NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1021-14T2 A-1343-14T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MARIO J. ADAMS,
Defendant-Appellant. ______________________________
RAFAEL J. OLMO, a/k/a RICKY OLMO,
Submitted October 30, 2017 – Decided February 19, 2019
Before Judges Sabatino, Ostrer and Whipple. On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 13-10-2864.
Joseph E. Krakora, Public Defender, attorney for appellant Mario J. Adams (Michele A. Adubato, Designated Counsel, on the briefs).
Joseph E. Krakora, Public Defender, attorney for appellant Rafael J. Olmo (Michael J. Confusione, Designated Counsel, on the briefs).
Damon G. Tyner, Atlantic County Prosecutor, attorney for respondent (Sevan Biramian, Assistant Prosecutor, of counsel and on the briefs).
Appellant Rafael J. Olmo filed a pro se supplemental brief.
The opinion of the court was delivered by
OSTRER, J.A.D.
Deanna Downs was shot to death to prevent her from testifying against
defendant Rafael Olmo regarding a shooting she observed a year earlier.
Another witness to the prior shooting, Benjamin Falcon, was threatened not to
testify. The State alleged that Olmo orchestrated the murder of Downs and the
witness tampering, and defendant Mario Adams was the hired gun. A jury
convicted Olmo of the first-degree charges of: murder, N.J.S.A. 2C:11-3(a)(1);
procurement of murder, N.J.S.A. 2C:11-3(a)(1) and (2), and N.J.S.A. 2C:11-
3(b)(4)(e); murder for the purposes of escaping detection, apprehension, trial,
A-1021-14T2 2 punishment or commitment for another crime, N.J.S.A. 2C:11-3(a)(1) and (2),
and N.J.S.A. 2C:11-3(b)(4)(f); and conspiracy to commit murder, N.J.S.A.
2C:5-2. He was also convicted of second-degree witness tampering, N.J.S.A.
2C:28-5(a) (one count for Downs and one for Falcon); and second-degree
conspiracy to commit witness tampering, N.J.S.A. 2C:5-2.
Although the jury was apparently unpersuaded that Adams was the shooter
of Downs, it was convinced he was involved in the murder and witness
tampering. The jury convicted him of first-degree conspiracy to commit
Downs's murder; two counts of second-degree witness tampering of Downs and
Falcon; and second-degree conspiracy to commit witness tampering. The jury
acquitted Adams of the other first-degree murder charges – murder as
consideration for the receipt of money, N.J.S.A. 2C:11-3(a)(1) and (2), and
N.J.S.A. 2C:11-3(b)(4)(d); and murder for the purpose of escaping detection,
apprehension, trial, punishment or commitment for another crime committed by
Rafael Olmo, N.J.S.A. 2C:11-3(a)(1) and (2), and N.J.S.A. 2C:11-3(b)(4)(f).
The jury also acquitted Adams of second-degree possession of a firearm,
N.J.S.A. 2C:39-4(a); and second-degree unlawful possession of a handgun,
N.J.S.A. 2C:39-5(b).
A-1021-14T2 3 After merger, the court sentenced Olmo to an aggregate term of life
imprisonment without parole on the murder, and a consecutive ten-year term
with a five-year period of parole ineligibility, on tampering with a witness,
Falcon. The court sentenced Adams to an aggregate term of twenty-two years,
consisting of a term of fifteen years for conspiring to murder Downs, concurrent
with seven years for witness tampering of Downs, but consecutive to seven years
for witness tampering of Falcon. The conspiracy to murder sentence was subject
to the No Early Release Act, N.J.S.A. 2C:43-7.2.
Defendants raise multiple issues in these back-to-back appeals
challenging their convictions, none of which we find meritorious. We focus on
three issues: the denial of Adams's motion to sever his trial from Olmo's; the
decision to permit a police witness to testify as both an expert and investigating
officer; and the decision to replace a juror after jury deliberations had begun.
Both defendants raise the latter two points. We also reject defendants' respective
challenges to their sentences, although we remand for correction of Adams's
judgment of conviction. 1
1 The sentence was delivered orally. However, the judgment of conviction states that the sentences for the three counts after merger should run consecutively. The State concedes that the judge's oral sentence controls, see State v. Abril, 444 N.J. Super. 553, 564 (App. Div. 2016), and the judgment of conviction should be corrected to match the sentence that was given orally. A-1021-14T2 4 I.
Following a shooting near her Egg Harbor City apartment complex in
October 2009, Downs provided a statement to police that she saw Olmo running
from the scene with a handgun. Falcon also provided a statement incriminating
Olmo. Olmo was indicted and, by September 2010, received discovery
disclosing Downs's and Falcon's cooperation.
Multiple witnesses testified that Olmo wanted Downs and Falcon
silenced. Rashid Hamilton testified that, during the course of three
conversations, Olmo said he wanted a male and a female witness killed; he
offered $20,000 for the female's murder; and had a person, Dontay Matthews,
keep an eye on the female. Olmo was going to supply the gun for the murder.
Hamilton testified that Marcus Vega was present for two of the conversations.
Marcus Vega generally confirmed Hamilton's testimony. Hamilton and Vega
both said they rebuffed Olmo's offer.
Matthews gave multiple, inconsistent statements to police. Although he
initially denied any involvement in the murder, he ultimately entered into a plea
agreement, admitting to his role. He testified that on September 30, 2010, he
met Olmo who told him he wanted Downs dead to silence her, and that Adams
would perform the killing. Matthews said that Olmo offered him money to
A-1021-14T2 5 watch Downs, who lived in the same apartment complex as Matthews and
bought drugs from him on a daily basis. Olmo gave Matthews a cell phone to
communicate with him and Adams. Matthews was supposed to call when he
knew Downs was alone.
On October 16, 2010, at around 11:30 p.m., Matthews saw Downs step
outside her apartment for a smoke. He called Adams and Olmo to alert them.
Minutes later, Downs was shot in the head at close range. Matthews asserted he
was in his apartment at the time, which his girlfriend, Tamika Daniels,
corroborated. She testified that after the shooting, Matthews left the apartment,
saying he was going to get a beer.
The next day, Adams made large cash purchases at an electronics store,
including a sixty-five-inch television. Also, following the murder, Adams
reportedly made self-incriminating statements. Matthews testified that Adams
explained the murder, saying money was "the root of all evil," and Downs was
a "snitch" who "had to go." He also testified that Adams said, a few days after
the shooting, "I'm out here for murder one and . . . [they] don't have a clue who
did that shit."
Vega cooperated with police in return for leniency in other cases against
him. Vega told police that he was confident he could get Olmo to talk about the
A-1021-14T2 6 Downs murder. Police set up a controlled purchase of drugs by Vega, and
equipped him with a video-recording device. Although the conversation
initially pertained to drug dealing, Vega eventually brought up the murder. The
conversation was filled with street slang, jargon, and nicknames. Vega
interpreted Olmo's statements, as did a police witness, Detective James Scoppa,
who testified as an expert, over a defense objection.
