NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-1398-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JEFFREY R. BUTLER,
Defendant-Appellant. ___________________________
Submitted May 7, 2019 – Decided June 19, 2019
Before Judges Hoffman and Enright.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 14-12-3862.
Joseph E. Krakora, Public Defender, attorney for appellant (Andrew R. Burroughs, Designated Counsel, on the brief).
Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Kevin J. Hein, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM Defendant Jeffrey Butler appeals from the judgment of conviction entered
by the trial court after a jury found him guilty of second-degree conspiracy to
commit witness tampering, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:28-5d, and
harassment, N.J.S.A. 2C:33-4a. For the reasons that follow, we affirm.
I.
This case arises from a physical altercation between defendant and his
brother-in-law, D.M. On June 7, 2014, defendant assaulted D.M. with a metal
pole upon learning that D.M. advised defendant's wife, K.B, to leave defendant.
Prior to the assault, D.M. had moved into defendant's trailer home in
Chesilhurst, where defendant lived with K.B.
After the police filed aggravated assault charges against defendant, he
conspired with K.B. to bribe D.M. to have D.M. drop the charges against
defendant, in exchange for a monetary payment. Specifically, on August 18,
2014, K.B. sent D.M. text messages offering him between one- and two-
thousand dollars if he would drop the charges against defendant. The text
messages specified that D.M. would receive the money from defendant's
attorney. After he received the text messages, D.M. presented them to the
Camden County Prosecutor's Office, which proceeded to record a phone call
A-1398-17T4 2 between D.M. and K.B., with D.M.'s consent. The recording included the
following exchange:
D.M.: [H]as [defendant] asked you to tell me directly to get me to drop the charges? Did he talk to you?
K.B.: Well, that's what . . . it would be.
D.M.: No, I'm saying did he ask you to ask me that?
K.B.: Not necessarily. He's been kind of telling me -- well, yes and no. He was kind of telling me to talk to you and see what -- if you would, and this, that, and the other. I said, listen, I'll put it out there a couple times. If he chooses to do that then he'll choose to do it. . . .
D.M.: What's he saying to you about . . . it?
K.B.: Really not much. Just that -- for me to try to -- for me to get you to see if you -- if you would drop the charges . . . .
D.M.: Is he pressing you to get me to drop the charges? ....
K.B.: Not constantly. But it's been brought up enough times . . . .
During the same conversation, K.B. stated that defendant told her to "tell [D.M.]
about the money and going through an attorney."
A-1398-17T4 3 In October 2014, a Camden County Grand Jury charged defendant with
second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count one); third-
degree aggravated assault, N.J.S.A. 2C:12-1b(2) (count two); fourth-degree
unlawful possession of a weapon, N.J.S.A. 2C:39-5d (count three); third-degree
possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count
four); third-degree terroristic threats, N.J.S.A. 2C:13-3b (count five); second-
degree tampering with witnesses and informants, N.J.S.A. 2C:28-5d and 2C:28-
5a(1) (count six); and second-degree conspiracy to tamper with witnesses,
N.J.S.A. 2C:5-2 and 2C:28-5d (count seven). Counts six and seven of the
indictment also charged K.B. with witness tampering and conspiracy.
Pursuant to a plea agreement, K.B. pleaded guilty to a disorderly persons
offense of obstruction, prior to defendant's trial. Under the agreement, the
State agreed to dismiss the witness tampering and conspiracy charges against
K.B., contingent upon her providing truthful testimony at defendant’s trial; K.B.
further agreed she would not assert her spousal privilege. The trial court denied
defendant's pre-trial motion in limine to bar the State from presenting any
testimony from K.B.
At trial, the State primarily relied on the testimonies of D.M. and K.B.,
along with the recorded phone conversation and text messages between them.
A-1398-17T4 4 At one point, D.M. testified that while defendant assaulted him, he could
"remember hearing" defendant call him "fucking spic." Defendant's counsel
moved for a mistrial, arguing the issue of race was inappropriately injected into
the trial. The trial judge denied the motion, finding the defense was on notice
of the statement, yet it never moved to "have that portion of the statement
redacted or barred." The judge further found nothing "improper about the [S]tate
introducing statements allegedly made by the defendant while he's allegedly in
the course of committing a crime." The judge also found that defendant's
statements "go to his intent."
