NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0737-16T1 A-0861-16T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MAURICE L. SKILLMAN,
Defendant-Appellant. ____________________________
HYKEEM E. TUCKER,
Defendant-Appellant. _____________________________
Submitted (A-0737-16) and Argued (A-0861-16) January 29, 2019 – Decided March 7, 2019
Before Judges Yannotti, Rothstadt and Gilson. On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 13-09-1150.
Joseph E. Krakora, Public Defender, attorney for appellant in A-0737-16 (Michael J. Confusione, Designated Counsel, on the brief).
Gurbir S. Grewal, Attorney General, attorney for respondent in A-0737-16 (Evgeniya Sitnikova, Deputy Attorney General, of counsel and on the brief).
John W. Douard, Assistant Deputy Public Defender, argued the cause for appellant in A-0861-16 (Joseph E. Krakora, Public Defender, attorney; Joshua D. Sanders, Assistant Deputy Public Defender, of counsel and on the brief).
Evgeniya Sitnikova, Deputy Attorney General, argued the cause for respondent in A-0861-16 (Gurbir S. Grewal, Attorney General, attorney; Evgeniya Sitnikova, of counsel and on the brief).
PER CURIAM
Defendants Maurice Skillman and Hykeem Tucker were tried before a
jury and found guilty of purposeful or knowing murder and other offenses.
Skillman and Tucker appeal from judgments of conviction (JOC) dated August
25, 2016. We address both appeals in this opinion. For the reasons that follow,
we affirm defendants' convictions, but remand for resentencing because it is not
clear from the record whether the judge intended to sentence defendants to terms
of life imprisonment or seventy-five-year prison terms.
A-0737-16T1 2 I.
In September 2013, a Mercer County grand jury returned an indictment
charging defendants with: the purposeful or knowing murder of Carl Batie,
N.J.S.A. 2C:11-3(a)(1) or (2) (count one); second-degree possession of a
weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a), N.J.S.A. 2C:2-6 (count
two); second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b),
N.J.S.A. 2C:2-6 (count three); and three counts of fourth-degree aggravated
assault with a firearm, N.J.S.A. 2C:12-1(b)(4), N.J.S.A. 2C:2-6 (counts four,
five, and six).
Defendants filed various pre-trial motions, including a motion to suppress
surveillance videos, and a motion to bar a detective from narrating the videos as
they were played for the jury. On June 25, 2015, the judge entered an order
denying the motions. The motion judge found that the surveillance videos were
sufficiently clear and could be admitted into evidence. The judge also found
that the detective's narration of the videos was permissible as lay opinion under
N.J.R.E. 701 because it was "rationally based upon [the detective's] own
perceptions."
It appears that at some point, count six was dismissed. Thereafter, on
various dates in January and February 2016, defendants were tried together
A-0737-16T1 3 before a jury, with another judge presiding. After the State rested, the judge
dismissed count four. The jury was unable to reach a verdict on the other counts,
and the judge declared a mistrial. In May and June 2016, defendants were
retried.
At the trial, the State presented evidence which established that on the
evening of November 10, 2012, an event celebrating the re-election of President
Obama was held at the Baldassari Regency (Regency), a club located at the
corner of Morris Avenue and Division Street in Trenton. The Regency hired
two officers employed by the Trenton Police Department (TPD), to assist in
providing security for the event.
At around 12:30 a.m., a security guard denied an individual entry into the
Regency because he was underage and provided someone else's identification.
Thereafter, the officers on hand confiscated the identification and asked the
individual to leave. The individual became agitated and told the officers, "Fuck
you, I'll be back. I got something for you. I don't give a fuck if you're on -duty
or off-duty, that badge don't mean shit. That badge ain't gonna save you from a
bullet." This individual was later identified as S.R.1
1 In this opinion, we refer to certain individuals by their first names to avoid confusion. We also refer to other individuals using initials to protect their privacy. A-0737-16T1 4 Marquis Skillman, defendant Skillman's brother, testified that on the
evening of November 10, 2012, he drove his girlfriend's blue Chevrolet Impala
to the Regency. Marquis went to the Regency with his brother and two other
persons. One was known as Tex, and the other as Dower. Marquis identified
Tucker in court as the person known as Tex. According to Marquis, that night,
neither Tucker nor his brother were in possession of a gun.
At around 11:30 p.m. or midnight, Karshawn Batie and his brother Carl
went to the Regency to attend the celebration. At some point, they went up to
the Regency's exterior balcony, which is on the second floor. Carl began talking
to security guard Alexis Feliciano, with whom he was acquainted. While Carl
was talking to Feliciano, gunshots were fired at the balcony from the Regency's
parking lot.
Feliciano stated that fifteen to twenty rounds were fired back-to-back.
Feliciano told everyone to get down. He observed Carl gasping for air and saw
that he had been shot in the head. Feliciano testified that he observed a person
wearing a gray hoodie shooting at the balcony. He saw the suspect run into an
alleyway.
