NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-4898-14T1 A-5221-14T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
WILLIAM D. BROWN,
Defendant-Appellant.
NIGIL J. DAWSON,
Defendant-Appellant. ____________________________________
Argued (A-4898-14) and Submitted (A-5221-14) April 25, 2017 – Decided June 1, 2017
Before Judges Yannotti and Sapp-Peterson.
On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 12-05-0474.
David A. Gies, Designated Counsel, argued the cause for appellant in A-4898-14 (Joseph E. Krakora, Public Defender, attorney; Mr. Gies, on the briefs).
Michael D. Grillo, Assistant Prosecutor, argued the cause for respondent in A-4898-14 (Angelo J. Onofri, Mercer County Prosecutor, attorney; Laura Sunyak, Assistant Prosecuor, of counsel and on the brief).
Joseph E. Krakora, Public Defender, attorney for appellant in A-5221-14 (Michele A. Adubato, Designated Counsel, on the brief).
Angelo J. Onofri, Mercer County Prosecutor, attorney for respondent in A-5221-14 (Laura Sunyak, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendants William D. Brown and Nigil J. Dawson were tried
before a jury and found guilty of the murder of Tracy Crews, and
other offenses. Defendants were both sentenced to aggregate terms
of fifty years of incarceration, subject to the No Early Release
Act (NERA), N.J.S.A. 2C:43-7.2. They appeal from the judgments of
conviction dated June 8, 2015. We address both appeals in this
opinion.
For the reasons that follow, we affirm defendants'
convictions and the sentences imposed, with the exception of the
sentences imposed on count three for possession of a weapon for
an unlawful purpose. We remand the matter to the trial court for
entry of corrected judgments of conviction merging count three
with count one, in which defendants were charged with murder.
2 A-4898-14T1 I.
A Mercer County grand jury returned an indictment charging
defendants with first-degree murder, N.J.S.A. 2C:11-3(a)(2);
N.J.S.A. 2C:2-6 (count one); first-degree felony murder, N.J.S.A.
2C:11-3(a)(3); N.J.S.A. 2C:2-6 (count two); first-degree robbery,
N.J.S.A. 2C:15-1 and N.J.S.A. 2C:2-6 (count three); and second-
degree possession of a weapon for an unlawful purpose, N.J.S.A.
2C:39-4(b) and N.J.S.A. 2C:2-6 (count four).
We briefly summarize the evidence presented at trial. On
September 12, 2008, at approximately 11:00 p.m., Crews, a known
member of the Bloods street gang, was shot three times at his home
on Whittaker Avenue in Trenton. One of the shots struck Crews in
the neck, and he later died as result of the injuries he sustained
in the shooting.
Crews' wife, Sheena Robinson-Crews, was sitting in her car
nearby, speaking with a friend on the telephone, and heard the
gunshots. Robinson-Crews observed a person standing in front of
her residence. The person stumbled along the sidewalk and came
into the light from a nearby liquor store. Robinson-Crews then
recognized the person as her husband.
Robinson-Crews hung up the phone and rushed toward her
husband, as he tried to get into the store. She grabbed Crews and
they fell down on the sidewalk. Robinson-Crews held Crews and
3 A-4898-14T1 attempted to apply pressure to his neck wound. She asked Crews
"who did this to you."
According to Robinson-Crews, her husband replied, "Paperboy,"
which is Brown's alias. Robinson-Crews called 9-1-1. She also made
other phone calls, including at least three calls to Crews' mother,
Barbara Portis. During one of those calls, Robinson-Crews told
Portis that "Paperboy and Youngin" shot Crews. "Youngin" is
Dawson's alias. The following morning, Robinson-Crews went to
Portis' home, and again told her that "Paperboy and Youngin" shot
Crews.
Officers from the Trenton Police Department (TPD) arrived on
the scene. Crews was unresponsive and began to lose consciousness.
Robinson-Crews told the officers that her husband had been shot
inside the home, and a toddler was in the house. The officers
entered the home through the backdoor and observed one or two
shell casings on the kitchen floor. The officers also observed
some blood where the doorway led to the rest of the apartment. An
officer located the toddler and placed her in the care of another
officer.
Other officers from the TPD arrived and aided in the search
for the shooter. In a nearby construction yard, an officer observed
freshly-disturbed gravel and footprints. The officer covered the
footprints with the lid of a garbage can to preserve them. The
4 A-4898-14T1 officer recovered a cell-phone charger on the grass in the
construction yard. On a nearby street, the officer also found a
cell phone next to a parked vehicle and a tan jacket, which had
been turned inside out. Another officer recovered a camouflage ski
mask on the ground in the passageway between two houses in the
area.
