RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0215-15T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
QUASHAWN K. JONES,
Defendant-Appellant.
____________________________
Submitted January 11, 2018 – Decided September 10, 2018
Before Judges Haas, Rothstadt and Gooden Brown.
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 14-11-3279.
Joseph E. Krakora, Public Defender, attorney for appellant (Rochelle Watson, Assistant Deputy Public Defender, of counsel and on the briefs).
Damon G. Tyner, Atlantic County Prosecutor, attorney for respondent (Melinda A. Harrigan, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM Following a five-day jury trial, defendant Quashawn Jones was convicted of
two counts of first-degree attempted murder, N.J.S.A. 2C:5-1, 2C:11-3(a)(1) and/or
(2) (counts one and nine);1 second-degree aggravated assault, N.J.S.A. 2C:12-
1(b)(1) (count two); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2) (count
three); second-degree possession of a weapon for an unlawful purpose, N.J.S.A.
2C:39-4(a) (count five); second-degree unlawful possession of a weapon, N.J.S.A.
2C:39-5(b) (count six); third-degree witness tampering, N.J.S.A. 2C:28-5(a) (count
seven); 2 and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7
(count ten).3 Defendant was sentenced to an aggregate term of sixty-five years'
imprisonment, fifty of which were subject to the eighty-five percent parole
ineligibility period under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
1 For trial purposes, counts five through ten of the indictment were renumbered as counts four through nine after count four was dismissed pre-trial on the State's motion. Before the case was submitted to the jury, the trial judge granted defendant's motion for a judgment of acquittal, R. 3:18-1, on count eight renumbered as count seven, charging first-degree witness tampering, N.J.S.A. 2C:28-5(a), and renumbered count nine, charging attempted murder, as count seven. 2 Defendant was indicted for first-degree witness tampering, but the jury convicted him of the lesser-included offense of third-degree witness tampering. 3 Following the jury trial, the trial judge found defendant guilty of the certain persons charge in a bifurcated bench trial. A-0215-15T2 2 The convictions stemmed from defendant shooting the victim, A.A., three
times, in an attempt to kill her. Defendant shot A.A. because he feared that A.A.
and her two female friends who witnessed the events leading up to the shootings
were setting him up to be robbed or killed. Of the three women, only A.A. testified
at trial. In addition, recorded phone conversations were played for the jury, during
which defendant discussed, among other things, killing A.A. to prevent her from
testifying, the State's evidence against him, and his defenses. Although A.A. was
the named victim in both attempted murder charges, count one pertained to the
shootings while count nine was predicated upon defendant's comments in those
phone conversations.
Defendant now appeals from his convictions and sentence, raising the following
arguments for our consideration:
POINT I
PHONE CALLS IN WHICH DEFENDANT DISCUSSED THE STATE'S EVIDENCE AGAINST HIM, POSSIBLE DEFENSES, AND THE APPLICABLE SENTENCING RANGES SHOULD HAVE BEEN EXCLUDED UNDER N.J.R.E. 403. COMPOUNDING THE PREJUDICE OF THIS ERROR, THE PROSECUTOR ARGUED THAT DEFENDANT WAS "HEDGING HIS BETS" WITH THE TWO AFFIRMATIVE DEFENSES PRESENTED AT TRIAL. (NOT RAISED BELOW).
A-0215-15T2 3 POINT II
RELYING SOLELY ON PHONE CALLS IN WHICH DEFENDANT EXPRESSED A STRONG DESIRE FOR THE VICTIM'S DEATH, THE STATE FAILED TO ESTABLISH THAT DEFENDANT TOOK A SUBSTANTIAL STEP TO FURTHER HIS ALLEGED CRIMINAL PURPOSE. THEREFORE, THE EVIDENCE IS INSUFFICIENT TO SUSTAIN THE SECOND ATTEMPTED MURDER CONVICTION.
POINT III
A REMAND FOR RESENTENCING IS WARRANTED BECAUSE IN IMPOSING AN AGGREGATE TERM OF SIXTY-FIVE YEARS' IMPRISONMENT, THE TRIAL COURT EMPHASIZED THE NEED TO SEND A MESSAGE TO THE ATLANTIC CITY COMMUNITY AND IMPUGNED DEFENDANT FOR INVESTIGATING AN INSANITY DEFENSE AND REJECTING THE STATE'S PLEA DEAL.
After considering the arguments presented in light of the record and applicable
law, we reject defendant's argument in Point I, but agree with defendant's argument
in Point II that the trial court should have granted his motion for a judgment of
acquittal on the second attempted murder charge because the State failed to establish
a substantial step. Accordingly, we affirm in part, reverse count nine only, and
remand for re-sentencing based upon our reversal.
A-0215-15T2 4 I.
