NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-1406-17T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RANDY K. WASHINGTON, a/k/a BILLY JONES,
Defendant-Appellant. __________________________
Submitted September 25, 2019 – Decided October 22, 2019
Before Judges Fuentes, Haas and Enright.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 15-06-0714.
Joseph E. Krakora, Public Defender, attorney for appellant (Mark Zavotsky, Designated Counsel, on the brief).
Angelo J. Onofri, Mercer County Prosecutor, attorney for respondent (Laura C. Sunyak, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM In 2015, a Mercer County grand jury indicted defendant Randy K.
Washington on one count of murder, N.J.S.A. 2C:11-3, one count of second
degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a),
one count of second degree unlawful possession of a handgun, N.J.S.A. 2C:39-
5(b), two counts of third degree resisting arrest, N.J.S.A. 2C:29-2(a), one count
of fourth degree obstructing the administration of law, N.J.S.A. 2C:29-1, and
one count of fourth degree criminal trespass, N.J.S.A. 2C:18-3(a). The State
subsequently dismissed the criminal trespass charge. On July 6, 2017, a jury
found defendant guilty of all remaining charges, except one count of resisting
arrest.
On September 22, 2017, after merging the count for possession of a
weapon for an unlawful purpose, the court sentenced defendant on his murder
conviction to a seventy-year prison term, subject to the No Early Release Act
(NERA), N.J.S.A. 2C:43-7.2. The court also imposed a concurrent ten-year
prison term with five years of parole ineligibility on the count for unlawful
possession of a handgun. After merging the obstruction count, the court also
imposed a concurrent five-year prison term with no parole disqualifier on the
count of resisting arrest.
A-1406-17T2 2 On appeal, defendant raises the following arguments:
Point I
DEFENDANT'S MOTION FOR [ACQUITTAL] MADE AFTER THE STATE PRESENTED ITS CASE WAS DENIED IN ERROR.
Point II
DEFENDANT'S MOTION TO SUPPRESS THE EVIDENCE OBTAINED FROM THE WARRANTLESS SEARCH OF HIS CELL PHONE AND DENIAL OF A FRANKS1 HEARING TO CHALLENGE PROBABLE CAUSE ON THE SUBSEQUENT WARRANT WERE DENIED IN ERROR.
Point III
THE TRIAL JUDGE ERRED IN FAILING TO RECUSE HERSELF FOR COMMENTS MADE AT A STATUS CONFERENCE WHICH CREATED AN APPEARANCE OF IMPROPRIETY THEREBY PREVENTING THE DEFENDANT FROM RECEIVING A FAIR AND IMPARTIAL TRIAL.
Point IV
DENIAL OF DEFENDANT'S MOTION TO DISMISS THE [INDICTMENT] WAS IN ERROR BECAUSE HALF-TRUTHS MISLED THE GRAND JURY TO BELIEVE THE DEFENDANT WAS IDENTIFIED AS THE SHOOTER [RESPONSIBLE] FOR THE DEATH OF SILAS JOHNSON[, JR.]
1 Franks v. Delaware, 438 U.S. 154, 155 (1978). A-1406-17T2 3 Point V
DEFENDANT'S SENTENCE WAS EXCESSIVE.
Having considered these arguments in light of the applicable law and
facts, we affirm defendant's conviction and remand for the trial court to
resentence defendant in accordance with Subsection E of this opinion.
I.
We discern the following facts from the record. On October 29, 2014, at
approximately 10:12 a.m., the Trenton Police Department received a report of a
shooting in progress at the Route 1 and Market Street overpass. Officers located
the victim, Silas Johnson, Jr., suffering from gunshot wounds. The victim was
transported to a local medical center, where he succumbed to his injuries and
died.
A subsequent investigation by the Trenton Police Department revealed
that the victim and defendant had boarded the same train on the day of the
shooting. Both men exited the train in Trenton, with defendant following
behind the victim. Video footage showed defendant was wearing a gray
American Eagle brand sweatshirt with white lettering and was carrying a bicycle
when he got off the train. He also wore a tight-fitting hat on his head. Defendant
A-1406-17T2 4 left his bicycle with an acquaintance. Defendant's former girlfriend, S.H.,2
identified this bicycle as the one she saw defendant take when he left her house
on the morning of the shooting.
