nissan:
PROSECUTOR: And what if anything did you learn about that search?
7 Moreover, although the State only relied on the red light violation to support its "totality of the circumstances" argument, there was ample evidence in the record that at the time of the stop, Kless believed Williams had run a red light. Indeed, Williams "apologized" to Kless, stating "he was trying to beat the light." Believing a traffic violation had occurred, Kless's decision to stop the Nissan also gave rise to reasonable suspicion to stop the car. Dickey, 152 at 475; see also State v. Locurto, 157 N.J. 463, 470 (1999) (noting the State is not required to prove that the motor vehicle violation occurred to meet the standard of reasonable suspicion); State v. Williamson, 138 N.J. 302, 304 (1994) (recognizing "the State need prove only that the police lawfully stopped the car, not that it could convict the driver of the motor-vehicle offense").
A-5229-18 19 KESS: That a further search revealed a handgun was recovered, as well as two ski masks.
PROSECUTOR: And what did you . . .
WILLIAMS'S COUNSEL: Objection Your Honor.
THE COURT: Yes. Jury will disregard any reference in the officer's testimony to ski masks. Is that clear? It is not part of this record. Expunge it from your memory. It cannot be considered by you. Do you understand that?
At the conclusion of Kless's testimony, defendants again moved for a
mistrial. Alternatively, (1) they sought an N.J.R.E. 104(a) hearing to determine
the cause of the State's noncompliance with the judge's order that barred any
mention of the ski masks; and (2) Williams moved for a more specific
instruction, advising the jurors "not to consider" the reference "when [they] don't
even know what [the ski masks] look like." The judge denied these applications
in their entirety.
After the jury's verdict, defendants moved for a new trial, based partly on
Kless's reference to the ski masks, arguing they were entitled to relief pursuant
to our decision in State v. Herbert, 457 N.J. Super. 490 (App. Div. 2019). In
Herbert, we reversed the defendant's convictions for murder and weapons
offenses where the lead detective, in violation of a prior court ruling, referenced
the defendant's alleged gang membership and the presence of gangs in the area
A-5229-18 20 of the homicide. Id. at 512. Importantly, we determined the references to gang
membership impermissibly suggested to the jury that the defendant was "a bad
person with the propensity to commit crimes." Id. at 509.
We further observed: "Each time the detective referred to gangs, the trial
came to an abrupt halt. The second time, when the detective called the defendant
a gang member, the jury gasped, according to defense counsel at sidebar." Id.
at 508-09. Under those particular circumstances, and because the curative
instruction was otherwise inaccurate, we concluded the instruction was
insufficient to alleviate the prejudice caused by the detective's remarks. Id. at
509-10.
Denying defendants' motion for a new trial in the present matter, the trial
judge distinguished the facts in the present matter from those in Herbert. The
judge elaborated:
While in Herbert there were multiple instances of improper testimony regarding alleged gang membership, here the ski masks located in the vehicle were mentioned only once in passing. Additionally, there is a more direct connection between gang membership and criminal activity than there is between the more attenuated connection between ski masks and criminal activity, as there is nothing inherently criminal or illegal about owning or possessing ski masks.
Based on the facts of the present case as well as the nature of the improper testimony presented, the
A-5229-18 21 court found then, and finds now, that a curative instruction was sufficient to mitigate any potential prejudice caused by the improper testimony about ski masks. Again, the ski masks were mentioned only once in a fleeting reference, and the mention of the ski masks was not inherently or overly . . . prejudicial to warrant a new trial.
The court will assume that the jurors followed the curative instruction provided and that the instruction was sufficient to mitigate any potential prejudice.
On appeal, defendants reprise their reliance on our decision in Herbert.
Again, defendants' argument is misplaced.