We recite the facts pertinent to the issues raised on appeal gleaned from the
trial record. During the early morning hours of November 18, 2013, A.A. and her
two friends, M.C. and U.J., were "hanging out" with defendant, whom A.A. had
known since childhood, at M.C.'s apartment on North South Carolina Avenue in
Atlantic City. A.A. observed defendant "[p]acing back and forth," in the kitchen and
"checking out the window" while U.J., who was also in the kitchen, "[l]ook[ed] out
the window." According to A.A., defendant was sweating profusely, appeared angry
and agitated, and asked U.J. why she was looking out the window, but her response
that she was waiting for her boyfriend to arrive did not seem to appease him. Shortly
thereafter, defendant accused the women of "lining him up"4 and told M.C. that "he
was going to kill her friend[,]" referring to A.A.
When defendant pulled a gun out of his waistband, A.A. knew that he was
serious and fled to the bathroom, intending to escape through the bathroom window.
However, she decided instead to try to assuage defendant's fears by showing him her
phone to prove that she had not contacted anyone to "set something up." After A.A.
came out of the bathroom to show defendant her phone, a struggle ensued during
4 A.A. explained that "lining him up" meant that the women were setting defendant up to be robbed or killed. A-0215-15T2 5 which defendant grabbed A.A. While they "fumbl[ed] around the kitchen," M.C.
tried to restrain defendant but the altercation escalated and all three ended up on the
floor. As the struggle continued, U.J. ran out of the apartment and M.C. managed
to flee from the kitchen, leaving A.A. alone on the floor fighting defendant.
During the fight, A.A. heard a gunshot but was unsure at the time whether the
gun discharged on its own or defendant shot her. After defendant was able to
extricate himself from A.A., he placed his foot on her chest and shot her in the neck.
While A.A. pretended to be dead, she observed defendant open the kitchen window,
fire a shot out the window and yell, "[H]elp, I'm hit, I'm hit." At that point, M.C.
yelled out to defendant that if he put the gun down, she would return to the kitchen.
Defendant responded, "[If you come in the kitchen, I'm going to kill this bitch."
Defendant then shot A.A. a second time in the neck, fired a shot out the kitchen
window a second time, and shot A.A. one more time before he "jumped out of [the
kitchen] window" of M.C.'s second floor apartment.
Thereafter, A.A. managed to go to the apartment across from M.C.'s to
summon help, and was transported by ambulance to the hospital where she
underwent emergency surgery for life threatening injuries. A.A. suffered "multiple
gunshot wounds about the face and the neck, . . . the right arm and the right [axillary]
armpit region." She "had acute blood loss anemia," a collapsed right lung, a
A-0215-15T2 6 fractured clavicle and humerus, and "multiple . . . abrasions and lacerations around
the chin on both sides." She was intubated to prevent her airway from collapsing.
Meanwhile, at approximately 6:27 a.m. the same morning, M.C. approached
Atlantic City Police Officer Sumon Majunder, who was responding to the scene of
the shooting, and told him that "she believed" her girlfriend was shot in her
apartment by "a male [by the] name of Shawn a/k/a Neff"5 after "they got into an
argument." According to Majunder, M.C. was "crying," "very nervous," "excited"
and "talking . . . fast." At approximately 6:23 a.m., Atlantic City Police Officer
Richard Johnson was also responding to the scene when he encountered a man
"trying to flag down a car" on Route 30, about a block away from the shooting.
When Johnson "hollered to him . . . [to] get out of the street," the man, who was later
identified as defendant, responded, "[T]hey're trying to kill me."
After giving Johnson a false name, defendant explained that while walking
with a woman on South Carolina Avenue, "[a] green van pull[ed] up," and "a guy
jump[ed] out of the van and start[ed] shooting at him." Defendant told Johnson he
did not know where the woman, whom he identified by A.A.'s nickname, went but
he (defendant) "ran here" where he encountered Johnson. Defendant had blood on
5 Defendant was known by the names "Nef" and "Shawny."
A-0215-15T2 7 his mouth, but no other visible injuries. At defendant's request, he was taken to the
hospital by ambulance for treatment.
As a result of the investigation into A.A.'s shooting, defendant was later
arrested. Police recovered three shell casings inside M.C.'s apartment 6 and one
outside below the kitchen window adjacent to a bootprint. All four shell casings
were .40 caliber and all were fired from the same gun. Police also recovered a
magazine from a Smith and Wesson semiautomatic .40 caliber handgun in the gutter
along Route 30. However, no weapon was ever recovered.
At trial, A.A. recounted various contacts with defendant and his
representatives after the shooting. A.A. testified that in September 2014, while she
was speaking on the telephone to a friend she was visiting at the Atlantic County
Justice Facility, defendant "took the phone" and "told [her] that [she] was the only
way that he could get out of jail," and she "needed to make this go away." Defendant
told A.A. "that if there was anything that he [could] do as far as money, minutes or
6 Inside M.C.'s apartment, police also found marijuana packaged for distribution, oxycodone pills and drug paraphernalia. Although A.A. testified that she had stayed at M.C.'s apartment for three days prior to the shooting and observed a number of people making short visits to the apartment, she denied any knowledge of M.C.'s drug dealing activities.
A-0215-15T2 8 whatever, . . . he would do it for [her]." Following this conversation, A.A. contacted
the Prosecutor's Office and relayed the details of defendant's offer.