Karshawn testified that when the shooting began, a woman grabbed him
and pulled him to the ground. After the shooting stopped, Karshawn looked for
A-0737-16T1 5 his brother. He saw Carl lying face up. Carl had been shot in the head. Carl
was taken to a hospital, where he was pronounced dead. An autopsy was
performed and it was determined that the cause of death was a gunshot wound
to the head.
Detective Timothy Long of the TPD testified that he arrived at the
Regency shortly after the shooting, and he observed about 200 people out in the
street. Long described the atmosphere as panicked, with some people engaged
in street fights and arguments. Long observed a black man wearing a black-
hooded sweatshirt and gray pants, who was starting an argument with another
black man.
Long saw the man with the hooded sweatshirt throw several punches at
the other man. Long ordered the man to stop fighting, but he ignored him. The
man started to walk off and tried to hop a fence at a residence on Division Street.
Long eventually arrested the man, who was later identified as defendant
Skillman.
Detective Scott Peterson of the TPD investigated the incident. He testified
that on the night of the shooting, the Regency had at least five surveillance
cameras. One camera was inside by the entrance, and other cameras were
outside. The detectives downloaded videos from these surveillance cameras.
A-0737-16T1 6 The jury was shown excerpts of the videotapes, along with screen shots
taken from the videotapes. Peterson identified the videotapes and the screen
shots. He described the locations of surveillance cameras that recorded the
videos. He also identified the areas depicted on the videos and screen shots.
Peterson explained that a school is located across from the Regency on
Morris Avenue, and on the evening of November 10, 2012, cars parked in the
school's lot for the event. The Regency also has a parking lot where cars parked
for the event. Peterson pointed out that there are several alleys near the
Regency's parking lot, including Winton Alley and Saco Alley.
Peterson began his review of the surveillance footage with the video of
the shooting, which he said occurred around 1:15 a.m. Peterson noted that the
timestamp on the videos was fifty minutes ahead of the time recorded. He stated
that the police recovered twenty-two shell casings from the center of the
Regency's parking lot.
The footage recorded by one of the cameras depicted a portion of the
Regency's parking lot near Saco Alley. It showed two individuals walking
between two cars. Peterson testified that one of the individuals was a black male
wearing a varsity-style jacket, and the other individual was a taller, thin male.
A-0737-16T1 7 He noted that at one point, the men are seen entering and exiting a white van in
the parking lot.
Peterson testified that the video showed that at around 1:13 a.m., the two
men were standing near the van. According to Peterson, it appeared that the tall
man had something in his hand. Peterson said the video showed the men
entering the alley. At around 1:14 a.m., the taller man walked towards the
middle of the parking lot, and the man in the varsity jacket followed.
Peterson stated that the video showed the tall man walk back to the van
and then proceed towards Saco Alley. The tall man then ran back from the alley,
heading in the direction of Morris Avenue. Peterson testified that the video
showed what appeared to be a flash of light, extending out from the tall man's
arm. At that point, the man in the varsity jacket was in the middle of the parking
lot.
Peterson testified that the investigation focused on identifying the two
suspects. He reviewed the surveillance video of S.R.'s altercation with the
police at the entrance to the Regency, but S.R. did not match the persons shown
in the video recorded at the time of the shooting. Therefore, the police
determined that S.R. was not a suspect. Peterson reviewed other surveillance
videos, and in the videos, the varsity jacket stood out.
A-0737-16T1 8 Another video was played for the jury, and Peterson testified it showed
that around 11:54 p.m., a dark blue or black Chevrolet Impala enter the Regency
parking lot and park near a work van. The investigators determined that the
Impala was owned by Marquis's girlfriend, A.B. Peterson also noted that in the
video, the man in the varsity jacket is seen getting out of the Impala.
Peterson interviewed Marquis and showed him a screen shot taken from
footage recorded by the Regency's front-door surveillance camera at around
12:15 a.m. The screen shot showed Marquis and the person known as Tex.
Marquis identified Tucker as the person called Tex. Peterson noted that during
the investigation, he interacted several times with both defendants and he was
familiar with them.
Peterson further testified that based on his investigation and his own
observations of both defendants, Tucker is the person shown in the surveillance
video wearing the varsity jacket, and Skillman is the taller man. Peterson also
said other surveillance videos showed that around midnight, Skillman and
Tucker walked towards the front entrance of the Regency, and several minutes
after midnight, they entered with Marquis. Peterson said a surveillance video
shows defendants leaving the Regency about forty minutes later.
A-0737-16T1 9 Peterson also testified that another video recorded around 1:15 a.m.,
shows Skillman jogging through the parking lot at a fast pace. He stated that
the video shows Skillman's arm down at his side, and there is a black object at
the end of his arm. The video shows Skillman lift his arm and a flash of light
comes from it. Defendants are then seen fleeing in the direction of the
alleyways.
The jury found defendants guilty of the purposeful or knowing murder of
Carl Batie, possession of a weapon for an unlawful purpose, unlawful possession
of a handgun, and aggravated assault with a firearm upon Alexis Feliciano. The
trial judge sentenced defendants on August 19, 2016.
