STATE OF NEW JERSEY v. DWAYNE E. DRICKETTS
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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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-3677-13T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DWAYNE E. DRICKETTS,1
Defendant-Appellant.
__________________________
Argued October 5, 2017 – Decided April 18, 2018
Before Judges Simonelli, Rothstadt and Gooden
Brown.
On appeal from the Superior Court of New
Jersey, Law Division, Union County, Indictment
No. 10-04-0439.
Susan Brody, Deputy Public Defender, argued
the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Susan Brody, of
counsel and on the briefs).
Sarah Lichter, Deputy Attorney General, argued
the cause for respondent (Christopher S.
Porrino, Attorney General, attorney; Garima
Joshi, Deputy Attorney General, of counsel and
on the brief; Sarah Lichter, on the brief).
1
Referenced in the record also as Dwayne Erick Dricketts and
a/k/a "Pimp."
PER CURIAM
A grand jury indicted defendant Dwayne E. Dricketts and his
co-defendant, Tyrell Jackson, for first-degree murder,
N.J.S.A.
2C:11-3(a)(1) or (2) (count one); second-degree possession of a
weapon for an unlawful purpose,
N.J.S.A. 2C:39-4(a) (count two);
and third-degree unlawful possession of a weapon,
N.J.S.A. 2C:39-
5(a) (count three). Following severed jury trials, defendant and
Jackson were convicted on all counts.2 The trial judge sentenced
defendant to a forty-five year term of imprisonment with an eighty-
five percent period of parole ineligibility pursuant to the No
Early Release Act (NERA),
N.J.S.A. 2C:43-7.2.
The charges against defendant and Jackson stemmed from the
shooting death of Dana Reid on May 9, 2005. The State presented
evidence at trial that defendant and Jackson were engaged in a
drug dealing operation headed by defendant, Jackson was
defendant's close friend and the drug operation's "enforcer,"
defendant ordered Jackson to kill Reid after Reid failed to pay
for drugs defendant gave him to sell, and Jackson shot and killed
Reid. Witnesses heard defendant threaten to shoot Reid, and a
witness identified Jackson as the person who shot him.
2
On direct appeal, we affirmed Jackson's conviction. State v.
Jackson, No. A-2372-11 (App. Div. Sept. 12, 2016). Our Supreme
Court denied certification. State v. Jackson,
230 N.J. 556 (2017).
2 A-3677-13T2
On appeal, defendant raises the following contentions:
POINT I
DEFENDANT'S CONVICTION OF MURDER MUST BE
REVERSED. THE TRIAL JUDGE'S INSTRUCTIONS
WERE HOPELESSLY WRONG IN THAT THEY
CONFLATED THREE SEPARATE THEORIES OF
LIABILITY: MURDER AS AN ACCOMPLICE;
CONSPIRACY TO COMMIT MURDER; AND GUILT OF
THE SUBSTANTIVE OFFENSE OF MURDER AS A CO-
CONSPIRATOR UNDER STATE V. BRIDGES[, 133
N.J. 447 (1993)]. (Partially Raised Below).
POINT II
DEFENDANT WAS DEPRIVED OF DUE PROCESS AND A
FAIR TRIAL WHEN THE TRIAL COURT IMPROPERLY
ADMITTED A HOST OF [N.J.R.E.] 404(b)
EVIDENCE THAT PRESENTED HIM TO THE JURY IN
AN UNFAVORABLE LIGHT. (Partially Raised
Below).
POINT III
THE AGGREGATE [FORTY-FIVE] YEAR TERM
IMPOSED WAS MANIFESTLY EXCESSIVE UNDER ALL
OF THE APPLICABLE CIRCUMSTANCES, AND COUNT
TWO WAS REQUIRED TO MERGE INTO COUNT ONE
FOR SENTENCING PURPOSES.
We affirm defendant's conviction, but remand for resentencing.
I.
Reid's girlfriend, F.B.,3 testified at trial that at
approximately 12:30 a.m. on May 9, 2005, she and Reid were walking
down Madison Avenue in Elizabeth toward East Grand Street on their
3
We use initials to identify the witnesses involved in this
matter to protect their identity.
3 A-3677-13T2
way to a restaurant on Broad Street. She heard footsteps, turned
her head to look behind her, and saw a man running toward them
holding a gun out in his right hand and aiming towards them. Reid
said to her, "baby, get down," and threw himself on top of her.
F.B. heard five shots and saw that Reid had been struck. She
tried to resuscitate him, but he was dead by the time help arrived.
She later identified Jackson as the person who shot Reid.
L.P. testified that in 2005, she lived in the second floor
apartment of a house in Elizabeth called the "Honeycomb" or "the
Honeycomb Hideout" because "it was a hideout for drug dealing."