After the State rested, defendant filed a Reyes1 motion to dismiss the
witness tampering counts. The defense argued that because K.B. and defendant
sought to pay D.M. money through an attorney, the offer to pay D.M. was not
illegal. The trial court denied the motion, finding that when there is "some type
of monetary inducement to not be cooperative or to drop charges, [it] certainly
does interfere with an official investigation or an official proceeding."
At trial, defendant argued self-defense. His counsel contended that D.M.
had a knife and was intoxicated at the time of the incident. The defense further
noted that D.M. filed a lawsuit related to the incident against the trailer's
1 State v. Reyes, 50 N.J. 454 (1967). A-1398-17T4 5 management company; as a result, he maintained a financial interest in the
outcome of the trial.
The jury returned a verdict of not guilty on counts one through four and
six, but guilty on the lesser-included charge of harassment on count five, and
second-degree conspiracy to tamper with witnesses on count seven.
Defendant filed a motion for judgment of acquittal after discharge of the
jury. R. 3:18-2. The trial judge heard oral argument on the post-trial motion,
where defense counsel admitted it was proffering the same argument as the
Reyes motion – that the tampering charges do not constitute a crime. The trial
judge denied defendant's motion, finding "the evidence that was presented to
this jury was enough to satisfy [the] verdict that was rendered." Specifically,
the judge pointed to the "recorded conversation of [K.B.] with the victim
discussing the dropping of the charge. The jury was free to make their own
determination as to what they believe the substance of that call was."
The trial judge sentenced defendant to eight years imprisonment, with no
period of parole ineligibility, on count seven. She also sentenced defendant to thirty
days in the county correctional facility, on count five, to run concurrent to count
seven. The State then moved for the judgment of conviction to be amended,
specifically to change the sentences from concurrent to consecutive, as "any
A-1398-17T4 6 sentence received on a substantive offense attached to a conspiracy or a witness
tampering charge must run consecutive." The judge granted the motion, and
amended the harassment sentence to fines only. This appeal followed, with
defendant presenting the following arguments:
POINT I AS [K.B.'S] WAIVER OF MARITAL PRIVILEGE WAS NOT MADE FREELY AND VOLUNTARILY, THE TRIAL COURT ERRED WHEN IT ALLOWED [HER] TO TESTIFY AGAINST DEFENDANT. (Not raised below)
POINT II THE TRIAL COURT WAS WRONG WHEN IT DENIED DEFENDANT'S MOTION TO EXCLUDE HIS WIFE'S TESTIMONY AS THE PLEA AGREEMENT IMPERMISSIBLY RESTRAINED HER ABILITY TO TELL THE TRUTH. (Raised below)
POINT III THE TRIAL COURT ERRED WHEN IT ALLOWED THE STATE TO INTERJECT THE ISSUE OF RACE IN THE TRIAL. (Raised below)
POINT IV THE TRIAL COURT ERRED WHEN IT DENIED DEFENDANT'S REYES MOTION. (Raised below)
POINT V THE TRIAL COURT WAS WRONG WHEN IT DENIED DEFENDANT'S MOTION FOR A NEW TRIAL. (Raised below)
POINT VI AS THE JURY CHARGE ON CONSPIRACY TO COMMIT WITNESS TAMPERING WAS INCOMPLETE AND VAGUE, A NEW TRIAL IS REQUIRED. (Raised below)
A-1398-17T4 7 POINT VII THE TRIAL COURT'S CUMULATIVE ERRORS DENIED DEFENDANT HIS RIGHT TO A FAIR AND RELIABLE TRIAL.
POINT VIII GIVEN THE UNIQUE CIRCUMSTANCES OF THIS CASE, AN EIGHT YEAR SENTENCE WAS UNDULY HARSH, EXCESSIVE AND UNFAIR.
POINT IX TRIAL COUNSEL WAS INEFFECTIVE. (Not raised below)
(1) Trial counsel was ineffective because she failed to object that [K.B.'s] waiver of marital privilege was the product of coercion.