A crime scene detective from the TPD also collected "reddish"
stains from Whittaker Avenue, impressions of the footprints, and
the shell casings from the kitchen floor of the Crews home. The
officer later executed a search warrant for Robinson-Crews'
vehicle, in which he recovered a cell-phone box. Another detective
found a 9-millimeter handgun on the roof of a nearby building.
A forensic scientist from the New Jersey State Police (NJSP)
testified that she collected DNA evidence from the camouflage ski
mask and tan jacket. Another NJSP forensic scientist compared the
samples with DNA samples provided by defendant, and concluded that
he could not be excluded as a source of the DNA found on the mask.
A ballistics expert from the NJSP testified that the shell casings
found in the kitchen of the Crews home had been discharged from
the gun recovered from the nearby building.
Confidential informants Isaiah Franklin and Terrell Black
also testified. Franklin stated that he spoke with Dawson about
the case, while he and Dawson were housed in the Mercer County
5 A-4898-14T1 Corrections Center (MCCC). According to Franklin, Dawson said he
was involved in the Crews murder. He told Franklin he went to
Crews' house to steal $40,000 from him, but the robbery went wrong.
Dawson said Crews recognized him, so he shot Crews in the neck and
escaped out the back door. He said that Crews' "child-mother"
arrived and recognized him. According to Dawson, Crews said he
could not believe "Youngin would do this to me."
Franklin further testified that he had similar conversations
with Brown while in the MCCC. According to Franklin, Brown told
him that the mask the police found at the scene had his DNA on it,
but he was going to have his girlfriend write an alibi indicating
that he tried the mask on and somehow Dawson obtained it. On cross-
examination, Franklin said that Brown told him that he and Dawson
ran out of Crews' house, jumped over the gate, threw the gun away,
and hopped in the car with Brown's girlfriend.
Black testified that he also had conversations with both
defendants while they were incarcerated at the MCCC. Dawson told
Black he participated in the plan to rob Crews of $40,000, and
that he was wearing a ski mask at the time. Dawson said Crews
recognized him during the robbery, so he got nervous and shot
Crews in the neck. Dawson stated that after he shot Crews, Crews
said he could not believe "Paperboy and Youngin" would do this to
6 A-4898-14T1 him. He stated that he and Brown ran out the back of the Crews
house.
Black further testified that Brown told him he set up a plan
to rob Crews of $40,000 from his home, and that he was wearing a
ski mask during the robbery. Brown stated that Crews was shot in
the neck in the house, and Crews' "child mother" came home. Brown
left from the back of Crews' home. He said he was going to have
his girlfriend write a letter indicating that he tried on the mask
and gave it to Dawson, which was how his DNA got on the mask.
Brown's girlfriend also would write that Brown was with her at the
time of the murder.
Maria Cappelli, an inmate at a State prison in Muncy,
Pennsylvania, was called as a witness for the defense. Cappelli
was incarcerated with Robinson-Crews. According to Cappelli,
Robinson-Crews told her that Crews was killed one night after he
returned home. Robinson-Crews said she gave the keys to "a guy"
and that "it was all set up." Robinson-Crews also told Cappelli
she was "part of the set up" because Crews had been mentally and
physically abusive to her.
Cappelli admitted, however, that she waited two years to
report this information to the authorities, but did so because she
had an attack of conscience. She said she did not get any benefit
in exchange for reporting the information. Cappelli stated that
7 A-4898-14T1 Robinson-Crews indicated the murder had been committed by two gang
members, but she did not identify the perpetrators.
The jury found defendants guilty of murder, felony murder,
robbery, and possession of a weapon for an unlawful purpose. The
judge merged count two (felony murder) with count one (murder),
and sentenced both defendants to fifty years of incarceration,
with periods of parole ineligibility established pursuant to NERA.
The judge also sentenced both defendants to concurrent twenty-year
prison sentences for robbery, and ten years of incarceration for
the weapons charge. The judge filed judgments of conviction dated
June 8, 2015. Defendants' appeals followed.
On appeal, Brown raises the following arguments:
POINT ONE
THE TRIAL COURT ERRED WHERE IT DID NOT DISMISS WITH PREJUDICE THE INDICTMENT DUE TO DETECTIVE BRITTON'S FLAGRANT MISBEHAVIOR WHICH RESULTED IN THE SUPPRESSION OF MATERIAL EVIDENCE FAVORABLE TO THE DEFENDANT.
