STATE OF NEW JERSEY v. RASUL MCNEIL-THOMAS
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4859-14T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RASUL MCNEIL-THOMAS,
Defendant-Appellant.
_____________________________________________________
Argued October 2, 2017 – Decided December 28, 2017
Before Judges Messano and Vernoia.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Indictment No. 12-
06-1570.
James K. Smith, Jr., Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender, attorney;
James K. Smith, Jr., of counsel and on the
brief).
Frank J. Ducoat, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued
the cause for respondent (Robert D. Laurino,
Acting Essex County Prosecutor, attorney;
Camila Garces, Special Deputy Attorney
General/Acting Assistant Prosecutor, of
counsel and on the brief).
PER CURIAM
Following a jury trial, defendant Rasul McNeil-Thomas was
convicted of: first-degree carjacking,
N.J.S.A. 2C:15-2(a)(2);
the lesser-included offense of first-degree aggravated
manslaughter of Newark Police Officer William Johnson,
N.J.S.A.
2C:11-4(a)(1); two counts of first-degree attempted murder of M.T.
and A.L.,
N.J.S.A. 2C:5-1 and 2C:11-3 (a)(1) and (2); aggravated
assault of A.L., T.J. and J.S.; and related conspiracy and weapons
offenses.1 On the carjacking and aggravated manslaughter
convictions, the judge imposed consecutive thirty-year sentences,
each with an 85% period of parole ineligibility pursuant to the
No Early Release Act (NERA),
N.J.S.A. 2C:43-7.2. He imposed
concurrent sentences on the remaining convictions.
On appeal, defendant raises the following points for our
consideration.
POINT I
THE DEFENDANT'S FOURTEENTH AMENDMENT RIGHT TO
A FAIR TRIAL AND HIS SIXTH AMENDMENT RIGHT TO
CONFRONTATION WERE VIOLATED WHEN, IN HIS
SUMMATION, THE PROSECUTOR PLAYED PORTIONS OF
THE SURVEILLANCE VIDEOS WHICH HAD NOT BEEN
PLAYED FOR THE JURY DURING THE TESTIMONY OR
ADMITTED INTO EVIDENCE, AND THEN TESTIFIED
THAT THOSE VIDEOS SHOWED A BLACK CADILLAC AND
A PICKUP TRUCK, PRESUMABLY DRIVEN BY DEFENDANT
1
The identities of these victims and other witnesses are
irrelevant to our decision, so we utilize initials to protect
their privacy.
2 A-4859-14T1
AND HIS STEPFATHER, DRIVING BY THE CHICKEN
RESTAURANT A FEW MINUTES BEFORE THE SHOOTING.2
POINT II
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW
WAS VIOLATED WHEN THE TRIAL COURT ALLOWED THE
STATE TO INTRODUCE EVIDENCE THAT [M.G.]
TENTATIVELY IDENTIFIED DEFENDANT'S PHOTO FROM
AN ARRAY, EVEN THOUGH SHE HAD NOT BEEN ABLE
TO MAKE AN IDENTIFICATION WHEN SHOWN THE EXACT
SAME ARRAY ONLY HOURS EARLIER.
POINT III
THE CASE SHOULD BE REMANDED TO THE TRIAL COURT
FOR RESENTENCING BASED UPON THE VIOLATION OF
THE RULE SET FORTH IN STATE V. MILLER, 108
N.J. 112 (1987), AND THE COURT'S USE OF AN
ELEMENT OF THE CRIME AS AN AGGRAVATED FACTOR.
(NOT RAISED BELOW).
I.
The State contended that on the evening of May 26, 2011,
defendant and an unknown co-conspirator carjacked a silver
Chevrolet from the driveway of a home on Clinton Place in Newark,
and participated in a drive-by shooting less than two blocks away
at Texas Fried Chicken & Pizza (Texas Fried Chicken) located at
the corner of Lyons Avenue and Clinton Place. It alleged that
defendant fired numerous rounds, killing Officer Johnson and
wounding several others at the scene.
2
We have eliminated headings for the sub points of defendant's
legal arguments.
3 A-4859-14T1
The motive for the shooting was a brawl that occurred earlier
outside defendant's home, which was only a few blocks from the
restaurant. A group of young women, including M.T. and A.L.,
physically assaulted defendant, and his mother, stepfather and
sister. These female assailants were at Texas Fried Chicken during
the drive-by shooting.