(2) Defendant's trial attorney was ineffective when she failed to present the defense of Ignorance and Mistake pursuant to N.J.S.A. 2C:2-4.
(3) Trial counsel was ineffective because she failed to object to the verdict sheet as to Count Seven.
II.
A. Admission of K.B.'s Testimony
In defendant's first point, he contends that K.B. did not freely and
voluntarily waive her marital privilege. His second point challenges the trial
judge's denial of defendant's pre-trial motion in limine, which sought to bar K.B.
from testifying "by asserting the plea agreement had impermissibly constrained
her capacity to tell the truth." We address each argument respectively.
A-1398-17T4 8 Defendant's first point asserts that K.B. was impermissibly coerced into
pleading guilty and waiving marital privilege "after being held in jail for sixteen
days for being one hour late to court," and "denied medication for anxiety and
depression" while incarcerated. Because defendant did not present this
argument to the trial court, we review the argument under the plain-error
standard. R. 2:10-2; see also State v. Singleton, 211 N.J. 157, 182 (2012). To
warrant reversal, the error must be "clearly capable of producing an unjust
result." R. 2:10-2. This argument lacks merit since the trial judge found K.B.'s
"guilty plea . . . knowing and voluntary," and during the plea hearing, K.B.
confirmed her understanding that she did not have to testify against her spouse.
Moreover, defendant had the opportunity to cross-examine K.B. about her
motive for implicating her husband – at one point during cross-examination, she
acknowledged it was "a priority for [her] to get out of jail." We discern no
reversible error.
Defendant's second point reiterates the arguments raised during the
motion in limine – that K.B. was constrained from testifying truthfully as a result
of the prosecutor stating at the plea hearing that if K.B. "fails to in any way
testify in accordance with the statement that she's given previously," then her
indictment would be reinstated. Defendant argues that this language "far
A-1398-17T4 9 exceeds a condition that the witness testify truthfully, and instead travels into
the unlawful territory of inhibiting the truth and hindering a free flow of
information."
In support of this argument, defendant cites to State v. Feaster, 184 N.J.
235, 251 (2005), where a State witness recanted his trial testimony, and was
prepared to testify at the defendant's post-conviction relief hearing, when he
was threatened by State officials that he would be charged with perjury if he
went forward with such testimony. The Court held that "the State may not use
threats or intimidating tactics that substantially interfere with a witness's
decision to testify for a defendant." Ibid.
Here, after oral argument, the trial judge denied defendant's motion,
finding K.B. "certainly free to testify as to what the truth is[,] . . . . and
[defendant's counsel] is free to go into any area of cross-examination that [it]
feel[s] is important for [the defense's] case." The judge was unable to find "how
the [S]tate hinders [defendant] in any way in this case." The judge then
distinguished this case from Feaster, where "there was a threat of perjury. [Here,
t]here's no threat of perjury. There is an agreement if [she] testif[ies]
different[ly] from the factual basis [she] gave in court," then the State would be
able to reinstate the indictment.
A-1398-17T4 10 We agree with the trial judge's oral opinion, and further add that defendant
provides no support for his assertion that if K.B. testified inconsistently with her
plea hearing testimony or prior statements to police, then the reinstatement of
her indictment would be unlawful or inappropriate. Defendant fails to show
error by the trial court in denying defendant's motion in limine to bar K.B. from
testifying. Defendant's second point lacks merit.
B. Defendant's Motion for Mistrial
Defendant contends when D.M. testified that defendant called him a
"fucking spic," the trial judge erred in denying his motion for mistrial, and for
declining to provide a curative instruction. Defendant asserts the judge failed
to "ensure that inflammatory, prejudicial evidence was not presented to the jury.
[N.J.R.E.] 403."
When the trial judge denied the motion for a mistrial, she added:
[T]here's no curative instruction being requested of the [c]ourt regarding how [the jury is] to consider that portion of this statement. If you seek to have me read a certain instruction, a limiting instruction . . . . I will read that to the jury during the . . . legal instructions portion of the trial. I'm not sua sponte giving this jury any type of curative as to how they should consider the defendant's statement because it simply highlights the term that you are seeking not to be highlighted. But I do not find anything improper about the [S]tate introducing statements allegedly made by . . . defendant while he's allegedly in the course of committing a crime.