Indeed, in Herbert, we did not overrule well-established principles
enunciated by our Supreme Court. When inadmissible testimony is
inadvertently admitted in evidence at trial, the decision to give a curative
instruction or grant the "more severe response of a mistrial" is "peculiarly within
the competence of the trial judge, who has the feel of the case and is best
equipped to gauge the effect of a prejudicial comment on the jury in the overall
setting." State v. Winter, 96 N.J. 640, 646-47 (1984). "Even in the context of a
constitutional error, a curative instruction will not be deemed inadequate unless
there is a real possibility that the error led the jury to a result it otherwise might
not have reached." State v. Scherzer, 301 N.J. Super. 363, 441 (App. Div. 1997).
A-5229-18 22 We review the denial of a mistrial for an abuse of discretion. State v.
Smith, 224 N.J. 36, 47 (2016). Absent a manifest injustice, we will not disturb
the trial court's decision, particularly where, as here, a curative instruction is an
appropriate remedy, State v. Jackson, 211 N.J. 394, 409-10 (2012), and is "firm,
clear, and accomplished without delay," State v. Vallejo, 198 N.J. 122, 134
(2009). See also Herbert, 457 N.J. Super. at 505-06 (reiterating the principle
that "a swift and firm instruction is better than a delayed one").
Reviewing the curative instruction issued in this case, we are satisfied it
was sufficient to cure any possible prejudice to defendants. Kless's reference to
the ski masks – although clearly improper – was fleeting and inconsequential.
Indeed, the remark was uttered midway through his lengthy overall testimony,
which spanned about eighty transcript pages and preceded the testimony of four
other trial witnesses. Further, as the trial judge correctly stated, unlike gang
membership, there is nothing "inherently criminal" about ski masks. That is
particularly true on a cold December evening.
Moreover, the curative instruction issued was swift and pointed. The trial
judge clearly referenced Kless's comment, firmly instructing the jurors to
disregard the improper testimony in their deliberations. As the judge aptly
A-5229-18 23 concluded: "We presume the jury followed the court's instructions." State v.
Smith, 212 N.J. 365, 409 (2012).
Under these circumstances, we conclude the trial judge properly denied
defendants' motion for a mistrial and gave an effective curative instruction
instead. State v. Allah, 170 N.J. 269, 281 (2002) (a mistrial is not appropriate
if there is "an appropriate alternative course of action").
III.
For the first time on appeal, defendants contend the judge's jury
instruction on the possession of a firearm in a vehicle, N.J.S.A. 2C:39-2, "is
constitutionally infirm" because it lessens the State's burden of proving
defendants' knowingly possessed the .22 caliber pistol beyond a reasonable
doubt. We are unpersuaded.
The statute provides, in relevant part:
When a firearm . . . is found in a vehicle, it is presumed to be in the possession of the occupant if there is but one. If there is more than one occupant in the vehicle, it shall be presumed to be in the possession of all. . . .
To save the statute from unconstitutionality for shifting the burden of
proof to a defendant on an element of the offense, the statutory "presumption"
can be deemed no more than an inference which the jury may be permitted to
draw "if it is more likely than not that the facts proven point to the fact inferred."
A-5229-18 24 State v. Humphreys, 54 N.J. 406, 412 (1969) (internal quotation marks omitted).
"A statute which purports to permit an inference of one essential fact from proof
of another can have no probative force independent of the factual context in
which it is applied." Id. at 412-13. When a statute "establishes a presumption
with respect to any fact which is an element of an offense, it has the meaning
accorded to it by the law of evidence." N.J.S.A. 2C:1-13(e); see also N.J.R.E.
303(b) (barring a judge from directing a jury to find a presumed fact against the
accused and permitting the existence of the presumed fact to be submitted to the
jury "upon proof of the basic fact but only if a reasonable juror on the evidence
as a whole, including the evidence of the basic fact, could find the presumed
fact beyond a reasonable doubt").
Thus, in Humphreys, the Court instructed: "The jury must be carefully
informed that an inference of one fact from another is never binding; the use of
the term 'presumptive evidence' could have been misleading in the present case."