A number of witnesses observed an altercation between the victim and an
assailant before shots were fired. One witness, A.C., observed the altercation
and later told police the attacker "came up behind [the victim] and just began to
punch him . . . [and] after he punched him for a little bit he overtook him to the
ground." As A.C. turned away from the fight, he heard two gunshots. He ran
from the area but looked back and saw the attacker standing over the victim.
A.C. described the attacker as an African American man, dressed in a dark army-
type jacket over a gray hooded sweatshirt, with a black winter hat worn tight ly
to the head.
Two other witnesses, a mother and her son, confirmed they also saw the
altercation. The mother later told police one of the men wore a gray jacket with
a pink backpack on his back and the "last thing that [she] managed to see was
the moment when [the attacker] was trying to take [the backpack] off." Her son
also advised police he saw the assailant "struggling to take off a peach or light
colored book bag he was wearing." The son further confirmed he saw the
2 We refer to witnesses by their initials in order to protect their privacy. A-1406-17T2 5 attacker run toward the highway, still wearing a gray hooded sweatshirt. S.H.
later informed police that a pink backpack found near the scene of the shooting
belonged to her daughter. She testified at trial that she had last seen this
backpack when she dated defendant.
A local firefighter also described the attacker as an African American
male, "[wearing a] gray hoodie, [with] white lettering, [and a] black . . . skull
cap on his head" with a gun in his hand. The firefighter told police that photos
of a gray sweatshirt with a white eagle and lettering represented "the type of
sweatshirt that [he] saw on the man running with the gun on October 29[,] 2014."
Likewise, J.P., a homeless individual who saw the suspect run past him, recalled
the suspect was an African American male, wearing a gray shirt and blue pants.
Still another witness, a detective working near the scene of the shooting,
described the suspect as an African American male, wearing a gray long-sleeve
t-shirt, covered in sweat and wearing blue jeans. According to the detective, the
suspect was looking side-to-side as if "to see if someone was after him." The
detective approached the suspect, who "stopped, walked back northbound on
Route 1, on the grass, and then changed his direction . . . ." The suspect then
"ran right towards [the detective and his partner] and up a wall about [fifteen]
feet."
A-1406-17T2 6 Defendant was captured on surveillance video taken from a recovery
center near the attack. The video showed defendant arriving at the center shortly
after the attack, wearing a long-sleeve gray shirt, which appeared to be covered
in sweat. A receptionist at the center asked defendant to leave and later testified
that he looked suspicious, "like he was hiding from someone."
Defendant was arrested in an alleyway after he left the center. Following
his arrest, some eyewitnesses to the attack, as well as eyewitnesses to the
suspect's flight path, were escorted by police to perform a "show-up"
identification. No eyewitness positively identified defendant as the assailant.
For example, by the time A.C. saw defendant, he told police defendant was not
wearing the jacket or hat A.C. remembered seeing on the suspect. At another
show-up identification, J.P. told police he believed some of defendant's physical
features differed from that of the suspect, but that defendant's clothing was
similar to the suspect's clothing.
Based on the accounts of various witnesses, officers tracked the attacker's
path of flight and found two discharged Federal .45 caliber shell casings and a
.45 caliber projectile. They also recovered a loaded black semi-automatic
Norinco .45 caliber handgun lying next to a pink backpack. Forensic testing
matched the shell casings and projectile to the recovered handgun. When
A-1406-17T2 7 additional forensic testing was conducted on a gray sweatshirt found in the
suspect's flight path, DNA on the sweatshirt matched that of defendant.
Police also found a cellphone on defendant's person at the time of his
arrest. Defendant unsuccessfully moved to suppress evidence found on this
cellphone, claiming police searched it before obtaining a warrant and that this
illegal search revealed the name of his girlfriend. The State disputed this claim,
insisting police learned S.H.'s identity from defendant's mother. The State
further maintained the phone was not searched until a Communications Data
Warrant (CDW) was obtained. Once a judge authorized the CDW, police
extracted a text message from defendant to S.H. that had been sent minutes
before the shooting. The text message read, "this Old Head got it, I'm get him
when he get off."