Numerous people stayed in the apartment, including F.B., to sleep
or get high. L.P. was not sure if F.B. was a prostitute, but they
used drugs together. F.B. introduced L.P. to Reid.
L.P. allowed drug dealers to stay in her apartment to sell
drugs in order to support her own drug habit. In the beginning,
there were five or six dealers, and at the "peak," there were at
least ten drug dealers. Drug dealers and prostitutes "partied"
at her apartment and sold drugs in shifts.
L.P. left town for a few weeks and when she returned, her
nephew and a few others, including defendant, were selling drugs
out of her apartment. L.P. identified defendant by his street
4 A-3677-13T2
nickname "Pimp"4 and testified he sold crack cocaine. Defendant
had people working for him who were "enforcers" whose job was to
"protect them from somebody to come stick them up or if anybody
got out of line."
According to L.P., Jackson was one of defendant's closest
friends. L.P. described defendant as "the boss" of the drug
operation and Jackson as "the worker[.]" Defendant introduced
Jackson as "the enforcer" and said Jackson carried guns in order
to protect the house. In an earlier statement, L.P. said defendant
told her that Jackson's role was "Triggerman." L.P. saw both
defendant and Jackson with guns at the Honeycomb, including a
"[s]awed-off shotgun, 9 millimeter, [and] 380."
L.P. testified she saw Reid at the Honeycomb at the same time
defendant and Jackson were there. At some point in early 2005,
she saw defendant give Reid a package with "50 dime bottles" of
crack cocaine with yellow caps, or a "K-pack[,]" which sold for
ten dollars each. Defendant said to Reid: "[D]on't mess the pack
up like you did the last time." L.P. explained that "messing up
a pack" meant that "the money is short."
After that exchange, L.P. never saw Reid at the Honeycomb
4
Throughout the trial, witnesses identified Jackson by his street
nickname "Twist" and Reid by his street nicknames "KU" or "D."
Other individuals mentioned during the trial were also identified
by their street nicknames.
5 A-3677-13T2
again. Defendant and Jackson told her that if Reid came there to
tell him "he better have his money." About two weeks before Reid
was murdered, L.P. heard defendant say: "If [Reid] didn't have his
money, he'd pop him." She explained that "pop" meant to shoot.
M.R. testified that she sometimes stayed at the Honeycomb,
used drugs, and made a living by "escorting." She was Reid's
fiancée until they broke up in February 2005. Before their
breakup, they stayed together at the Honeycomb. Reid started out
selling drugs and then began using crack cocaine. He sold drugs
"for himself" that he got from people she did not know. His drug
use "got progressively worse" at the beginning of 2005. She did
not see him much after their breakup, but saw him the first week
of May 2005.
M.R. met defendant at the Honeycomb and saw him there selling
crack cocaine. She referred to defendant as "Pimp" and identified
him in court. She testified that she bought crack from defendant
at the Honeycomb and would sometimes hold packages for him or "go
and make a sale for him." She admitted she did not like defendant
and "[t]ried to" stay away from him. She never saw Reid with
defendant.
M.R. gave a statement to the police after Reid was murdered.
She said that sometime between February and May 2005, she
encountered defendant in the hallway of the Honeycomb. Defendant's
6 A-3677-13T2
voice was "loud, like angry" and he had the gun in his hand "trying
to bully [her.]" He put the gun to her face and asked if she had
seen Reid. Defendant said he had given Reid five bottles of crack
cocaine to sell so he could make money and get on his feet, but
had not seen Reid and wanted to know where he was. Defendant also
said, "you're his girlfriend so you're going to pay his debt."
When she said she had not seen Reid, defendant "kind of relaxed
[the gun]." She also said she would not pay Reid's debt, and left
the hallway and went to L.P.'s apartment. She told Reid about the
encounter during the first week of May.
M.R. testified that between 9:00 p.m. and 11:00 p.m. on May
8, 2005, she and Reid went for a walk on Madison Avenue and sat
on a stoop next to a bank parking lot. As they were sitting and
talking, she noticed defendant drive by them. She noticed because
of the earlier incident with defendant and did not believe Reid's
claim that he had already taken care of the debt. She did not
know if defendant saw them, but the car did not stop. She told
Reid that they should leave, so they started walking, and at some
point became separated.
T.B. testified she sold crack cocaine in 2005, and made a
living selling drugs and prostituting. There were a number of
drug dealers in the neighborhood then, including defendant, who
she identified in court as "Pimp[,]" and defendant's best friend,
7 A-3677-13T2
Jackson. Those were the "main players in the game" but there were
"runners" as well who would "get a package from one of those guys
and sell it." Jackson was part of defendant's "crew[.]"