In the recording, which we discuss at greater length below, Olmo
acknowledged Downs's murder, according to Vega. Scoppa explained that
Olmo thought that Hamilton was too hesitant about taking on the job. According
to Vega and Scoppa, Olmo admitted he paid someone else $25,000 for killing
Downs.
As for Falcon, Olmo stated without jargon or slang, "If [he] love his family
he better not" testify. He said he would make Falcon "feel regret for every
fucking day that [he] gotta wake up and know somebody in you[r] mother
fucking shit got touched if you mother fucking wanna run your mouth." Olmo
conjured up various scenarios for Falcon to avoid testifying, including leaving
the area, but said he would retaliate if he cooperated. Olmo also discussed the
intimidating effect of Downs's murder.
A-1021-14T2 7 Falcon testified that his friend, George Rodriguez, told him that Olmo
would pay him $20,000 not to testify; but if he persisted, both he and his son
would be killed. Rodriguez essentially confirmed that account.
Falcon also testified that Adams and another man later approached him in
a parking lot, and asked him if he knew what happened to people who testified
in court. Falcon said he told Adams he would not testify, but he did not accept
the $20,000. Falcon said he thought that if he did, he would be dead the next
day.
In support of the State's case against Adams, a cellular telephone expert
testified that calls between Matthews and Adams indicated that Adams was
home in Hammonton early in the evening on the date of Downs's murder. Later,
Adams was in the area of Downs's apartment complex between 10:00 and 10:30
p.m., and then back in the Hammonton area after midnight. A police witness
testified, based on cellphone records, that there were multiple communications
among Matthews, Adams and Olmo in early October, and between October 15
and 17, 2010. However, the witness admitted he found no evidence of a call
from Matthews to either Olmo or Adams shortly before the murder. Although
Olmo did call Matthews at 9:52 p.m., and Adams called Matthews twice at
around 10:15 p.m.
A-1021-14T2 8 In a recorded statement to police, Adams denied any involvement in
Downs's murder. He admitted that Olmo spoke to him about witnesses in his
case, but denied that Olmo ever discussed killing Downs, or paying someone to
watch her. Adams stated that the night of the murder, he played video games
with a cousin and later picked up Matthews, who told him, "I handled that
business," though Adams did not know Matthews was referring to the murder.
Adams said that after he learned Downs had been shot, he decided to go home.
He also said that Matthews admitted, a few days later, that "he got some money
from – whatever . . . [$]2,600."
Olmo testified in his own defense, denying that he meant any ill-will
toward Downs. He said that he, Rodriguez and Falcon were all involved in
selling drugs in 2009. Regarding the 2009 incident, Olmo said that he and
Falcon were outside the apartment complex hanging out and selling drugs.
Olmo said he was unarmed. Two masked figures shot at him, striking him in
the shoulder. Someone behind him returned fire. Olmo said he thought it was
Falcon. Olmo also asserted that Falcon drove Olmo from the scene; Falcon's
sister tended to his wound; and Falcon's cousin later drove Olmo within a few
blocks of a Philadelphia hospital. Questioned by Philadelphia police, he gave a
false name, but police identified him and arrested him on an outstanding warrant.
A-1021-14T2 9 He was later charged with various weapons offenses and extradited to New
Jersey, where he was released on bail. Olmo said he later learned that Shawn
Travis and Sandy Thomas were the two men who shot at him. Both were shot
themselves, Thomas fatally.
Olmo was indicted in August 2010. He said he received the discovery,
which disclosed Downs's and Falcon's statements, months before the fatal
shooting of Downs. Olmo said Falcon "was lying on me" and Downs "must
have mistaken me for Falcon." He said he told Falcon that if he testified against
him, Olmo would say what really happened, implicating Falcon and his family
members. But, he denied paying or offering to pay anyone to threaten Falcon,
or to shoot Downs.
Olmo also gave his own interpretation of his recorded conversation with
Vega, insisting it mainly pertained to drug dealing. He claimed that he gave up
drug dealing after he was shot in the shoulder, but Vega persuaded him to get
back into it. Olmo claimed he paid $25,000 to buy a kilo of drugs from George
Rodriguez, which he robbed from a female drug dealer. The repeated references
in conversation with Vega about the "hit" of "old girl" and "bitch," pertained not
to Downs's murder, but the robbery of the drug dealer. He claimed he used the
word "bird" to refer to a kilo of cocaine. "Work" also meant drugs.
A-1021-14T2 10 Olmo admitted that he and Vega were discussing Falcon's testimony when
he said "if [he] love his family he better not," but Olmo explained that only
meant that he would disclose Falcon's true involvement in the 2009 incident.
In response to Olmo's testimony, the State played his statement to police
about the 2009 incident, which he gave while he was in jail in Philadelphia.
After a Miranda2 hearing, the court found it was knowingly and voluntarily
given. Although Olmo spoke in third person, in answers that were often
disjointed, the State suggested he referred to himself when he said a man was
shot in the arm, but returned fire in self-defense. If true, that would have
contradicted his prior trial testimony that he was unarmed.
Over a defense objection, the State also played a videotape of Downs's
contrary statement to police about the 2009 incident. On the night o f the 2009
incident, she saw Olmo with a pistol from a distance of forty or fifty feet. She
had a clear look at his face because he looked in her direction while he was
under the street's lighting. Downs stated she had seen Olmo around the complex
multiple times.
2 Miranda v. Arizona, 384 U.S. 436 (1966). A-1021-14T2 11 Olmo's sole supporting witness was Victor Martinez. Martinez testified
that Rodriguez – whom he had not seen in several years – admitted to him in
December 2013 that Falcon paid him to make a false statement against Olmo.
Adams also denied any involvement in Downs's murder. He admitted he
was friends with Olmo, and sometimes bought marijuana from Matthews and
smoked it with him. He testified that on the night of the murder, he visited a
friend in Egg Harbor City, played video games, then returned home. While
checking his mail, a young man told him there was a shooting in Egg Harbor
City. In order to find out if he knew the victim, he called Matthews at 12:06
a.m. and Olmo at 12:07 a.m. Matthews told him that someone was shot.