POINT TWO
THE TRIAL COURT'S DECISION TO REVERSE THE MOTION COURT'S PRETRIAL RULING REGARDING THE ALLEGED DYING DECLARATION WAS NOT BASED ON THE PROPER STANDARD IN ANALYZING ITS ADMISSIBILITY WHERE IT DID NOT FOCUS ON THE FACTS KNOWN TO OR OBSERVED BY CREWS AND AS SUCH UNDULY PREJUDICED THE DEFENDANT'S RIGHT TO A FAIR TRIAL.
8 A-4898-14T1 POINT THREE
THE TRIAL COURT ERRED WHERE IT RULED INADMISSIBLE THE WRITTEN STATEMENTS PREPARED UNDER OATH SHOWING [ROBINSON-CREWS'] KNOWLEDGE OF THE PLOT AND OF THE SHOOTER.
POINT FOUR
THE TRIAL COURT ERRED WHERE IT RULED ADMISSIBLE AS AN EXCITED UTTERANCE PORTIS'S TESTIMONY REGARDING [ROBINSON-CREWS'] STATEMENT TO HER ABOUT CREWS' ALLEGED DYING DECLARATION.
POINT FIVE
THE TRIAL COURT ERRED WHERE IT DENIED THE DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL BECAUSE THE STATE'S EVIDENCE WAS INSUFFICIENT TO WARRANT A CONVICTION AS TO ANY COUNT IN THE INDICTMENT.
POINT SIX
WHERE THE TRIAL COURT'S EVALUATION OF THE AGGRAVATING FACTORS APPEARS TO RELATE ONLY TO THE DEFENDANT'S PRIOR RECORD, A SENTENCE GREATER THAN THE MANDATORY MINIMUM TERM OF 30 YEARS IS EXCESSIVE.
In his appeal, Dawson raises the following arguments:
POINT I
THE STATE'S EGREGIOUS AND CONTINUOUS FAILURE TO MAKE TIMELY DISCLOSURE OF DISCOVERY THROUGHOUT THIS TRIAL DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL.
POINT II
COMMENTS MADE BY MS. ROBINSON-CREWS ON THE TELEPHONE OVERHEARD BY DETECTIVE BOLOGNINI AND MADE A PART OF THE STATE'S SEARCH WARRANT
9 A-4898-14T1 AFFIDAVIT SHOULD HAVE BEEN ADMITTED INTO EVIDENCE AS PAST RECOLLECTION RECORDED.
POINT III
THE ADMISSION OF TESTIMONY OF SHEENA ROBINSON- CREWS REGARDING THE "DYING DECLARATION" OF TRACY CREWS WHICH WAS CONTRARY TO A PRE-TRIAL RULING MADE BY ANOTHER COURT OF EQUAL JURISDICTION WAS ERRONEOUS AND DEPRIVED THE DEFENDANT OF A FAIR TRIAL.
POINT IV
TESTIMONY OF BARBARA PORTIS CONCERNING A CONVERSATION WITH SHEENA [ROBINSON-CREWS] WAS HEARSAY WHICH SHOULD HAVE BEEN EXCLUDED FOR EVIDENCE.
POINT V
THE TESTIMONY OF JAIL SNITCHES VIOLATED DEFENDANT'S RIGHT OF CONFRONTATION AND SHOULD HAVE BEEN EXCLUDED FROM EVIDENCE.
POINT VI
IT WAS ERROR FOR THE SENTENCING COURT TO FAIL TO MERGE THE CONVICTION FOR POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE WITH THE MURDER CONVICTION. (Not raised below).
POINT VII
DENIAL OF THE DEFENDANT'S MOTION FOR NEW TRIAL WAS ERROR.
POINT VIII
THE SENTENCE IMPOSED UPON THE DEFENDANT OF FIFTY (50) YEARS WITH 85% PAROLE INELIGIBILITY WAS EXCESSIVE AND SHOULD BE MODIFIED AND REDUCED. (Not raised below).
10 A-4898-14T1 POINT IX
THE AGGREGATE ERRORS DENIED DEFENDANT A FAIR TRIAL. (Not raised below).
II.
We first consider defendants' contention that the trial judge
erred by refusing to dismiss the indictment due to the State's
delayed disclosure of certain evidence.
The record indicates that after the trial commenced, the
State produced seventeen police reports, which included an
affidavit the State had submitted in support of its application
for a search warrant. The search-warrant affidavit included
statements attributed to Robinson-Crews, which indicated she may
have had prior knowledge of the robbery and the identity of the
perpetrators. Several days later, the State produced a document
dated May 3, 2013, prepared by officials at the Muncy prison in
Pennsylvania. The document stated that Cappelli claimed Robinson-
Crews told her she was involved in Crews' robbery and murder.
