NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-5069-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RASHAN WASHINGTON, a/k/a DAVID HOLDER, RASHON WASHINGTON, and RASHAN WILLIAMS,
Defendant-Appellant. _________________________
Argued October 21, 2020 – Decided November 25, 2020
Before Judges Accurso, Vernoia, and Enright.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 15-08-1833.
Kelley M. Brogan, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Kelley M. Brogan, on the brief).
Steven Cuttonaro, Deputy Attorney General, argued the cause for respondent (Gurbir S. Grewal, Attorney General, attorney; Steven Cuttonaro, of counsel and on the brief). PER CURIAM
Defendant Rashan Washington appeals from an October 20, 2017
judgment of conviction finding him guilty of second-degree unlawful possession
of a handgun, N.J.S.A. 2C:39-5(b), and second-degree possession of a handgun
for an unlawful purpose, N.J.S.A. 2C:39-4(a), claiming the jury verdict was the
product of an unfair trial. He also argues his sentence is excessive. We affirm.
The facts are straightforward. On April 3, 2014, at around 3:10 p.m. ,
Shaquan Grant and Bernardo Coleman were walking out of the Garden Spires
Housing Complex in Newark, where Grant and his family lived. As the men left
the complex, defendant and two others exited a black Chevy Trailblazer and
opened fire on Coleman and Grant. A bullet grazed Coleman's forehead, but
Grant was unharmed. Grant returned fire, while defendant and his accomplices
took cover nearby. A school bus and parked cars were caught in the crossfire.
Grant retreated, and defendant and his cohorts drove off in the Trailblazer.
Surveillance video captured three individuals running toward the Garden
Spires Housing Complex, and showed the driver exiting the car wearing a black
hooded sweatshirt and sporting dreadlocks. When the police interviewed
Coleman about the shooting, he could not identify his assailants, but stated the
attackers fled in a Trailblazer. He identified a photograph of the vehicle.
A-5069-17T4 2 On April 4, 2014, Grant was arrested based on his involvement in the
shooting. He agreed to give a statement to the police, using the pseudonym,
"Juan Hernandez." Grant told the police one of the shooters was "[s]hort, kind
of brown-skinned, [with] dreads" and nicknamed "Shooter G" or "Shooter." He
identified defendant as "Shooter" when the police showed him a photo of
defendant.
The police arrested defendant on April 5, 2014, and searched a black
Chevy Trailblazer parked across the street from his home. During the search,
they found defendant's wallet, a notebook, his bank statement, and a computer
hard drive.
At trial, defendant chose not to testify. When the State produced Grant
and Coleman to testify, both claimed they could not remember certain details of
the shooting. Accordingly, over defendant's objection, the trial judge permitted
the State to reference the police statements of these witnesses. The State also
produced a ballistics expert, who testified that nine of at least twenty-three shots
fired were from one gun, and the remainder were fired from another. The jury
found defendant guilty of the weapons offenses but could not reach a unanimous
verdict on the more serious charges, including two counts of first-degree
A-5069-17T4 3 attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3(a), and one count of first-degree
conspiracy to commit murder, N.J.S.A. 2C:5-2 and 2C:11-3(a)(1).
At sentencing, the judge granted the State's motion for an extended term
and imposed a sentence of fourteen years with a seven-year parole disqualifier
on the possession of a weapon for an unlawful purpose charge. Additionally,
the judge imposed a concurrent seven-year term with a forty-two-month parole
disqualifier on the remaining charge. All other charges were dismissed.
On appeal, defendant raises the following arguments:
POINT I
THE PROSECUTOR'S IMPROPER COMMENTS AND MISCHARACTERIZATION OF THE EVIDENCE DURING SUMMATION PREJUDICED DEFENDANT AND REQUIRE A NEW TRIAL. (Partially Raised Below).