He also wanted to know if Matthews had marijuana to sell. Matthews said
he did, so Adams drove to meet him. When he saw police cars in the area,
Adams asked Matthews "what the fuck was going on." Although he already
knew someone was shot, Adams maintained he was not aware the shooting
occurred at Matthews's apartment complex. Matthews replied that "somebody
got shot" and he "handled that shit." Adams testified he thought Matthews was
referring to the marijuana that he had obtained. Only after he arrived at a nearby
Wawa did Adams learn, from a woman he knew, that Downs was the shooting
victim. Upon receiving that news, Adams decided to drop Matthews off at the
A-1021-14T2 12 apartment and return home. Adams denied telling Matthews that he killed
Downs, that money was the root of all evil, and Downs was a snitch. He said he
made his electronics purchase the day after the murder with cash from the sale
of personal jewelry he won by gambling.
In its cross-examination, the State elicited several inconsistencies or
variations between Adams's prior statement to police and his testimony about
his whereabouts the night Downs was killed; his interactions with Matthews that
night; and how he was able to afford his recent television purchase. On cross-
examination, Adams admitted he "fabricated" answers to police about his
knowledge of whether Downs was a witness against Olmo. The State also
highlighted evidence that Adams made multiple phone calls and texts to
Matthews and Olmo in the days leading up to and following Downs's murder.
Adams called as a defense witness someone who claimed to see a man
matching the description of an associate of Olmo, running from Downs's
shooting. Justin Williams testified that he was at Downs's housing complex
shortly before midnight, to purchase marijuana. He heard a gunshot, ducked
behind a fence, and saw a light-skinned Hispanic male with a gun standing over
a female body, and a brown-skinned man standing beside him. Both men ran in
separate directions, the Hispanic man passing by Williams. Williams said the
A-1021-14T2 13 Hispanic man was over six feet tall, had a close-cut beard and corn rows in his
hair. Williams said that he knew Adams from the Hammonton area and he was
sure that neither of the men he saw was Adams.
Adams also called various family members and his girlfriend to
corroborate his movements the night of the murder; his possession of jewelry;
and his sale of some of it. Adams's girlfriend confirmed that Adams was a drug
dealer.
In the course of deliberations, the judge excused a juror who professed the
inability to continue, and replaced him with an alternate. During deliberations,
the jury heard a playback of the recorded conversation between Vega and Olmo.
The jury's verdict followed three days of deliberations.
II.
Both defendants contend the court erred in excusing the juror, and in
allowing Detective Scoppa to testify as an expert in interpreting the recorded
A-1021-14T2 14 conversation between Olmo and Vega. 3 Adams argues that the trial court erred
by not severing his trial from Olmo's. 4
As for their remaining points on appeal, Adams argues:
POINT II
THE DEFENDANT'S STATEMENT TO POLICE SHOULD NOT HAVE BEEN ADMITTED BECAUSE THE CUSTODIAL INTERROGATION BY THE POLICE VIOLATED DEFENDANT'S FIFTH
3 In Point I of his brief, Adams argues: "THE DISMISSAL OF JUROR 14 DURING DELIBERATIONS DENIED DEFENDANT HIS RIGHT TO A FAIR TRIAL." Olmo argues, as Point 8 of his brief, "The trial court erred in removing a deliberating juror from the panel after deliberations had begun, and in denying defendant's motion for a new trial on this ground." As for the expert, Adams argues, as Point IV, "THE ADMISSION OF THE TESTIMONY OF DETECTIVE SCOPPA AS EXPERT TESTIMONY WAS ERROR." Olmo argues, "The trial court erred in admitting expert testimony of James Scoppa to 'interpret' phrases in a recorded conversation between defendant and a State witness." In a pro se brief, Olmo adds, as his POINT I: "THE TRIAL COURT'S ADMISSIBILITY RULING REGARDING INTERPRETATION OR MEANING BEHIND DEFENDANT'S RECORDED CONVERSATION BASED UPON DETECTI[VE] SCO[P]PA'S SO-CALLED EXPERT OPINION, WAS IMPROPERLY MADE IN THE ABSTRACT AND IMPERMISSIBLY DEPRIVED DEFENDANT[']S RIGHT TO A FAIR TRIAL, U.S. CONST. AMENDS VI, XIV; N.J. CONST. (1947) ART. I, PARA. [ ]." He adds, as his POINT II, "IN THE ABSENCE OF REQUISITE PROCEDURAL NORMS DETECTIVE SCO[P]PA'S ANALYSIS OR COMMENTARY REGARDING LANGUAGE CONTAINED IN DEFENDANT'S RECORDED CONVERSATION AMOUNTED TO NOTHING MORE THAN HEARSAY AND/OR MERE 'NET OPINION.'" 4 He argues in Point III of his brief, "IT WAS ERROR FOR THE TRIAL COURT TO DENY DEFENDANT'S MOTION FOR SEVERANCE FROM A JOINT TRIAL." A-1021-14T2 15 AMENDMENT RIGHT AGAINST SELF- INCRIMINATION.
....
POINT V
THE PROSECUTOR'S CROSS-EXAMINATION OF CHARACTER WITNESS, TREVONE ASHLEY CHANCE, WAS IMPROPER, GROSSLY PREJUDICIAL AND DEPRIVED DEFENDANT OF A FAIR TRIAL. (Not raised below).
POINT VI
THE RECORD IS DEVOID OF SUFFICIENT PROOFS TO PROVE THE TWO SECOND DEGREE WITNESS TAMPERING CHARGES BEYOND A REASONABLE DOUBT.
POINT VII
DENIAL OF THE DEFENDANT'S MOTION FOR NEW TRIAL WAS ERROR.
POINT VIII
THE CONSECUTIVE SENTENCES IMPOSED UPON DEFENDANT WERE EXCESSIVE AND SHOULD BE MODIFIED AND REDUCED. (Not raised below).
POINT IX
THE AGGREGATE ERRORS DENIED DEFENDANT A FAIR TRIAL. (Not raised below).
Olmo argues:
A-1021-14T2 16 Point 1
The trial court erred by permitting the prosecution to change its theory of liability at the end of trial, in its accomplice liability and related murder charges given to the jury during the final charge, and in subsequently denying defendant's motion for a new trial on this ground of error (partially raised below).
Point 2
The trial court erred in permitting a statement of Deanna Downs given to the prosecution in the 2009 shooting incident to be admitted into evidence at trial below.
Point 3
The trial court erred in permitting hearsay testimony that Deanna Downs was "afraid" of the defendant.
Point 4
The trial court erred in piercing the attorney-client privilege of defendant's attorney representing defendant in the 2009 shooting case and ordering him to testify at trial below.
Point 5
The trial court erred in admitting statements by defendant, made to interrogators during questioning of the 2009 shooting incident, to be admitted at trial below.
A-1021-14T2 17 Point 7
The trial court permitted improper and unfairly prejudicial other wrongs evidence before the jury.
Point 9
Defendant's sentence is improper and excessive.
Olmo, in his pro se brief, adds the following point:
POINT III
THE CUMULATIVE IMPACT OF THE ERRORS DENIED DEFENDANT DUE PROCESS AND A FAIR TRIAL.