T.B. witnessed defendant selling drugs. She sold drugs in
the same area where he sold drugs and sometimes shared a sale with
him or other drug dealers if a buyer wanted more than what she had
on hand. T.B. testified that defendant came to Elizabeth in the
beginning of 2005, and he and Jackson were always together. She
described Jackson as defendant's "right handyman" and defendant
as "definitely the higher-up."
T.B. was a friend of L.P.'s and knew the Honeycomb "had a lot
of drug dealers" there, including defendant. She knew Reid, as
they used crack cocaine together and he she saw him and M.R. at
the Honeycomb. She also knew Reid sold crack cocaine in the
neighborhood and got the drugs to sell from defendant. She
described one occasion when she was riding in a car with defendant
and Jackson to a corner store. As they approached the store, they
saw Reid and defendant said to the driver "hey, hey, hey, stop the
car[.]" According to T.B.:
When the car stopped, that's when the
defendant said to [Reid], hey, yo, yo, come
over here, you got my fuckin' money . . . and
[Reid] was like, nah, nah. And [defendant]
was like, yo, you better get my fuckin' money,
you better get my money, I'm telling you, I'm
telling you.
8 A-3677-13T2
T.B. then heard defendant say to Reid: "[I]f you don't have my
money, I'm going to put a cap in your ass." T.B. explained this
was slang for going to "shoot you with a bullet." She described
defendant as "[a]ngry" when he spoke to Reid and that Reid "looked
scared for his life." As the car drove off, defendant told T.B.
that he "gave [Reid] a package, and [Reid] messed the package up
and owed him so[me] money, so he was after [Reid] for his money."
T.B. testified that sometime in 2005, she saw defendant with
a gun. He said to her "yo, can you take this around the block for
me" and asked her to open her purse. When she did, he dropped a
"heavy gun" into it. Defendant asked her to take the gun around
the block to "Shorty," and followed her on a bicycle while she did
so. T.B. also testified about a statement she gave to the police
in May 2005. She told the police about defendant, the gun he had
her bring to "Shorty," and the incident in the car with defendant
and Reid.
J.W. testified that in 2005, he sold crack cocaine, otherwise
known as "cook-up[,]" in small bottles with colored caps that
signified who supplied the drugs. He generally either sold drugs
on the street or in the Honeycomb, and sold with defendant's group,
which included Jackson. He identified defendant as "Pimp" in
court, and described defendant and Jackson as friends. He also
witnessed defendant supplying drugs to Jackson to sell.
9 A-3677-13T2
Defendant told J.W. that Jackson had come from New York to
sell drugs and to be a "hit man" who would beat up or kill somebody
if they owed money or "did something wrong." J.W. saw both
defendant and Jackson with a handgun at the Honeycomb and at a
hotel. He maintained that Jackson worked for defendant, although
in his statement to the police he said Jackson worked for both
defendant and another drug dealer known by the street nickname
"Sheik."
J.W. knew L.P. and was at her apartment at the Honeycomb
between January and May 2005 to sell her drugs. He saw defendant
and Jackson selling drugs there as well. J.W. also knew M.R.
because he sold drugs to her in and around the Honeycomb. He knew
M.R.'s boyfriend was Reid, a drug user, and he saw Reid at and
around the Honeycomb.
J.W. testified he sold drugs "along with" defendant. He
maintained that defendant had a number of people working for him
and was a supplier, but not on the level of other suppliers. J.W.
also testified another supplier had sellers "punished for not
paying for drugs" or for "messing up" the money or drugs, and that
when a drug dealer was owed money, the person could be beat up or
required to "make up the money" by selling more drugs without
taking their cut. J.W. had been in that situation himself and it
was "a common practice." He testified that "guns [were]
10 A-3677-13T2
threatened[,]" although he had previously testified he was not
sure guns had been used in these situations before.
J.W. testified he saw defendant give drugs to Reid in the
hallway of the Honeycomb sometime between January and May 2005.
Defendant gave Reid a "pack" of fifty vials of "[c]ook-up" and
told him to "[b]ring him back" $350. J.W. never saw Reid return
money to defendant for those drugs. At some time later, defendant
asked J.W. if he had seen Reid because "[Reid] owe[d] him money[,]"
but J.W. had not seen him since defendant gave him the drugs.
J.W. also testified that, in the early morning hours on May
9, 2005, he was selling drugs on Catherine Street in front of the
corner store that intersected William Street and East Grand Street.
He saw defendant and Jackson running across Catherine Street from
the direction of William Street and toward the highway at "1 and
9," and they "seemed nervous." Defendant told J.W. to "get low,
get off the block and meet him at the hotel." J.W. understood
this to mean "something in the area just happened, and the police
are around." He waited for five to ten minutes until he heard
police sirens and then left. He did not go to the hotel and did
not tell anyone that he saw defendant and Jackson running. A few
weeks later, he asked defendant why he and Jackson were running,
and defendant said "that they got at [Reid]" and Jackson had killed
him.