A.A. further testified that a man approached her on the street and told her that
defendant "needed [her] to take [her] statement back because he needed to get home
to finish [her] off and to handle [her] brother." In addition, a woman told her "not
to come to court." On September 10, 2014, A.A. received a phone call from an
unfamiliar phone number. While on the call, A.A. heard defendant's voice and ended
the call. Shortly thereafter, A.A. received text messages from the same phone
number stating: "that was Nef. He just didn't want to say it over the phone" and "Nef
just wanted to talk to you." After receiving these messages, A.A. again contacted
the Prosecutor's Office. At the request of Atlantic County Prosecutor's Office
Detective Caroline MacDonald, A.A. engaged in a consensual phone conversation
with defendant at M.C.'s apartment, which was recorded by MacDonald and played
in its entirety at trial.
In the conversation, defendant explained that he had no intent to harm A.A.
and asserted that he had alerted police to her injuries. Defendant also explained the
reason for his suspicion of the women that morning7 and detailed the discovery he
7 Defendant explained that he had been the intended victim of a shooting at M.C.'s apartment building a couple days earlier.
A-0215-15T2 9 received from the State, as well as his desire to help A.A. with "whatever [she]
need[ed]." Defendant also disputed A.A.'s statement that the gun went off while the
two were fighting on the kitchen floor and alleged that it went off during the initial
"tussle." Defendant stated, "You know you came in, you did what you did, I got
turned around and I grabbed you, the joint[8] was already out. Somebody grabbed
me and . . . [t]hat thing went off."
At trial, the State also introduced excerpts from other phone conversations
recorded while defendant was confined at the Atlantic County Justice Facility from
February 8 to April 28, 2014, involving numbers associated with defendant. In these
conversations, defendant discussed with his girlfriend and his cousin: (1) the events
of November 18, 2013; (2) the State's discovery; (3) possible defenses; (4) whether
to post bail; (5) inconsistent witness statements; (6) witness recantations; and (6)
defendant's frustration that certain persons were "still walkin [sic] around."
At the close of the State's case, the court granted defendant's motion for a
judgment of acquittal on count eight, charging witness tampering of M.C.,9 but
8 According to A.A., "joint" referred to the gun. 9 The court conducted hearings outside the presence of the jury to ascertain M.C.'s availability to testify. Ultimately, M.C. invoked her Fifth Amendment right and did not testify at the trial.
A-0215-15T2 10 denied defendant's motion for a judgment of acquittal on count nine, the second
attempted murder charge. Following the verdict, on July 31, 2015, the court denied
defendant's motion for a judgment notwithstanding the verdict on count nine, R.
3:18-2, and denied defendant's motion for a new trial. R. 3:20-1. On the same date,
the court granted the State's motion for a discretionary extended term sentence,
pursuant to N.J.S.A. 2C:44-3, and, after mergers, sentenced defendant to an extended
term of thirty-five years' imprisonment, subject to NERA, on count one, the first
attempted murder charge. On count seven, the witness tampering charge, the court
sentenced defendant to five years imprisonment, consecutive to count one. On count
nine, the second attempted murder charge, the court sentenced defendant to fifteen
years imprisonment, subject to NERA, consecutive to count seven. On count ten,
the certain person charge, the court sentenced defendant to ten years imprisonment,
with a five-year period of parole ineligibility, consecutive to count nine.10 This
appeal followed.
II.
In Point I, defendant argues that the court erred in admitting the telephone
conversations recorded at the Atlantic County Justice Facility. Defendant asserts
that the calls "were not relevant under N.J.R.E. 401, to prove or disprove any fact of
10 The remaining counts were merged into count one. A-0215-15T2 11 consequence" and "were unduly prejudicial under N.J.R.E. 403." Defendant asserts
"[t]he inflammatory nature of the phone calls would lead a juror to believe that
defendant was manipulating the legal system and trying to evade responsibility by
trying out various spurious defenses" and "hindered the jury's ability to judge
impartially [defendant's] self-defense and attempted passion/provocation
manslaughter defenses."
Because defendant's contentions in Point I are raised for the first time on
appeal, we review them under the plain error standard. R. 2:10-2. Plain error is an
"error possessing a clear capacity to bring about an unjust result and which
substantially prejudiced the defendant's fundamental right to have the jury fairly
evaluate the merits of his defense." State v. Timmendequas, 161 N.J. 515, 576-77
(1999) (quoting State v. Irving, 114 N.J. 427, 444 (1989)). A reversal based on plain
error requires us to find that the error likely led to an unjust result that is "sufficient
to raise a reasonable doubt as to whether the error led the jury to a result it otherwise
might not have reached." State v. Williams, 168 N.J. 323, 336 (2001) (quoting State
v. Macon, 57 N.J. 325, 336 (1971)). Applying that standard, we find no plain error
here.