The judge merged count two (possession of a weapon for an unlawful
purpose) with count one (murder). The judge stated that he was sentencing both
defendants on count one to life imprisonment, with an eighty-five percent period
of parole ineligibility and five years of parole supervision, pursuant to the No
Early Release Act (NERA), N.J.S.A. 2C:43-7.2. However, when he sentenced
Skillman, the judge stated, "That means a [seventy-five]-year period of time,
[eighty-five] percent of which must be served without parole." The JOCs for
both defendants state that they were sentenced to seventy-five year prison terms,
with a period of parole ineligibility as prescribed by NERA.
A-0737-16T1 10 On count three (unlawful possession of a handgun), the judge sentenced
defendants to concurrent terms of ten years in prison, each with a five-year
period of parole ineligibility. On count five (aggravated assault with a firearm
upon Feliciano), the judge sentenced defendants to consecutive terms of
eighteen months. In addition, the judge imposed appropriate monetary fines and
penalties, and ordered defendants to pay restitution of $7373.83.
Defendants appeal from the JOCs dated August 25, 2016. In his appeal,
Skillman raises the following arguments:
[POINT I THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS THE SURVEILLANCE VIDEO FROM GOING BEFORE THE JURY AND PERMITTING DETECTIVE PETERSON TO "NARRATE" THE VIDEO FOR THE JURY.
POINT II DEFENDANT'S RIGHT TO A FAIR JURY TRIAL WAS INFRINGED.
POINT III THE PROSECUTION INFECTED THE FAIRNESS OF THE TRIAL BY TELLING THE JURY THAT DEFENDANT REFUSED TO SPEAK WITH THE POLICE ON ARREST. (NOT RAISED BELOW).
POINT IV THE PROSECUTION SKEWED THE REASONABLE DOUBT BURDEN. (NOT RAISED BELOW).
A-0737-16T1 11 POINT V DEFENDANT'S SENTENCE IS IMPROPER AND EXCESSIVE.]
In his appeal, Tucker raises the following arguments:
POINT I PETERSON'S TESTIMONY NARRATING THE SURVEILLANCE WITH HIS OWN OPINIONS AS TO WHAT OCCURRED ON THE VIDEO INVADED THE PROVINCE OF THE JURY AND USURPED THE JURY'S FACTFINDING ROLE IN VIOLATION OF N.J.R.E. 701 AND [DEFENDANT]'S RIGHTS TO DUE PROCESS AND A FAIR TRIAL.
POINT II THE JURY CHARGE RELATIVE TO [DEFENDANT]'S STATEMENT WAS INSUFFICIENT TO ADVISE THE JURY OF THE NEED TO CRITICALLY AND EFFECTIVELY EVALUATE THAT STATEMENT IN LIGHT OF THE REALITY THAT JURORS HAVE GREAT DIFFICULTY DISTINGUISHING BETWEEN FALSE CONFESSIONS AND TRUE CONFESSIONS. U.S. CONST. AMEND VI; N. J. CONST. ART I, PAR. 10. (NOT RAISED BELOW).
POINT III THE PROSECUTION SKEWED THE STATE'S BURDEN TO PROVE ITS CASE BEYOND A REASONABLE DOUBT. (NOT RAISED BELOW)
POINT IV THE TRIAL WAS SO INFECTED WITH ERROR THAT EVEN IF EACH INDIVIDUAL ERROR DOES NOT REQUIRE REVERSAL, THE AGGREGATE OF THE ERRORS DENIED [DEFENDANT] A FAIR TRIAL. (NOT RAISED BELOW).
A-0737-16T1 12 POINT V THE SENTENCING COURT ERRED IN DETERMINING THE WEIGHT AFFORDED TO AGGRAVATING FACTOR SIX, N.J.S.A. 2C:44- 1a(6), GIVEN THAT AGGRVATING FACTOR SIX STATISTICALLY HAS A NEGATIVE, DISPROPORTIONATE IMPACT UPON MINORITIES.
POINT VI [DEFENDANT]'S SENTENCE IS EXCESSIVE, UNDULY PUNITIVE, AND MUST BE REDUCED.
II.
On appeal, Skillman and Tucker both argue that the trial judge erred by
allowing Peterson to testify as to what was depicted on the surveillance videos
shown to the jury. Defendants argue Peterson's testimony was not admissible
lay opinion testimony under Rule 701, and improperly usurped the jury's fact-
finding role. See N.J.R.E. 701.
We note initially that a trial court's evidentiary rulings are reviewed under
a "deferential standard" and will not be reversed unless shown to be a mistaken
exercise of discretion. State v. Perry, 225 N.J. 222, 233 (2016) (quoting State
v. Brown, 170 N.J. 138, 147 (2001)). An appellate court should not set aside a
trial court's evidentiary ruling unless it "was so wide of the mark" as to result in
"a manifest denial of justice." State v. Marrero, 148 N.J. 469, 484 (1997)
(quoting State v. Kelly, 97 N.J. 178, 216 (1984)).