A.L. was grazed by a bullet and required stitches. J.S., one
of the patrons, suffered a through-and-through gunshot wound of
his torso. T.J., who was walking down Clinton Place toward Lyons
Avenue alongside the restaurant, lost a tooth when a bullet
fragment ricocheted and struck her in the mouth. Officer Johnson
was off duty and buying food when a bullet struck him in the chest
and killed him.
The Brawl
At about 7:00 p.m., R.S., who lived across the street from
defendant and his family, heard a commotion and, looking out her
second-floor window, saw a group of six girls screaming at
defendant. Defendant's mother emerged from the home and the
argument grew more heated. About thirty minutes later, defendant's
stepfather arrived in a dark blue pickup truck. The argument
escalated into a brawl, with people fighting in the middle of the
street. R.S. called 9-1-1, but, by the time police arrived, the
group of girls had left the area. After the police left, R.S.
4 A-4859-14T1
heard defendant's family and another girl talking, and someone
asked, "where they live at? Where they live at?" R.S. heard
someone name a street, one block from defendant's home. We
describe below in detail some of R.S.'s other testimony, which is
critical to our disposition of the appeal.
The Carjacking
M.G. and her boyfriend, T.B., both testified regarding the
carjacking. After dining out, M.G. remained in the car parked in
the driveway of her boyfriend T.B.'s home, while he went inside
to get some clothing. A man approached the driver's side, knocked
on the window with a gun, opened the door and told M.B to get out.
When she did, another man on the passenger side was in front of
her. At trial, M.G. testified that defendant "look[ed] like the
guy." She believed that he might have had a gun based on the
outline of his "hoodie." Before M.G. could reach the front door
of the house, the men sped off in the stolen car, and she heard
shots fired shortly thereafter.
In the early morning hours of the following day, police showed
M.G. six photographs, including a photograph of defendant. She
initially told them she could not make an identification. However,
later the same day, officers went to T.B.'s house, showed M.G. the
same photographs, and she identified defendant as the person
outside the passenger side of the car.
5 A-4859-14T1
T.B. testified that he heard the gunshots and M.G. banging
on the front door of his house. His mother called police to report
the carjacking, and, using a GPS tracking application in the car,
T.B. located the vehicle within twenty minutes of the shooting,
parked only a few blocks away near St. Peter's Park. He escorted
police to the car, which was undamaged, where they recovered three
brass and two steel spent shell casings in the car.
The Shooting
At trial, T.J., who knew defendant from the neighborhood,
identified him as the shooter and said that he fired from a "light-
colored car, silver, four door" car. However, at the time of the
shooting, T.J. did not tell the police anything about the shooter,
and first identified defendant as the shooter in September, 2011,
when she gave a statement. During direct examination, T.J.
admitted she was under the influence of heroin at the time of the
shooting.
M.T. knew defendant for years. She lived on Clinton Place,
between Texas Fried Chicken and where the carjacking occurred.
M.T. was a self-professed gang member and one of the women at
defendant's home during the brawl. She was at Texas Fried Chicken
at the time of the shooting and initially told police "Rasul" was
the shooter. She identified defendant from a photo array, and
6 A-4859-14T1
told one of the investigating detectives she was an intended target
of the shooting.
M.T. initially told police she "beat up" defendant's family,
but, during her trial testimony, she denied that. M.T. received
a phone call from defendant at 9:08 p.m., forty-one minutes before
the shooting.3 Defendant told her she "didn't have to let
everything go down the way it went down." M.T. told him she was
only trying to break up the fight. Shortly after the shooting,
M.T. received a call from the same phone number. This time, it
was a relative of defendant, who referenced the earlier fight and
asked M.T. if everyone was all right after the shooting.4
At trial, although she claimed to have "locked eyes" with the
shooter, M.T. testified he was not in the courtroom.5 She did
testify that the shooter had "dreads," which was how defendant
wore his hair at the time of the shooting. She also said the
shots were fired from a newer black Mercedes or BMW, even though,
3
Through "ShotSpotter" technology, police were able to identify
the exact time of the shooting.
4
The next day, M.T. was assaulted in her home. She alleged
defendant's mother, sister, and one other person were there.
Defendant's mother was telling the others, "That's not her. That's
not her," apparently to convey M.T. did not participate in the
earlier brawl.
