STATE OF NEW JERSEY v. JAMAR HOLMES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMAR HOLMES, a/k/a

JAMAR F. HOLMES, KEVIN WILSON,

Defendant-Appellant.

March 2, 2015

Submitted January 7, 2015 Decided

Before Judges Alvarez, Waugh, and Maven.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 11-08-1515.

Joseph E. Krakora, Public Defender, attorney for appellant (Jason A. Coe, Assistant Deputy Public Defender, of counsel and on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Frank J. Ducoat, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Tried to a jury, defendant Jamar F. Holmes was convicted of first-degree knowing and purposeful murder, N.J.S.A. 2C:113(a)(1) and (a)(2), fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d), and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d). On October 23, 2012, the trial judge sentenced defendant to fifty-five years of imprisonment subject to eighty-five percent parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2(a). Defendant appeals and we affirm, except we vacate the sentence and remand for a new sentencing hearing.

I

At around noon on New Year's Day 2011, defendant went to a party at the home of his friend, S. Higdon. There, he and the other guests began to drink heavily and smoke marijuana. The victim, Donald Andrews, arrived later that afternoon.

Around 9:30 p.m., defendant and the victim had, according to Higdon's trial testimony, "some words." Higdon did not know the reason for their confrontation, which he described as "a little argument[,]" "nothing that major[,]" that lasted under two minutes. When he saw both men stand up, he stood between them to prevent further escalation; everyone sat back down. A few minutes later, he, defendant, the victim, and at least one other person returned to a nearby liquor store where they had already gone several times that day for more alcohol.

Andrews entered the store alone; the others waited outside while Higdon took "a couple [of] calls." Defendant followed Andrews in the store, raised a large knife, stabbed the victim once in the back, and walked out. The store's video surveillance system captured the entire event.

At trial, defendant said he knew the store had a video camera, but otherwise denied having any recollection of the events because the substances he had ingested had "clouded [his] vision." He claimed he did not remember walking to or entering the liquor store, did not know where the knife came from, and did not know how he disposed of it. He did not recall leaving the store or going home.

The following day, defendant went to work, waiting at a gathering place for day laborers. While there, Higdon called defendant and told him that Andrews had died. This news prompted defendant to flee, and he hid from the authorities for close to two months. He ultimately turned himself in to police, accompanied by his mother.

Before the trial began, the court excluded Higdon's statement regarding his phone conversation with defendant. The judge ruled that defendant's expression of surprise was not a statement against interest satisfying the requirements of N.J.R.E. 803(c)(25). When describing the phone call with defendant, Higdon told police the following

[HIGDON]: I called him.

[DETECTIVE]: You called him?

[DETECTIVE]: And what did you say?

HIGDON: He said he about to get low and he didn't know he killed him.

[DETECTIVE]: Repeat that, I didn't hear you.

HIGDON: He said he's about to get low. That means go on the run and hide out.

[DETECTIVE]: Because of what reason?

HIGDON: Because I told him he killed a man.

[DETECTIVE]: All right.

HIGDON: He didn't know he killed him. He didn't even know what was wrong.

. . . .

[DETECTIVE]: How could he not know that?

HIGDON: He didn't know. He thought he just hit him.

. . . .

[DETECTIVE]: You say he just knew he did what? He just what?

HIGDON: Just poked him, stabbed him.

[DETECTIVE]: Okay.

The video of the incident was played approximately five times during the course of the three-day trial. It was not sent into the jury room. The video was played in slow motion on two occasions, including during the prosecutor's summation. The judge redacted the sound from the latter portion, when the victim can be heard crying out for help.

The State's medical examiner testified that death resulted from a single stab wound to the back. The blade traveled through the victim's liver, stomach, diaphragm, left lung, and heart. Any of the injuries to the organs could have been fatal, and the victim in any event died within minutes of receiving the mortal wound. Over defendant's objection, the judge admitted six autopsy photographs, including photographs which the judge described as not "particularly gory," of the victim's internal organs showing the blade's travel path.

In his opening statement, the prosecutor described the crime as a "cowardly brutal murder" and defendant's conduct as "cowardly brutal actions." The court sustained the immediate objection which followed. In his opening instruction and closing charge, the judge told the jury that statements by the attorneys were not evidence.