11 A-3677-13T2
In June 2005, J.W. gave the police a statement about the
shooting of Reid and identified defendant and Jackson by photos.
J.W. said he knew Reid was killed because of a drug exchange with
defendant that took place at the Honeycomb and "they . . . got at
him" over money that was owed. He said defendant told him that
Jackson killed Reid because he "didn't come up with the money or
the drugs." He also said that in that neighborhood, when people
owed drug dealers money, the person who was owed the money was
able to give a "warning" and allowed time for payment, or people
could be "beat up." He only knew one person who owed defendant
money, and that was Reid.
II.
The State never claimed defendant was the shooter. Rather,
the State's theory to charge and convict defendant focused on the
conspiracy between him and Jackson to commit murder as payback for
the unpaid drug debt. Defendant argues in Point I that the court's
jury instructions were "hopelessly wrong in that they conflated
three separate theories of liability: murder as an accomplice;
conspiracy to commit murder; and guilt of the substantive offense
of murder as a co-conspirator[.]" Defendant also argues the court
erred in refusing to delete language from State v. Bridges,
133 N.J. 447 (1993) in the co-conspirator charge because he was not
charged with conspiracy and there is a "critical difference"
12 A-3677-13T2
between conspiracy and accomplice liability that could have
impacted deliberations based on conflicting witness testimony.
These arguments lack merit.
"[A]ppropriate and proper charges are essential for a fair
trial." State v. Baum,
224 N.J. 147, 158-59 (2016) (quoting State
v. Reddish,
181 N.J. 553, 613 (2004)). "The trial court must give
'a comprehensible explanation of the questions that the jury must
determine, including the law of the case applicable to the facts
that the jury may find.'" Id. at 159 (quoting State v. Green,
86 N.J. 281, 287-88 (1981)). "Thus, the court has an 'independent
duty . . . to ensure that the jurors receive accurate instructions
on the law as it pertains to the facts and issues of each case,
irrespective of the particular language suggested by either
party.'" Ibid. (alteration in original) (quoting Reddish,
181 N.J. at 613). "Because proper jury instructions are essential to
a fair trial, 'erroneous instructions on material points are
presumed to' possess the capacity to unfairly prejudice the
defendant." Ibid. (quoting State v. Bunch,
180 N.J. 534, 541-42
(2004)).
When a defendant fails to object to an error regarding jury
charges, we review for plain error. State v. Funderburg,
225 N.J.
66, 79 (2016). "Under that standard, we disregard any alleged
error 'unless it is of such a nature as to have been clearly
13 A-3677-13T2
capable of producing an unjust result.'" Ibid. (quoting R. 2:10-
2). "The mere possibility of an unjust result is not enough. To
warrant reversal by this Court, an error at trial must be
sufficient to raise 'a reasonable doubt . . . as to whether the
error led the jury to a result it otherwise might not have
reached.'" Ibid. (alteration in original) (quoting State v.
Jenkins,
178 N.J. 347, 361 (2004)). A jury charge "must be read
as a whole in determining whether there was any error." State v.
Torres,
183 N.J. 554, 564 (2004). Moreover, the effect of any
error must be considered "in light 'of the overall strength of the
State's case.'" State v. Walker,
203 N.J. 73, 90 (2010) (quoting
State v. Chapland,
187 N.J. 275, 289 (2006)).
Because defendant actively participated in the charge
conference, submitted proposed charges, and only partially
objected to the final charges, we provide the following context
for our analysis.
At the charge conference after the close of proofs, the court
reviewed the parties' proposed charges in depth.5 During the
discussion of lesser-included offenses, defendant requested the
5
The discussion is difficult to follow, as the parties' reference
page numbers and lines to defendant's proposed charges that were
not included in the record on appeal, even though it was marked
as an exhibit for this purpose.
14 A-3677-13T2
following language on vicarious liability and co-conspirator
liability:
Dwayne Dricketts as part of his general denial
of guilt contends that the State has not
presented sufficient reliable evidence to
establish beyond a reasonable doubt that
Tyrell Jackson is the person who committed the
alleged offense . . . and that Dwayne
Dricketts acted as his co-conspirator and/or
accomplice to commit the murder.
Defendant did not object to adding a reference to the lesser-
included offenses to that proposed charge.