5
Following a Gross hearing, State v. Gross,
216 N.J. Super. 98
(App. Div. 1987), aff'd,
121 N.J. 1 (1990), M.T.'s redacted
statement was played for the jury.
7 A-4859-14T1
as we explain below, the shots were fired from the silver Chevy.
M.T. also claimed only the driver of the car fired at the
restaurant.
J.S., also a member of the same gang as M.T., could not
identify either the shooter or the car from which the shots were
fired. J.S. was shot in the leg during a drive-by shooting that
occurred months earlier near Texas Fried Chicken. His friend was
killed in that attack.
The Investigation
Defendant was arrested on May 27 and charged with carjacking.
He waived his Miranda6 rights and provided a statement to police,
which was played for the jury. Defendant said there was a fight
between a group of seven or eight females, and his mother and two
sisters around 7:40 p.m. or 8:00 p.m. Defendant claimed that he,
M.T. and his stepfather, B.J., attempted to break up the fight.
After the fight, defendant remained inside his house until
about 9:30 p.m. He left with his stepfather in B.J.'s pickup
truck to see his cousin, but returned to the house because his
cousin was not home. Defendant did not leave the house again and
denied being near Clinton Place or Lyons Avenue at any point
between 7:00 and 11:00 p.m. Police executed a search warrant of
6
Miranda v. Arizona,
384 U.S. 436 (1966).
8 A-4859-14T1
defendant's home and B.J's pickup truck but found nothing of
evidential value.
The events at and near the restaurant were captured by several
surveillance cameras. As described by a police witness, one of
the videos showed the silver Chevy driving by Texas Fried Chicken
with "a muzzle flash . . . coming out of the front passenger
window." The car turned left, and another camera captured the car
turning left one block away and heading in the general direction
of where it was later found.
A police detective testified that another camera captured
"two . . . black males, walk[ing] through St. Peter's Park with
hoodies" "[j]ust after the carjacking and the shooting/homicide."
Although the men could not be identified, police testified they
were walking in the general direction of the street where defendant
lived. A K-9 detective testified that after the Chevy was located,
his dog tracked a scent from the car and through the park, before
losing it near where defendant lived.
Police performed ballistic analysis of the shells recovered
from the Chevy and others found outside Texas Fried Chicken, as
well as bullets recovered from the restaurant and at Officer
Johnson's autopsy. Expert testimony revealed that the shots fired
at Texas Fried Chicken came from two different guns.
9 A-4859-14T1
On July 6, 2011, responding to a call of shots fired only a
few blocks from Texas Fried Chicken, Irvington police arrested a
man with the 9 millimeter handgun that killed Officer Johnson.
That man was never connected to the homicide or shooting. 7
Additionally, police linked the other shells fired at Texas Fried
Chicken to a second gun that was involved in four prior unsolved
shootings in Newark.
II.
A.
The State called the owners of Texas Fried Chicken, and two
other nearby businesses, the Oasis Bar and Bobby's Restaurant
(Bobby's), to identify video recordings made from surveillance
cameras in or outside their establishments. Sixteen different
cameras shot the video recordings from Texas Fried Chicken, and
these were displayed as sixteen "channels."8 The restaurant's
owner was the State's first witness. Defense counsel quickly
requested a sidebar:
Defense Counsel: I definitely don't have any
objections . . . to any of the portions they
are going to play, but I do want to reserve,
just for later, whether every single thing
should go in, you know, from . . . like an
7
He was not called as a witness at trial.
8
We have been provided with copies of what was introduced at
trial. Each of the sixteen channels from the Texas Fried Chicken
displays more than ninety minutes of video recording.
10 A-4859-14T1
hour before. You know what I'm saying? The
video itself contains a lot of material.
Court: Downtime and other stuff and extraneous
stuff.
Defense Counsel: Well, maybe there's some
things relevant or not, but all I'm saying,
by agreeing now that it's in evidence - -
Prosecutor: If you find something you don't
like --
Defense Counsel: Those portions are in. Later
on we can talk about the scope. Obviously,
everything played before the jury in the
courtroom is in evidence, but we can talk
about the scope later. There might not be any
problems.
Court: You can't unring the bell. I don't
know what's on the video.
Defense Counsel: I know what sections they are
going to play, I believe. Right?
Prosecutor: It goes on, you can see the people
shot. You can see when they entered. You can
see the victim enter and you can see the victim
fall. You can see the police and you can see
the ambulance.