III.
We turn first to both defendants' argument that the court erred in allowing
a detective to testify as an expert and interpret the meaning of the recorded
statements between Vega and Olmo. Olmo asserts that Scoppa exceeded the
permissible bounds of expert opinion by relying on his private conversations
with Vega as well as his own knowledge of the case. He further argues that
Scoppa failed to articulate a basis for his opinion and failed to satisfy the indicia
of reliability set forth in State v. Kelly, 97 N.J. 178, 208 (1984). For his part,
Adams contends that the jury needed no expert assistance to understand the
A-1021-14T2 18 Olmo-Vega conversation, and that Scoppa's testimony usurped the province of
the jury by encompassing the ultimate issue of guilt.
We shall not disturb the trial court's determinations that Detective Scoppa,
based on his years as an undercover officer, was an expert in street slang, and
that expert testimony would help the jury understand some of the jargon and
slang Vega and Olmo used. See State v. Zola, 112 N.J. 384, 414 (1988) (stating
"the necessity for, or propriety of, the administration of expert testimony and
the competence of such testimony" are within the trial court's discretion); State
v. Hyman, 451 N.J. Super. 429, 446-47 (App. Div. 2017) (holding that expert
testimony may assist a juror's understanding of "drug slang and code words").
Nor are we convinced that Scoppa usurped the function of the jury by opining
as to the ultimate issue of guilt.
However, the court permitted Scoppa to offer opinions that exceeded the
scope of his expertise, or the jury's need for assistance. The court also failed to
carefully distinguish between Scoppa's testimony as an expert, and as an
investigator.
In Hyman, we held that a trial judge must "guard against opinions that
stray from interpreting drug code words, and pertain to the meaning of
conversations in general and the interpretation of 'ambiguous statements that
A-1021-14T2 19 were patently not drug code.'" Id. at 447 (quoting State v. Dukagjini, 326 F.3d
45, 55 (2d Cir. 2003)). Also, an expert should not offer opinions as to words
that have already entered the popular vernacular. Id. at 446.
Although there is no blanket bar to a lead investigator serving as an expert,
it presents "a delicate situation that requires the trial court to carefully weigh the
testimony and determine whether it may be unduly prejudicial." Id. at 454
(quoting State v. Torres, 183 N.J. 183, 580 (2005)). A witness does not testify
as an expert when he relies on the facts he has learned in the investigation instead
of his specialized experience and training. Id. at 449, 454. Undue credibility is
given to an interpretation that is characterized as an expert opinion, but which
rests on the investigator's knowledge of the details of his investigation. United
States v. Albertelli, 687 F.3d 439, 446 (1st Cir. 2012). "Calling such testimony
'expert opinion' would . . . increase the risk of reliance on information not
properly before the jury as data on which 'experts in the particular field would
reasonably rely,' Fed. R. Evid. 703, even though the 'field' is merely the facts of
the case." Ibid. When a trial court allows a lead investigator to testify as an
expert, it should give a limiting instruction to inform the jury that it may reject
the expert's opinion and the version of facts consistent with it. Hyman, 451 N.J.
Super. at 455.
A-1021-14T2 20 We have no quarrel with Scoppa's definition of certain terms. For
example, in the course of his interpretation, he explained that "stack" means
$1000, so "twenty stacks" meant $20,000; "bounce" means to "get away"; "dip"
means to leave an area; "bird" is a woman, though Scoppa said it can be used to
refer to drugs; "slept on it" referred to missing an opportunity; an "Old Boy" is
a general reference to a man; "Papi" is a Hispanic male; and "hit," "rocked"5 and
"touched" are all ways of saying "killed." However, Detective Scoppa's
testimony crossed multiple boundaries.
He defined terms that needed no explanation. For instance, a jury
presumably is aware that "hit" may mean "kill." Scoppa defined understandable
phrases such as, "right then and there," and "he can't hurt me," and translated
portions of the conversation that could be easily understood by an average juror,
once the slang was defined. Scoppa also did not confine his testimony to the
meaning of spoken words.
Scoppa said that his translation was based not only on his knowledge of
slang, but "the ins and outs of the investigation . . . all the details from this case,"
including what Vega told him. He used his knowledge of the investigation to
identify people who were referred to only by pronouns, nicknames, or oblique
5 The trial transcript of the recording reported the word as "rot." A-1021-14T2 21 descriptions. He relied on his knowledge of the investigation, not his expertise
in street slang, in opining that "old girl," "bitch" and "bird" as used throughout
the conversation referred to Downs; "Papi" referred to Falcon; and "that shit
happened" referred to the killing of Downs.
Nonetheless, we are convinced that any error associated with the
admission of Scoppa's opinion testimony was harmless. See State v. Lazo, 209
N.J. 9, 26 (2012) (holding that in order to reverse conviction because of
evidentiary error, there must be a real prospect that the error gave rise to an
unjust result); Hyman, 451 N.J. Super. at 457-59 (concluding that a trial court's
error in permitting investigator to offer opinion about meaning of drug slang
without being qualified as an expert was harmless).
Particularly with respect to Adams, the admission of Scoppa's testimony
was not harmful because Adams was never mentioned in the conversation
between Vega and Olmo. The parties so stipulated. Furthermore, Scoppa
confirmed that Adams was not mentioned. If anything, the absence of any
mention of Adams during the extensive discussion of Downs's murder and the
intimidation of Falcon supported Adams's defense that he was not involved in
the murder and witness tampering.
A-1021-14T2 22 We also conclude any error was harmless to Olmo. To the extent Scoppa
unnecessarily explained language that was already clear to the jury, he did not
advance the State's case. In other respects, Scoppa's testimony that relied on his
knowledge as an investigative detective – as opposed to an expert in street slang
– addressed uncontested issues, such as the persons referenced by nicknames.
For example, Olmo agreed with Scoppa that he and Vega were discussing the
intimidating effect of Downs's killing on Falcon's willingness to testify when
Vega stated, "[E]nd of the day if another witness got their mother fucking face
blown the fuck off, right, what makes you think he gonna feel comfortable on
saying anything if you couldn't even protect that other witness," and Olmo
stated, "Exactly." Olmo also confirmed Scoppa's testimony that "Shid" was
Rashid Hamilton, and "Tay" was Dontay Williams.
Regarding more obscure statements, Scoppa's interpretation was
cumulative of Vega's testimony. Vega and Scoppa agreed that Olmo was the
"Old Boy" who gave the "green light" to killing Downs. They also agreed when
Olmo said, "I already set the meeting up for them . . . I needed it done right then
and there . . . ." he meant that he had hired a hitman, because he needed Downs
killed.