54 N.J. at 415; see also State v. Ingram, 98 N.J. 489, 497 (1985) (reiterating
"[t]he ultimate test of any [presumptive] device's constitutional validity remains
constant: the device must not undermine the factfinder's responsibility at trial,
based on evidence adduced by the State, to find the ultimate facts beyond a
reasonable doubt").
A-5229-18 25 The model jury charge has been tailored to meet the requirements set forth
by the Court in Humphreys. See Model Jury Charges (Criminal), "Possession
of Firearms, Weapons, Destructive Devices, Silencers or Explosives in a Vehicle
(N.J.S.A. 2C:39-2)" (approved Mar. 30, 1993). As defendants acknowledge, the
trial judge's instruction tracked the model jury charge, which the judge issued
as follows:
I had previously instructed you concerning your consideration of circumstantial evidence presented in this case, that is you may infer a fact from other facts in the case if you find it more probable than not that the inferred fact is true.
Now evidence has been presented that a handgun . . . was found in a vehicle.
If you find that the vehicle had more than one occupant, you may infer that the handgun was possessed by all of the occupants, again subject to the definition of possession, as I previously provided to you.
You are never required or compel[led] to draw any inference. It is your exclusive province to determine whether the facts and circumstances shown by the evidence, support any inferences and you are always free to accept or reject them, if you wish.
The judge also instructed the jury:
Where a defendant is one of the persons found in the area where a weapon, such as a handgun is discovered, you may not conclude, without more, that
A-5229-18 26 the State has proven beyond a reasonable doubt that he had possession of the handgun, unless there are other circumstances tending to permit such an inference to be drawn.
Such evidence can include, but is not limited to placement and accessibility of the handgun. Defendant's access to and connection with the place where the handgun was found. His proximity to the place where the handgun was found, and any other evidence deemed part of the totality of circumstances.
In summary, the State must prove more than defendant's mere presence at the time that the handgun was found. There must be other circumstances tying defendant to these items in order for the State to prove constructive possession beyond a reasonable doubt.
The judge never gave a contrary instruction stating or in any way
suggesting that the jurors were bound to find the inference or to view it
favorably. We are satisfied from the jury instructions as a whole that the jury
was adequately informed that the inference was permissive and that they were
not bound to find it. Our conclusion is bolstered by the failure of both defense
attorneys to object to the charge. See State v. Macon, 57 N.J. 325, 333 (1971).
Because there was no objection to the charge at trial, we will not reverse
based upon any error in the charge unless the defendant demonstrates plain error,
namely that which is "clearly capable of producing an unjust result." R. 2:10-2.
A jury charge that tracks the language of the governing statute, and which is
A-5229-18 27 consistent with the applicable model jury charge, is not plainly erroneous. See
State v. Rodriguez, 365 N.J. Super. 38, 53-54 (App. Div. 2003). We discern no
error, let alone plain error in the trial judge's instruction here.
IV.
We turn to the remaining challenges to Williams's convictions, raised
solely by him on appeal. In point IV, Williams argues his oral statements to
police protesting the stop should have been redacted from the officers' body
camera footage. Citing our decision in State v. Tung, 460 N.J. Super. 75 (App.
Div. 2019), – decided nearly one year after the trial in this matter – Williams
claims the admission of his objections to the search improperly infringed on his
right to a fair trial.
The issue was partially raised before the trial judge during argument on
several in limine motions the day before jury selection. Prior to the hearing, the
State sought a ruling that defendants' oral statements to police at the scene were
made voluntarily. During the hearing, the State played the body camera footage
in open court. Thereafter, Williams argued his statements concerning the search
were irrelevant, confusing, and prejudicial. Kelly argued the footage should be
introduced in its entirety, but without audio.
A-5229-18 28 The prosecutor countered that defendants' "demeanor," "actions," and
"responses" "to what they see happening"; and their attempt to convince Lavarin
to respond "expeditiously" to the scene evinced their "consciousness of guilt."