While cross-examining defendant, the prosecutor asked him, "And you murdered Donald Andrews at 9:45 at night . . . ." The court sustained defense counsel's immediate objection.

In his closing, the prosecutor praised Higdon for "[coming] forward because, I submit to you, he knew what [defendant] did was wrong. And there's still some people that are willing to do that, willing to take the stand, come forward[,] and cooperate with law enforcement; and that, ladies and gentlemen, should be respected."

Additionally, the prosecutor said

And while the defense, he tells you, I was intoxicated, I couldn't remember, at the time of all the important events I blacked out, I couldn't remember. And I submit to you, ladies and gentlemen, you saw the testimony yesterday. You have the tape. That is a completely unbelievable defense. It is not believable whatsoever. Nothing supports it.

Did you hear from the toxicologist? Did you hear from anybody about his level of inebriation --

Counsel immediately objected, and the objection was sustained. When giving the final charge to the jury, the court followed the model jury instruction regarding intoxication, reiterating specifically that defendant bore no burden of proof, and that it was the State's burden to prove "beyond a reasonable doubt that [the] defense does not apply." Model Jury Charge (Criminal), "Intoxication Negating an Element of the Offense" (2005).

Defendant was thirty-two when sentenced, had been previously convicted of an indictable drug offense, and had been arrested numerous times. The court, with little discussion, found aggravating factors three, six, and nine, and none in mitigation. N.J.S.A. 2C:44-1(a)(3), (6), and (9). He concluded that the aggravating factors preponderated without explanation and thus imposed the fifty-five-year sentence.

II

On appeal, defendant alleges the following errors

POINT I

THE TRIAL COURT IMPROPERLY PRECLUDED DEFENSE COUNSEL FROM INTRODUCING [DEFENDANT'S] PRIOR STATEMENTS ABOUT [THE VICTIM'S] DEATH INTO EVIDENCE.

POINT II

DEFENDANT WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL BY MUL[TI]PLE INSTANCES OF PROSECUTORIAL MISCONDUCT. (Partially raised below).

POINT III

THE TRIAL COURT'S SENTENCE IN THIS CASE WAS EXCESSIVE AND UNSUPPORTED BY ADEQUATE ANALYSIS.

A.

Evidentiary questions, including applications of the statementagainstinterest exception, "are questions addressed in the first instance to the trial court s sound discretion." State v. Nevius, 426 N.J. Super. 379, 392-93 (App. Div. 2012) (citing State v. White, 158 N.J. 230, 240 (1999), and State v. Abrams, 72 N.J. 342, 343 (1977)); accord Appelget v. Van Hise, 44 N.J. Super. 507, 520 (Ch. Div. 1957) ("the question of admissibility must be left to the discretion of the trial judge based upon his appraisal of all the circumstances surrounding the making of the declaration").

Statements against interest are an exception to the rule prohibiting the admission of hearsay testimony, N.J.R.E. 802; they are admissible even if the declarant is available1 to testify

A statement which was at the time of its making so far contrary to the declarant's pecuniary, proprietary, or social interest, or so far tended to subject declarant to civil or criminal liability, or to render invalid declarant's claim against another, that a reasonable person in declarant's position would not have made the statement unless the person believed it to be true. Such a statement is admissible against an accused in a criminal action only if the accused was the declarant.

[N.J.R.E. 803(c)(25).]

When defendant attempted to introduce his morningafter phone conversation with Higdon into evidence, the trial judge, sustaining the State's hearsay objection, explained to defense counsel that "[y]ou can't offer your own statement under the against interest exception[.]" He suggested that the conversation might be admissible later as "a prior consistent statement."

Since the proffering party's identity, prosecution or defense, is immaterial under N.J.R.E. 803(c)(25), the judge's evidentiary ruling rests on faulty reasoning. Nor would the statements have been admissible as prior consistent statements, N.J.R.E. 803(a)(2), as in fact they conflicted with defendant's testimony that he could not recall the evening's events. Although we do not agree with the judge's rationale, we agree that defendant's statement did not satisfy any hearsay exception and was thus properly excluded.