In discussing the identification charge, defendant argued his
proposed charge was "more consistent with the rest of the charge
on co-conspiracy and vicarious liability" because the jury first
had to determine if Jackson was the shooter. The court rejected
this argument. Defendant also asked the court to instruct the
jury that "the defendant has pleaded not guilty, denies his guilt
and denies that he was part of any such conspiracy," which the
court allowed, and to instruct on conspiracy to commit murder as
a lesser-included offense, which the court rejected. Thus, despite
defendant's argument on appeal that "conspiracy was simply not in
the case," it is clear his proposed charges included language
related to the conspiracy between him and Jackson as presented by
the State and his general denials that he participated in that
conspiracy.
15 A-3677-13T2
In discussing what the language should be in the conspiracy
charge, the court found Bridges used the language "reasonably
foreseeable as the necessary or natural consequences of the
conspiracy." When the court stated it was "just quoting exactly
the language from Bridges[,]" defense counsel responded: "Yes.
Thank you." However, defense counsel asked that the court not use
the Bridges language and instead charge conspiracy to commit murder
as a lesser-included offense. The court denied the request.
Relying on State v. Cagno,
211 N.J. 488 (2012), the court explained
there was no basis to charge conspiracy as a lesser-included
offense because "the conspiracy was consummated" when the murder
occurred as planned and there would have been no basis to find
defendant guilty of conspiracy to murder without finding him guilty
of murder.
Prior to closing arguments, the court noted that both parties
received a copy of the final charges and the court had not received
any comments or objections. However, after closing arguments,
defendant again moved to strike the Bridges language. Arguing
that conspiracy was not part of the case, defendant also moved to
strike the language: "a co-conspirator may be liable for the
commission of a substantive crime and criminal acts that are not
within the scope of the conspiracy if they are reasonable and
foreseeable and necessary under natural consequences of a
16 A-3677-13T2
conspiracy" because it was not part of the State's theory of the
case. Defendant provided no authority that required the State to
argue every single alternative theory. The court denied the
request.
Right after issuing the limiting charge on N.J.R.E. 404(b)
evidence, the court issued the following charge, which defendant
challenges on appeal:
Dwayne Dricketts as part of his general
denial of guilt contends that the State has
not presented sufficient reliable evidence to
establish beyond a reasonable doubt that
Tyrell Jackson is the person who committed the
crimes of murder or any lesser included
offense; possession of a handgun without a
permit, and possession of a weapon for an
unlawful purpose; and that Dwayne Dricketts
acted as his co-conspirator and/or his
accomplice to commit those offenses.
The burden of proving the identity of the
person who committed the crime is upon the
State. For you to find the [d]efendant
guilty, the State must prove beyond a
reasonable doubt that Tyrell Jackson is the
person who committed the crimes of murder or
any lesser included offense; possession of a
handgun without a permit; and possession of a
weapon for an unlawful purpose; and that
Dwayne Dricketts acted as his co-conspirator
and/or accomplice to commit those offenses.
The [d]efendant had neither the burden
nor the duty to show that the crime if
committed was committed by someone else or to
prove the identity of that other person. You
must determine, therefore, not only whether
the State has proven each and every element
of the offense charged beyond a reasonable
17 A-3677-13T2
doubt, but also that Tyrell Jackson is the
person who committed the crimes of murder or
any lesser included offense; possession of a
handgun without a permit; and possession of a
weapon for an unlawful purpose; and that
Dwayne Dricketts acted as his co-conspirator,
and/or as accomplice to commit those offenses.
The court then instructed the jury as to co-conspirator and
accomplice liability before instructing on the substantive
offenses. The court also instructed the jury that defendant was
presumed innocent until the State proved each and every element
of each offense beyond a reasonable doubt.
Despite his request for the court to charge conspiracy to
commit murder as a lesser-included offense, defendant concedes on
appeal that the court correctly denied that request under Cagno,
211 N.J. at 522. In Cagno, the Court found no rational basis to
charge the included offense of conspiracy to commit murder because
"the conspiracy was consummated when [the victim] was murdered as
planned." Ibid. Similarly, in this case, the conspiracy between
defendant and Jackson to kill Reid over a drug debt, as alleged
by the State, was consummated when Reid was killed. As such,
there was no basis to instruct the jury on conspiracy to commit
murder as a lesser-included offense.
However, defendant argues on appeal that since "conspiracy
was simply not in this case," the court erred in charging the jury
that it could convict defendant "as either an accomplice or a co-
18 A-3677-13T2
conspirator (or perhaps both)." This argument fails to recognize
that "[a] person is guilty of an offense if it is committed by his
own conduct or by the conduct of another person for which he is
legally accountable, or both."
N.J.S.A. 2C:2-6(a). "That section
makes a person legally accountable for the conduct of another
when, among other things, he 'is engaged in a conspiracy with such
other person.'" State v. Mance,
300 N.J. Super. 37, 63-64 (App.
Div. 1997) (quoting
N.J.S.A. 2C:2-6(b)(4)).