Defendants did not seek a mistrial, but sought dismissal of
the charges with prejudice. The judge ordered the State to produce
four police officers the next day, so they could be questioned
regarding the late production of the evidence. The officers
appeared as required, and the judge conducted a N.J.R.E. 104
11 A-4898-14T1 hearing to explore the reasons the aforementioned evidence had not
been produced earlier.
At the conclusion of the hearing, defense counsel again
informed the judge that they were not seeking a mistrial because
they thought they had "a good case." Brown's counsel told the
judge defendants wanted to proceed with the trial because they did
not want to give the State "a second bite at the apple," which it
was not entitled to and did not deserve.
The judge considered whether defendants would suffer any
prejudice as a result of the late production of the records.
Defendants' attorneys focused upon the Muncy report. Dawson's
attorney stated that perhaps the matter could be resolved "by some
type of phone conference" with Cappelli. The State agreed to
arrange the call. The judge determined that in the meantime, the
trial would continue.
Defense counsel did not object to the resumption of the trial.
The conference call with Cappelli took place, and defendants
thereafter decided to call Cappelli as a witness. Neither defendant
renewed his motion to dismiss the charges with prejudice. Defense
counsel cross-examined Robinson-Crews regarding her statements to
Cappelli. They also cross-examined Detective Gary Britton of the
TPD regarding a meeting he had with Cappelli.
12 A-4898-14T1 On appeal, defendants argue that the trial judge should have
granted their motions to dismiss due to the State's "flagrant"
misconduct. We disagree.
The State has a "constitutional obligation to provide
criminal defendants with exculpatory evidence in the State's
possession." State v. Marshall, 148 N.J. 89, 154, cert. denied,
522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). "[T]he
suppression by the prosecution of evidence favorable to an accused
upon request violates due process where the evidence is material
either to guilt or to punishment, irrespective of the good faith
or bad faith of the prosecution." State v. Knight, 145 N.J. 233,
245 (1996) (quoting Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct.
1194, 1196-97, 10 L. Ed. 2d 215, 218 (1963)).
In order to establish a claim under Brady, a defendant must
show: "(1) the prosecution suppressed evidence; (2) the evidence
is favorable to the defense; and (3) the evidence is material."
State v. Martini, 160 N.J. 248, 268 (1999) (citation omitted).
Evidence is material "if there is a reasonable probability that,
had the evidence been disclosed to the defense, the result of the
proceeding would have been different." State v. Parsons, 341 N.J.
Super. 448, 455 (App. Div. 2001) (quoting United States v. Bagley,
473 U.S. 667, 682, 105 S. Ct. 3375, 3383, 87 L. Ed. 2d 481, 494
(1985)).
13 A-4898-14T1 We note that the evidence at issue did not exculpate
defendants. The evidence indicated that Robinson-Crews may have
had prior knowledge of and some involvement in her husband's
robbery and murder, but the evidence did not disclose the names
of any third-parties who may have committed the crimes.
In any event, we conclude that the State should have disclosed
the evidence. See Giglio v. United States, 405 U.S. 150, 154, 92
S. Ct. 763, 766, 31 L. Ed. 2d 104, 108 (1972) (holding that the
State is required to produce evidence that links one of its
witnesses to the charged offense). Nevertheless, the judge did not
err by failing to dismiss the charges against defendant.
"[T]he decision whether to dismiss an indictment lies within
the discretion of the trial court, and that exercise of
discretionary authority ordinarily will not be disturbed on appeal
unless it has been clearly abused." State v. Hogan, 144 N.J. 216,
229 (1996) (citations omitted). Indeed, as we recently observed:
[O]ur courts have long held that a dismissal of an indictment is a draconian remedy and should not be exercised except on the clearest and plainest ground. Dismissal is the last resort because the public interest, the rights of victims and the integrity of the criminal justice system are at stake. Even in a case in which we found an investigating officer's brazen misconduct to be wholly reprehensible, we reversed the dismissal of seventeen indictments, stating, "we question whether the public must pay the price by forfeiting its day in court on otherwise properly found
14 A-4898-14T1 indictments." Therefore, although a motion to dismiss an indictment is directed to the sound discretion of the court, an indictment should stand unless it is palpably defective.
[State v. Williams, 441 N.J. Super. 266, 271- 72 (App. Div. 2015) (citations omitted.]
Defendants have not shown that they suffered any undue
prejudice as a result of the State's late production of the
evidence. Moreover, the judge took reasonable measures to ensure
that defendants had a fair trial, notwithstanding the late
production of the evidence. See State v. Allah, 170 N.J. 269, 280
(2002) (holding that if there is "an appropriate alternative course
of action," extraordinary relief such as a mistrial or dismissal
with prejudice is not a proper exercise of discretion).