Defendant denied having any involvement with the murder. He took the
same position at trial when he testified on his own behalf. Likewise, when J.P.
testified for the defense, he was asked if defendant was the man he saw fleeing
the crime scene. J.P. responded, "I'm positive. It's not the guy." On cross-
examination, however, he admitted telling police that the suspect who ran past
J.P. was wearing a gray shirt and blue pants.
A-1406-17T2 8 We first address the arguments pertaining to defendant's pretrial motions
and then address the issues regarding his motion for acquittal and sentence.
II.
A. Motion for Dismissal of Indictment
In Point IV of his brief, defendant claims the court erred when it denied
his motion to dismiss the indictment. We disagree.
An indictment is presumed valid and should only be dismissed if it is
"manifestly deficient or palpably defective." State v. Hogan, 144 N.J. 216, 229
(1996). We review a trial court's decision on a motion to dismiss
an indictment for abuse of discretion. State v. Saavedra, 222 N.J. 39, 55
(2015). "A trial court's exercise of this discretionary power will not be disturbed
on appeal 'unless it has been clearly abused.'" Id. at 55-56 (quoting State v.
Warmbrun, 277 N.J. Super. 51, 60 (App. Div. 1994)).
"At the grand jury stage, the State is not required to present enough evidence
to sustain a conviction." State v. Feliciano, 224 N.J. 351, 380 (2016). Our
Supreme Court has explained, "[t]he grand jury 'is an accusative rather than an
adjudicative body,' whose task is to 'assess whether there is adequate basis for
bringing a criminal charge.'" Saavedra, 222 N.J. at 56 (quoting Hogan, 144 N.J.
at 229-30). "A trial court deciding a motion to dismiss an indictment determines
A-1406-17T2 9 'whether, viewing the evidence and the rational inferences drawn from that evidence
in the light most favorable to the State, a grand jury could reasonably believe that a
crime occurred and that the defendant committed it.'" Id. at 56-57 (quoting State v.
Morrison, 188 N.J. 2, 13 (2006)).
In Hogan, our Supreme Court outlined two duties of the State in presenting
evidence to a grand jury. 144 N.J. at 236-37. First, the Court stated that "in
establishing its prima facie case against the accused, the State may not deceive
the grand jury or present its evidence in a way that is tantamount to telling the
grand jury a 'half-truth.'" Id. at 236. Second, the Court recognized the duty of
the State to present evidence, known to the prosecutor, "that both directly
negates the guilt of the accused and is clearly exculpatory." Id. at 237 (rejecting
the majority's decision in United States v. Williams, 504 U.S. 36 (1992)).
However, Hogan recognized that evidence is not deemed "clearly exculpatory,"
thereby warranting dismissal of the indictment, "if contradicted by the
incriminating testimony of a number of other witnesses." Id. at 238.
Defendant maintains the State failed to present J.P.'s exculpatory
statements to the grand jury. He also argues the State allowed its witness,
Detective Scott Rich, to present misleading testimony during grand jury
proceedings. In particular, defendant insists Detective Rich mischaracterized
A-1406-17T2 10 the statements of J.P. and A.C. He asserts Detective Rich's testimony wrongfully
left grand jurors with the impression that J.P. believed there was a chance defendant
was the man J.P. saw fleeing the crime scene. Additionally, defendant argues the
detective's testimony misled the grand jury into believing A.C. identified defendant
as the aggressor during the attack. We find no merit to these arguments.
The record reflects Detective Rich's testimony before the grand jury
covered accounts from various eyewitnesses pertaining to the murder suspect.
When the detective was asked if J.P. had been able to identify defendant's face
after the attack, Detective Rich responded, "[n]o, not for a hundred percent
certain." But, when asked again if J.P. was able to identify defendant, the
detective answered firmly, "[n]o."
Next, when relaying statements A.C. had made to police, Detective Rich
told grand jurors that A.C. described the suspect as an African American man,
of thin to medium build, who wore a dark army type jacket, gray hoodie and a
tight-fitting winter hat. Detective Rich also recalled A.C. had been told by the
attacker, "this guy raped my sister" and "to call 9-1-1" but then the suspect told
A.C. not to call 9-1-1.