The prosecutor argued defendants "ma[d]e every single attempt to try and stop
that search." The trial judge found the statements were not the product of police
interrogation; were voluntarily made; and satisfied "the low threshold for
relevance under [N.J.R.E.] 401."
On appeal, Williams claims his "multiple explicit invocations" of his
constitutional rights were improperly introduced through the body camera
footage and commented upon by the prosecutor during her opening and closing
statements. To support his argument, Williams cites the following exchange:
KLESS: So, what we're going to do right now is our canine officer is going to complete sniff car [sic].
WILLIAMS: You are going to have to get consent from the owner because . . .
LOKERSON: We don't need consent to run the dog around the exterior. If he hits on the car, we're going to search it.
Williams also references his discussion with Kless, while the officer was
attempting to place Williams in the patrol car:
WILLIAMS: What you mean? I'm not giving you consent to search.
A-5229-18 29 KLESS: Yeah, but you don't have to give me consent.
WILLIAMS: Yes, I do.
KLESS: No, you don't. Do you see (inaudible) and sat down then went inside the car. That's the consent. That's (inaudible).
WILLIAMS: That's bullshit. . . .
Kless explained that during this exchange, Williams "was refusing to be placed
in the vehicle because he was adamant on having to watch the rest of the search."
We afford substantial deference to trial judges when evaluating their
evidentiary determinations. State v. Cole, 229 N.J. 430, 449 (2017). We
therefore review a trial court's evidentiary ruling for abuse of discretion. State
v. Green, 236 N.J. 71, 81 (2018). We will reverse only where the court's ruling
was "so wide of the mark that a manifest denial of justice resulted." State v.
Carter, 91 N.J. 86, 106 (1982); see also State v. J.A.C., 210 N.J. 281, 295 (2012).
Initially, Williams's reliance on Tung is misplaced. In Tung, a recording
of the defendant's police interrogation was played during his murder trial after
the interrogating officer told the jury he believed defendant was lying in the
video and was guilty of the charged crime. Tung, 460 N.J. Super. at 87-89.
During the statement, the officer also asked whether defendant would consent
to a search of his computer, but the defendant replied: "I think I would speak to
A-5229-18 30 my lawyer first about that." Id. at 84. The officer then asked for the defendant's
consent to search his car. Ibid. But the "[d]efendant responded repeatedly that
he wanted to consult his attorney first before agreeing to either search." Ibid.
Undeterred, the officer again asked for consent to search the defendant's
computer, stating: "[I]f you had nothing to hide . . . why wouldn't you let me
look in your computer." Ibid. The officer also commented that the defendant
answered his questions "like a person who's not being truthful." Id. at 85.
We reversed the defendant's convictions on two grounds. We held it was
plain error to admit the defendant's statements, which repeatedly referenced his
rights to consult with counsel and refuse to consent to a search of his computer
and automobile. Id. at 99. We were persuaded that "the court did not give a
limiting instruction to the jury that it could not consider [the] defendant's refusal
to consent as evidence of guilt." Ibid. We also found the court erred by
admitting the officer's trial testimony, which suggested his experience and
specialized training enabled him to determine that the defendant was lying. Id.
at 103.
Unlike the police in Tung, the officers in this case were not interrogating
Williams or seeking his consent to search. Instead, when the officers explained
their use of the canine officer, Williams immediately protested the search.
A-5229-18 31 Stated another way, Williams's statements were not the product of police
questioning; they were made in response to police action. The State argued
Williams's unsolicited protestations of the search, followed shortly by his flight,
evidenced his knowledge of the presence of the handgun in the Nissan.
Moreover, the State's closing argument focused not on Williams's
statements but rather on his conduct while the search was occurring, just before
he ran from the scene. The prosecutor summarized that conduct:
We . . . know Jamire Williams does not run from the marijuana. Because we see it on the body camera. We heard it from the testimony of the officers. That bag [of marijuana] was put up on top of that car and he didn't move. He was patted down and he didn't move. When that canine dog [is] in that back seat is when [Williams] lost control because he knew what was going to be found. . . .