Court: Once you show it to the jury,
obviously, you showed it to the jury.
Defense Counsel: I don't have a problem with
any of that, if you want to move it into
evidence.
Prosecutor: I want to show him camera by
camera.
Defense Counsel: In order for you to show
anything, you have to move it in evidence. I
11 A-4859-14T1
have no objection, with the caveat we
discussed.
Court: As long as you don't have a problem, I
don't have a problem.
. . . .
Court: [Video] in evidence subject to sidebar.
[(emphasis added).]
The prosecutor then asked the witness to identify where the cameras
were situated, and, generally speaking, what each of the channels
displayed.
The owner of Bobby's testified, and the State sought to move
the video from its surveillance cameras, which contained four
channels, into evidence. When defense counsel stated he had no
objection, the judge asked, "Subject to the issue we spoke of
before[?]" Counsel answered affirmatively, and the judge admitted
the DVD into evidence, "subject to counsel's qualification." The
video from the camera at the Oasis Bar was on the same disc.
At various points, the prosecutor showed witnesses portions
of videos from Texas Fried Chicken during their testimony.
Detective Kevin Lassiter, who was eating lunch with his partner
nearby and was the first officer to respond to the restaurant
after the shooting, viewed some of the video from the restaurant
and narrated the events immediately after the shooting. During
Lassiter's testimony, at sidebar, defense counsel objected to the
12 A-4859-14T1
video "showing [Officer Johnson] bleeding to death on the floor."
Among other things, the prosecutor's response was that the DVD was
"in evidence." The judge overruled the objection.
Defense counsel renewed the objection, when Lassiter was out
of frame, and the video showed EMT's tending to Officer Johnson;
he argued any probative value was outweighed by the prejudice of
the video. Again the prosecutor declaimed, "The video is in
evidence." The colloquy continued:
Defense counsel: Judge, just to remind the
Prosecutor, it's not all in evidence. I was
very clear on the record at the time, as I'm
sure this Court remembers, that just because
we're playing parts of the video doesn't mean
all of the video is in evidence. I made that
very clear at the time. The Court understood
it and noted it for the record at the time,
so the entire video is not in evidence. There
are portions of the video that are relevant,
like the shooting and arguably what police
officers arrived, when they arrived, but a man
rolling around on the floor bleeding to death
is not in that category.
This time, the prosecutor responded, "I submit it goes to the
cause and manner of death." The judge overruled the objection.
T.B. identified a car shown on the video from the Oasis Bar
as his silver Chevy. J.S., M.T., and T.J. were shown video from
several Texas Fried Chicken channels, including, in some
instances, video from channel two, which was shot from a camera
on the exterior of the Clinton Place side of the restaurant and
13 A-4859-14T1
displayed the muzzle flash coming from the silver Chevy. In each
case, the video from channel two depicted only events immediately
prior to and after the shooting.
During her testimony, R.S. said that during the fight, she
called 9-1-1 at 8:11 p.m. An officer arrived about fifteen minutes
later, but the girls had already left the area.9 R.S. did not
recall if defendant was there "right after the police came," but
she remembered that at some point he left with B.J. in the pickup
truck. R.S. identified photos of the pickup truck.
B.J. returned in the truck shortly thereafter alone. R.S.
testified that defendant arrived at the house in "a black . . .
Cadillac," perhaps a CTS model, with "another guy and two girls."
R.S. saw defendant leave in the black Cadillac with three other
people as it followed B.J.'s pickup truck. She later clarified
that defendant left in the black car with only the other male;
however, on cross-examination, R.S. said all four people left in
the black Cadillac. She saw B.J. come back alone in the pickup
truck. Eventually the black Cadillac parked across the street,
but R.S. never saw defendant return.
9
Immediately thereafter, pointing to a phone record, the
prosecutor said the time was 8:46 p.m., to which the witness
agreed.
14 A-4859-14T1
R.S. became aware of the shooting when a man came down the
street and said, "Big man got shot." Defendant was there, and she
saw him get into the black Cadillac and leave.
The prosecutor showed R.S. video taken from inside Texas
Fried Chicken, and she identified the women she saw fighting with
defendant's family as they entered the restaurant. The prosecutor
never asked R.S. to look at any other video, nor did the prosecutor
present her with still shots from the Texas Fried Chicken video.