N.J.R.E. 401 defines "relevant evidence" as "evidence having a tendency in
reason to prove or disprove any fact of consequence to the determination of the
A-0215-15T2 12 action." "Courts consider evidence to be probative when it has a tendency 'to
establish the proposition that it is offered to prove.'" State v. Burr, 195 N.J. 119, 127
(2008) (quoting State v. Allison, 208 N.J. Super. 9, 17 (App. Div. 1985)). The
evidence must be probative of a fact that is "really in issue in the case," as determined
by reference to the applicable substantive law. State v. Buckley, 216 N.J. 249, 261
(2013) (quoting State v. Hutchins, 241 N.J. Super. 353, 359 (App. Div. 1990)).
Under N.J.R.E. 401, "[e]vidence need not be dispositive or even strongly
probative in order to clear the relevancy bar." Buckley, 216 N.J. at 261. Moreover,
"[t]he proponent need not demonstrate that the evidence can, in and of itself,
establish or disprove a fact of consequence in order to meet the benchmark of
N.J.R.E. 401." State v. Cole, 229 N.J. 430, 448 (2017). "Once a logical relevancy
can be found to bridge the evidence offered and a consequential issue in the case,
the evidence is admissible, unless exclusion is warranted under a specific evidence
rule." Burr, 195 N.J. at 127; see N.J.R.E. 402.
One such exclusionary rule is N.J.R.E. 403. N.J.R.E 403 mandates the
exclusion of evidence that is otherwise admissible "if its probative value is
substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or
misleading the jury or (b) undue delay, waste of time, or needless presentation of
A-0215-15T2 13 cumulative evidence." Here, defendant relies on the "undue prejudice" factor in
N.J.R.E. 403.
The inquiry under that provision "is whether the probative value of the
evidence 'is so significantly outweighed by [its] inherently inflammatory potential
as to have a probable capacity to divert the minds of the jurors from a reasonable
and fair evaluation of the' issues." Cole, 229 N.J. at 448 (alteration in original)
(quoting State v. Thompson, 59 N.J. 396, 421 (1971)). "It is not enough for the
opposing party to show that the evidence could be prejudicial; '[d]amaging evidence
usually is very prejudicial but the question here is whether the risk of undue
prejudice was too high.'" Ibid. (alteration in original) (emphasis omitted) (quoting
State v. Morton, 155 N.J. 383, 453-54 (1998)). Indeed, "[t]he mere possibility that
evidence could be prejudicial does not justify its exclusion." State v. Swint, 328 N.J.
Super. 236, 253 (App. Div. 2000).
The first phone call with which defendant takes issue was a conversation with
his girlfriend, in which he discussed bail, a possible insanity-based defense, and
potential problems with A.A.'s anticipated trial testimony:
[DEFENDANT]: So what do you think? So . . . what your tellin me is like just sit in here and wait till this plays out or like bail out and
A-0215-15T2 14 [GIRLFRIEND]: Oh no I would bail out, I would not sit in there, I would bail out I mean hopefully, . . . you beat it but what if you don't?
[DEFENDANT]: It wouldn't be no reason I wouldn't beat it.
[GIRLFRIEND]: Then you gonna be stuck
[DEFENDANT]: Nah I mean even if I was to go to trial . . . on this shit, . . . she still got to get up there and she will have to give them a reason why that shit happened you feel what I'm saying and if they still running off this.
....
I was on drugs type shit that ain't, that's like pleain for insanity type shit they can't give me no time for that you feel me?
They can't give me no time for that so I'll beat it like that or she got to come up with a story that would say you been around this [n-word] for almost a year and some change[,] he never did this what would make him do it this time you feel what I'm saying they got to paint that picture and she can't give no reasonable explanation of why I would do something like that.
In another phone call with his girlfriend, defendant discussed his intention to
go to trial, the weaknesses in the State's proofs and possible sentences:
[DEFENDANT]: Hell yeah I'm goin to trial, you damn right I'm goin to trial . . . , I'm goin to trial because at the end of the day . . .
A-0215-15T2 15 [GIRLFRIEND]: Well, with attempted murder charges they gonna be . . . offerin you a lot from the beginning even if you don't go to trial right?
[DEFENDANT]: (Inaudible) [fifteen], startin but . . . when I go to trial they have to find me guilty of the attempted murder like it has to be attempted murder or they gotta find me guilty of a lesser charge and that lesser charge would be aggravated assault the charge they . . . throwin out, you feel me.
The aggravated assault . . . it'll range from five to ten years but the shit is a reckless aggravated assault . . . so that shits anywhere from three to five years, so I'll go to trial and I lose the most I can get is fifteen, you feel me but they gonna have to . . . prove all that shit, they need a weapon, they need everything they don't have none of that shit you feel me like all that shit that them bitches they said got conflicted stories already like . . .
In the final conversation at issue, defendant reiterated his belief that the State's
evidence against him on the attempted murder charge was weak and discussed an
attempted passion/provocation manslaughter related defense as well as his surprise
at learning that A.A. made a statement.