He runs, they are placing him in the back of the police vehicle, and he is still adamant about seeing that search. Why? What is the logical reason for that?
[The canine] found the marijuana. It's not [Williams's] car . . . . What does he care if it's being searched? He doesn't know what's underneath the seat. Why does he care? Common sense ladies and gentlemen. Circumstantial evidence. Think about it.
Immediately after making these comments, the prosecutor referenced the
model jury charge on flight, explaining "flight is consciousness of guilt." See
Model Jury Charges (Criminal), "Flight" (rev. May 10, 2010). The prosecutor
A-5229-18 32 argued "Williams tried to distance himself from that gun by running." Neither
the prosecutor nor the trial judge told the jury that Williams's statements
protesting the search could be viewed as consciousness of his guilt.
Nevertheless, to have avoided any reference whatsoever to Williams's
spontaneous invocation of his rights regarding the search – whether or not he
was correct about his rights under the Fourth Amendment – the video footage
should have been played without the audio, as Kelly argued before the trial
judge. Doing so would have permitted the State to advance exactly the same
argument without any reference to Williams's invocation of his rights. 8 Because
the officers' statements were introduced to demonstrate Williams's conduct –
and the State's references to those statements in summation were tied to
Williams's flight from the scene after the canine unit entered the car – we
nonetheless are satisfied any error was harmless under the circumstances
presented here. R. 2:10-2.
8 Additionally, the opinions expressed by the officers concerning the legality of the search were not relevant to the jury's consideration of the charges. Although not requested by the parties, the judge's limiting instruction on defendants' oral statements, issued before the body camera recordings were played for the jury, should have included that warning. A-5229-18 33 V.
In point V, Williams argues he was denied a fair trial because the State
failed to provide transcripts of the oral statements made by him, Kelly, and the
officers that were recorded by the officers' body cameras. We disagree.
We begin by reviewing the provisions of the discovery rule implicated by
Williams's contentions on appeal. Rule 3:13-3(b)(1)(B) pertains to a defendant's
statements, requiring the State to produce
records of statements or confessions, signed or unsigned, by the defendant or copies thereof, and a summary of any admissions or declarations against penal interest made by the defendant that are known to the prosecution but not recorded. The prosecutor also shall provide the defendant with transcripts of all electronically recorded statements or confessions by a date to be determined by the trial judge, except in no event later than 30 days before the trial date set at the pretrial conference.
[(Emphasis added)].
Rule 3:13-3(b)(1)(G), governs the statements of co-defendants and
witnesses, requiring the state to produce the
record of statements, signed or unsigned . . . which are within the possession, custody or control of the prosecutor and any relevant record of prior conviction of such persons. The prosecutor also shall provide the defendant with transcripts of all electronically recorded co-defendant and witness statements by a date to be determined by the trial judge, except in no event later
A-5229-18 34 than 30 days before the trial date set at the pretrial conference, but only if the prosecutor intends to call that co-defendant or witness as a witness at trial.
[(Emphasis added).]
The State has a "continuing duty to provide discovery pursuant to this
rule." R. 3:13-3(f). Rule 3:13-3(f) vests in courts the ability to take remedial
action when a party fails to comply with the rule, including a continuance of
trial, barring the statement, or such other appropriate relief. "A court's failure
to take appropriate action to remedy a discovery violation can implicate the
defendant's right to a fair trial." Smith, 224 N.J. at 48. That right to a fair trial
requires a "meaningful opportunity to present a complete defense." Ibid.