During his summation, the prosecutor referred to R.S.'s
testimony about defendant leaving in a black Cadillac CTS following
his stepfather's pickup truck. Playing video from channel two
recorded "three minutes and [forty-six] seconds before the bullets
were fired," the prosecutor argued it displayed B.J.'s pickup
truck "eerily creeping up Clinton Place . . . right by [Texas
Fried Chicken]," followed by a black Cadillac CTS.10 He played a
portion of the video from Bobby's and argued it showed the two
vehicles after turning left onto Lyons Avenue. With the video
recording paused, the prosecutor then said:
[R.S.] said she saw [defendant's stepfather]
leaving in that pickup truck and the defendant
was in this car. It was about three and a
half minutes before the shooting.
10
Apparently, recognizing that no witness had said the car depicted
was in fact a Cadillac CTS, the prosecutor suggested one of the
jurors would know what the model looked like.
15 A-4859-14T1
. . . .
The detective testified he watched these
videos. He said that he watched these videos
to see if he could corroborate any of the
witness testimony. That's what he said. Any
of the witness statements. And you have
corroboration here.
At oral argument before us, the State contended Detective
Holt Walker, to whom the prosecutor referred, testified about
these portions of the videos. During Walker's testimony, the
prosecutor showed a portion of the video from Bobby's and only
asked if it depicted the silver Chevy driving on Lyons Avenue. He
cued channel two of the Texas Fried Chicken video to approximately
one minute before the portion he showed to the jury. He asked the
detective, "Is it your testimony that you spent a significant
amount of time trying to figure out about the cars that were coming
in and out of this location?" The only answer given by the
detective was, "That's correct." When the video was played, the
prosecutor immediately asked his assistant to "fast forward to get
to maybe a minute before . . . the shooting."
Detective Holt was never asked to identify the pickup truck
or the purported Cadillac CTS. In fact, the specific questions
posed by the prosecutor thereafter focused on parked cars at the
scene as the shooting began, and whether the detective had
16 A-4859-14T1
attempted to check the license plate of a specific black minivan
parked next to the restaurant.
Returning to the Oasis Bar video and the purported image of
a Cadillac CTS as he finished his summation, the prosecutor said,
"Cadillac CTS. You can't see the whole thing. You can't see the
license plate. You can't see the defendant driving in there. But
[R.S.], that's what she testified about. The most neutral witness
in this case."
The State cited us to other parts of the transcript where it
contends these portions of the videos were played for the jury.
We have reviewed those and, indeed, the entire record. It does
not appear that the prosecutor ever showed any of the witnesses,
especially R.S., the portions of the video recordings he referenced
in his summation.
After the summation, defense counsel immediately moved for a
mistrial.
The Prosecutor just played a piece of tape and
testified about it. There was no prior
testimony, and, in fact, he also
misrepresented testimony. So he played a
piece of tape where he purported to testify
that the blue pickup truck in the tape was the
same blue pickup truck that is owned by my
client's stepfather. No one had testified in
the case that, in fact, the blue pickup truck
on that video was my client's stepfather's
truck. Had they, I could have met that
testimony. Had they, I could have called
17 A-4859-14T1
additional witnesses to meet that testimony.
There was no such testimony.
Additionally, the Prosecutor testified
in his summation that the detective -- I
assume he meant Holt Walker, although he
didn't say it —- sent the license plate of
that blue pickup truck out to another agency
to determine could they read the license
plate.
Well, that's not the testimony in this
case. The only testimony about a license
plate being sent out in this case is for the
van that was parked outside of the chicken
shack at the time of the shooting. So that's,
again, testimony of the Prosecutor, not in
evidence, no opportunity to meet it.
Additionally, the Prosecutor testified
that a black car -- and that's all I could
tell from the video, is that it's a black car
-- is a Cadillac CTS.
There was no witness in this case who
testified that that black car is a Cadillac
CTS. Again, had that testimony been
presented, the defense could have attempted
to meet that testimony.
So the defense is now in a position where
the Prosecutor has just testified as to facts
never presented at the trial in his summation
with no opportunity to meet those facts.
That's not permitted, Judge. And at this
point in time the only, unfortunately,
solution to that is to declare a mistrial.
The prosecutor responded, arguing the videos were in evidence,
were shown to the jury previously and were corroborated by
Detective Walker. He contended that no testimony was required
18 A-4859-14T1
prior to the showing of the video and the two cars could be
"[p]lainly" seen.