POINT II
IN LIGHT OF THE GRAVE DANGER OF WRONGFUL CONVICTION POSED BY INHERENTLY UNRELIABLE JAILHOUSE SNITCH TESTIMONY, ITS INTRODUCTION AT TRIAL IS INCOMPATIBLE WITH THE DUE PROCESS RIGHTS GUARANTEED UNDER THE NEW JERSEY CONSTITUTION AND, THUS, THE STATE'S HEAVY RELIANCE ON SUCH TESTIMONY IN THIS CASE REQUIRES REVERSAL OF [DEFENDANT'S] CONVICTIONS. IN THE ALTERNATIVE, REVERSAL IS REQUIRED BECAUSE THE COURT FAILED TO HOLD A
A-5069-17T4 4 PRETRIAL HEARING ON THE RELIABILITY OF THE JAILHOUSE SNITCH TESTIMONY AND FAILED TO PROPERLY INSTRUCT THE JURY ON HOW TO EVALUATE SUCH TESTIMONY. (Not Raised Below).
POINT III
THE CUMULATIVE EFFECT OF THE ERRORS AT DEFENDANT'S TRIAL DEPRIVED [DEFENDANT] OF THE RIGHT OF DUE PROCESS OF LAW AND A FAIR TRIAL. (Not Raised Below).
POINT IV
THE SENTENCE IMPOSED WAS EXCESSIVE, UNDULY PUNITIVE, AND THEREFORE MUST BE REDUCED. (Not Raised Below).
Regarding Point I, defendant contends the State relied on "inflammatory
and misleading statements in its summation" that "angered and misled the jury,"
and "deprived him of a fair trial." We need not address each of defendant's
complaints about the prosecutor's closing remarks. Instead, we highlight a few
to explain why we are satisfied the prosecutor's summation provides no basis for
appellate relief.
Defendant claims the prosecutor materially deviated from the evidence
presented at trial. He also contends she misled the jury into believing Grant,
Coleman, and defendant knew each other well. Moreover, he argues the
prosecutor improperly impassioned the jury by repeatedly painting Grant as a
A-5069-17T4 5 hero and referencing Grant's family. Defendant points to the prosecutor's
comment that defendant "brought the war to Garden Spires. He brought the war
to Grant, where Grant lives with his family," and "if Shaquan Grant didn't have
that gun, lives would have been lost." Additionally, defendant argues the
prosecutor improperly told the jury that the reason Coleman could not remember
the details of the shooting during trial was because of "fear."
Initially, we note that the trial judge interrupted the State's summation on
two occasions, expressing concern that the prosecutor was making statements
that were not connected to evidence in the case. The judge cautioned her to "be
careful about testifying to . . . things that are not in the record." After the judge
first interrupted her summation, the prosecutor promptly informed the jury she
was referencing "what the State believes are strong inferences from all the facts
that you receive. It's up to you to make that final determination. You are the
final arbiter of the facts and the strong inferences that you can make when it
comes to what happened that day." Subsequently, the judge interrupted the
prosecutor and issued a curative instruction after the prosecutor stated that
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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-5069-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RASHAN WASHINGTON, a/k/a DAVID HOLDER, RASHON WASHINGTON, and RASHAN WILLIAMS,
Defendant-Appellant. _________________________
Argued October 21, 2020 – Decided November 25, 2020
Before Judges Accurso, Vernoia, and Enright.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 15-08-1833.
Kelley M. Brogan, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Kelley M. Brogan, on the brief).
Steven Cuttonaro, Deputy Attorney General, argued the cause for respondent (Gurbir S. Grewal, Attorney General, attorney; Steven Cuttonaro, of counsel and on the brief). PER CURIAM
Defendant Rashan Washington appeals from an October 20, 2017
judgment of conviction finding him guilty of second-degree unlawful possession
of a handgun, N.J.S.A. 2C:39-5(b), and second-degree possession of a handgun
for an unlawful purpose, N.J.S.A. 2C:39-4(a), claiming the jury verdict was the
product of an unfair trial. He also argues his sentence is excessive. We affirm.