A statement admitted under N.J.R.E. 803(c)(25) must have been against the declarant's interests at the time it was made. State v. Norman, 151 N.J. 5, 31 (1997). At the time this statement was made, however, it was not against the declarant's interest. Defendant was speaking to a person who already knew he had stabbed Andrews. In other words, there was nothing inculpatory about his reaction as quoted by Higdon, as Higdon was in fact calling to warn defendant of the victim's death since he knew defendant was the person who stabbed the victim.

Thus the statement was "wholly exculpatory" and properly excluded, since "a self-serving statement made after the commission of a crime provides too much opportunity for contrivance to warrant admission." State v. Gomez, 246 N.J. Super. 209, 215-16 (App. Div. 1991). In this case, the statement was actually fully exculpatory since defendant was attempting to downplay his intent in stabbing the victim in the back. There was nothing inherently trustworthy about it. See White, supra, 158 N.J. at 238.

Alternatively, for the first time on appeal, defendant argues his statements are admissible as excited utterances under N.J.R.E. 803(c)(2). Defendant's theory is that his comment expressed his shock, given his expressed intent that he "[j]ust poked [Andrews], stabbed him." We observe that we ordinarily decline to consider issues not raised to the trial court "unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest." Zaman v. Felton, 219 N.J. 199, 226-27 (2014) (internal quotation marks omitted). We do not think that this argument falls into those categories. Even if it did, the hearsay ban still applies.

Although defendant argues that the stress of excitement stemmed from learning that the victim had died, and that since his statement occurred during a phone conversation, he had no opportunity to deliberate or fabricate, in reality, he was just being told about the outcome of an event with which he was quite familiar. During that call, defendant did not deny that he stabbed Andrews. In other words, since he was the person who stabbed the victim in the back, death cannot be fairly characterized as an unexpected outcome capable of causing the kind of spontaneous response eligible for the excited-utterance exception. Therefore, defendant's statements do not qualify as excited utterances under N.J.R.E. 803(c)(2).

Defendant frames his statement as an excited utterance in an attempt to establish that he did not have the requisite mental state to cause death. We note first that in order to be found guilty of a murder, a person must "purposely cause[] death or serious bodily injury resulting in death," N.J.S.A. 2C:113(a)(1), or "knowingly cause[] death or serious bodily injury resulting in death," N.J.S.A. 2C:11-3(a)(2). Because of defendant's intoxication defense, the judge properly charged the jury as to aggravated manslaughter, N.J.S.A. 2C:114(a), and manslaughter, N.J.S.A. 2C:11-4(b).2 Therefore, the exclusion of the statement from the jury's consideration was not error. In any event, the jury heard the elements of the lesser included offenses. Although admittedly they did not hear about defendant's alleged surprise at the victim's death, which theoretically would have supported a finding of guilt on a lesser offense, they rejected the intoxication defense. The basis for admission of the statement was defendant's claim not to have fully appreciated the nature of his conduct because of his intoxication. Since the jury rejected the premise, that the statement was not admitted was inconsequential.

B.

A prosecutor's "primary duty" is "to see that justice is done[,]" not merely "to obtain convictions." State v. Timmendequas, 161 N.J. 515, 587 (1999). Thus "'[i]t is as much [a prosecutor's] duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.'" Ibid. (quoting State v. Farrell, 61 N.J. 99, 105 (1972) (quoting Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 633, 79 L. Ed. 1314, 1321 (1935))).

Prosecutorial misconduct, however wrongful, "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, 43738 (2007) (citations and internal quotation marks omitted). That is, 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." Id. at 438 (internal quotation marks omitted).

A reviewing court makes this determination by examining (1) "whether defense counsel made a timely and proper objection," (2) "whether the remark was withdrawn promptly," and (3) "whether the court ordered the remarks stricken from the record and instructed the jury to disregard them." Ibid.; accord State v. Frost, 158 N.J. 76, 83 (1999). When a prosecutor misconducts himself, the trial court's curative instruction must be immediate, firm, clear, and specific. State v. Vallejo, 198 N.J. 122, 13436 (2009). When such curative instruction is "inadequate," the reviewing court "ha[s] no alternative but to assume that the jurors took into account all of what transpired at trial," including any improper evidence or argumentation. Id. at 137.

There is no question that the prosecutor's characterization of the homicide as a "cowardly brutal murder," and of defendant's course of conduct as "cowardly brutal actions" was improper. The statements, made in opening, met with prompt sustained objections. The court in both its opening and closing charge explained to the jury that the attorneys' comments were not evidence.