A-1021-14T2 23 Scoppa confirmed Vega's testimony that he was referring to Hamilton's
reluctance to kill Downs when Vega said on the recording, "I told that nigger
that shit was easy, that shit was right there in the apartments. . . . That shit, all
you gotta do is hop the mother fucking fence, hit Old Girl . . . hit that bitch and
bounce," and Olmo replied, "His thing when he kill (inaudible) was – he kept
saying, man, I might not get out of there. Don't wanna hear that."
Vega and Scoppa agreed about the meaning of another key exchange in
which Vega asked Olmo if he was willing to pay the same price to kill Falcon
as he did to kill Downs. Olmo responded, "With the Papi? Yeah Papi same
price." Then Olmo disclosed that he "paid a little more" for Downs's killing
"because I had to make sure . . . I told the nigger already, yo, boom, boom, get
the bitch I give you a little extra. I was like extra five, I gave him twenty-five
to get the last one."
Also, any prejudice associated with Scoppa exceeding the proper scope of
expert testimony was reduced by Olmo's decision to offer his own interpretation.
However, Olmo's explanations were often evasive, rambling, or inconsistent.
We note two examples. Although Olmo insisted the foregoing exchange about
"hit[ting] that bitch" pertained to the alleged robbery of the female drug dealer,
he failed to explain his use of the word "kill." Instead, he denied saying the
A-1021-14T2 24 word. Second, to explain his mention of his scheduled appearance in court
immediately after he discussed killing and silencing Downs – or robbing a
female drug dealer, as he contended – Olmo first said he was just "changing in
conversation." Prompted by his attorney, he then said equivocally, "I guess I
was talking about money. I was trying to rack up as much money as I could go
possibly take the five year sentence that I was facing. So I guess I was just
letting him know."
In addition, the evidence of Olmo's guilt was very strong. Vega and
Hamilton both testified that Olmo offered them $20,000 to kill Downs.
Matthews testified that Olmo paid him to watch Downs and told him that Adams
was going to kill her. Rodriguez testified that Olmo was willing to kill Falcon
to silence him. Circumstantial evidence, including the proximity in time
between the release of discovery and Downs's murder, also pointed to Olmo's
guilt.
In concluding the evidentiary error was harmless, we note that the jury
heard the recorded conversation multiple times during the trial, and had it
replayed during deliberations. The jury did not ask for a re-reading of Scoppa's
testimony. We are confident that the jury reached its own conclusions about the
recording, based on what it heard, in light of the other evidence in the case.
A-1021-14T2 25 IV.
We next consider the trial court's removal and replacement of a
deliberating juror. On the afternoon of March 12, 2014, the jury began
deliberations, conferring for less than two hours. Before proceedings began the
next morning, Juror 14, one of two African-Americans on the jury, 6 sent the
court a note stating:
Unexpectedly, this case has brought me to a very personal place, and as much as I can try, the personal place has an enormous grip. This is not the time, nor the place for personal matters. I am persuaded that it would be best that the alternate juror be utilized for best interest of the case going forward.
The court brought Juror 14 out and asked him, outside the presence of
other jurors, to expound on what he had written. He was hesitant to speak in
defendants' presence, but added:
[I]t's just my personal perception of things. And, um, in this country, I found that the pendulum of justice doesn't lean towards a minority, and this case took me to a very personal place. And when you live in this type of country, for even a man like me with reasonable education and so forth. I come back from Wall Street, can't find a job. It's – it's just difficult. You – there's a lot of stuff I can't say, I really can't say. But I just – I don't think, in all fairness, this system – and this is my truth – that this system leans towards the favor of any
6 A third African-American was excused and replaced by an alternate before summations to attend a professional conference. A-1021-14T2 26 black man, whether they're guilty or not guilty. It just doesn't matter. I just think people – I – I – I just – I don't think the system is fair, and that's my – that's my truth right there. [7]
After a brief unrecorded sidebar discussion between the court and the
attorneys regarding the matter, 8 Juror 14 added:
It's the same shit going on. The only difference between this world and this world [9] is this one has much more education, has more resources. . . . And wear suits, all of them are thugs in suits.
The court adjourned to consider the matter, after counsel set forth their
positions in writing.10 When the judge returned to hear argument, both defense
counsel suggested that something in deliberations may have provoked Juror 14's
expression of concern. The prosecutor asserted that Juror 14's statements would
have supplied grounds for excusing him for cause, if made during jury selection,
7 The juror's statement was interspersed with brief acknowledgements from the judge, such as "I see" and "Um-hum." 8 It was plainly inappropriate to conduct the side-bar conference off the record. See State v. Singletary, 80 N.J. 55, 73 (1979); State v. Green, 129 N.J. Super. 157, 166 (App. Div. 1974); R. 1:2-2. 9 We suspect that the juror was referring to defendants, and then to the attorneys and other professionals in the courtroom. But, the record is unclear. 10 Although the court preserved the submissions as court exhibits, they are not included in the record before us. A-1021-14T2 27 but Adams's attorney disagreed, provided the juror said he could be fair in this
case.
The court declined to further probe into what caused Juror 14 to speak up,
to avoid intruding into ongoing deliberations. The judge decided to excuse Juror
14 and replace him with an alternate juror. After theorizing that the juror was
"less than candid" during jury selection, the judge summarized the juror's
statements and concluded:
I think they suggest, pretty transparently, an – an incapacity on his part, at this time, to consider the evidence as it has gone in and to follow the law unimpeded by the strong racial resentments of which he did not previously disclose to us. Um, now that the time, uh, for making decisions has arrived, I infer that he feels impelled to tell us that he just can't abide by his oath, and I think to press him further at this point would imprudently intrude on the ongoing deliberative process of the entire jury.
A juror has to be, uh, able to review evidence dispassionately through the light of reason. Uh, any doubt about a juror's ability to be fair, uh, I think the case law tells us should be resolved in favor of removing him from the panel. Uh, I find that, uh, to his everlasting credit, uh, [Juror 14] has told us today that he simply can't be fair. Uh, so for those reasons, uh, I'm going to excuse him and we'll replace him with the remaining alternate.
A-1021-14T2 28 In rejecting the suggestion that racial cross-currents within the jury may have
prompted Juror 14's statement, the judge noted that the remaining African-
American juror had not communicated any concern to the court.
After the verdict, the court denied Olmo's motion for a new trial based on
the juror's removal, reiterating its reasons for excusing him. 11 In denying
Adams's motion for a new trial, the court rejected counsel's theory that Juror
14's statement was prompted by something in the jury room.
We review, for an abuse of discretion, a trial court's decision under Rule
1:8-2(d)(1) to remove and replace a deliberating juror "because of illness or
other inability to continue." State v. Musa, 222 N.J. 554, 564-65 (2015). To
protect the right to fair jury trial, our Supreme Court has restricted "inability to
continue" to matters that are personal to the juror, and unrelated to his or her
interaction with other jurors. State v. Jenkins, 182 N.J. 112, 124-25 (2004); see
also State v. Williams, 171 N.J. 151, 163 (2002).