The facts are straightforward. On April 3, 2014, at around 3:10 p.m. ,
Shaquan Grant and Bernardo Coleman were walking out of the Garden Spires
Housing Complex in Newark, where Grant and his family lived. As the men left
the complex, defendant and two others exited a black Chevy Trailblazer and
opened fire on Coleman and Grant. A bullet grazed Coleman's forehead, but
Grant was unharmed. Grant returned fire, while defendant and his accomplices
took cover nearby. A school bus and parked cars were caught in the crossfire.
Grant retreated, and defendant and his cohorts drove off in the Trailblazer.
Surveillance video captured three individuals running toward the Garden
Spires Housing Complex, and showed the driver exiting the car wearing a black
hooded sweatshirt and sporting dreadlocks. When the police interviewed
Coleman about the shooting, he could not identify his assailants, but stated the
attackers fled in a Trailblazer. He identified a photograph of the vehicle.
A-5069-17T4 2 On April 4, 2014, Grant was arrested based on his involvement in the
shooting. He agreed to give a statement to the police, using the pseudonym,
"Juan Hernandez." Grant told the police one of the shooters was "[s]hort, kind
of brown-skinned, [with] dreads" and nicknamed "Shooter G" or "Shooter." He
identified defendant as "Shooter" when the police showed him a photo of
defendant.
The police arrested defendant on April 5, 2014, and searched a black
Chevy Trailblazer parked across the street from his home. During the search,
they found defendant's wallet, a notebook, his bank statement, and a computer
hard drive.
At trial, defendant chose not to testify. When the State produced Grant
and Coleman to testify, both claimed they could not remember certain details of
the shooting. Accordingly, over defendant's objection, the trial judge permitted
the State to reference the police statements of these witnesses. The State also
produced a ballistics expert, who testified that nine of at least twenty-three shots
fired were from one gun, and the remainder were fired from another. The jury
found defendant guilty of the weapons offenses but could not reach a unanimous
verdict on the more serious charges, including two counts of first-degree
A-5069-17T4 3 attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3(a), and one count of first-degree
conspiracy to commit murder, N.J.S.A. 2C:5-2 and 2C:11-3(a)(1).
At sentencing, the judge granted the State's motion for an extended term
and imposed a sentence of fourteen years with a seven-year parole disqualifier
on the possession of a weapon for an unlawful purpose charge. Additionally,
the judge imposed a concurrent seven-year term with a forty-two-month parole
disqualifier on the remaining charge. All other charges were dismissed.
On appeal, defendant raises the following arguments:
POINT I
THE PROSECUTOR'S IMPROPER COMMENTS AND MISCHARACTERIZATION OF THE EVIDENCE DURING SUMMATION PREJUDICED DEFENDANT AND REQUIRE A NEW TRIAL. (Partially Raised Below).
POINT II
IN LIGHT OF THE GRAVE DANGER OF WRONGFUL CONVICTION POSED BY INHERENTLY UNRELIABLE JAILHOUSE SNITCH TESTIMONY, ITS INTRODUCTION AT TRIAL IS INCOMPATIBLE WITH THE DUE PROCESS RIGHTS GUARANTEED UNDER THE NEW JERSEY CONSTITUTION AND, THUS, THE STATE'S HEAVY RELIANCE ON SUCH TESTIMONY IN THIS CASE REQUIRES REVERSAL OF [DEFENDANT'S] CONVICTIONS. IN THE ALTERNATIVE, REVERSAL IS REQUIRED BECAUSE THE COURT FAILED TO HOLD A
A-5069-17T4 4 PRETRIAL HEARING ON THE RELIABILITY OF THE JAILHOUSE SNITCH TESTIMONY AND FAILED TO PROPERLY INSTRUCT THE JURY ON HOW TO EVALUATE SUCH TESTIMONY. (Not Raised Below).
POINT III
THE CUMULATIVE EFFECT OF THE ERRORS AT DEFENDANT'S TRIAL DEPRIVED [DEFENDANT] OF THE RIGHT OF DUE PROCESS OF LAW AND A FAIR TRIAL. (Not Raised Below).
POINT IV
THE SENTENCE IMPOSED WAS EXCESSIVE, UNDULY PUNITIVE, AND THEREFORE MUST BE REDUCED. (Not Raised Below).