As we have explained, the judge gave defendants time to review
the evidence, and allowed them time to conduct a conference call
with Cappelli. Defendants also were able to cross-examine
Robinson-Crews and Britton about the statements Cappelli
attributed to Robinson-Crews.
Based on the record before us on appeal, there is no
indication that defendants were unduly hampered in their ability
to challenge Robinson-Crews' credibility, based on her alleged
prior knowledge of and involvement in the robbery and murder.
Therefore, we conclude that the judge's decision to deny
defendants' motion to dismiss the charges based on the State's
15 A-4898-14T1 failure to make timely disclosure of the evidence was not a
mistaken exercise of discretion.
III.
Next, defendants argue that the trial judge erred by admitting
testimony by Robinson-Crews regarding statements Crews made to her
shortly before he died. As noted previously, Robinson-Crews
asserted that after Crews was shot, he stumbled out to the street.
Robinson-Crews went to his aid and asked him who "did this to
you." According to Robinson-Crews, defendant replied "Paperboy,"
which is Brown's alias.
The motion judge determined that Robinson-Crews could not
testify at trial because she was not a credible witness. The judge
stated that the testimony Robinson-Crews provided at the pre-trial
hearing differed from several statements she made to the
investigating officers at or about the time the offenses were
committed.
Indeed, Robinson-Crews had conceded that some of her prior
statements were false. In ruling on the motion, the motion judge
also considered a statement by William Rivera. He said that
although Robinson-Crews had repeatedly asked Crews who shot him,
he was not able to respond to her questions.
We are convinced, however, that the trial judge did not err
by reconsidering the motion judge's determination, after hearing
16 A-4898-14T1 Robinson-Crews testify at trial and conducting a N.J.R.E. 104
hearing at which Robinson-Crews, Rivera, and Portis testified. The
"law of the case" doctrine "is designed to avoid re-litigation of
the same issue in the same controversy." State v. Ruffin, 371 N.J.
Super. 371, 390 (App. Div. 2004). Even so, application of the
doctrine is discretionary and it is to be "flexibly applied in the
interests of justice." Ibid. (citing State v. Reldan, 100 N.J.
187, 205-06 (1985)).
At the N.J.R.E. 104 hearing, Rivera conceded that he was on
the phone with the 9-1-1 dispatcher while Robinson-Crews was
speaking with her husband, and Crews may have said something to
Robinson-Crews that he did not hear. In addition, Portis testified
that on the night of the shooting, Robinson-Crews called her
several times and during one call stated that "Paperboy and Youngin
shot him." Portis also said that later, Robinson-Crews again told
her that "Paperboy and Youngin" shot Crews.
The trial judge's decision to reconsider whether to admit
Robinson-Crews' testimony was justified by the more complete
record available to the judge. The record supports the judge's
finding that Robinson-Crews' testimony about what Crews said to
her regarding the shooting was sufficiently credible to allow it
to be presented to the jury.
17 A-4898-14T1 Defendants argue that the judge erred by finding that Crews'
statement was admissible under N.J.R.E. 804(b)(2). We review the
trial court's evidentiary determination under an abuse-of-
discretion standard. State v. Buda, 195 N.J. 278, 294 (2008)
(citing Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008)).
"In a criminal proceeding, a statement made by a victim
unavailable as a witness is admissible if it was made voluntarily
and in good faith and while the declarant believed in the imminence
of declarant's impending death." N.J.R.E. 804(b)(2). See also
State v. Graham, 59 N.J. 366, 370 (1971). In evaluating the
admissibility of a dying declaration, the trial court should
consider "'all the attendant circumstances . . . including the
weapon which wounded [the declarant], the nature and extent of the
[the declarant's] injuries, [the declarant's] physical condition,
[the declarant's] conduct, and what was said to and by [the
declarant].'" State v. Hegel, 113 N.J. Super. 193, 201 (App. Div.
1971) (citation omitted).
Here, there is sufficient credible evidence in the record to
support the trial judge's determination that Crews' statement to
Robinson-Crews was admissible under N.J.R.E. 804(b)(2). Crews was
obviously unavailable at trial. He made the statement in response
to Robinson-Crews' questions, and there is no indication that his
statement was coerced or forced. The record also supports the
18 A-4898-14T1 conclusion that Crews made the statement in good faith, and that
he believed his death was imminent at the time.
Defendants argue, however, that Crews' statement was not
reliable. In his brief, Brown asserts that Crews' statement was
made in response to Robinson—Crews' self-serving inquiry. He also
asserts that Robinson-Crews was not a credible witness, as
evidenced by the inconsistent statements she made about the robbery
and murder. In addition, both Brown and Dawson contend that because
the perpetrators wore masks, Crews could not have identified them.