A-1398-17T4 11 "Whether an event at trial justifies a mistrial is a decision 'entrusted to
the sound discretion of the trial court.'" State v. Smith, 224 N.J. 36, 47 (2016)
(quoting State v. Harvey, 151 N.J. 117, 205 (1997)). "Appellate courts 'will
not disturb a trial court's ruling on a motion for a mistrial, absent an abuse of
discretion that results in a manifest injustice.'" Ibid. (quoting State v. Jackson,
211 N.J. 394, 407 (2012)). And since defendant's counsel did not argue for a
curative instruction, "defendant must show that the failure to give such an
instruction sua sponte constitutes an error 'clearly capable of producing an
unjust result.'" State v. Mayes, 321 N.J. Super. 619, 633 (App. Div. 1999)
(quoting State v. Loftin, 287 N.J. Super. 76, 97 (App. Div. 1996)).
Intrinsic evidence is evidence that "directly proves" the charged offense or evidence of "acts performed contemporaneously with the charged crime . . . [that] facilitate the commission of the charged crime." [State v.]Rose, 206 N.J. [141,] 180 [(2011)] (quoting United States v. Green, 617 F.3d 233, 248-49 (3d Cir. 2010)). It is distinguishable from "other crimes" evidence under Rule 404(b) because it is not evidence of another crime; it directly proves the charged offense. Id. at 177. "[E]vidence that is intrinsic to a charged crime need only satisfy the evidence rules relating to relevancy, most importantly the [N.J.R.E.] 403 balancing test." Id. at 177-78. In contrast, under Rule 404(b), evidence of other crimes is not admissible but it can be used for other purposes "such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a
A-1398-17T4 12 material issue in dispute." N.J.R.E. 404(b); see Rose, 206 N.J. at 177.
[State v. B.A., __ N.J. Super. __ (2019) (slip op. at 23- 24).]
Here, the trial judge admitted the statement as intrinsic evidence, finding
nothing "improper about the [S]tate introducing statements allegedly made by
the defendant while he's allegedly in the course of committing a crime." The
judge further found defendant's statements "go to his intent," thereby finding the
evidence admissible under Rule 404(b). We find no error in these rulings, and
further note defendant failed to file a motion to exclude the statements in the
pre-trial stages; defendant also failed to seek a curative instruction, and the judge
refused to give one sua sponte. We discern no abuse of discretion or error clearly
capable of producing an unjust result.
C. Defendant's Reyes and Judgment of Acquittal Motions
Points four and five of defendant's brief argue that the trial judge erred in
denying his Reyes motion and his motion for judgment of acquittal for the same
reason: that defendant "mistakenly believed he was engaged in a lawful
settlement negotiation with his brother-in-law which would be finalized with the
assistance of a lawyer."
A-1398-17T4 13 When we review the grant or denial of a motion for a judgment of
acquittal, we apply the same standard as the trial court. State v. Sugar, 240 N.J.
Super. 148, 153 (App. Div. 1990) (citing State v. Moffa, 42 N.J. 258, 263
(1964)). That standard remains the same, whether the motion is made at the
close of the State's case, at the end of the entire case, or after a jury returns a
guilty verdict under Rule 3:18-2. State v. Kluber, 130 N.J. Super. 336, 341
(App. Div. 1974). We will deny a motion for a judgment of acquittal if
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 charge has been established beyond a reasonable doubt.
[Stater v. Fuqua, 234 N.J. 583, 590-91 (2018) (quoting Kluber, 130 N.J. Super. at 341-42).]
Giving the State the benefit of all favorable inferences which reasonably
could be drawn, we find there was sufficient evidence for a jury to find that
defendant and K.B. conspired to offer D.M. money to have defendant's charges
dropped. While defendant correctly notes that D.M. did not actually have this
power, he nevertheless sought to pay D.M. to obstruct, prevent, or impede the
official proceeding arising from the assault charge against defendant. The trial
judge's rulings on these points are affirmed.