"Although there is 'a great deal of similarity between
accomplice and conspirator liability and frequently liability may
be found under both theories' the concepts are not identical."
State v. Samuels,
189 N.J. 236, 254 (2007) (quoting Cannel, N.J.
Criminal Code Annotated, cmt. to
N.J.S.A. 2C:2-6(c) (2006)
(additional citations omitted)). "The critical difference is
that, as statutorily defined, conspiracy requires proof of an
agreement to commit a crime whereas accomplice liability does
not." Ibid.
Citing no supporting authority, defendant argues the court
should have given the jury the option to convict him as just a co-
conspirator because of the "sentencing ramifications," and erred
in instructing the jury that it need not be unanimous as to whether
he was guilty as an accomplice or co-conspirator. However, "[a]
defendant . . . may be found guilty of murder even if jurors cannot
19 A-3677-13T2
agree on whether the defendant is a principal, accomplice, or a
co-conspirator." State v. Roach,
146 N.J. 208, 223 (1996). Given
the reasonable inferences to be drawn from the evidence of both
accomplice and co-conspirator liability, including evidence that
defendant ordered Jackson to shoot Reid and was present when it
happened, the court properly charged the jury on both theories.
See also State v. Brown,
138 N.J. 481, 511 (1994) ("unanimity is
not required to support a verdict that a defendant guilty of murder
did not commit the murder by his own conduct").
Moreover, not only did defendant not object to the language
of the charge instructing the jury it need not be unanimous as to
whether he was guilty as an accomplice or co-conspirator, he
included that language in his proposed charge. The court correctly
charged that "[a]ll jurors do not have to agree unanimously
concerning the basis, meaning of co-conspirator or as an accomplice
for the [d]efendant's guilt regarding murder or the lesser included
offenses so long as all believe that the State has proven the
[d]efendant's guilt beyond a reasonable doubt either as a co-
conspirator or an accomplice."
Defendant also challenges the court's inclusion of the
Bridges language in the conspiracy charge. It is important to
note that the model jury charge for co-conspirator liability has
not been updated in almost thirty years. Model Jury Charge
20 A-3677-13T2
(Criminal), "Conspiracy – Vicarious Liability (
N.J.S.A. 2C:2-
6b(4))" (Oct. 17, 1988). Significantly for this case, it has not
been updated to incorporate the change in law that occurred in
1993 with the Supreme Court's decision in Bridges. See
133 N.J.
at 466-67. Therefore, it could not be used as the exclusive source
for the court's co-conspirator charge. See Pressler & Verniero,
Current N.J. Court Rules, cmt. 8.1 on R. 1:8-7 (2018) (stating
that in using model jury charges, court and counsel should be
aware of "intervening contrary case law[;]" and failure to adapt
the model charge to the facts in evidence may be error); State v.
Green,
318 N.J. Super. 361, 376 (App. Div. 1999) (holding that
"[t]he Model Jury Charges are only guidelines, and a trial judge
must modify the Model Charge when necessary so that it conforms
with the facts, circumstances, and law that apply to the facts
being tried").
Defendant does not challenge the specific language the court
used in its modified charge incorporating Bridges. He argues only
the court should not have added the language because he was not
charged with conspiracy as a separate offense. However, the jury
was not asked to decide the issue of conspiracy as a separate
charge. See Mance,
300 N.J. Super. at 63 (noting that "[t]he
conspiracy charge was simply part of the overall charge on
accomplice liability").
21 A-3677-13T2
Defendant argues this charge was error because the jury could
have determined he engaged in a conspiracy to harm Reid "in some
nonfatal way" but did not intend Reid's death and was not acting
as an accomplice at the time Jackson killed Reid. Although
defendant cites to conflicting testimony of key witnesses and
evidence presented that a lesser punishment was customary for such
a small drug debt, he minimizes his own role in this, claiming his
threats to "shoot" Reid were not the same as saying "kill," and
evidence of his threats came from untrustworthy sources.
When the charge is viewed as a whole, as it must, the jury
was properly instructed that in order to find defendant guilty of
murder, or a lesser-included offense, it must first be convinced
beyond a reasonable doubt that Jackson committed the murder and
defendant acted as his accomplice or co-conspirator. The
instructions used at trial were derived from the model charge,
case law, and suggestions from counsel which were tailored to the
facts of the case. The jury had a written copy of the charges in
the deliberation room and there is nothing on the record to suggest
there was any confusion on this issue. We are satisfied the court
did not conflate the theories of liability or otherwise err in the
charge on accomplice or co-conspirator liability.