Importantly, as grand jury proceedings were concluding, the assistant
prosecutor summarized the detective's testimony about J.P., A.C. and the
A-1406-17T2 11 firefighter who had identified a gray hoodie in police photos as similar to that
of the suspect. She stated:
We spoke about how [A.C.] could not identify the defendant through a show-up [identification,] nor could [J.P.], nor could [the firefighter]. But [the firefighter] . . . was the individual who identified the American Eagle sweatshirt as . . . having been on the defendant; is that correct?"
Detective Rich answered, [y]es that is correct."
After a careful review of the transcript of the grand jury proceedings, we
are satisfied the trial judge did not err in denying defendant's motion to dismiss.
The record supports her finding that Detective Rich did not mischaracterize the
statements of J.P. or A.C. Further, the record supports her finding that the State
did not elicit statements from Detective Rich in such a way as to deceive grand
jurors. As the judge pointed out, the State presented information to the grand
jury which was arguably inconsistent with the clothing description given by
certain witnesses. Further, the record shows the assistant prosecutor made clear
that neither A.C. nor J.P. were able to identify defendant following his arrest,
even though she admitted she was "going to describe the aggressor as the
defendant."
We also are satisfied there is ample support in the record for the trial
judge's determination that the State did not withhold clearly exculpatory
A-1406-17T2 12 evidence from grand jurors. As the judge noted when citing to Hogan,
"exculpatory testimony of one eyewitness is not . . . clearly exculpatory if
contradicted by the incriminating testimony of a number of witnesses." Since
the trial judge properly applied the Hogan principles and found sufficient
evidence of each element of the charged crimes, defendant's motion to dismiss
his indictment was properly denied.
B. Motion to Suppress Evidence
In Point II, defendant asserts the court erred when it denied his motion to
suppress evidence. Again, we disagree.
Our review of a trial court's decision on a motion to suppress is limited.
State v. Robinson, 200 N.J. 1, 15 (2009). "Appellate review of a motion judge's
factual findings in a suppression hearing is highly deferential." State v.
Gonzales, 227 N.J. 77, 101 (2016) (citing State v. Hubbard, 222 N.J. 249, 262,
(2015)). The appellate court is obliged to uphold the motion judge's factual
findings so long as sufficient credible evidence in the record supports those
findings. Ibid. (citations omitted); see State v. Dunbar, 229 N.J. 521, 538
(2017). This court will thus "reverse only when the trial court's determination
is 'so clearly mistaken that the interests of justice demand intervention and
correction.'" State v. Gamble, 218 N.J. 412, 425 (2014) (quoting State v. Elders,
A-1406-17T2 13 192 N.J. 224, 244 (2007)). However, it owes no deference to the trial court's
legal conclusions or interpretations of the legal consequences flowing from
established facts, and reviews questions of law de novo. State v. Watts, 223 N.J
503, 516 (2015).
"[A] search based on a properly obtained warrant is presumed valid."
Robinson, 200 N.J. at 7-8 (quoting State v. Valencia, 93 N.J. 126, 133 (1983)).
A defendant challenging the validity of a search warrant has the burden to prove
there was no probable cause supporting the issuance of the warrant or that the
search was otherwise unreasonable. Ibid. A reviewing court must "pay
substantial deference to the [issuing] judge's determination" of probable cause.
State v. Dispoto, 383 N.J. Super. 205, 216 (App. Div. 2006). Any doubts as to
the validity of the search warrant "should ordinarily be resolved by sustaining
the search." State v. Keyes, 184 N.J 541, 554 (2005) (citations omitted).
When a defendant challenges the veracity of a search warrant affidavit and
demands a Franks hearing, that defendant must make "a substantial preliminary
showing that a false statement knowingly and intentionally, or with reckless
disregard for the truth, was included by the affiant in the warrant affidavit."
Robinson, 200 N.J. at 7 (citation omitted). Absent materiality of the falsity, the
warrant remains valid, and no hearing is required. Franks, 438 U.S. at 171-72.
A-1406-17T2 14 Here, defendant claims that before police secured a CDW, arresting
officers searched a cell phone they found in his pants. He insists this illegal
search revealed the identity of S.H. and triggered the discovery of evidence
against him. Defendant asserts any evidence recovered from this phone should
have been suppressed. He also claims he was entitled to a Franks hearing
because the CDW affiant falsely stated S.H.'s identity was disclosed when police
interviewed defendant's mother.