With those rules in view, we turn to defendants' arguments before the trial
judge. Just prior to trial, Kelly filed a motion for relief pursuant to Rule 3:13-
3(b)(1)(G), contending the State failed to provide the transcripts of the body
camera footage and motor vehicle recordings. Citing unpublished decisions,
Kelly noted the State has produced transcripts in other matters. Williams orally
joined the motion during the hearing; he did not cite Rule 3:13-3(b)(1)(B). The
prosecutor countered that the discovery rules did not apply to the verbal
exchanges captured on the body cameras because they were not "formal"
A-5229-18 35 statements. She noted defense counsel never requested transcripts of the
recordings.
The trial judge denied defendants' motion, finding the State had provided
the recordings "early on as part of its discovery" and "Kelly never moved over
the course of over eighteen months, until literally the eve of trial, to compel a
production of transcripts." 9 The judge noted, Kelly's pretrial memorandum –
executed four months prior to trial – indicates: "All pretrial discovery is
complete." Noting the absence of published opinions requiring the State to
provide transcripts of body camera videos, the judge concluded the State did not
violate Rule 3:13-3(b)(1)(G).
"A trial court's resolution of a discovery issue is entitled to subst antial
deference and will not be overturned absent an abuse of discretion." State v.
Stein, 225 N.J. 582, 593 (2016). We therefore "generally defer to a trial court's
resolution of a discovery matter, provided its determination is not so wide of the
mark" or a mistake of law. State in the Interest of A.B., 219 N.J. 542, 554
(2014).
9 Kelly filed a formal motion; the judge granted Williams's oral application to join the motion during the hearing. A-5229-18 36 To date, no published case has addressed whether subsections (d) and (g)
apply to body camera footage. Arguably, the statements captured on the body
camera footage fall within the definition of "electronically recorded" statements
under both subsections of the discovery rule. However, even if the discovery
rules apply to the oral statements at issue, we discern no abuse of discretion in
the judge's decision. Williams was not prejudiced by the State's noncompliance.
The body camera footage was provided well in advance of trial, and portions
were played at the suppression hearing seven months prior to trial. Thus,
Williams was in receipt of the recordings and has not demonstrated how the
purported error prejudiced his "opportunity to present a complete defense."
Smith, 224 N.J. at 48. Notably, Williams never requested a Driver10 hearing or
claimed the recordings were inaudible or incomplete. In the absence of direction
and the lateness of the request, we find no abuse of discretion.
VI.
Finally, we turn to defendants' excessive sentencing arguments,
recognizing our review is guided by a deferential standard. See State v.
10 State v. Driver, 38 N.J. 255 (1962). During a Driver hearing, the trial court determines the admissibility of a sound recording, considering several factors including whether any changes, additions, or deletions have been made to the recording. Id. at 287. A-5229-18 37 Trinidad, 241 N.J. 425, 453 (2020); State v. Fuentes, 217 N.J. 57, 70 (2014).
Appellate courts may not substitute their judgment for that of the sentencing
court, provided that the "aggravating and mitigating factors are identified [and]
supported by competent, credible evidence in the record." State v. Case, 220
N.J. 49, 65 (2014). This court
must affirm the sentence unless (1) the sentencing guidelines were violated; (2) the aggravating and mitigating factors found by the sentencing court were not based upon competent and credible evidence in the record; or (3) "the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience."
[Fuentes, 217 N.J. at 70 (alteration in original) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).] A. Williams's Sentence
After granting the State's application for a mandatory extended term under
N.J.S.A. 2C:44-3(d) (second offender with a firearm), the trial judge
appropriately found aggravating factors: three (the risk of reoffending); six (the
extent of the defendant's prior record); and nine (general and specific
deterrence). See N.J.S.A. 2C:44-1(a)(3), (6), and (9). Citing defendant's
lengthy juvenile and criminal record, which began at age nine, the judge noted
Williams "was afforded numerous probationary terms as a juvenile and violated
probation on at least six occasions." As an adult, Williams was convicted
A-5229-18 38 previously of a Graves Act offense. Noting defendant's present conviction
involved the possession of a "a loaded, cocked handgun," the judge
acknowledged the "very serious problem of gun violence" locally and nationally.