A court may not discharge a juror because he or she disagrees with other
jurors. In State v. Valenzuela, 136 N.J. 458, 464, 471-73 (1994), the trial court
11 The court also rejected the argument that the jury had deliberated too long to permit a substitution, noting that the jury had deliberated less than two hours before the substitution, and deliberated for three days after it. Defendants do not renew that argument on appeal. A-1021-14T2 29 erred in removing a juror after she stated that fellow jurors were "ganging up"
on her, they had a "different opinion" of the case, they were communicating to
her that she was a "hindrance," and the jury complained to the judge that she
was "very confused." See also State v. Paige, 256 N.J. Super. 362, 380-81 (App.
Div. 1992) (stating that the trial court cannot replace a "disgruntled" juror
"whose position is at odds with the rest of the jury").
However, a court may excuse a juror whose "emotional condition renders
him or her unable to render a fair verdict." Williams, 171 N.J. at 164. For
example, a trial court appropriately discharged a juror who complained she
pictured her son as the defendant, and reported she was nervous, had a headache,
"want[ed] to spit up," was "too emotional," and could not render a fair and just
decision. State v. Trent, 157 N.J. Super. 231, 235-36 (App. Div. 1978), rev'd on
other grounds, 79 N.J. 251 (1979). In Jenkins, a juror had children the
defendant's age. She said, "I just can't make a decision to put him in jail." 182
N.J. at 119. Although she said she was not "the emotional type," and stated in
voir dire that she could be fair, she realized that, emotionally, she could not
decide the case on the facts. Id. at 120-21. The Court held that the trial court
appropriately discharged her. Id. at 127-28.
A juror who would decide a case based solely on a defendant's race violates her oath. A juror who would
A-1021-14T2 30 decide a case based solely on a personal identification or revulsion with a defendant, without regard to the evidence, also violates her oath. A juror, as in this case, who announces that she cannot obey her oath, follow the law, and render fair and impartial justice cannot remain on the jury. . . . [A] juror who expressly states that she cannot be impartial or that she is controlled by an irrepressible bias, and therefore will not be controlled by the law, is unable to continue as a juror for purposes of Rule 1:8-2(d)(1), and must be removed from a jury.
[Id. at 128.]
The record must "adequately establish[]" the juror's inability to continue.
Valenzuela, 136 N.J. at 472-73. At the same time, in ascertaining the reason
why a juror wants to be excused, a court must avoid improperly intruding into
the jury's deliberations. Musa, 222 N.J. at 569 (noting that the "questioning was
limited to assessing circumstances personal to the jurors and not delving into the
deliberative process"). The trial judge must assess the juror's demeanor and
interpret the juror's statement in context. See Williams, 171 N.J. at 169. The
trial judge is in the best position to assess the juror's "stress and concern." Id.
at 170. The Court has not required that a trial judge always question other jurors,
to corroborate the reasons given by the juror who wants to be excused. Not only
is such questioning of each deliberating juror time-consuming, it also may alarm
jurors or cause them to speculate about another juror's departure.
A-1021-14T2 31 Applying these principles, we discern no error in the trial court's discharge
of Juror 14. He expressly stated that his inability to continue was "personal,"
explaining the case brought him to a "personal place" with "an enormous grip"
and it was "not the time, nor the place for personal matters." He added that it
was his "personal perception of things" that the justice system "doesn't lean
towards a minority" and the economic system is also unfair.
The judge was in the best position to assess Juror 14's sincerity, and the
depth of his emotion, in ascertaining whether he was unable to continue. The
court was not obliged to question other jurors about Juror 14. The juror did not
hint that his comments originated from a disagreement with other jurors about
the facts of the case, which may have warranted clarification.
Juror 14's comments seem more akin to those of the jurors in Trent and
Jenkins, than in Valenzuela. The juror's personal view of racial justice and
equality prompted him to request being excused. Although he did not say so
explicitly, it is clear that he believed that his "personal place" prevented him
from fairly deciding the case based on the facts and the law as the court
instructed. The judge appropriately exercised his discretion, on this record, to
excuse him, and reached that decision in a proper manner.
A-1021-14T2 32 V.
We turn to Adams's argument that the trial court erred in denying his
motion to sever his trial from Olmo's. He claims the substantial evidence at trial
that pertained only to Olmo, including his involvement in the 2009 incident, and
his recorded conversation with Vega, denied him a fair trial. We are unpersuaded.
The court denied three severance motions by Adams. The first was based on
Olmo's prolonged unavailability for trial, which led to a delay for Adams. The court
held that Adams had not shown the delay prejudiced his ability to present a defense.
In support of the second motion, filed several months later, Adams argued that
evidence of the 2009 incident, in which he was uninvolved, would be inadmissible
against him and highly prejudicial. Shortly afterward, he sought severance on the
grounds that admission of the Olmo-Vega conversation, which did not involve him,
would be unduly prejudicial to his defense. Denying the second and third motions
together, the court reasoned that some reference to the 2009 incident was
unavoidable in order to make both defendants' motives clear. Regarding the Olmo-
Vega conversation, the court stated that "[t]his is a murder case, and killing, and a
certain amount of chatter about it, uh, is part of the landscape whether Mr. Adams is
severed or not." The court concluded that the conversation was not unduly
prejudicial to Adams.
A-1021-14T2 33 Rule 3:7-7 allows two or more defendants to be tried jointly "if they are
alleged to have participated in the same act or transaction or in the same series of
acts or transactions constituting an offense or offenses." Indeed, "[w]hen the crimes
charged arise from the same series of acts, and when much of the same evidence is
needed to prosecute each defendant, a joint trial is preferable." State v. Brown, 118
N.J. 595, 605 (1990); see also State v. Robinson, 253 N.J. Super. 346, 364 (App.
Div. 1992) (noting the general preference for trying co-defendants jointly). "Joint
trials foster an efficient judicial system, and spare witnesses and victims the
inconvenience and trauma of testifying about the same events two or more times."
State v. Sanchez, 143 N.J. 273, 282 (1996) (citations omitted).
Nevertheless, "the interest in judicial economy cannot override a defendant's
right to a fair trial." Ibid. "If, for any reason, it appears that a defendant or the State
is prejudiced by the joint trial, the trial court may sever." State v. Weaver, 219 N.J.
131, 148 (2014) (citing R. 3:15-2(b)). "When considering a motion to sever, a court
must balance the potential prejudice to a defendant against the interest in judicial
economy." State v. Brown, 170 N.J. 138, 160 (2001). The decision to sever is within
the trial court's discretion, and will not be reversed unless it constitutes an abuse of
that discretion. Weaver, 219 N.J. at 149.