The judge denied the motion stating:
There was testimony with regard to the pickup
truck. The photographs are in evidence, the
video was in evidence and it's been asked
multiple times and played for multiple
witnesses in this case. . . . It was provided
in discovery. What's said on the video is a
fair comment made by counsel.
The judge also found that the video corroborated R.S.'s testimony
about defendant leaving his home and returning in different cars.
The judge refused defense counsel's request for a curative charge.
The following day, defense counsel supplemented the argument
for a mistrial. He contended that the video clips used in
summation were not presented during the trial and, therefore, were
not in evidence. The prosecutor argued the entire video recording
was in evidence. After checking his notes, the judge concluded
the videos "went into evidence," noted the objection and denied
the mistrial motion "for the same reasons" stated the previous
day.
Less than one hour after it commenced deliberations, the jury
sent out a note:
We would like to see: The tape before the
shooting which shows the blue truck and the
black car. It was only shown by the Prosecutor
at the closing statement. Can/may we see this
again? Can it count as evidence?
19 A-4859-14T1
[(Emphasis added).]
Defense counsel objected, stating only the prosecutor "testified"
about the blue truck and black car and renewing his earlier
argument that those portions of the video were not in evidence.
The judge again denied any request for a curative charge, ruling
the videos were admitted into evidence "and there was no
objection."
Defense counsel reminded the judge that he did object and
only consented to the admission of certain portions that were
played for the jury. He reiterated that the jury was now asking
to see video that was never played before the prosecutor's
summation and was not in evidence. The prosecutor contended that
only the videos from Bobby's Restaurant and Texas Fried Chicken,
not the Oasis Bar, showed both vehicles, and he had played those
portions for the jury during the trial and before his summation.
The judge asked the jury to be more specific about which
portion of the videos it wanted to see. It responded: "We would
like to see the video, (both) of the shooting, cameras 2, 7, 8,
five minutes before the shooting and five minutes after." Defense
counsel noted that the prosecutor had not played video from five
minutes before to five minutes after the shooting, and again argued
20 A-4859-14T1
those portions of each video was never in evidence. The judge
disagreed and the videos were played.11
At one point during the deliberations, the jury indicated it
had reached a verdict on some charges but was "hung" on others.
The judge gave the jurors further instructions, and they returned
the verdict detailed above. Defendant moved for a new trial prior
to sentencing, which the judge denied.
B.
Defendant argues those portions of the video that the
prosecutor showed during his summation — allegedly showing B.J.'s
pickup truck and a black Cadillac CTS driving by Texas Fried
Chicken before the shooting — were never admitted in evidence.
Further, defendant contends that even if those portions of the
video were in evidence, the prosecutor essentially testified,
without any support, that the video showed the two vehicles about
which R.S. testified. The State counters that the videos were in
evidence, the prosecutor's summation was fair comment on the
11
How to respond to the jury's question consumed much debate, and
it would appear that the judge ordered the prosecutor to play the
ten minutes of video that straddled those portions played during
his summation, not the ten minutes that straddled the actual
shooting. The prosecutor conceded that during the presentation
of the case, the State "jumped around," displaying portions of the
videos during the testimony of the witnesses. But, he contended
that each video recording was admitted into evidence in its
entirety.
21 A-4859-14T1
evidence, and, even if the summation comments were improper, they
do not rise to reversible error given the substantial evidence of
defendant's guilt.
We have considered these arguments in light of the record and
applicable legal standards. We reverse and remand for a new trial.
C.
In considering whether those portions of the video recordings
were "in evidence," we recognize that "[o]nce evidence is deemed
relevant, it is admissible, N.J.R.E. 402, unless 'its probative
value is substantially outweighed by the risk of [ ] undue
prejudice,' N.J.R.E. 403, or some other bar to its admission is
properly interposed.'" State v. Nantambu,
221 N.J. 390, 402 (2015)
(quoting Brenman v. Demello,
191 N.J. 18, 34-35 (2007)). While
we generally defer to the trial court's evidentiary rulings, we
owe no such deference if they reflect a clear error of judgment
or are premised on an erroneous legal conclusion. Ibid. (citations
omitted).