Referencing the presentence report, the judge noted Williams
acknowledged membership in a particular sect of the Bloods street gang, but the
judge declined to find aggravating factor five ("substantial likelihood that the
defendant is involved in organized criminal activity"). See N.J.S.A. 2C:44-
1(a)(5). The judge concluded the aggravating factors preponderated over the
non-existing mitigating factors.
On appeal, Williams challenges only the trial judge's assessment of
aggravating factor nine, claiming the judge gave undue weight to "general
deterrence." Having considered defendant's contentions in view of the
applicable law, we conclude they lack sufficient merit to warrant discussion in
a written opinion. R. 2:11-3(e)(2). The judge's findings were appropriately
grounded in the record.
B. Kelly's Sentence
After granting the State's application for a discretionary extended term as
a persistent offender under N.J.S.A. 2C:44-3(a), the trial judge found
A-5229-18 39 aggravating factors: three, six,11 and nine. As evidenced by the court's recitation
of Kelly's criminal background – which included three convictions for unlawful
possession of a weapon since 2007 – there was abundant evidence in the record
to support the court's imposition of a sentence within the extended range .
Indeed, eight days after he was released from prison on a weapons offense, Kelly
committed the present gun offense.
Kelly acknowledges his criminal record makes him eligible for a
discretionary extended term. However, he claims the trial judge: (1) failed to
consider his "offense was as mild and unremarkable as unlawful constructive
possession of a weapon can be"; and (2) only considered a sentence within the
extended-term range. We find no merit in defendant's first argument, R. 2:11-
3(e)(2), but conclude a remand is required under the Court's decision in Pierce.
As noted by defense counsel during Kelly's sentencing hearing, because
Kelly qualified as a persistent offender pursuant to N.J.S.A. 2C:44 -3(a), his
sentencing exposure was a term of imprisonment between five and twenty years.
11 The oral pronouncement of sentence clearly reflects that the judge found aggravating factor six, although Kelly's judgment of conviction does not reflect that aggravating factor. See State v. Rivers, 252 N.J. Super. 142, 147 n.1 (App. Div. 1991); State v. Pohlabel, 40 N.J. Super. 416, 423 (App. Div. 1956) (recognizing the oral pronouncement is "the true source of the sentence" whereas the creation of the JOC is "merely the work of a clerk"). A-5229-18 40 N.J.S.A. 2C:43-6(a)(2); N.J.S.A. 2C:43-7(a)(3). However, the judge recited
Kelly's sentencing exposure thusly: "Because the defendant satisfies N.J.S.A.
2C:44-3(a), he is eligible to be sentenced under N.J.S.A. 2C:43-7(a)(3), to a term
of imprisonment between ten and twenty years, as he was convicted of a second-
degree crime." The judge then imposed a fifteen-year prison sentence under the
Graves Act.
In Pierce, the Court provided guidance for sentencing defendants pursuant
to the persistent offender statute. Relevant here, if the trial court determines the
defendant is eligible for an extended term as a persistent offender, "the range of
sentences, available for imposition, starts at the minimum of the ordinary-term
range and ends at the maximum of the extended-term range." 188 N.J. at 169.
How a court chooses to sentence within that range "remains in the sound
judgment of the court – subject to reasonableness and the existence of credible
evidence in the record to support the court's [determinations] of aggravating and
mitigating factors." Ibid.
In the present matter, because we are not satisfied the trial judge considered
a sentence that included the lower end of the ordinary range of a second-degree
crime, the sentence imposed may have been higher than it might otherwise have
A-5229-18 41 been. Therefore, we believe Kelly is entitled to resentencing on count one
within the range established by Pierce.
Affirmed, but remanded only for Kelly's resentencing on count one
consistent with the Court's holding in Pierce. We do not retain jurisdiction.
A-5229-18 42