A-0737-16T1 13 Here, the motion judge found that Peterson's testimony regarding the
videos was admissible under Rule 701. The Rule states that: "If a witness is not
testifying as an expert, the witness' testimony in the form of opinions or
inferences may be admitted if it (a) is rationally based on the perception of the
witness and (b) will assist in understanding the witness' testimony or in
determining a fact in issue." Ibid. To be admissible lay opinion under Rule 701,
the witness' perception must rest on knowledge acquired "through use of [his or
her] sense of touch, taste, sight, smell or hearing." State v. McLean, 205 N.J.
438, 457 (2011) (citing State v. LaBrutto, 114 N.J. 187, 199-200 (1989); Estate
of Nicolas v. Ocean Plaza Condo Ass'n, 388 N.J. Super. 571, 582 (App. Div.
2006)).
The witness' testimony also must "assist the trier of fact either by helping
to explain the witness's testimony or by shedding light on the determination of
a disputed factual issue." Id. at 458. However, lay opinion testimony is not
admissible under Rule 701 if it pertains to "a matter 'not within [the witness's]
direct ken . . . and as to which the jury is as competent as he to form a
conclusion[.]" Id. at 459 (alterations in original) (quoting Brindley v. Firemen's
Ins. Co., 35 N.J. Super. 1, 8 (App. Div. 1955)).
A-0737-16T1 14 The Court's decision in State v. Lazo, 209 N.J. 9 (2012) is instructive.
There, the Court held that the trial judge erred by allowing a police officer to
testify that he believed defendant closely resembled a composite sketch of the
suspect, and for this reason, included defendant's photo in an array. Id. at 12.
The Court determined that the officer's testimony improperly bolstered the
victim's account and usurped the jury's responsibility to weigh the victim's
credibility. Id. at 13.
In Lazo, the Court observed that other jurisdictions have permitted law
enforcement officers to offer a lay opinion identifying a defendant from a
photograph. Id. at 22. The Court noted that the Ninth Circuit had held that in a
bank robbery prosecution, a probation officer could testify that he believed
defendant was the person depicted in a surveillance photo in light of the many
prior contacts between the two individuals. Ibid. (citing United States v. Beck,
418 F.3d 1008, 1011, 1015 (9th Cir. 2005)).
The Lazo Court pointed out that in Beck, the Ninth Circuit stated that
whether such evidence "is 'helpful' . . . depends on various factors[.]" Ibid.
(quoting Beck, 418 F.3d at 1015). Those factors could include "whether the
witness knew the defendant over time and in a variety of circumstances." Ibid.
(quoting Beck, 418 F.3d at 1015).
A-0737-16T1 15 The Court in Lazo noted, however, that in another case, the Ninth Circuit
had determined that it was error for the trial court to allow a police officer to
identify a defendant from a bank surveillance photo because in that case, the
officer did not know the defendant and "had never . . . seen him in person." Id.
at 23 (quoting United States v. LaPierre, 998 F.2d 1460, 1465 (9th Cir. 1993)).
"[T]he officer's knowledge of the defendant's 'appearance was based entirely on
his review of photographs of [defendant] and witnesses' descriptions of him.'"
Ibid. (second alteration in original) (quoting LaPierre, 998 F.2d at 1465).
The Lazo Court stated that when evaluating whether a law enforcement
officer should be permitted to present lay opinion on the issue of identification,
the trial court should "consider, among other factors, whether there are
additional witnesses available to identify the defendant at trial." Ibid. (citing
United States v. Butcher, 557 F.2d 666, 670 (9th Cir. 1977); State v. Carbone,
180 N.J. Super. 95, 97-100 (Law Div. 1981)).
In Butcher, the Ninth Circuit noted that while lay opinion testimony by
law enforcement officers should not be encouraged, it can be admissible where
there is no other available adequate identification testimony. Butcher, 557 F.2d
at 670. In Carbone, the trial court admitted lay testimony where there was a lack
of available eyewitness identification testimony, defendant's appearance had
A-0737-16T1 16 changed, and the witness was familiar with the defendant's appearance when the
offense was committed. Carbone, 180 N.J. at 100.
In this case, the motion judge did not err by permitting Peterson to narrate
the surveillance videos and testify that defendants were the persons depicted in
the videos. The videos are of varying quality, and Peterson stated that he had to
watch them several times in order to determine what was occurring.
Furthermore, the State only presented excerpts of the videos, which were
recorded at various times, by different surveillance cameras. Peterson informed
the jury of the locations of the cameras, the locations depicted, and the times the
videos were recorded.
Peterson noted that during his investigation, he had several interactions
with defendants and he was familiar with them. Moreover, during the
investigation Peterson interviewed Marquis, who identified Tucker as the man
in the varsity jacket and his brother as the tall man seen with him.
Furthermore, Peterson's testimony did not usurp the jury's fact-finding
role. The jury was not bound by Peterson's opinions. The jurors were
specifically instructed that they had to decide whether defendants were the
persons depicted in the videos. Peterson's testimony assisted the jury in
understanding the evidence and determining the facts at issue.