This does not end our inquiry. At oral argument and in a
post-argument supplemental brief, defendant added a twist to his
22 A-3677-13T2
initial challenge to the charge. He argues that neither party
addressed how
N.J.S.A. 2C:1-8(d)(2) and our Supreme Court's
interpretation of the statute in State v. LeFurge,
101 N.J. 505
(1986) would impact the legal analysis. He posits the statute
does not apply in this case and falls outside the parameters
enunciated in LeFurge because there was no evidence of a
conspiracy, and thus, the essential elements of the crime of
conspiracy were not clearly implicated in the evidence the grand
jury considered when it indicted him for the substantive offense.
N.J.S.A. 2C:1-8(d)(2) provides that "[a] defendant may be
convicted of an offense included in an offense charged whether or
not the included offense is an indictable offense. An offense is
so included when . . . [i]t consists of an attempt or conspiracy
to commit the offense charged or to commit an offense otherwise
included therein[.]" In LeFurge, a grand jury indicted the
defendant for theft, but not conspiracy to commit theft.
101 N.J.
at 409. Although the defendant was not indicted for conspiracy
to commit theft, the crime involved an elaborate prearranged plan
of theft involving a number of people over a course of several
months that could only be described as a conspiracy. Id. at 422-
23. The Court found
N.J.S.A. 2C:1-8(d)(2) constitutional as
applied to the defendant, who was found not guilty of the
substantive offense of theft, but guilty of conspiracy to commit
23 A-3677-13T2
theft as an included offense. Id. at 424. The Court determined
there was no constitutional violation of notice to the defendant
because the essential elements of the crime of conspiracy to commit
theft were clearly implicated in the evidence the grand jury
considered when it indicted the defendant for the substantive
offense. Ibid.
By contrast, defendant argues the allegation that he and
Jackson engaged in a conspiracy to murder Reid did not represent
a course of criminal conduct. Rather, it involved a single act
by only two people that may or may not have been planned in
advance, and there was no evidence of any interaction between
the two alleged co-conspirators prior to the shooting. We
disagree. There was a plethora of evidence that the shooter,
Jackson, acted as the enforcer for defendant's drug operation
and shot Reid over a drug debt. We find nothing in the record
to suggest that just because one theory of a case may not support
a finding of conspiracy, when another theory could support it,
the inclusion of co-conspirator liability in the charge was
error.
We also disagree with defendant that the charge presented
conspiracy as a separate or additional theory of guilt. Rather,
the court instructed the jury that in order to find defendant
guilty, it had to first determine whether the State proved beyond
24 A-3677-13T2
a reasonable doubt that Jackson actually committed the crime of
murder or any lesser-included offense, and then the jury was to
determine if defendant acted as Jackson's co-conspirator and/or
accomplice in committing those offenses. Because unanimity is
not required to support a verdict that a defendant guilty of
murder did not commit the murder by his own conduct, the charge
of both co-conspirator and accomplice liability was appropriate
based on the evidence presented at trial. For these reasons, we
discern no error in the charge and no reason to reverse
defendant's conviction.
III.
Defendant contends in Point II the court improperly admitted
N.J.R.E. 404(b) other crimes, wrongs, or acts evidence that
presented him in an unfavorable light. For the first time on
appeal, defendant challenges the use of his street nickname "Pimp."
He argues "the likely impact on the jury of being hammered with
that name over and over throughout the course of the trial was
substantial prejudice rising to the level of plain error[.]"
Defendant also argues the court improperly admitted evidence
of his prior possession of a gun. He asserts this evidence was
irrelevant because he was not charged as the shooter, the court
erred in finding it admissible to show opportunity, and the
25 A-3677-13T2
testimony about his prior gun possession was cumulative to other
admissible testimony that Jackson carried guns.6
"Trial court decisions concerning the admission of other-
crimes evidence should be afforded 'great deference,' and will be
reversed only in light of a 'clear error of judgment.'" State v.
Gillispie,
208 N.J. 59, 84 (2011) (quoting State v. Barden,
195 N.J. 375, 390-91 (2008)). "The admissibility of such evidence is
left to the sound discretion of the trial court, as that court is
in the best position to conduct the balancing required under [State
v. Cofield,
127 N.J. 328 (1992)] due to its 'intimate knowledge
of the case.'" Ibid. (quoting State v. Covell,
157 N.J. 554, 564
(1999)). "Therefore, a trial court's decision concerning the
admission of other-crimes evidence will not be disturbed absent a
finding of abuse of discretion." Ibid. (quoting Covell,
157 N.J.
at 564). We discern no abuse of discretion here.
N.J.R.E. 404(b) governs other crimes, wrongs, or acts
evidence and provides as follows:
Except as otherwise provided by [N.J.R.E.]