These are precisely the type of derogatory comments that the cases instruct us are improper. State v. Wakefield, supra, 190 N.J. at 466-67. "The scope of the State's opening statement is limited to the facts he intends in good faith to prove by competent evidence." Id. at 442 (internal quotation marks omitted). Despite the blatantly improper characterization, given that these comments were promptly addressed by defense counsel and the court, and in the context of the video, we cannot say that they "substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his defense." Id. at 438.

While cross-examining defendant, the prosecutor attempted to ask if he "murdered Donald Andrews at 9:45[.]" Counsel immediately objected, as the question of whether the homicide was a murder was in the jury's sole provenance. The court also sustained this objection. We cannot say that the question alone had the capacity to prejudice defendant's fundamental right to have the jury "fairly evaluate the merits of his defense." Ibid.

During his summation, the prosecutor praised Higdon for testifying, concluding that his willingness to "cooperate with law enforcement . . . should be respected." Contrary to the State's contention, we do not perceive this to be fair comment on the evidence. No objection or curative instruction followed. Since the remark was intended to bolster the witness's credibility, it was improper.

A prosecutor must not "express his or her personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of [] defendant[.]" State v. Marshall, 123 N.J. 1, 154 (1991) (internal quotation marks omitted). For example, "[a] prosecutor may not suggest police officers [would] suffer penalties [if they] were to lie[.]" State v. Hawk, 327 N.J. Super. 276, 285 (2000) (citation and internal quotation marks omitted). Here, the prosecutor violated that command by insinuating that the witness "came forward because . . . he knew what [defendant] did was wrong" and thus deserved respect. To reiterate, this brief statement in the context of the video of the stabbing, did not prevent the jury from fairly evaluating his defense.

Citing to State v. Johnson, defendant contends that the State's five showings of the video improperly attempted to shift the jury's focus from whether the State had met each and every element of the offense beyond a reasonable doubt to the gruesome details of the crime. 120 N.J. 263, 298 (1990). Indeed, even when the State possesses "overwhelming" evidence of defendant's guilt like this surveillance tape, such evidence can "never be a justifiable basis for depriving a defendant of his or her entitlement to a constitutionally guaranteed right to a fair trial." Frost, supra, 158 N.J. at 87.

Although we agree that five showings over the course of three days appears excessive, and may have been designed to improperly inflame the jury's passion, ultimately, it was evidence upon which the State was entitled to rely. Although a practice not to be encouraged, the repeated showings did not constitute prejudicial error.

Along those lines, defendant contends that the admission of the autopsy photographs was also error capable of inflaming the jury. The trial court admitted all six pictures, finding that they were not unnecessarily gory and therefore not inflammatory, and were more probative than prejudicial pursuant to N.J.R.E. 403. We agree.

Although we were not provided with copies of the photographs, the State was entitled to present them to corroborate the testimony of the medical examiner, who described the knife's path of travel in the body and the injury to each organ, any of which could have been fatal. We therefore see no abuse of discretion as to this point either. Wakefield, supra, 190 N.J. at 491.

The prosecutor improperly referenced the absence of defense expert testimony with regard to intoxication. Again, defense counsel objected, and the court sustained the objection. When the trial judge gave the intoxication charge, he tracked the model jury charge and correctly instructed the jury that the burden to disprove the defense remained with the State. Although the instruction did not immediately follow the comment, it came mere minutes after the prosecutor's closing statement. The instruction's language was firm, clear, and specific. Vallejo, supra, 198 N.J. at 134-36. We therefore do not perceive the prosecutor's misstatement of the law to have affected the jury deliberations, as it was closely followed by a correct and curative instruction. And jurors are presumed to follow instructions. State v. Smith, 212 N.J. 365, 409 (2012).

Although these were prosecutorial errors, each was promptly addressed: objections were made and sustained. Considering whether these errors cumulatively warrant reversal, all were addressed by counsel and the judge in a case with overwhelming proofs. Although we certainly do not mean to minimize the impropriety of the conduct, we do not think that, even taken together, these errors warrant reversal in this case. See State v. Weaver, 219 N.J. 131, 162 (2014) (cumulative errors warrant a new trial only where their "combined impact" "does not permit" the reviewing court to conclude that they were "harmless beyond a reasonable doubt").