A-0737-16T1 17 We also conclude that even if the judge erred by allowing Peterson's
testimony, the error was harmless. As noted, during the investigation, Marquis
identified defendants from a screen shot made from the surveillance video. At
trial, Marquis admitted that during the interview, he identified defendants as the
persons depicted in the screen shot.
In addition, the trial judge instructed the jury that it was their duty to
determine whether the surveillance videos were reliable and whether they
showed defendants committing the crimes for which they were charged. We
must presume the jury followed the judge's instructions. See State v. Burns, 192
N.J. 312, 335 (2007) (citing State v. Nelson, 155 N.J. 487, 526 (1998)).
Therefore, even if erroneous, the judge's decision to allow Peterson to
narrate the videos and identify defendants as the person depicted therein, was
not "clearly capable of producing an unjust result." R. 2:10-2.
III.
Next, Skillman and Tucker argue that during his summation, the assistant
prosecutor made a statement that skewed the State's burden of proof.
Defendants did not object to the comment. Therefore, we consider whether the
comment constituted plain error under Rule 2:10-2.
A-0737-16T1 18 It is well-established that "[p]rosecutors are afforded considerable leeway
in closing arguments as long as their comments are reasonably related to the
scope of the evidence presented." State v. Frost, 158 N.J. 76, 82 (1999) (citing
State v. Harris, 141 N.J. 525, 559 (1995); State v. Williams, 113 N.J. 393, 447
(1988)). "[P]rosecutorial misconduct can be a ground for reversal" if it is "so
egregious that it deprived the defendant of a fair trial." Id. at 83 (citing State v.
Ramseur, 106 N.J. 123, 322 (1987); State v. Siciliano, 21 N.J. 249, 262 (1956)).
In determining whether a prosecutor's statement deprived the defendant of
a fair trial, we "consider (1) whether defense counsel made timely and proper
objections to the improper remarks; (2) whether the remarks were withdrawn
promptly; and (3) whether the court ordered the remarks stricken from the record
and instructed the jury to disregard them." Ibid. (citing State v. Marshall, 123
N.J. 1, 153 (1991); Ramseur, 106 N.J. at 322-23; State v. G.S., 278 N.J. Super.
151, 173 (App. Div. 1994), rev'd on other grounds, 145 N.J. 460 (1996); State
v. Ribalta, 277 N.J. Super. 277, 294 (App. Div. 1994)). "Prosecutors should not
make inaccurate legal or factual assertions during a trial." Id. at 85 (citing State
v. Engel, 249 N.J. Super. 336, 381 (App. Div. 1991)).
On appeal, defendants argue that the assistant prosecutor improperly
stated that the State did not have to prove every fact beyond a reasonable doubt.
A-0737-16T1 19 However, in a criminal prosecution, the State is only required to prove "every
fact necessary to constitute the crime for which he is charged" beyond a
reasonable doubt. In re Winship, 397 U.S. 358, 364 (1970).
Thus, the State only has to prove the facts that constitute the elements of
an offense beyond a reasonable doubt. See State v. Martinez, 97 N.J. 567, 572
(1984) (quoting State v. Brown, 80 N.J. 587, 592 (1979)). Therefore, the
assistant prosecutor's comment was a correct statement of the law, and the
prosecutor did not improperly skew the State's burden of proof.
Moreover, even if the prosecutor's statement was erroneous because the
prosecutor failed to distinguish between facts that are an element of an offense
and other facts, the error was not "clearly capable of producing an unjust result."
R. 2:10-2. In his final instructions to the jury, the judge addressed the State's
burden of proof. The judge stated:
A defendant on trial is presumed to be innocent and unless each and every essential element of an offense charged in a count of the indictment is proved against the defendant beyond a reasonable doubt, the defendant must be found not guilty of that particular count. The burden is on the State. It doesn't shift. There's no burden or obligation on a defendant to enter or give any offer of proof whatsoever during the trial.
We must presume the jurors followed the court's instructions. Burns, 192 N.J.
at 335 (citing Nelson, 155 N.J. at 526).
A-0737-16T1 20 IV.
We next consider Skillman's other contentions. He argues: (1) the motion
judge erred by denying his motion to suppress the surveillance videos; (2) the
trial judge erred by denying the motion to dismiss the panel of prospective
jurors; (3) the State improperly informed the jury that he failed to provide a
statement after he was arrested; and (4) his sentence is excessive.
A. Admission of the Video Surveillance Tapes
Skillman argues the motion judge erred by denying his motion to suppress
the surveillance videos because they are "so 'grainy' as to render [them]
untrustworthy[.]" Skillman asserts that the images are too poor to identify
anyone, particularly when the flash from the weapon occurs. He also asserts
that the timestamp on the videos is inaccurate.
As we stated previously, a trial court's evidentiary ruling should not be
reversed unless shown to be a mistaken exercise of discretion. Perry, 225 N.J.
at 233 (citing Brown, 170 N.J. at 147). We will not reverse unless the ruling
was "so wide of the mark" that it resulted in "a manifest denial of justice."
Marrero, 148 N.J. at 484 (1997) (quoting Kelly, 97 N.J. at 216).