[DEFENDANT]: They gotta paint a picture and the bitches statements was that from what I'm hearin that the statements was that I, I was high I, I went crazy, I tripped out so that attempted murder shit is not gonna rock out anyway, you feel me? That's like a crime in that ah, in the heat of passion type crime, if I was to kill somebody if I came in the house and caught you with
A-0215-15T2 16 another [n-word] and killed him I'd only do five years behind that cause it's in the heat of passion you feel me? I did it on some emotional type shit so now they sayin I did the shit while I was high and on drugs and all this . . . cool keep on runnin with that keep on saying that shit ya'll ain't doin nothin but helpin me out and at the end of the day they gonna ask you well how long you been around this person, how long you been chillin with him, how long have you known him[,] bitches been knowin me forever never did no . . . shit like this that they saying I did and if they do say I did somethin like that before[,] they gonna ask em why did ya'll continue to hang around this man if he was actin like this like[,] it's a whole bunch of shit that's wit this case man, like it's just some fuck shit bitches did some fuck shit. You feel me, like all that bitches have a change of heart shit that's why I said man I didn't know that bitch made no statement, I knew she was went to the hospital that bitch didn't make no statement she went right in surgery that bitch was right next to me. I got my stitches they was stitchin her up or doin whatever they was doin to her. That was it.
Defendant argues that the issue before the jury was whether he "acted in self-
defense" and "was justified in using deadly force against [A.A.] for his self-
protection" or "whether he attempted to cause her death while in the heat of passion
arising from reasonable provocation." According to defendant, his "characterization
of the State's evidence and its application to various defenses was not relevant to the
resolution of these issues." The State counters that the evidence was relevant to
establish "defendant's motive and state of mind" in connection with the witness
tampering and related attempted murder charge. According to the State, the
A-0215-15T2 17 evidence "show[ed] why he wanted [A.A.] dead." The State also points out that the
evidence was necessary to contradict "defendant's theory at trial . . . that this was an
imperfect self-defense – attempted passion provocation."
In support, the State highlights other call excerpts during which "defendant's
initial mindset that [A.A.] did not give a statement and was not going to testify"
changed when he discovered that A.A. "not only gave a statement to police, but also
showed up in court . . . ready to testify against him." According to the State, these
conversations demonstrated how defendant's initial confidence that he would prevail
at trial was undermined by the knowledge that his aggravated assault charge was
being upgraded to attempted murder and ultimately caused him to "question[] .
. . why [A.A.] was not dead." Specifically, the State points to the following
exchange:
[DEFENDANT]: [Y]a'll talk to that bail bondsman? Ya'll gotta bust that thing ASAP.
[GIRLFRIEND]: I don't know what's up with her I haven't talked to her you still ain't talk to her?
[DEFENDANT]: Hell no I went to court today man that bitch was in court like what's going on?
[GIRLFRIEND]: Who, the girl was in court?
[DEFENDANT]: Her and her brother.
[GIRLFRIEND]: Her and her brother was in court?
A-0215-15T2 18 [DEFENDANT]: Man they threw my aggravated assault shit out they indictin me on attempted murder now.
[GIRLFRIEND]: Oh my God.
[DEFENDANT]: On everything.
[GIRLFRIEND]: You indicted or they gettin ready to indict you?
[DEFENDANT]: (Inaudible) I was supposed to go back today for the pre-indictment on the aggravated assault to get my discovery for that but when I got in there the lawyer . . .
[GIRLFRIEND]: So that means she's gonna testify in court then.
[DEFENDANT]: That's what I'm sayin, that's when she came out, that's when she came out there cause the bitch . . . the prosecutor stood up and she said some shit to me that when she addressed the court and she said some shit to the court that only people in that house would know, you feel what I'm saying?
[GIRLFRIEND]: Um hmm.
[DEFENDANT]: So I'm just like damn this is why they not indictin me on the aggravated assault now they indictin me on attempted murder they said cause . . . the bitch got shot while she was on the ground, I shot her while she was on the ground and some shit like that. But only people that would know anything like that was if you was in that crib, if you was on the scene of that
A-0215-15T2 19 shit happenin and shit like so they didn't indict me, . . . they didn't even give me discovery on the case they said they not indictin on that, they indictin me on attempted murder so they sendin my shit back [to] grand jury and it take like 60-90 days cause the shit gotta go through the grand jury all over again and see how they gonna work the shit.
Yo ask her why the fuck she say everybody's recantin, ain't nobody comin to court, tell her that bitch was in court today wit her fucking brother.
Evidence may be excluded under N.J.R.E. 403 where the evidence pertains to
subordinate issues, that is, issues not addressing defendant's guilt or innocence. See
Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, cmt. 6 on N.J.R.E.
(2018). However, "[a]t criminal trials, 'courts generally admit a wider range of
evidence when the motive or intent of the accused is material.'" State v. Koskovich,
168 N.J. 448, 483 (2001) (quoting State v. Covell, 157 N.J. 554, 565 (1999)). Here,
we are satisfied that the admission of the recorded conversations does not constitute
plain error. While the evidence was undoubtedly damaging, "the danger of undue
prejudice" did not "outweigh probative value so as to divert jurors 'from a reasonable
and fair evaluation of the basic issue of guilt or innocence.'" State v. Moore, 122
N.J. 420, 467 (1991) (quoting State v. Sanchez, 224 N.J. Super. 231, 249-50 (App.