Regarding Point I, defendant contends the State relied on "inflammatory
and misleading statements in its summation" that "angered and misled the jury,"
and "deprived him of a fair trial." We need not address each of defendant's
complaints about the prosecutor's closing remarks. Instead, we highlight a few
to explain why we are satisfied the prosecutor's summation provides no basis for
appellate relief.
Defendant claims the prosecutor materially deviated from the evidence
presented at trial. He also contends she misled the jury into believing Grant,
Coleman, and defendant knew each other well. Moreover, he argues the
prosecutor improperly impassioned the jury by repeatedly painting Grant as a
A-5069-17T4 5 hero and referencing Grant's family. Defendant points to the prosecutor's
comment that defendant "brought the war to Garden Spires. He brought the war
to Grant, where Grant lives with his family," and "if Shaquan Grant didn't have
that gun, lives would have been lost." Additionally, defendant argues the
prosecutor improperly told the jury that the reason Coleman could not remember
the details of the shooting during trial was because of "fear."
Initially, we note that the trial judge interrupted the State's summation on
two occasions, expressing concern that the prosecutor was making statements
that were not connected to evidence in the case. The judge cautioned her to "be
careful about testifying to . . . things that are not in the record." After the judge
first interrupted her summation, the prosecutor promptly informed the jury she
was referencing "what the State believes are strong inferences from all the facts
that you receive. It's up to you to make that final determination. You are the
final arbiter of the facts and the strong inferences that you can make when it
comes to what happened that day." Subsequently, the judge interrupted the
prosecutor and issued a curative instruction after the prosecutor stated that
detectives have "no problem" with a victim, like Grant, using an alias when
speaking to the police. The judge's curative instruction included the statement
that "if you hear either of the attorneys say something that you believe was not
A-5069-17T4 6 in the case or was never testified to in the case, then you have the right to
disregard it." Similarly, when he charged the jury, he reminded jurors that
"summations of counsel are not evidence."
"A prosecutor must 'conscientiously and ethically undertak[e] the difficult
task of maintaining the precarious balance between promoting justice and
achieving a conviction,' ensuring that at all times his or her 'remarks and actions
[are] consistent with his or her duty to ensure that justice is achieved.'" State v.
Jackson, 211 N.J. 394, 408 (2012) (alterations in original) (quoting State v.
Williams, 113 N.J. 393, 447-48 (1988)). "Notwithstanding the high standard to
which a prosecutor is held as he or she gives an opening statement or summation,
'not every deviation from the legal prescriptions governing prosecutorial
conduct' requires reversal." Id. at 408-09 (quoting Williams, 113 N.J. at 452).
"[P]rosecutorial misconduct is not grounds for reversal of a criminal
conviction unless the conduct was so egregious as to deprive defendant of a fair
trial." State v. Wakefield, 190 N.J. 397, 437 (2007) (quoting State v. Papasavvas
(I), 163 N.J. 565, 625 (2000)). Indeed, even if improper arguments were made
at closing, if those remarks do not produce an unjust result, they are harmless.
State v. McGuire, 419 N.J. Super. 88, 145 (App. Div. 2011). It is well-settled
that remarks do not constitute reversible error when an objection is made and
A-5069-17T4 7 the jury is directed to disregard offending remarks. State v. R.B., 183 N.J. 308,
333-34 (2005); State v. Murphy, 412 N.J. Super. 553, 560 (App. Div. 2010).
"Thus, '[t]o justify reversal, the prosecutor's conduct must have been
"clearly and unmistakably improper," and must have substantially prejudiced
defendant's fundamental right to have a jury fairly evaluate the merits of his
defense.'" Wakefield, 190 N.J. at 438 (alteration in original) (quoting
Papasavvas, 163 N.J. at 625). In making this determination, we
consider several factors, including whether "timely and proper objections" were raised, whether the offending remarks "were withdrawn promptly," and whether the trial court struck the remarks and provided appropriate instructions to the jury. Additionally, [we] will consider whether the offending remarks were prompted by comments in the summation of defense counsel. If, after completing such a review, it is apparent . . . that the remarks were sufficiently egregious, a new trial is appropriate, even in the face of overwhelming evidence that a defendant may, in fact, be guilty. In contrast, if the prosecutorial remarks were not "so egregious that [they] deprived the defendant of a fair trial[,]" reversal is inappropriate.