We are convinced that the motion judge's decision to deny the motion to
suppress the surveillance videos is supported by the record. In his written
A-0737-16T1 21 opinion, the judge noted that "while not perfectly clear," the videos are
"sufficiently intelligible and contain[] probative value as to the identity of the
shooter and possible accomplices." The judge found that the recordings are "not
so grainy as to render [them] untrustworthy." Furthermore, although the record
shows that the timestamp on the recordings was incorrect, Peterson testified that
the timestamp was actually fifty minutes ahead of the actual time. Accordingly,
we conclude the judge did not abuse his discretion by allowing the State to
introduce the videotapes.
B. Alleged Denial of Right to Fair Trial
Skillman asserts that during voir dire, the jury was informed that the
Public Defender was representing him at trial. He also contends that the jury
was tainted because during jury selection, certain persons distributed pamphlets
outside the courthouse that discussed a juror's "rights" and "jury nullification."
He contends because some prospective jurors received copies of the pamphlets,
the judge should have declared a mistrial and discharged the panel.
"Our State and Federal Constitutions guarantee the right to trial by an
impartial jury." State v. Fortin, 178 N.J. 540, 575 (2004) (citing U.S. Const.
amends. VI, XIV; N.J. Const. art. I, ¶ 10). However, the trial judge has broad
discretion in jury selection and "its exercise of [that] discretion will ordinarily
A-0737-16T1 22 not be disturbed on appeal." State v. Papasavvas, 163 N.J. 565, 595 (quoting
State v. Jackson, 43 N.J. 148, 160 (1964)).
Here, the record does not support Skillman's assertion that the jury was
informed the Public Defender was representing him at trial. The record shows
that the court clerk referred to an "intern" but the clerk did not mention the
Public Defender. Assuming, however, that the clerk made the alleged statement,
the judge did not abuse his discretion by denying Skillman's motion to discharge
the panel.
The alleged reference to the Public Defendant was not capable of denying
defendant a fair trial. See State v. Martini, 131 N.J. 176, 265-67 (1993) (finding
that a witness's "inadvertent remark" about the Public Defender's office did not
constitute reversible error), overruled on other grounds by Fortin, 178 N.J. at
646. We conclude that the judge did not err by denying the motion to discharge
Skillman also argues that the trial judge erred by denying his request to
discharge the panel because some jurors were given copies of the
aforementioned pamphlets. The record shows that on the second day of voir
dire, the prosecutor questioned a juror about a bookmark she was using. The
A-0737-16T1 23 juror stated that on the previous day, several individuals were outside the
courthouse handing out pamphlets.
The pamphlets, which have not been included in the record on appeal,
apparently discussed a juror's "rights" and "jury nullification." The judge
indicated that he would question the prospective jurors about the pamphlets at
sidebar.
Thereafter, Skillman moved to discharge the entire panel, arguing that
jury pool had been tainted because the pamphlets contained incorrect
information and instructed the jurors to be untruthful when questioned during
jury selection. The judge denied the motion.
We are convinced the judge's ruling was not a mistaken exercise of
discretion. The judge instructed the jurors that some of the information in the
pamphlets was incorrect, and that they had to follow their oath to be fair and
impartial. The judge apparently was satisfied that the jurors could be fair and
impartial. The record supports that determination.
C. Alleged Improper Comment
Skillman asserts that the State impermissibly "told the jury that [he]
refused to speak with the police on arrest." He argues that this alleged statement
"infected the fairness of the jury trial and warrants a new trial."
A-0737-16T1 24 A defendant's right against self-incrimination is protected under the
Federal Constitution and New Jersey common law. U.S. Const. amend. V; State
v. Elkwisni, 190 N.J. 169, 176, 180 (2007) (citing State v. Muhammad, 182 N.J.
551, 567 (2005)). Both the United States Supreme Court and our Supreme Court
have "held that the use of a defendant's silence at the time of his arrest and after
receiving Miranda warnings" is impermissible. Elkwisni, 190 N.J. at 177 (citing
Doyle v. Ohio, 426 U.S. 610, 619 (1976)).
Here, the record shows that the assistant prosecutor questioned Peterson
about Skillman's interview with the police:
Q Detective, we'll revisit the surveillance video from inside the police station. The early morning hours of November 11th of 2012, did there come a time when you tried to speak with, is it Maurice Skillman?
A Yes.
Q And was that interview video-recorded?
In responding to the prosecutor's question, Peterson did not state that
Skillman had refused to speak to the police. However, on cross-examination,
Skillman's attorney asked Peterson, "Now, you said that my client refused to
talk to you?" Peterson responded, "Yes."
A-0737-16T1 25 Thus, the statement was elicited by the defense, not the State. There is,
however, no indication that Skillman was prejudiced by Peterson's brief remark.
We conclude Peterson's comment was not "clearly capable of producing an
unjust result." R. 2:10-2.
D. Sentence
Skillman argues that his sentence is improper and excessive. He contends
the judge did not adequately explain the basis for his findings of the aggravating
factors or the weight he assigned to them. He also contends the judge did not
explain why the sentence imposed was warranted. He argues that the matter
should be remanded for resentencing.