It is clear that the judge initially understood that defense
counsel reserved his ability to object to portions of the videotape
even though he was not objecting to others. When the prosecutor
first attempted to authenticate the videos from Texas Fried
Chicken, defense counsel did not object to what he anticipated the
prosecutor intended to show to the jury, in part because the
22 A-4859-14T1
prosecutor himself phrased the proffer as follows: "[Y]ou can see
the people shot. You can see when they entered. You can see the
victim enter and you can see the victim fall. You can see the
police and you can see the ambulance." When the prosecutor sought
to authenticate the video from Bobby's, which contained extensive
video recorded from four cameras, the judge duly noted that it was
being admitted subject to defendant's reservation of his right to
object to specific portions. We cannot explain why the judge
later concluded otherwise -- that defendant had not objected to
the entire video recordings being admitted into evidence.
In any event, it is beyond peradventure that all of the hours
of video actually recorded and marked as exhibits at trial were
not relevant evidence. The prosecutor's flippant responses after
summation, i.e., that defendant's objections were meritless
because all the videos were in evidence, is therefore not worthy
of comment. At argument before us, the State essentially conceded
that unless the specific portions of the video shown by the
prosecutor in summation were actually shown during trial, those
portions could not be considered to have been "in evidence." As
already noted, it appears those portions were not shown to
witnesses during trial.
"New Jersey courts have commented repeatedly on the special
role filled by those entrusted with the responsibility to represent
23 A-4859-14T1
the State in criminal matters, observing that the primary duty of
a prosecutor is not to obtain convictions but to see that justice
is done." State v. Smith,
212 N.J. 365, 402-03 (2012) (citing
State v. Daniels,
182 N.J. 80, 96 (2004)). "It is as much his [or
her] 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." State v. Frost,
158 N.J. 76, 83 (1999).
"In fulfilling that two-pronged duty, prosecutors should be guided
by the maxim that they 'may strike hard blows, [but] not . . .
foul ones.'" Smith, supra,
212 N.J. at 403 (quoting State v.
Feaster,
156 N.J. 1, 59 (1998)).
Consistent with this unique obligation, "a prosecutor should
'confine [his or her] comments to evidence revealed during the
trial and reasonable inferences to be drawn from that evidence.'"
State v. Bradshaw,
195 N.J. 493, 510 (2008) (quoting State v.
Smith,
167 N.J. 158, 178 (2001)). "So long as the prosecutor's
comments are based on the evidence in the case and the reasonable
inferences from that evidence, the prosecutor's comments 'will
afford no ground for reversal.'" Ibid. (quoting State v. Johnson,
31 N.J. 489, 510 (1960)).
Here, the prosecutor's summation comments were not based on
evidence introduced at trial before the jury. The jury itself
recognized this when it sent out its first note asking to see
24 A-4859-14T1
portions of the videos first shown during the prosecutor's
summation. Given the extensive investigation in this case, and
the meticulous preparation by the prosecutor, it is certainly
curious, at the least, that he never specifically asked the
investigating detective whether the pickup truck in the video was
B.J.'s pickup truck.
This detective had executed a search warrant of the pickup
truck and was obviously intimately familiar with its appearance.
Instead, the prosecutor suggested to the jury in summation that a
dent in the truck's fender and distinctive fender "flares," as
shown in the still photos, proved it was the same truck as the one
in the video. While showing the brief snippet of Bobby's video
showing both vehicles, he told the jury Detective Holt used it to
confirm witnesses' statements; however, no evidence supported the
assertion that it was used to confirm R.S.'s statements.
The prosecutor also never asked R.S. whether the pickup truck
or the purported "black Cadillac CTS" in the video were the
vehicles she saw defendant and his stepfather drive away in before
the shooting. Instead, while showing a portion of the Oasis Bar
video of the "Cadillac," the prosecutor told the jurors, "[R.S.],
that's what she testified about. The most neutral witness in this
case." Of course, R.S. never testified about the truck or car
shown in the video.
25 A-4859-14T1
Even if the prosecutor exceeds the bounds of proper conduct,
"[a] finding of prosecutorial misconduct does not end a reviewing
court's inquiry because, in order to justify reversal, the
misconduct must have been 'so egregious that it deprived the
defendant of a fair trial.'" Smith,
167 N.J. at 181 (quoting
Frost, supra,
158 N.J. at 83). The Court has "not hesitated to
reverse convictions where [it has] found that the prosecutor in
his summation over-stepped the bounds of propriety and created a
real danger of prejudice to the accused." Id. at 178 (quoting
Johnson,
31 N.J. at 511). This is such a case.
There was no evidence produced in discovery nor adduced
through the twenty-one witnesses the State produced at trial that
linked the vehicles shown in the videos to those seen by R.S.