[State v. Smith, 212 N.J. 365, 403-04 (2012) (alterations in original) (citations omitted) (quoting State v. Frost, 158 N.J. 76, 83 (1999)).]
"[P]rosecutors are afforded considerable leeway in their closing
arguments" and are "expected to make vigorous and forceful closing arguments
. . . ." State v. Smith, 167 N.J. 158, 177 (2001). Still, prosecutors "should not
A-5069-17T4 8 make inaccurate legal or factual assertions during a trial and . . . must confine
their comments to evidence revealed during the trial and reasonable inferences
to be drawn from that evidence." Wakefield, 190 N.J. at 437 (quoting State v.
Reddish, 181 N.J. 553, 641 (2004)). A prosecutor "is entitled to be forceful and
graphic in his [or her] summation to the jury, so long as [the prosecutor is]
confine[d] . . . to fair comments on the evidence presented." State v. DiPaglia,
64 N.J. 288, 305 (1974) (citing State v. Johnson, 31 N.J. 489, 510-11 (1960)).
Guided by these principles, we are satisfied that the prosecutor's
comments, while at times problematic, did not substantially prejudice
defendant's fundamental right to have a jury fairly evaluate the merits of his
defense. In fact, it appears the jury followed the judge's instructions, as
defendant was not convicted of the more serious charges involving attempted
murder or conspiracy to commit murder. See State v. Lane, 288 N.J. Super. 1,
11-12 (App. Div. 1995) (noting that had jurors been unfairly influenced by the
prosecutor's comments, they would likely have convicted him of the greater
offense instead of the lesser included). Also, the judge forcefully instructed the
jurors twice during the State's summation and again in his charge that remarks
by counsel made in summation were not to be considered as evidence, the jury
should determine the case based solely on its recollection of the evidence, the
A-5069-17T4 9 State had the burden of proof and defendant was entitled to a presumption of
innocence. See State v. Smith, 212 N.J. 365, 409 (2012) (holding a prosecutor's
improper remarks made during summation can be cured so long as the trial court
"clearly instruct[s] the jury that the remarks made . . . were not evidence, but
argument"); see also State v. Loftin, 146 N.J. 295, 390 (1996) (citing State v.
Manley, 54 N.J. 259, 271 (1969)) (accepting the presumption that juries follow
a court's instructions). Accordingly, we are not convinced the prosecutorial
conduct of which defendant complains "was so egregious" as to deprive him of
a fair trial." Wakefield, 190 N.J. at 437 (quoting Papasavvas, 163 N.J. at 625).
We are satisfied Point II lacks merit and warrants no discussion in a
written opinion. R. 2:11-3(e)(2). Also, given our assessment of Point I, we need
not address Point III at length. "A defendant is entitled to a fair trial, not a
perfect one." Wakefield, 190 N.J. at 537 (quoting Lutwak v. United States, 344
U.S. 604, 619 (1952)). "[D]evised and administered by imperfect humans, no
trial can ever be entirely free of even the smallest defect. [The court's] goal,
nonetheless, must always be fairness." State v. Weaver, 219 N.J. 131, 155
(2014). However, the cumulative error doctrine requires that a court grant a new
trial before a new and impartial jury in two instances. State v. Orecchio, 16 N.J.
125, 129 (1954). First, when legal errors are of such a magnitude that the
A-5069-17T4 10 defendant has been prejudiced. Ibid. Second, when legal errors have, in the
aggregate, caused the trial to be unfair. Ibid.; see State v. Koskovich, 168 N.J.
448, 540 (2001) (explaining that aggregate effect of errors may cause unfair
trial). When a defendant claims that the cumulative effect of trial errors
prejudiced him or her, an appellate court must evaluate whether the defendant
received a fair trial and must consider the impact of the errors on the defendant's
ability to present a defense. Wakefield, 190 N.J. at 538.