Div. 1988)).
A-0215-15T2 20 Furthermore, the court correctly provided a limiting instruction for the
portions of the recordings relating to sentencing and plea bargaining, both after the
calls were played and again at the end of the case prior to jury deliberations. See
Shannon v. U.S., 512 U.S. 573, 579 (1994) (reiterating the principle that the jury
"should be admonished to 'reach its verdict without regard to what sentence might
be imposed.'"); State v. Conforti, 53 N.J. 239, 244-45 (1969) (noting that in making
its determination, "the jury should not be influenced by a consideration of what will
be the result of its verdict, nor should its attention be distracted from its chief
function").
The court instructed the jurors to "totally disregard" any mention of plea
bargains and sentences because it was "not relevant to anything that has to do with
this case," it was "beyond [their] function . . . as the jury," and "it should not in any
way enter in[]to [their] deliberations for any purpose." The court reminded the jurors
that they were "here to determine whether the defendant [was] guilty or not guilty of
the charges and that [was] all." The court told the jurors they were "not to give any
regard to any punishment upon any conviction, if there should be a conviction[,] and
the State prove[d] any of the charges beyond a reasonable doubt." "We presume the
jury followed the court's instructions." State v. Smith, 212 N.J. 365, 409 (2012).
A-0215-15T2 21 Defendant argues further that, despite the court's instruction to the jury to
disregard any discussions in the calls about sentencing ranges or plea bargains, the
"inadmissible phone calls laid the foundation for the prosecutor's improper argument
in summation," suggesting that "both defenses [were] farcical." According to
defendant, the prejudicial nature of the prosecutor's comments took the focus away
from the "central issue at trial," namely, "what transpired during the shooting in
[M.C.'s] apartment," and placed it on defendant's "haught[y] express[ions] . . . that
certain defenses could work in his favor based on the [S]tate's witnesses' statements."
"Because [defendant] failed to object at trial, we review the challenged
comments for plain error." State v. Pressley, 232 N.J. 587, 593 (2018). "[W]hen
counsel does not make a timely objection at trial, it is a sign 'that defense counsel
did not believe the remarks were prejudicial . . . .'" Id. at 593-94. Thus,
"[d]efendant's lack of objections . . . weighs against defendant's claim that errors
were 'clear' or 'obvious.' Indeed, '[i]t [is] fair to infer from the failure to object below
that in the context of the trial the error was actually of no moment.'" State v. Nelson,
173 N.J. 417, 471 (2002) (alterations in original) (quoting Macon, 57 N.J. at 333).
Here, we are convinced that defendant has not shown that any error was "'clearly
and unmistakably improper' and 'so egregious' that it deprived [him] of the 'right to
A-0215-15T2 22 have a jury fairly evaluate the merits of his defense.'" Pressley, 232 N.J. at 593-94
(quoting State v. Wakefield, 190 N.J. 397, 437-38 (2007)).
Defendant asserts the following comment during the prosecutor's summation
was improper:
And I was sitting here and I hear about self-defense, suggesting that this is self-defense. In what world is what happened to [A.A.] self-defense? An honest belief he needed to protect himself when shooting her three times, was it the first shot when she was lying on the ground that he was acting in self-defense, was it the second shot when she was lying on the ground that he acted in self-defense, or was it that third shot when he fired at [A.A.] that he was acting in self-defense, hedging his bet because it's so obvious he's the shooter, hey, this honest but unreasonable belief that I could shoot her. How could you say there's an honest belief to shoot somebody on the floor? Passion/provocation, another hedging of the bet because it's so clear that he's the shooter in this case and we're going to talk about that stuff that something happened in that house that aroused his passion to lose self control and what he did by losing self control is a reasonable reaction to the circumstances.
"Prosecutors can sum up cases with force and vigor, and are afforded
considerable leeway so long as their comments are 'reasonably related to the scope
of the evidence presented.'" Id. at 593 (quoting Timmendequas, 161 N.J. 515, 587
(1999)). "A prosecutor may respond to defense claims, even if the response tends to
undermine the defense case." Nelson, 173 N.J. at 473. We are satisfied that the
A-0215-15T2 23 manner in which the prosecutor expressed disbelief in the defense case did not
exceed the bounds of propriety, particularly since the assessment was "reasonably
related to the scope of the evidence presented." State v. Frost, 158 N.J. 76, 82 (1999).
Defendant analogizes this case to State v. Acker, 265 N.J. Super. 351, 356
(App. Div. 1993), where we condemned a prosecutor calling a defense counsel's
arguments "absolutely outrageous" and "absolutely preposterous." In Acker, 265
N.J. Super. at 354-55, the prosecutor not only disparaged the defense with
unsupported allegations, but also suggested to the jury in a prosecution for sexual
abuse of young girls that it was the jury's duty to protect children who had no other
spokesperson, and that the alleged child victims should be given justice. Acker is
clearly distinguishable from the present case, and we find defendant's analogy
unpersuasive.