We find no merit in these arguments. As we noted previously,
based on Robinson-Crews' trial testimony and the testimony
presented at the N.J.R.E. 104 hearing, the trial judge properly
determined that Robinson-Crews was a credible witness and that the
jury should be permitted to hear her testimony as to what Crews
said to her after the shooting.
Moreover, the evidence shows that Brown was Crews' close
friend, and for a while, Brown lived with Crews and his wife. In
addition, Robinson-Crews said that Brown and Dawson were together
all the time. Thus, a jury could reasonably find that Crews was
sufficiently familiar with defendants to identify them, even if
they were wearing masks. See United States v. Ellis, 121 F.3d 908,
926-27 (4th Cir. 1997) (holding that, although the defendant was
masked and wore a hooded sweatshirt, the identification of the
19 A-4898-14T1 defendant was admissible because the witness had known him for
about five years), cert. denied, 522 U.S. 1068, 118 S. Ct. 738,
139 L. Ed. 2d 674 (1998).
IV.
Defendants contend that the trial judge erred by admitting
Portis' testimony about Robinson-Crews' statements to her
regarding the murder. Defendants assert that the judge admitted
these statements pursuant to N.J.R.E. 803(c)(2), the hearsay
exception for statements "relating to a startling event or
condition made while the declarant was under the stress of
excitement caused by the event or condition and without opportunity
to deliberate or fabricate."
The record shows, however, that the judge admitted the
testimony pursuant to N.J.R.E. 803(a)(2). The rule provides that
a prior statement by a witness may be admissible if it "would have
been admissible if made by the declarant while testifying and the
statement . . . is consistent with the witness' testimony and is
offered to rebut an express or implied charge against the witness
of recent fabrication or improper influence or motive[.]" Ibid.
As noted previously, the judge did not err by permitting
Robinson-Crews to testify as to Crews' statements to her after the
shooting. On cross-examination, defense counsel attacked Robinson-
Crews' credibility by asking her about inconsistencies in the
20 A-4898-14T1 statements she provided to the police following the robbery and
murder. They also implied that her statements showed she had prior
knowledge of and was involved with the offenses.
Thus, defense counsel essentially charged Robinson-Crews with
a recent fabrication and an attempt to cover up her own involvement
with the charged offenses. The record therefore supports the trial
judge's ruling that Portis' testimony as to what Robinson-Crews
said her to was admissible under N.J.R.E. 803(a)(2) to rebut these
allegations.
Defendants further argue that the trial judge erred by
excluding statements attributed to Robinson-Crews in an affidavit
that Detective Matthew Norton prepared to support the State's
search-warrant application. Defendants argue that the statements
were admissible under N.J.R.E. 803(c)(5), the hearsay exception
for past recollection recorded. N.J.R.E. 803(c)(5) provides in
pertinent part that the court can admit
[a] statement concerning a matter about which the witness is unable to testify fully and accurately because of insufficient present recollection if the statement is contained in a writing or other record which (A) was made at a time when the fact recorded actually occurred or was fresh in the memory of the witness, and (B) was made by the witness or under the witness' statement at the time it was made, and (C) the statement concerns a matter of which the witness had knowledge when
21 A-4898-14T1 it was made, unless the circumstances indicate that the statement is not trustworthy; . . .
In the State's search-warrant application, Norton stated that
Detective Nathan Bolognini responded to the scene after the
shooting and heard Robinson-Crews make several phone calls.
According to the search-warrant affidavit, the first call
"appeared to be with" the shooter, and Robinson-Crews had stated,
"You didn't have to shoot him. You got what you came for. You did
not need to shoot him." In addition, the affidavit indicated that
Robinson-Crews called another person and said, "Those boys did not
have to shoot him. They got what they came for. They didn't have
to shoot my baby."
Bolognini had testified outside the presence of the jury that
he remembered being near Robinson-Crews after the shooting. He
recalled that she made several phone calls, but he had no
recollection of the content of those calls. He also could not
recall reporting anything in particular regarding the calls to his
superiors or those investigating the shooting. In addition, Norton
testified that he had received a report that Bolognini had
overheard Robinson-Crews' calls, however, he could not be sure if
the report came directly from Bolognini.
The trial judge conducted a N.J.R.E. 104 hearing to further
explore whether the statements in the search-warrant affidavit
22 A-4898-14T1 should be admitted. Bolognini again testified that he had no
recollection of the substance of Robinson-Crews' telephone calls.
He did not recall reporting anything in particular to any other
officers, and he did not remember whether he discussed the calls
with Norton. Norton testified that it was more likely than not
that he had received the information from Bolognini himself around
the time he prepared the search-warrant application, but he was
not one hundred percent sure that the information was reported
directly by Bolognini.