When the suppression motion was heard, the State disputed defendant's
claims and argued against suppression, insisting defendant could not assert a
reasonable expectation of privacy in a stolen cellphone. On appeal, the State
again maintains that after defendant's arrest, law enforcement immediately
transferred defendant's cellphone to the Mercer County Prosecutor's Office and
a detective promptly prepared an affidavit for a CDW. The State further claims
defendant's phone was not searched before the court issued the CDW.
Moreover, because the investigating officers discovered S.H.'s identity
independent of the cellphone search, no Franks hearing was needed.
The trial judge addressed these factual disputes and found defendant did
not present sufficient evidence to undermine the validity of the search or
question the truthfulness of the affiant's statements. The judge noted: "I don't
A-1406-17T2 15 have a certification or anything from [defendant's mother]. [Defendant] wasn't
there. He was arrested at the time that the police alleged that they spoke to his
mother."
On the record before us, we discern no basis to disturb either the judge's
denial of the suppression motion or her denial of defendant's request for a Franks
hearing. Certainly, defendant's bald assertions did not warrant granting the
relief he requested.
C. Motion for Recusal
In Point III, defendant argues the trial judge should have granted his
motion for her recusal. This argument also lacks merit.
Several pre-trial conferences were conducted in this matter. It is
undisputed that during one such conference on May 9, 2016, as defendant was
leaving the courtroom, he engaged in a profane tirade. We have not been
provided with a transcript from this proceeding, but we are informed that after
exited the courtroom, an assistant prosecutor praised the trial judge for her
patience in dealing with defendant. The trial judge then remarked she had the
ability to sentence defendant. Defendant waited until April 2017 to formally
complain about this remark and seek the judge's recusal. Defendant posited that
A-1406-17T2 16 the judge's comment suggested she would exact retribution against him if he was
found guilty of the pending charges.
The State opposed defendant's motion, claiming he was "judge
shopping." In support of its position, the State pointed to a remark defendant
had made in court during another conference in October 2016 where he told the
judge, "you're going to be off the case too, bitch."
Certainly, judges "must avoid all impropriety and appearance of
impropriety." State v. McCabe, 201 N.J. 34, 43 (2010) (quoting DeNike v.
Cupo, 196 N.J. 502, 514 (2008)). "In other words, judges must avoid acting in
a biased way or in a manner that may be perceived as partial." DeNike, 196 N.J.
at 514.
"[J]udicial remarks during the course of a trial that are critical or
disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily
do not support a bias or partiality challenge." Liteky v. United States, 510 U.S.
540, 555 (1994). On the other hand, comments may support a bias or partiality
challenge if they reveal a high degree of favoritism or antagonism as to make
fair judgment impossible. Ibid.
Canon 3, Rule 3.17(B) of the Code of Judicial Conduct and Rule 1:12-1
provide guidance on the issue of disqualification. Canon 3, Rule 3.17(B)
A-1406-17T2 17 provides that "[j]udges shall disqualify themselves in proceedings in which their
impartiality or the appearance of their impartiality might reasonably be
questioned" based on factors, such as personal bias towards a party. As the
Supreme Court noted, one must ask, "[w]ould a reasonable, fully informed
person have doubts about the judge's impartiality?" State v. Dalal, 221 N.J. 601,
606 (2015) (quoting DeNike, 196 N.J. at 517). But "DeNike does not set forth
any bright-line rules," and instead, "the standard calls for an individualized
consideration of the facts of a given case." Id. at 607. Essentially, motions for
recusal "are entrusted to the sound discretion of the judge and the judge's
decision is subject to review for abuse of discretion." McCabe, 201 N.J. at 45
(citing Panitch v. Panitch, 339 N.J. Super. 63, 66, 71 (App. Div. 2001)).
"It is improper for a judge to withdraw from a case upon a mere suggestion
that [s]he is disqualified 'unless the alleged cause of recusal is known by [the
judge] to exist or is shown to be true in fact.'" Panitch, 339 N.J. Super. at 66
(quoting Hundred East Credit Corp. v. Shuster, 212 N.J. Super. 350, 358 (App.
Div. 1986)).