A-1398-17T4 14 D. The Verdict Sheet
Defendant next posits the verdict sheet on counts six and seven were
"incomplete, ambiguous, and denied him a fair trial and reliable proceeding."
Specifically, the defense points to the fact that on count six of the verdict sheet, the
jury did not have to consider whether defendant committed bribery of a witness or
informant, N.J.S.A. 2C:28-5d, since it first found defendant not guilty of obstruction
under N.J.S.A. 2C:28-5a, the first question within count six. According to
defendant, "This latter finding was required to determine the degree of the
[conspiracy] offense. N.J.S.A. [2C:]28-5(d). If the jury answered in the affirmative,
[d]efendant would be convicted of a second-degree offense, otherwise it would have
been considered a third-degree crime. N.J.S.A. 2C:28-5(a)." The verdict sheet
directed the jury to skip the bribery question within count six, and on count seven of
the verdict sheet, the jury was charged with determining whether defendant
committed conspiracy "with the purpose of promoting or facilitating the commission
of the crime of tampering with witnesses." Defendant contends the guilty verdict
under count seven "allowed [d]efendant to be convicted of a higher degree offense
without requiring the jury to make a specific factual finding," specifically, a finding
of bribery, "as required under the witness tampering statute. N.J.S.A. 2C:28-5."
A-1398-17T4 15 Defendant's counsel did not raise this argument until after the verdict was
rendered. It was orally argued and decided in defendant's motion for a new trial on
the same day as sentencing. After argument, the trial judge denied defendant's
motion, stating in relevant part:
I'm more than satisfied that [the] jury had the law on this count. [Defendant] was on notice that this was a second[-]degree offense. The [c]ourt read the law to this jury for witness tampering, what made it a third[-]degree, and what made it a second[-]degree. A conspiracy under the theory that the [S]tate was proceeding on was a second[-]degree for which [defendant] had notice on.
The judge then noted the indictment explicitly charged defendant with
tampering and conspiracy to tamper under N.J.S.A. 2C:28-5d, the second-degree
bribery offense, in counts six and seven.
A trial court's verdict sheet is reviewed under Rule 2:10-2, State v.
Galicia, 210 N.J. 364, 386 (2012), which provides:
Any error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result, but the appellate court may, in the interest of justice, notice plain error not brought to the attention of the trial or appellate court.
We agree with the State's argument that defendant was only ever charged
with the bribery portion of the witness tampering statute; and at trial, the State
"presented just one theory of witness tampering for the jury to either accept or
A-1398-17T4 16 reject: bribery . . . . which is always a second-degree crime." N.J.S.A. 2C:28-
5d." The jury received a number of different forms of evidence of witness
tampering, from the text messages, the recorded phone conversation, and
testimonies of D.M. and K.B., and it all presented the same event, which is that
defendant and K.B. conspired to pay D.M. money, between one- and two-
thousand dollars, in exchange for his efforts to have the charges against
defendant dropped. Any error was not clearly capable of producing an unjust
result.
E. Defendant's Sentence
Defendant's next point on appeal contends that his sentence "was
excessive, harsh, and fundamentally unfair." He further contends "the trial court
erred when it rejected several of the mitigating factors advanced at sentencing."
After review of the trial judge's oral opinion at sentencing and the applicable
law, we find defendant's argument lack sufficient merit to warrant discussion in
a written opinion. R. 2:11-3(e)(2).
F. Ineffective Assistance of Counsel
Lastly, defendant raises three ineffective assistance of counsel claims in
his ninth point on appeal. New Jersey courts "routinely decline to entertain
ineffective-assistance-of-counsel claims on direct appeal because those claims
A-1398-17T4 17 'involve allegations and evidence that lie outside the trial record.'" State v. Hess,
207 N.J. 123, 145 (2011) (citation omitted). Such claims generally "should be
determined in a post-conviction relief [PCR] proceeding." State v. McDonald,
211 N.J. 4, 30 (2012) (citations omitted). We therefore dismiss defendant's
ineffective-assistance-of-counsel claim without prejudice to a proper PCR
petition and an evidentiary hearing, if appropriate.
Affirmed.
A-1398-17T4 18