The trial judge found that Bolognini was unable to testify
fully and accurately about the substance of the phone calls because
he did not have sufficient present recollection of the matter. The
judge also found that the search-warrant affidavit had been
prepared close in time to the events at issue, and Norton prepared
the affidavit at Bolognini's direction or the direction of another
superior. The judge found, however, that under the circumstances,
the statements included in the affidavit were not trustworthy
because Norton was not certain as to whether he had received the
information directly from Bolognini or from some other officer.
Defendants contend Norton's testimony was sufficient to
establish that the statements attributable to Bolognini were
trustworthy. Defendants note that Norton had attested to the
truthfulness of the statements in the search-warrant affidavit.
23 A-4898-14T1 We conclude, however, that the judge's ruling was not a
mistaken exercise of discretion. There is sufficient credible
evidence in the record to support the judge's finding that, in the
absence of some conversational link between Norton and Bolognini,
the statements attributable to Bolognini were not trustworthy.
The court noted that Bolognini did not document Robinson-
Crews' statements in any official report, and Norton could not
recall with any certainty who had provided him with the information
included in the affidavit. Bolognini also could not recall what
Robinson-Crews said during the phone calls. Another officer may
have told Norton what Bolognini said about the calls, and the
officer's statement may not have been accurate.
We also conclude that even if the judge erred by excluding
this evidence, the ruling does not give rise to a reasonable doubt
regarding the jury's verdict. State v. Macon, 57 N.J. 325, 336
(1971). The statements in the affidavit attributed to Robinson-
Crews would not have exonerated either defendant. The statements
indicated that Robinson-Crews may have had prior knowledge of and
some involvement with the robbery and murder, but she did not
identify the person or persons to whom she was speaking. Indeed,
a reasonable jury could have inferred that Robinson-Crews had been
speaking with one or both defendants.
24 A-4898-14T1 Moreover, Cappelli testified that Robinson-Crews told her
that she knew of and was involved in the robbery and murder of her
husband. The statements in the affidavit attributed to Robinson-
Crews would have been cumulative evidence. Therefore, if the judge
erred by excluding this evidence, the error was harmless. The
exclusion of the evidence does not raise a reasonable doubt as to
whether defendants committed the charged offenses. Ibid.
VI.
Dawson argues that the admission of testimony from informants
Isaiah Franklin and Terrell Black violated his right to
confrontation. Dawson contends that Franklin and Black's testimony
included statements that Brown made about him, which implicated
Dawson in the robbery and murder. He contends that the admission
of this testimony violated his right to confrontation under the
Sixth Amendment to the United States Constitution because Brown
did not testify and he did not have the ability to confront Brown
about the statements.
The Confrontation Clause prohibits the admission of
testimonial statements of a witness who does not appear at trial,
unless the witness was unavailable, and the defendant had a prior
opportunity for cross-examination. Crawford v. Washington, 541
U.S. 36, 68, 124 S. Ct. 1354, 1374, 158 L. Ed. 2d 177, 203 (2004).
25 A-4898-14T1 Furthermore, hearsay statements of a co-defendant implicating a
defendant may not be admitted when the defendants are tried
together. Bruton v. United States, 391 U.S. 123, 135-36, 88 S. Ct.
1620, 1627-28, 20 L. Ed. 2d 476, 484-85 (1968).
However, Bruton only applies to testimonial statements that
are subject to the Confrontation Clause. United States v. Berrios,
676 F.3d 118, 128 (3d Cir. 2012); United States v. Dargan, 738
F.3d 643, 651 (4th Cir. 2013). Statements made unwittingly to a
government informant are not testimonial statements for purposes
of the Confrontation Clause. United States v. Hargrove, 508 F.3d
445, 449 (7th Cir. 2007) (citing Davis v. Washington, 547 U.S.
813, 824-25, 126 S. Ct. 2266, 2275, 165 L. Ed. 2d 177, 238-39
(2004), and Crawford, supra, 541 U.S. at 58, 124 S. Ct. at 1368,
158 L. Ed. 2d at 196-97).
Franklin and Black were confidential informants, who spoke
with Brown in the MCCC. Brown unwittingly made statements to
Franklin and Black regarding the murder and robbery. Brown's
statements were not testimonial and their admission did not deny
Dawson of his right to confrontation. Therefore, the trial judge
did not err by allowing Franklin and Black to testify about Brown's
statements implicating Dawson in the charged offenses.
Moreover, even if the judge erred by admitting Brown's
statements implicating Dawson, the admission of this testimony
26 A-4898-14T1 does not warrant reversal of the conviction because the error was
harmless beyond a reasonable doubt. Macon, supra, 57 N.J. at 336.