Here, the judge found aggravating factors three, six, and nine. N.J.S.A.
2C:44-1(a)(3), (6), and (9). The judge also found mitigating factor eleven,
N.J.S.A. 2C:44-1(b)(11) (defendant's imprisonment will cause excessive
hardship to himself or his dependents). The judge noted that Skillman is not
married, but has a child for whom he pays support. The judge gave the
mitigating factor little weight.
The judge also noted that Skillman has a history of arrests and convictions.
As a juvenile, Skillman had four arrests, with two adjudications. As an adult,
Skillman had nine arrests, and two Superior Court convictions. In addition, he
A-0737-16T1 26 had seven municipal court convictions. The judge observed that Skillman has
"a pattern of constantly not following society's rules and regulations in
accumulating this kind of a record."
In addition, the judge stated that aggravating factor three was "a very
serious factor in this case." The judge reasoned that the risk of further offense
was serious based on the nature of the offense. The judge stated, "It strikes me
that a person who is capable of committing an act such as this of extreme
violence is capable of other acts."
The judge also noted that there was a strong need to deter someone like
Skillman. The judge stated that considering the offense that Skillman
committed, the only way to deter him was incarceration. The judge also stated
that he hoped the sentence would deter others from committing this type of
crime.
We review a sentence under an abuse of discretion standard. State v.
Jones, 232 N.J. 308, 318 (2018) (citing State v. Robinson, 217 N.J. 594, 603
(2014)). In doing so, we must determine whether: "(1) the sentencing guidelines
were violated; (2) the findings of aggravating and mitigating factors were . . .
'based upon competent credible evidence in the record;' [and] (3) 'the application
of the guidelines to the facts' of the case 'shock[s] the judicial conscience.'"
A-0737-16T1 27 State v. Bolvito, 217 N.J. 221, 228 (2014) (third alteration in original) (quoting
State v. Roth, 95 N.J. 334, 364-65 (1984)). We will not set aside a sentence
unless "there is a 'clear showing of abuse of discretion.'" Ibid. (quoting State v.
Whitaker, 79 N.J. 503, 512 (1979)).
We are convinced the judge followed the sentencing guidelines, and there
was sufficient evidence in the record to support the judge's findings of the
aggravating and mitigating factors. We are constrained, however, to remand the
matter for resentencing because it is not clear whether the judge intended to
sentence Skillman to life imprisonment or to a base term of seventy-five years.
As we noted previously, when he sentenced Skillman, the judge stated that
he was sentencing him to a term of life imprisonment. The judge then stated
that, "That means a [seventy-five]-year period of time, [eighty-five] percent of
which time must be served without parole." Skillman's JOC states that he was
sentenced to a seventy-five year term, and must serve eighty-five percent of that
term before being eligible for parole.
We note that NERA provides in pertinent part that a person convicted of
a murder under N.J.S.A. 2:11-3 must serve a minimum term of eighty-five
percent of the sentence imposed, before becoming eligible for parole. N.J.S.A.
2C:43-7.2(a) and (d). NERA also provides that, "Solely for the purpose of
A-0737-16T1 28 calculating the minimum term of parole ineligibility pursuant to subsection a. of
this section, a sentence of life imprisonment shall be deemed to be [seventy-
five] years." N.J.S.A. 2C:43-7.2(b).
Thus, a life sentence is not the equivalent of a seventy-five-year sentence.
Under NERA, a life sentence is deemed to be a seventy-five-year sentence solely
for purposes of calculating the period of parole ineligibility.
Thus, it is not clear from this record whether the judge intended to impose
a life term, as he stated at sentencing, or a seventy-five-year term, as indicated
in the JOC. Accordingly, we remand the matter for resentencing.
We turn to Tucker's other arguments. He argues that: (1) the jury charge
regarding the statement he provided to the police was insufficient; (2) the
cumulative error doctrine requires reversal of his conviction, and (3) his
sentence is excessive.
A. Jury Instruction
Tucker argues that the jury charge regarding his statement to the police
was flawed because it failed to provide the jury with sufficient guidance
regarding "the dangers of false confessions." He contends this error requires
reversal of his conviction and a remand for a new trial.
A-0737-16T1 29 Here, the trial judge instructed the jury in accordance with the model jury
charge on statements by defendants. See Model Jury Charges (Criminal),
"Statements of Defendant" (rev. June 14, 2010). The judge told the jury that it
had the duty to determine if Tucker's statement to the police was "reliable." The
judge stated:
In considering whether or not the statement is credible, you should take into consideration the circumstances and facts as to how the statement was made, as well as all other evidence in this case relating to this issue.
As you heard from the testimony of Detective Scott Peterson, the defendant, Hykeem Tucker, was advised of the charges against him and his Miranda rights before he provided any statement to the police. You further heard testimony that the defendant, Hykeem Tucker, understood his rights and agreed to waive his rights and speak to Detective Peterson.