A-1021-14T2 34 Generally, "separate trials are necessary when [the] co-defendants' defenses
are 'antagonistic and mutually exclusive or irreconcilable.'" Brown, 170 N.J. at 160
(quoting Brown, 118 N.J. at 605-06). However, "the potential for prejudice inherent
in the mere fact of joinder does not of itself encompass a sufficient threat to compel
a separate trial." State v. Scioscia, 200 N.J. Super. 28, 42 (App. Div. 1985). "The
danger by association that inheres in all joint trials is not in itself sufficient to justify
a severance . . . ." Brown, 118 N.J. at 605. "A severance should not be granted
'merely because it would offer defendant[s] a better chance of acquittal.'" Scioscia,
200 N.J. Super. at 42-43 (quoting State v. Morales, 138 N.J. Super. 225, 231 (App.
Div. 1975) (alteration in original)). Courts have specifically held that severance was
not warranted where the only basis for the motion was that some evidence would be
admissible as to only one co-defendant, State v. Mayberry, 52 N.J. 413, 421 (1968),
or where the evidence against one defendant was stronger than that against the other,
State v. Laws, 50 N.J. 159, 175-76 (1967).
Here, Olmo's and Adams's defenses were not antagonistic, mutually exclusive
or irreconcilable. Indeed, they both asserted defenses that they did not kill Downs,
they had no reason to kill her, and although they did not know who killed her,
Matthews had the motive and opportunity to do so. Thus, the most compelling
reason recognized by courts to support a severance was not present.
A-1021-14T2 35 Adams's argument on this point is that the highly prejudicial evidence
admitted against Olmo created the potential for the jury to find him guilty by
association. Yet, courts have repeatedly held that the danger by association that
inheres in joint trials, without more, does not justify a severance. Brown, 118 N.J.
at 605. Indeed, joint trials may allow for a more accurate assessment of relative
culpability that can sometimes operate to a defendant's benefit. Sanchez, 143 N.J.
at 282. For instance, a piece of evidence in Adams's favor was the complete absence
of any mention of him in the lengthy conversation between Vega and Olmo about
the murder of Downs and the intimidation of Falcon. The verdict returned in this
matter clearly showed that the jury believed Adams to be the less culpable of the
two.
VI.
Olmo's remaining points do not warrant extended discussion. We discern no
merit to Olmo's argument that in order to find him guilty as an accomplice to the
murder, the trial court was obliged to instruct the jury that Olmo was an accomplice
specifically of Adams, as opposed to "another person." Simply put, the jury was not
obliged to identify the trigger-man in order to conclude that Olmo was guilty of
soliciting that person to kill Downs. See State v. Norman, 151 N.J. 5, 32 (1997)
A-1021-14T2 36 (holding that the jury was not required to identify the shooter in order to find the
defendant guilty as an accomplice).
The court also did not err in admitting Downs's 2009 statement – released to
Olmo in discovery – that she observed Olmo flee her apartment complex holding a
gun after a shooting. The State offered the statement to rebut Olmo's testimony that
Downs must have been mistaken, and he meant her no ill will. The court admitted
the statement under the forfeiture-by-wrongdoing doctrine as set forth in State v.
Byrd, 198 N.J. 319, 340 (2009); see also N.J.R.E. 804(b)(9). The court held a
hearing under N.J.R.E. 104 and heard testimony from the police officer who took
Downs's statement. Based on that testimony and the evidence already presented at
trial, the court was satisfied by a preponderance of the evidence that Olmo's
wrongdoing was intended to, and did, procure Downs's unavailability; and Downs's
statement bore an indicia of reliability. See Byrd, 198 N.J. at 352. Furthermore, the
admission of Downs's statement does not offend the confrontation clause. Id. at 339;
State v. Rinker, 446 N.J. Super. 347, 360-61 (App. Div. 2016). It matters not that
Olmo's initial intention was to prevent Downs from testifying in a prosecution
pertaining to the 2009 incident, as opposed to a trial for Downs's murder. The critical
fact is that Olmo engaged in wrongdoing that made Downs unavailable to provide
in court the statement she made previously.
A-1021-14T2 37 Although Downs's mother stated before the jury that her daughter was afraid
of Olmo, defense counsel swiftly objected, and the court delivered a curative
instruction, directing the jury not to consider the statement. We presume the jury
followed the court's instruction. State v. Loftin, 146 N.J. 295, 390 (1996). In any
event, the fleeting remark was inconsequential in the context of the evidence of
Olmo's guilt, and provides no basis to disturb the jury's verdict.
Also, the court did not, as Olmo contends, pierce his attorney-client privilege
when it compelled his attorney in the case related to the 2009 incident to testify about
when he received and then transmitted discovery, disclosing Downs's and Falcon's
cooperation, to Olmo. The information simply did not constitute a communication
protected by the privilege because it did not concern legal advice. See Hedden v.
Kean Univ., 434 N.J. Super. 1, 10 (App. Div. 2013).
Olmo also contends the court erred in admitting into evidence his custodial
statement to police regarding the 2009 incident. He argues that his Miranda rights
were violated. Given our deferential review of the trial court's findings, see State v.
Hubbard, 222 N.J. 249, 262-68 (2015), we shall not disturb the trial court's
determination that defendant received the appropriate Miranda warnings; and,
despite the length of his incarceration and the lack of food, Olmo was competent,
A-1021-14T2 38 his will was not overborne, and he was not under the influence of narcotics.12
Although he initially declined to answer questions before obtaining a lawyer, Olmo
persisted in engaging the officers, who explained that they could not discuss the case
unless Olmo waived his right to remain silent, which Olmo did. The officers did not
violate Olmo's rights in clarifying Olmo's intentions. See State v. Diaz-Bridges, 208
N.J. 544, 569 (2012) (stating that officers may inquire "to clarify the suspect's intent"
when "confronted with an ambiguous invocation").
We discern no merit in Olmo's argument that the court erred in allowing the
State to refer to the 2009 incident. To reduce the potential prejudice to Olmo, the
court prohibited the State from eliciting details about the incident (although Olmo
opened the door to such details by discussing the incident in depth in his own
testimony). The court properly applied the Cofield factors, see State v. Cofield, 127
N.J. 328, 338 (1992), in concluding that the evidence was relevant to the motive for
committing the murder and witness tampering, and its probative value was not
outweighed by its apparent prejudice.