At trial, Franklin testified that Dawson told him he was involved
in Crews' robbery and murder. Dawson said he went to Crews' house
to rob him of $40,000, and stated that he shot Crews because Crews
had recognized him. Black provided similar testimony.
Based on Dawson's own admissions to Franklin and Black, the
jury had more than enough evidence to support its verdict finding
Dawson guilty of the charged offenses without any reliance upon
Brown's statements implicating Dawson. Thus, even if erroneous,
the admission of Franklin and Black's testimony as to what Brown
said about Dawson's involvement in the robbery and murder was
harmless.
VII.
Defendants argue that the judge erred by denying their motions
for acquittal and a new trial. They argue that the judge should
have granted the motion because of the State's discovery
violations, the judge's failure to follow the motion judge's ruling
on the admission of Crews' dying declaration, and the judge's
failure to admit the statements in Norton's search-warrant
application. Defendants also argue that the verdict was against
the weight of the evidence.
27 A-4898-14T1 A motion for a new trial may not be granted unless the verdict
represents "a miscarriage of justice under the law." R. 2:10-1;
State v. Perez, 177 N.J. 540, 555 (2003). We have rejected
defendants' contentions regarding the State's untimely production
of evidence and the judge's evidentiary rulings. Therefore, these
rulings did not provide a basis for granting defendants' motion
for a new trial.
We also conclude that the verdicts were not against the weight
of the evidence. The State presented sufficient evidence from
which a reasonable jury could find defendants guilty of the charged
offenses beyond a reasonable doubt. State v. Reyes, 50 N.J. 454,
459 (1967).
Defendants further argue that they were denied a fair trial
due to the cumulative errors of the trial judge. This contention
lacks sufficient merit to warrant discussion. R. 2:11-3(e)(2).
VIII.
Defendants contend that their sentences are excessive. Here,
the trial judge found the following aggravating factors as to both
defendants: three, N.J.S.A. 2C:44-1(a)(3) (risk that defendant
will commit another offense); six, N.J.S.A. 2C:44-1(a)(6) (extent
of defendant's prior criminal record and the seriousness of the
offenses of which he has been convicted); and nine, N.J.S.A. 2C:44-
28 A-4898-14T1 1(a)(9) (need to deter defendant and others from violating the
law). The judge found no mitigating factors.
The judge merged count two (felony murder) with count one
(murder), and sentenced both defendants to fifty years of
incarceration for the murder, with eighty-five percent periods of
parole ineligibility pursuant to NERA. The judge also imposed
concurrent twenty-year terms on count three (robbery), and
concurrent ten-year terms on count four (possession of a weapon
for an unlawful purpose).
Brown asserts that the aggravating factors found here are
ordinarily found in every other criminal case. He asserts that the
judge's findings are based entirely on his prior criminal record.
He contends his sentence should not have exceeded thirty years of
incarceration.
Dawson argues for the first time on appeal that the judge
should have merged count three with count one. He contends that
because his prior convictions were for third- and fourth-degree
offenses, the judge should have sentenced him to thirty years of
incarceration with thirty years of parole ineligibility.
The scope of our review of the trial court's "sentencing
decisions is relatively narrow and is governed by an abuse of
discretion standard." State v. Blackmon, 202 N.J. 283, 297 (2010).
We may not set aside a sentence unless the trial court did not
29 A-4898-14T1 follow the sentencing guidelines; the court's findings of
aggravating and mitigating factors were not based upon sufficient
credible evidence in the record; or the court's application of the
sentencing guidelines to the facts of the case "shock[s] the
judicial conscience." State v. Bolvito, 217 N.J. 221, 228 (2014)
(alteration in original) (quoting State v. Roth, 95 N.J. 334, 364-
65 (1984)).
We agree with Dawson's contention that count three
(possession of a weapon for an unlawful purpose) should have merged
with count one (murder). See State v. Tate, 216 N.J. 300, 308
(2013) (noting that merger is required when the only unlawful
purpose in possession of a weapon is its use to commit the
substantive offense). Accordingly, we vacate the sentences imposed
on count three, and remand the matter to the trial court for entry
of corrected judgments of conviction for both defendants, merging
count three with count one.
However, in all other respects, the record shows that the
judge followed the sentencing guidelines, the findings of
aggravating factors are supported by sufficient credible evidence
in the record, and the sentences imposed do not represent an abuse
of the trial court's sentencing discretion.
30 A-4898-14T1 Affirmed in A-4898-14 and A-5221-14, and remanded to the
trial court for entry of judgments of conviction as required by
this opinion. We do not retain jurisdiction.
31 A-4898-14T1