Assuming arguendo that it was nevertheless permissible for the
prosecutor to ask the jury to use their common sense and infer
those were the same vehicles, it was prejudicially unfair to do
so for the first time in summation based on recordings not shown
to the jury, particularly since defense counsel had reserved his
right to object.
As defense counsel argued when moving for a mistrial, by
waiting until summation to show the jury for the first time video
about which there was no testimony, the prosecutor effectively
denied defendant any opportunity to challenge the State's evidence
26 A-4859-14T1
or produce his own witnesses to rebut the claim. See State v.
Cope,
224 N.J. 530, 551 (2016) ("The right 'to call witnesses in
one's own behalf' is essential to a 'fair opportunity to defend
against the State's accusations,' and therefore is indispensable
to due process and a fair trial.") (quoting Chambers v.
Mississippi,
410 U.S. 284, 294 (1973)).
We must consider the State's contention that even if it was
error to play these portions of the videos during summation and
urge the jury to consider them as evidence that defendant planned
the attack beforehand, the error was harmless, given the balance
of the evidence of defendant's guilt. After all, it was undisputed
that the shots were fired from the carjacked silver Chevy minutes
after it was carjacked. If the jury found defendant guilty beyond
a reasonable doubt of the carjacking, it is unlikely its verdict
on the shootings were influenced by the prosecutor's improper
conduct.
"The State's argument, i.e., without the offending evidence
a jury would have still reached the same verdict because of the
balance of the evidence, misstates the standard guiding our
review." State v. Rinker,
446 N.J. Super. 347, 367 (App. Div.
2016). Given the nature of the error in this case, "[t]he question
is whether there is a reasonable possibility that the [error]
complained of might have contributed to the conviction." Ibid.
27 A-4859-14T1
(emphasis in original) (quoting State v. Slaughter,
219 N.J. 104,
119 (2014)). "The inquiry, in other words, is not whether, in a
trial that occurred without the error, a guilty verdict would
surely have been rendered, but whether the guilty verdict actually
rendered in this trial was surely unattributable to the error."
State v. Pillar,
359 N.J. Super. 249, 277-78 (App. Div. 2003)
(quoting Sullivan v. Louisiana,
508 U.S. 275, 279 (1993)).
We conclude that the error in this case was not harmless.
Based upon the prosecutor's conduct, we are compelled to reverse
defendant's convictions and remand for a new trial.
III.
Because the State may try defendant again, we address
defendant's argument in Point II. He contends M.G.'s out-of-court
photo identification was unreliable, as demonstrated by her stated
uncertainty and that she viewed defendant's photo during two
separate procedures conducted hours apart. We disagree.
M.G. was brought to police headquarters on the night of the
shootings, shown six photographs, one of which was defendant's,
and could not make a positive identification. Later that day,
police went to T.B.'s home. A detective, who had not participated
in any interviews of M.G. beforehand, presented her with six
photos, one after the other, and M.G. said photo number four,
defendant's, "look[ed] like the guy." The detective recorded the
28 A-4859-14T1
identification procedure and M.G. signed the back of the
photograph.
Following a Wade12 hearing, the judge carefully identified the
standards set by the Court in State v. Henderson,
208 N.J. 208,
288-89 (2011). He considered the system and estimator variables
involved in M.G.'s identification. Id. at 289-92. He concluded
"the possibility of mug shot exposure combined with the estimator
variables is not enough to prove a very substantial likelihood of
irreparable misidentification."
"Our standard of review on a motion to bar an out-of-court-
identification . . . is no different from our review of a trial
court's findings in any non-jury case." State v. Wright,
444 N.J.
Super. 347, 356 (App. Div. 2016) (citing State v. Johnson,
42 N.J.
146, 161 (1964)). Here, we find no reason to disturb the judge's
factual findings or legal conclusions. On retrial, the State is
free to introduce into evidence the out-of-court identification
M.G. made of defendant.
As a result of our decision, we need not address the
sentencing arguments made by defendant in Point III.
Reversed and remanded. We do not retain jurisdiction.
12
United States v. Wade,
388 U.S. 218 (1967).
29 A-4859-14T1
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