If you determine that the statement is not credible, then you must disregard the statement completely. If you find the statement in part or all is credible, you may give what weight you think appropriate to the portion or the entirety of the statement you find to be truthful and credible.
We note that Tucker did not object to the instruction during the trial court
proceedings. For the first time on appeal, he argues that the model jury charge
should be modified. He contends jurors should be instructed that, "Although
nothing may appear more convincing than a defendant's statement, you must
A-0737-16T1 30 critically analyze such evidence. Such statements may be false. Therefore,
when analyzing such evidence, be advised that the fact of making a statement,
alone, is not an indication of the reliability of the statement."
In support of his argument, Tucker relies upon certain articles, which set
forth results of social-science research pertaining to "confessions" by defendants
in criminal matters. Tucker did not, however, present those articles to the trial
court. Therefore, the State did not have an opportunity to dispute the findings
in the articles.
Moreover, in his statement to the police, Tucker did not admit that he
committed the charged offenses. He acknowledged he was at the Regency on
the night of the shooting, but he repeatedly denied he was the shooter. Tucker's
statement was not a confession. Thus, the social-science research that Tucker
relies upon does not apply in this case.
In any event, the judge's instruction was a correct statement of the law. It
is well-established that after the trial court determines a defendant's statement is
voluntary and admissible, the jury should consider "whether in view of all the
same circumstances the defendant's confession is true. If [the jurors] find that
[the confession] is not true, then they must treat it as inadmissible and disregard
A-0737-16T1 31 it . . . ." State v. Hampton, 61 N.J. 250, 271-72 (1972). The instruction provided
in this case is consistent with this principle.
B. Cumulative Error
Tucker argues that even if the errors he cites did not individually
constitute reversible error, in the aggregate, they denied him of his constitutional
right to a fair trial. We disagree.
Our Supreme Court has held that "even when an individual error or series
of errors does not rise to reversible error, when considered in combination, their
cumulative effect can cast sufficient doubt on a verdict to require reversal."
State v. Jenewicz, 193 N.J. 440, 473 (2008) (citing State v. Koskovich, 168 N.J.
448, 540 (2001)). The cumulative error principle does not apply in this case.
As we have explained, there was no error in the trial of this matte r or any series
of errors that, when considered in combination, cast sufficient doubt on the jury's
verdict to require a new trial.
C. Sentence
On appeal, Tucker argues that the judge erred when he weighed the
aggravating factors. He contends that the judge erred by giving weight to
aggravating factor six, because that factor allegedly has a statistically disparate
impact on minorities. Tucker further argues that his sentence is excessive and
A-0737-16T1 32 unduly punitive. He contends his offense can be "adequately punished" with a
lesser sentence. He argues that he should be resentenced.
When sentencing Tucker, the judge found aggravating factor three.
N.J.S.A. 2C:44-1(a)(3) (risk that defendant will commit another offense). The
judge noted that Tucker was with Skillman "right down the line in everything
that occurred that night." The judge stated the risk that Tucker will commit
further offenses "is extreme." The judge observed that "given the enormity of
the devastating effects of the criminal behavior that he was engaged in, the
further risks are beyond reasonable comprehension."
The judge also found aggravating factor six. N.J.S.A. 2C:44-1(a)(6)
(extent of defendant's prior criminal record and the seriousness of the offenses
of which he has been convicted). The record shows that as a juvenile, Tucker
had eight juvenile arrests and four adjudications. As an adult, Tucker had
sixteen arrests, several municipal court convictions, and two prior Superior
Court convictions for drug-related offenses.
In addition, the judge found aggravating factor nine. N.J.S.A. 2C:44-
1(a)(9) (need to deter defendant and others from violating the law). The judge
stated that "[t]he only way to deter [Tucker was] to incarcerate him[.]" The
A-0737-16T1 33 judge observed that he hoped the message would go forth and "some lives would
be saved[.]"
The judge found no mitigating factors and stated that the "aggravating
factors . . . substantially outweigh[ed] the non-existent mitigating factors." On
the JOC, the judge wrote, "The aggravating factors are overwhelming in
significance by any standard."
We reject Tucker's contention that the judge erred by giving weight to
aggravating factor six. The judge's finding was based on defendant's prior
criminal record, and there is no evidence in the record to support Tucker's
contention that aggravating factor six has a disparate racial impact.
Tucker's claim of racial disparity is based on articles and research that the
defense did not present to the trial court. The articles and research are not part
of the record on appeal. Moreover, the State did not have the opportunity to
dispute the findings and conclusions set forth therein.
We are constrained, however, to remand for resentencing. As we stated
with regard to Skillman's sentence, it is unclear whether the judge intended to
sentence Tucker to a life term, as he stated on the record, or a base term of
seventy-five years as stated in the JOC.
A-0737-16T1 34 Accordingly, defendant's convictions are affirmed, but the matters are
remanded to the trial court for resentencing in conformance with this opinion.
In A-0737-16 and A-0861-16, affirmed in part, and remanded for
resentencing in conformance with this opinion. We do not retain jurisdiction.
A-0737-16T1 35