As discussed in Point I, the prosecutor's remarks in summation did not
unfairly prejudice defendant. Moreover, as Point II lacks merit, we are
persuaded defendant is not entitled to appellate relief on the basis of cumulative
error.
Regarding Point IV, defendant contends that his aggregate sentence was
"unduly punitive." He charges the sentencing judge abused his discretion by
improperly weighing the aggravating and mitigating sentencing factors. Again,
we disagree.
Here, the sentencing judge found, and weighed heavily, aggravating
factors three (the risk that the defendant will commit another offense), six, (the
extent of the defendant's prior criminal record and the seriousness of the offenses
of which he has been convicted), and nine, (the need to deter the defendant and
A-5069-17T4 11 others from violating the law). N.J.S.A. 2C:44-1(a)(3), (6), (9). The judge
found no mitigating factors and was "clearly convinced that the aggravating
factors substantially predominate."
Defendant does not contest the aggravating factors found by the trial court
were properly supported by competent evidence in the record. Instead, he argues
the sentencing judge erred in failing to find mitigating factors.
We are mindful defendant did not request or argue for mitigating factors
at sentencing. Moreover, the record reflects the judge evaluated potential
mitigating factors, without necessarily identifying them, and found "[t]here were
no mitigating factors argued or suggested and . . . none are applicable here."
The judge's rationale for his sentencing decision can be deduced from the record,
whereby he noted:
Defendant's past and present conduct indicates that nothing short of an extended sentence would prevent him from further criminal conduct. His adult felony activity goes back 12 years to when he turned 18. Furthermore, prior to that, he had no less than six contacts with the juvenile justice system, whereby he received the benefit of probation. As an adult, defendant has been given a benefit of probation, but violated the same by committing crimes. He has also been sentenced to four years in state prison . . . . [I]t is likely that the defendant will commit another offense.
....
A-5069-17T4 12 His prior criminal record is extensive. It is continuous and it is escalating, in terms of violence.
This defendant in particular needs to understand that this continued pattern of crime, which has now escalated in terms [of] violence, will not be tolerated.
"An appellate court's review of a sentencing court's imposition of sentence
is guided by an abuse of discretion standard." State v. Jones, 232 N.J. 308, 318
(2018). We "must affirm the sentence of a trial court unless:
(1) the sentencing guidelines were violated; (2) the findings of aggravating and mitigating factors were not "based upon competent credible evidence in the record"; or (3) "'the application of the guidelines to the facts' of the case 'shock[s] the judicial conscience.'"
[State v. Bolvito, 217 N.J. 221, 228 (2014) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).]
This court is "bound to affirm a sentence, even if [we] would have arrived
at a different result, as long as the trial court properly identifies and balances
aggravating and mitigating factors that are supported by competent credible
evidence in the record." State v. O'Donnell, 117 N.J. 210, 215 (1989) (citing
State v. Jarbath, 114 N.J. 394, 400-01 (1989)). "[M]itigating factors that are
suggested in the record, or are called to the court's attention, ordinarily should
be considered and either embraced or rejected on the record." State v.
A-5069-17T4 13 Blackmon, 202 N.J. 283, 297 (2010). A trial court need not "explicitly reject
each and every mitigating factor argued by a defendant." State v. Bieniek, 200
N.J. 601, 609 (2010). Where the aggravating factors predominate, the sentence
imposed will lean "toward the higher end of the range," giving appropriate
weight to all the factors. State v. Case, 220 N.J. 49, 64-65 (2014) (citations
omitted).
Here, we discern no abuse of discretion in the trial court's identification
and weighing of the applicable aggravating factors. Further, the record fully
supports the trial court's finding regarding the lack of mitigating factors. As the
judge adhered to the sentencing guidelines and defendant's sentence does not
shock the judicial conscience, we perceive no basis to disturb defendant's
sentence.
Affirmed.
A-5069-17T4 14