C.

This court "must not substitute its judgment for that of the sentencing court." State v. Fuentes, 217 N.J. 57, 70 (2014). Rather, we will "affirm a sentence, even if [we] would have arrived at a different result, as long as the trial court properly identifie[d] and balance[d] aggravating and mitigating factors that are supported by competent credible evidence in the record." State v. Lawless, 214 N.J. 594, 606 (2013) (internal quotation marks omitted). When it reviews a sentence, this court requires (1) "that an exercise of discretion be based on findings that are grounded in competent, reasonably credible evidence" and (2) "that the factfinder apply correct legal principles in exercising its discretion." State v. Roth, 95 N.J. 334, 36364 (1984) (citations omitted). We only modify a sentence "when the application of the facts to the law is such a clear error of judgment that it shocks the judicial conscience." Id. at 364.

The "dominant, if not paramount, goal" of N.J.S.A. 2C:441's aggravating and mitigating factors "is uniformity in sentencing." Lawless, supra, 214 N.J. at 607 (internal quotation marks omitted). "Uniformity" in this context means that "similarly situated defendants [do] not receive dissimilar sentences." Ibid. A preponderance of aggravating factors will support a sentence toward the higher end of the sentencing range. Id. at 608; Fuentes, supra, 217 N.J. at 73.

A sentencing judge must, however, "state . . . the factual basis supporting a finding of particular aggravating or mitigating factors[,]" and must "describe the balancing process leading to the sentence." R. 3:214(g); State v. Kruse, 105 N.J. 354, 35960 (1987). This balancing process is qualitative, not quantitative. Kruse, supra, 105 N.J. at 363; Fuentes, supra, 217 N.J. at 7273. Together, this statement of reasons and explicit balancing process enable meaningful appellate review. Fuentes, supra, 217 N.J. at 74.

The judge in this case did not explain the reasons for his conclusion that defendant's arrest history and prior indictable convictions at age thirtytwo warranted a finding of aggravating factors three and six. Nor did he explain whether he thought aggravating factor nine had any particular weight in this case. He did not explain the weight he accorded to the aggravating factors prior to stating, in conclusory terms and abbreviated fashion, that the aggravating factors preponderated. Since the sentencing range for first-degree murder is thirty years to life, N.J.S.A. 2C:11-3(b)(1), the trial judge's fifty-five-year sentence fell toward the upper end of the statutory range.

Therefore the trial judge's failure to identify record support for his findings of aggravating factors, or to supply any explanation for the weight he accorded them, is significant. A finding of aggravating factor nine, the need for deterrence, for example, involves "a qualitative assessment of the risk of recidivism, but also involves determinations that go beyond the simple finding of a criminal history and include an evaluation and judgment about the individual in light of his or her history." Fuentes, supra, 217 N.J. at 78 (internal quotation marks omitted). The strength of this factor varies directly with "the gravity and harmfulness of the offense." Id. at 79. In applying this factor, the sentencing court "should address both general and specific deterrence[.]" Id. at 81. The judge did not explain his thinking on the subject. Even in the absence of mitigating factors, a sentencing judge still must analyze each factor and determine the weight to accord to each. See, e.g., State v. Denmon, 347 N.J. Super. 457, 467-68 (App. Div.), certif. denied, 174 N.J. 41 (2002). Thus we vacate the sentence and remand for a new sentencing hearing, during the course of which the judge shall explain his analysis and weighing of each factor.

Affirmed, except that we remand for resentencing.

1 Our rule differs from the federal rule. "Prior to the adoption of the 1967 rule, a declaration against interest could not be admitted unless the declarant was unavailable as a witness. The 1967 rule eliminated that requirement. . . . Under the federal rules, by contrast, declarations against interest are admissible only if the declarant is unavailable." Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment 1 on N.J.R.E. 803(c)(25) (2014) (citations omitted).

2 The judge did not explain to the jury when he gave the instruction that the intoxication defense also applied to unlawful possession of a weapon and possession of a weapon for unlawful purpose. Both crimes require a purposeful and knowing state of mind. See State v. Klich, 321 N.J. Super. 388, 398 (App. Div. 1999). The issue has not been raised, and if it had been, the omission would have been harmless as the jury rejected the intoxication defense altogether as to the far more serious offense.