Here, to her credit, the trial judge comported with our case law's command
that she explain the "objective and subjective bases for [her] ultimate decision."
Magill v. Casel, 238 N.J. Super. 57, 65 (App. Div. 1990). In her oral decision,
A-1406-17T2 18 the judge analyzed the objective context of the sentencing remark against the
conduct which spurred it and concluded no recusal was needed. The judge
stated:
In terms of the comment that I said[,] well, I do decide his sentencing and I don't recall and I take counsel at their word, they listened to CourtSmart, he may have been out of the room, I would say that to him as he's standing here now - - he's sitting here now. I do decide his sentencing if he is convicted at trial. That's a fact. That's up to the jury. Now, I'm not saying I'm going to hold one way or another, I'm not going to prejudge. I review presentence reports, I hear from counsel, if it gets to that . . . . So my whole point in addressing Mr. Washington and making whatever comments I made is to advise him that we have to proceed through the rules and in an orderly fashion to get him his fair trial and any outbursts on his part, as I said before, don't help things. . . . So all that being said even in light - - and I understand [defense counsel's] concern about the comment that, you know, I made apparently on May 9th but I don't believe that that would rise - - given all the circumstances [,] to a reason for me to recuse myself.
We are satisfied that neither the judge's remark in isolation, nor in the
context of the proceedings, provides an "'objectively reasonable' belief that the
proceedings were unfair." DeNike, 196 N.J. at 517 (quoting State v. Marshall,
148 N.J. 89, 279 (1997)). Therefore, the judge's comment about being able to
sentence defendant does not serve as a basis of recusal.
A-1406-17T2 19 D. Motion for Judgment of Acquittal
In Point I, defendant argues the court erred when it denied his motion for
judgment of acquittal. However, a trial court is to enter an order for a judgment
of acquittal only "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 apply the same standard on appeal. State v. Kittrell, 145 N.J. 112, 130
(1996). Under Rule 3:18-1, we "confine our analysis of the adequacy of the
evidence to the State's case and the inferences to be derived therefrom." State v.
Samuels, 189 N.J. 236, 245 (2007). "If the evidence satisfied that standard, the
motion must be denied." State v. Spivey, 179 N.J. 229, 236 (2004).
A motion for judgment of acquittal may be denied even where a
defendant's proofs contradict those of the State; such contentions do not
necessarily "warrant the removal of the case from the consideration of the jury."
State v. Graziani, 60 N.J. Super. 1, 15-16 (App. Div. 1959).
A-1406-17T2 20 Our review of the record establishes there was ample testimony to support
the trial court's decision to deny defendant's motion for judgment of acquittal.
For example, multiple witnesses provided descriptions of the shooter that
matched defendant's characteristics. Surveillance footage of the defendant also
confirmed his presence on the same train as the victim and in the area of the
shooting after the attack. Moreover, defendant's sweatshirt, containing his
DNA, was found in the suspect's path of flight, as was the murder weapon and
a pink backpack identified by his girlfriend. Lastly, a message retrieved from
defendant's cellphone showed he sent S.H. a text while sitting on the train, mere
minutes before the murder, which read, "this Old Head got it, I'm get him when
he get off." Giving the State the benefit of all favorable testimony, as we must
for a motion for judgment of acquittal, we perceive no error in the denial of
defendant's motion.
E. Defendant's Sentence
In Point V, defendant contends his sentence is excessive. The record
reflects he did not appear at his sentence and refused to submit to a presentence
investigation, even though he was directed by the court to do so. Further, on the
day of sentencing, defense counsel advised the court he had been instructed by
defendant not to say anything on his behalf or allow anyone to do so. Defense
A-1406-17T2 21 counsel then conceded "aggravating factors 3, 6 and 9 apply here" and "I can't
see mitigating factors. I think I'd be trying to fool the court in putting those
forward."
Before we review defendant's argument regarding the sentence imposed
by the trial court, we are compelled to sua sponte address the trial judge's failure
to carry out the Supreme Court's mandate in State v Tedesco, 214 N.J. 177, 191
(2013), which made clear that "[a]lthough [a] defendant can waive his
constitutional right to appear at sentencing, he cannot force the court to sentence
him in absentia." 3 Thus, the Court adopted a multi-factor standard that trial
judges must apply to determine whether a defendant is entitled to be sentenced
in absentia.