12 We note that the trial judge relied in part on his assessment of Olmo's demeanor as reflected in the videotape of his interrogation. As the record o n appeal does not include that recording, we have no basis to question that aspect of the court's findings. See State v. Cordero, 438 N.J. Super. 472, 489 (App. Div. 2014) (noting that failure to provide video evidence impeded appellate court's review of the trial court's fact finding). A-1021-14T2 39 Finally, we reject Olmo's contention that his sentence was improper and
excessive. We note at the outset that the court was compelled to impose a sentence
of life imprisonment without parole for Downs's murder. See N.J.S.A. 2C:11-
3(b)(4). Thus, Olmo's sentencing argument applies only to the consecutive ten-year
sentence for witness tampering.
In support of its sentence, the court found aggravating factors one, N.J.S.A.
2C:44-1(a)(1) ("nature and circumstances of the offense, and the role of the actor");
two, N.J.S.A. 2C:44-1(a)(2) ("gravity and seriousness of the harm inflicted on the
victim" including the offender's knowledge of victim's incapacity to resist); three,
N.J.S.A. 2C:44-1(a)(3) (risk of reoffending); six, N.J.S.A. 2C:44-1(a)(6) (prior
record); and nine, N.J.S.A. 2C:44-1(a)(9) (need to deter). Those factors substantially
outweighed any mitigating factors.
We are satisfied that in applying the sentencing guidelines, the judge gave
adequate reasons to support the sentence, the sentence is not manifestly excessive or
unduly punitive, and it does not constitute an abuse of discretion. See State v.
Fuentes, 217 N.J. 57 (2014); State v. Cassady, 198 N.J. 165 (2009); State v. Roth,
95 N.J. 334 (1984). Inasmuch as there were two distinct victims – Downs and Falcon
– we discern no error in the imposition of consecutive sentences. See State v.
Yarbough, 100 N.J. 627, 643 (1985). The fact that Olmo did not personally shoot
A-1021-14T2 40 Downs did not preclude the court from finding aggravating factors one and two. The
court found those factors based on the "cold-blooded" and "calculated" execution of
Downs. The court noted that the harm was not only to Downs but to the "body
politic" as it involved "payback for [Downs's] temerity in cooperating with law
enforcement."
Olmo's remaining points lack sufficient merit to warrant discussion in a
written opinion. R. 2:11-3(e)(2).
VII.
Adams's remaining points also do not warrant extended discussion. As did
Olmo, Adams contends his Miranda rights were violated, because he initially stated
that he did not want to speak to police. However, he persisted in asking the police
about the matter, including asking the officer to ask him some questions. The officer
explained that he could not do so unless Adams changed his answer on the Miranda
form, which he did. The trial court did not err in concluding that there was no
Miranda violation. The police honored Adams's request to remain silent, while
clarifying, in response to Adams's voluntary inquiries, whether he wanted to waive
that right. See Diaz-Bridges, 208 N.J. at 569.
Adams also challenges the sufficiency of the proofs. Relying on his acquittal
for murder and weapon offenses, he contends there was insufficient evidence
A-1021-14T2 41 remaining that he witness-tampered Downs. He also argues there was insufficient
evidence that he threatened Falcon with force, so as to raise the witness tampering
to a second-degree offense. N.J.S.A. 2C:28-5(a). He also contends the court should
have granted his motion for a new trial in part on the basis that the convictions were
inconsistent with his acquittal of murder and weapons offenses.
We are unpersuaded. As our system tolerates inconsistent verdicts, the trial
court appropriately determined that there was sufficient evidence to support the
jury's guilty verdicts, notwithstanding its acquittals. See State v. Muhammad, 182
N.J. 551, 578 (2005) (stating that "[i]n reviewing a jury finding, we do not attempt
to reconcile the counts on which the jury returned a verdict of guilty and not guilty").
Although the jury was not convinced that Adams was the trigger-man, there was
sufficient proof to conclude that he was part of the conspiracy to kill her and to
prevent her from testifying against Olmo. Witnesses implicated him in the
conspiracy; Adams engaged in numerous communications with Matthews and Olmo
before and after the murder; and he made large purchases after the murder. He
travelled to the scene shortly after the murder. There was also sufficient evidence
for the jury to find that Adams threatened Falcon with force, including Falcon's trial
testimony.
A-1021-14T2 42 Turning to Adams's sentence, we have already noted that the judgment of
conviction must be corrected to conform with the court's oral sentence. The judge
stated that the seven-year term for witness tampering of Downs was to run
concurrently with the fifteen-year term for conspiracy to murder her. We find no
error in the court's imposition of a consecutive term for witness tampering of Falcon,
as it involved a different victim. See Yarbough, 100 N.J. at 643.
The court adequately supported its finding of aggravating factors one,
N.J.S.A. 2C:44-1(a)(1) ("nature and circumstances of the offense and the role of the
actor"); two, N.J.S.A. 2C:44-1(a)(2) ("gravity and seriousness of the harm inflicted
on the victim," including the offender's knowledge of victim's incapacity to resist);
three, N.J.S.A. 2C:44-1(a)(3) (risk of reoffending); and nine, N.J.S.A. 2C:44-1(a)(9)
(need to deter). The court found that those aggravating factors outweighed non-
existent mitigating factors.
Adams asked the court to find mitigating factors seven, N.J.S.A. 2C:44-
1(b)(7) (defendant has no prior criminal record, or has a substantial period of law-
abiding behavior); eight, N.J.S.A. 2C:44-1(b)(8) (defendant's behavior resulted from
circumstances unlikely to recur); nine, N.J.S.A. 2C:44-1(b)(9) (the character and
attitude of the defendant indicate that he is unlikely to commit another offense); and
ten, N.J.S.A. 2C:44-1(b)(10) (amenability to probationary treatment). Although the
A-1021-14T2 43 court did not expressly address those factors, its rejection was implicit. See State v.
Bienek, 200 N.J. 601, 609 (2010) (stating that a trial court need not explicitly reject
each mitigating factor that a defendant argues, if its reasons for the sentence reveal
the court's consideration of those factors).
The court acknowledged in its decision that defendant did not have a prior
criminal record. The court noted that Adams disputed the correctness of his
presentence report, which noted prior disorderly persons convictions. The court
concluded, contrary to mitigating factors eight and nine, that defendant posed a risk
of reoffending. Mitigating factor ten is inapplicable when a defendant has been
convicted of a crime with a presumption of imprisonment, as Adams was. State v.
Sene, 443 N.J. Super. 134, 144-45 (App. Div. 2015).
We also reject Adams's argument that factors one and two "should not be
relied upon in a single gunshot murder case." As the judge appropriately found, the
conspiracy to murder involved the "cold-blooded" killing of a mother just steps from
the front door of her home, her two young children, and her mother. The victim was
totally defenseless.
Adams's remaining arguments lack sufficient merit to warrant discussion in a
A-1021-14T2 44 In sum, the convictions and sentences of both defendants are affirmed. In
Adams's case, No. A-1021-14, we remand solely to correct the judgment of
conviction, with the State's consent.
A-1021-14T2 45