III.
Turning to Point II, defendant argues the court erred in denying the motion
for a judgment of acquittal on attempted murder because "the State failed to prove
'the substantial step' element of attempted murder beyond a reasonable doubt."
Defendant asserts that although he "expressed his displeasure that [A.A.] was going
A-0215-15T2 24 to testify," nothing in the intercepted phone "conversations even remotely solicited
anyone to take any sort of steps to cause her harm," and without more, his
expressions are "not a cognizable attempt under the law." We agree.
A motion for judgment of acquittal at the close of the State's case may be
granted "if the evidence is insufficient to warrant a conviction." R. 3:18-1.
[T]he question the trial judge must determine is whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.
[State v. Reyes, 50 N.J. 454, 458-59 (1967).]
We review a trial court's denial of a motion for acquittal de novo, State v. Williams,
218 N.J. 576, 593-94 (2014), using "the same standard as the [judge] in determining
whether a judgment of acquittal was warranted." State v. Ellis, 424 N.J. Super. 267,
273 (App. Div. 2012). Like the trial court, we "must consider only the existence of
such evidence, not its 'worth, nature, or extent.'" State v. Brooks, 366 N.J. Super.
447, 453 (App. Div. 2004) (quoting State v. Kluber, 130 N.J. Super. 336, 342
(1974)).
A defendant is guilty of attempted murder if he purposefully did anything with
purpose of, and made a substantial step toward, causing the victim's death. N.J.S.A.
A-0215-15T2 25 2C:5-1(a)(3); N.J.S.A. 2C:11-3(a)(1). "An attempt is purposeful "not only because
it is so defined by statute, but because one cannot logically attempt to cause a
particular result unless causing that result is one's "conscious object," the
distinguishing feature of a purposeful mental state.'" State v. McCoy, 116 N.J. 293,
304 (1989) (quoting State v. McAllister, 211 N.J. Super. 355, 362 (App. Div. 1986)).
The "statute requires proof of a defendant's criminal purpose, as well as evidence
that he or she had taken a 'substantial step' toward the commission of an object
crime." State v. Perez, 177 N.J. 540, 553 (2003) (quoting N.J.S.A. 2C:5-1(a)(3)).
"Conduct shall not be held to constitute a substantial step . . . unless it is
strongly corroborative of the actor's criminal purpose." N.J.S.A. 2C:5-1(b). "[T]he
step taken must be substantial and not just a very remote preparatory act, and must
show that the accused has a firmness of criminal purpose." State v. Belliard, 415
N.J. Super. 51, 73 (App. Div. 2010) (quoting Model Jury Charge (Criminal),
"Attempt" (2009)). However, "even if further major steps are required before a
crime can be completed, or the accused had ample opportunity to desist prior to
completing the crime, a jury can still conclude that an attempt has been committed."
State v. Fornino, 223 N.J. Super. 531, 540 (App. Div. 1988).
During oral argument on defendant's motion for a judgment of acquittal on
count nine, the court inquired of the State "what was the substantial step?" In
A-0215-15T2 26 response, the State pointed to the following excerpts from the recorded phone
conversations:
[DEFENDANT]: Yeah ask him about the car and tell him what happened wit me in court like . . . he supposed to (inaudible) like what the fuck is people still walkin around for?
[GIRLFRIEND]: Well, what is he . . . what am I supposed to tell him that the girl be in court?
[DEFENDANT]: Yeah.
[DEFENDANT]: Well you just text him off of that and tell him I said man he gotta down that shit dog
[GIRLFRIEND]: (Inaudible) my phone, I'm going to text him on the Ipad (inaudible)
[DEFENDANT]: This shit is just, he gotta down that, fuck that man them bitches is coming, she keep talking all this bitches ain't coming man fuck that, I don't know what the fuck they said, what they said is what happened fuck everything else it just is what is what they said is what happened, fuck it, that's just what it is man, that's just what it is
[DEFENDANT]: Ain't nobody, if [n-word] was understanding my position that bitch would have been dead already if [n-word] was understanding my position, fuck outta here ain't nobody understanding my position yo that bitch is still out there running round with your sister and she's coming to court but [n-word]
A-0215-15T2 27 is understanding my position man come on man nobody understanding my fucking position dog that shits crazy as hell yo.
[DEFENDANT]: I wouldn't need a lawyer if [n-word] was moving and doing what they supposed to be doing the bitch should have been dead already.
[COUSIN]: I can't do it for them I can't make them get I can't make them get busy you knew who you is dealing with I can't make them get out there and get busy I can't definitely get out there and do the type of shit that they can do (inaudible)
[DEFENDANT]: Yeah I know but you can get me out of here so I can handle what I gotta handle that's my whole thing that's my whole thing I'm not worried about nobody else
[DEFENDANT]: Hey no . . . if I was out here for one day or one week . . . it does not matter my case will be better
[COUSIN]: This is five racks you talking about (inaudible) five dollars this is [five] racks you talk about
[DEFENDANT]: It's five racks and this is my fucking life . . . but nobody but nobody's you gun go did the bitch who's gonna do something to the bitch cause she's still swinging
[COUSIN]: Oh my god
A-0215-15T2 28 [DEFENDANT]: She's still swinging. Yo everybody knows where she's at but nothings going on, nothings going on like this shit is this shit is crazy yo oh man aright yo aright this shit is crazy . . .