This approach requires the trial judge to first determine whether
defendant's "waiver of the right to appear at sentencing is voluntary knowing,
and competent, and made with the advice of counsel." Id. at 194 (citing State v.
Dunne, 124 N.J. 303, 317 (1991)). However, the judge must also consider the
rights of the victims and their families codified in the Crime Victim's Bill of
Rights, N.J.S.A. 52:4B-34 to -38, and The Victim's Rights Amendment in our
3 We are equally vexed by the parties' failure to formally address this material issue in their respective appellate briefs. A-1406-17T2 22 State's Constitution. N.J. Const. art. I, ¶ 22. Id. at 193-194 (internal citation
omitted). Thus, before granting a defendant's request not to appear at the
sentencing hearing, trial judges:
must question the defendant in open court or, in special cases, by a live video, digital, or equivalent connection. As a practical matter, this inquiry is only required if a court is inclined to grant defendant's request. Trial judges should also determine whether a defendant's waiver is offered in good faith. Finally, courts must consider and balance the relevant interests.
The public has an interest in the effective and fair administration of justice. That calls for resolving matters fairly, openly, and expeditiously, in the presence of all parties and counsel, and in a way that promotes respect for our system of justice.
The public also has an interest in holding defendants publicly accountable for their actions once they have been convicted at a fair trial. The more serious the offense, the stronger that interest is. In the context of sentencing in a democratic society, public accountability includes having the judge speak openly and directly to the defendant.
[Ibid. (internal citation omitted).]
Here, as the following part of the sentencing hearing shows, neither the
trial judge, the prosecutor, nor defense counsel made any effort to comply with
the Court's mandate in Tedesco:
DEFENSE COUNSEL: Good afternoon, Your Honor . . . I am representing Mr. Washington who is not here
A-1406-17T2 23 today. In fact, just a few minutes ago he appeared by video. I asked him for probably a second or third time did he want to be present at least by video while the sentencing went forward and he indicated he did not and so the officers took him back to his cell.
THE COURT: Okay, also, I shared with counsel prior to coming on the record a handwritten letter or note I received from Mr. Washington. It was dated 9/17/17 where he advised I will not be at sentencing on 9/22. My new attorney . . . said he will talk to you.
DEFENSE COUNSEL: Correct, Your Honor.
THE COURT: So everybody saw a copy of that. So then we will go forward with the sentencing in Mr. Washington’s absence. Now, I understand that we have some people who do wish to speak but before we get to that, has everyone received a copy of the presentence report . . . ?
The record shows three members of the victim's family were present and
addressed the judge before the imposition of sentence.
Writing for a unanimous Court in State v. Jones, Justice LaVecchia noted:
Fairly recently, we underscored the discretion reposed in the judges who are called on to preside over criminal sentencing proceedings. In [Tedesco], 214 N.J. 177 [at 188-89 . . . ], we stated that "[i]n our system of justice, we entrust trial judges with the responsibility to control courtroom proceedings at trial and sentencing." The trial court is and must be the master of the courtroom in such a setting.
The trial court is tasked with the important responsibility of maintaining the dignity and fairness of
A-1406-17T2 24 a sentencing proceeding while balancing the interests of all who are affected by the sentencing of a defendant.
[232 N.J. 308, 318 (2018) (emphasis added).]
In this light, we are compelled to remand this matter for the trial judge to
conduct a Tedesco hearing and resentence defendant after making the findings
mandated by the Supreme Court. In making this determination, the trial judge
should be guided by "the interests of the public, the defendant, the victims, and
the State." 214 N.J. at 192-193. The trial judge must conduct this hearing and
resentence defendant within thirty days from the date of this opinion. By no
later than ten days thereafter, defendant shall notify the Clerk of the Appellate
Division whether he will rely on the brief submitted to this court or file a new
brief limited to the sentence imposed by the court on remand. If defendant
decides to file a new brief, the Clerk of the Appellate Division will issue a new
briefing schedule to the parties. No extensions will be granted absent a showing
of extraordinary circumstances.
Defendant's conviction is affirmed. We retain jurisdiction to review
defendant's sentence in accordance with this opinion.
A-1406-17T2 25