[DEFENDANT]: Shit, like this shit is crazy like motherfuckers is out there somebody should of went and downt that bitch already, like this bitch (inaudible)
[DEFENDANT]: I am bugging and tripping cause ain't nobody getting out their fucking bed to go knock this bitch off count or say anything to the bitch, none of that nobody's going none of that everybody's just swinging still partying and bullshittin, but if it was them and they need the done shit would of got done, shit would have been done already like no if ands or buts about it.
[DEFENDANT]: [I]f ya'll not gonna handle the situation, the [n-word] is just nervous and scared like the gun's gonna get turned on them which it might, like I have no problem with that, never did that's just me like fuck it but you know
Relying on these excerpts, the court denied defendant's motion for a judgment
of acquittal on count nine. The court explained:
Based on that, at this posture, of course, all the . . . reasonable inferences go to the State, and . . . while it is not . . . I'm giving you x to do this, or I'm telling so and so that I told him to do that, obviously, the reasonable inferences that could be drawn from some
A-0215-15T2 29 of those calls is that the order was put out and a step was taken and that he was upset that people hadn't done it yet.
Defendant asserts that the phone conversations "merely convey[ed]
[defendant's] reprehensible wish that death befell [A.A.]," but "[t]he attempted
murder statute require[d] more than reprehensible wishes." Defendant asserts
further that "[t]he State failed to present any evidence that defendant enlisted any
specific person . . . to carry out the murder" or "promised remuneration or any other
benefits to these unknown and unidentified persons in exchange for committing the
offense." Thus, according to defendant, the State failed to establish that defendant
"took any steps strongly corroborative of his criminal purpose." We agree.
In State v. Urcinoli, 321 N.J. Super. 519, 537 (App. Div. 1999), we determined
that the defendant's conversations constituted a substantial step sufficient for an
attempted murder charge where the defendant hired a fellow inmate to kill the State's
witness against him. Expecting the inmate to be released soon, the defendant
discussed with the inmate how the plan would be carried out and how the inmate
would be paid for the murder. Ibid. The defendant also gave the inmate identifying
details about the intended victim. Ibid. We found "[a] jury could reasonably
conclude that by enlisting [the inmate] to his evil plan and providing information to
A-0215-15T2 30 assist facilitating its purpose[,] . . . defendant took substantial steps to further the
crime." Ibid.
Likewise, in Fornino, 223 N.J. Super. at 536-37, we determined the evidence
was sufficient for the jury to conclude that the defendant had taken substantial steps
to sustain an attempted murder conviction where he participated in a plan to
effectuate the prison escape of his codefendant, that was thwarted when another
inmate cooperated with prison officials. Because the codefendant was transported
out of the prison on a regular basis for medical treatment, the plan called for the
defendant to kill the guards who accompanied the codefendant on one of those trips.
Id. at 533. To carry out the plan, the defendant had visited the doctors' office where
the escape was supposed to occur and had surveyed a wooded area behind the office
where the bodies of the murdered guards could be disposed. Id. at 538. He also
arranged a meeting the night before the planned escape with the person he believed
was to pay him for his part in the crime and he in fact accepted the agreed upon
payment. Id. at 538-39.
Similarly, in State v. Jovanovich, 174 N.J. Super. 435 (Resent. Panel 1980),
aff'd 181 N.J. Super. 97 (App. Div. 1981), we held that an individual could be found
guilty of attempted arson for soliciting a specific person to burn his building, offering
payment and describing to the person the layout and type of construction of the
A-0215-15T2 31 building. We reached this conclusion even though the defendant had not yet
obtained the insurance on the premises, had not paid the person for the commission
of the crime, and planned to stop the plan if foreclosure proceedings on the premises
stopped. Id. at 438.
Here, although defendant's wishes were reprehensible, defendant's
conversations fall short of the substantial step required for attempt under N.J.S.A.
2C:5-1(a)(3). All that can be inferred from these conversations is defendant's intense
disappointment that A.A. was still alive and his frustration with the circumstances
that had befallen him. Without more, defendant's statements that A.A. should not
be alive and that he would kill her if he were out on bail are insufficient evidence for
the jury to conclude that defendant had taken a substantial step. Without evidence
of an act by defendant identifying a perpetrator and orchestrating the requisite course
of conduct to culminate in the commission of the crime, the State's proofs fall short.
Accordingly, we conclude the attempted murder conviction in count nine must
be reversed. Therefore, we vacate the conviction on count nine and remand for
resentencing. Because we remand for resentencing, we need not address defendant's
challenge to his sentence.
Affirmed in part; reversed in part; and remanded for resentencing. We do not
retain jurisdiction.
A-0215-15T2 32