608(b), evidence of other crimes, wrongs, or
acts is not admissible to prove the
disposition of a person in order to show that
such person acted in conformity therewith.
Such evidence may be admitted for other
purposes, such as proof of motive,
6
Defendant does not challenge the admission of evidence that he
was a drug dealer.
26 A-3677-13T2
opportunity, intent, preparation, plan,
knowledge, identity or absence of mistake or
accident when such matters are relevant to a
material issue in dispute.
"'[B]ecause [N.J.R.E.] 404(b) is a rule of exclusion rather than
a rule of inclusion,' the proponent of evidence of other crimes,
wrongs or acts must satisfy a four-prong test." State v. Carlucci,
217 N.J. 129, 140 (2014) (quoting State v. P.S.,
202 N.J. 232, 255
(2010)). Under the four-prong test, in order for other crimes,
wrongs, or acts evidence to be admissible under N.J.R.E. 404(b),
the evidence: (1) "must be admissible as relevant to a material
issue;" (2) "must be similar in kind and reasonably close in time
to the offense charged;"7 (3) "must be clear and convincing; and
"(4) its probative value "must not be outweighed by its apparent
prejudice." Cofield,
127 N.J. at 338. The court must provide
limiting instruction to inform the jury of the purposes for which
it may and may not consider the evidence of the defendant's
uncharged misconduct, both when the evidence is presented and in
the final instructions. Gillispie,
208 N.J. at 92-93.
To satisfy the first prong, the evidence must have "a tendency
in reason to prove or disprove any fact of consequence to the
7
Proof of the second prong is not required in all cases, but
only in those that replicate the facts in Cofield, namely, illegal
drug possession. Carlucci,
127 N.J. at 141. This prong is not
at issue here.
27 A-3677-13T2
determination of the action." See N.J.R.E. 401 (defining
"[r]elevant evidence"). "Consequently, to be relevant, the other-
crimes evidence must bear on a subject that is at issue at the
trial, for example, an element of the offense or some other factor
such as motive, opportunity, intent, or plan." P.S.,
202 N.J. at
255 (citations omitted). "In relevance determinations, the
analysis focuses on 'the logical connection between the proffered
evidence and a fact in issue.'" State v. Williams,
190 N.J. 114,
123 (2007) (quoting Furst v. Einstein Moomjy, Inc.,
182 N.J. 1,
15 (2004)). Where the fact to be proven is an element of the
offense, such as motive and intent, the relevance prong is
satisfied. See State v. Brown,
180 N.J. 572, 584-85 (2004)
(holding that other crimes evidence is admissible where the State
must prove an element of the offense).
Other crimes evidence may be admissible under N.J.R.E. 404(b)
on the issue of motive. State v. Yormark,
117 N.J. Super. 315,
336 (App. Div. 1971). "Generally, in 'motive' cases under
[N.J.R.E.] 404(b) . . . the evidence in question is designed to
show why a defendant engaged in a particular, specific criminal
act." State v. Mazowski,
337 N.J. Super. 275, 283 (App. Div.
2001). Thus, in contrast to pattern evidence, establishing motive
does not require similarity between the other bad acts and the
crime charged. Id. at 286 n.3. Other crimes evidence may be
28 A-3677-13T2
admissible under N.J.R.E. 404(b) if it discloses the defendant's
mental intention or purpose when he committed the offense or to
negate the existence of innocent intent. State v. J.M., Jr.,
438 N.J. Super. 215, 223 (App. Div. 2014).
The third prong requires clear and convincing proof that the
person against whom the evidence is being used actually committed
the other crime or wrong. Carlucci,
217 N.J. at 143; Cofield,
127 N.J. at 338. The fourth prong is typically the most difficult to
overcome. Barden,
195 N.J. at 389. "Because of the damaging
nature of such evidence, the trial court must engage in a 'careful
and pragmatic evaluation' of the evidence to determine whether the
probative worth of the evidence is outweighed by its potential for
undue prejudice." Ibid. (citation omitted). The analysis
incorporates balancing prejudice versus probative value required
by N.J.R.E. 403, but does not require, as does N.J.R.E. 403, that
the prejudice substantially outweigh the probative value of the
evidence. Reddish,
181 N.J. at 608. The risk of undue prejudice
must merely outweigh the probative value. A "very strong" showing
of prejudice is required to exclude motive evidence under this
prong. State v. Castagna,
400 N.J. Super. 164, 180 (App. Div.
2008).
Under the fourth prong, the trial court must also consider
if other less prejudicial evidence may be presented to establish
29 A-3677-13T2
the same issue on which the other crimes or wrongs evidence was
offered. P.S.,
202 N.J. at 256. Additionally, in order to
minimize "the inherent prejudice in the admission of other-crimes
evidence, our courts require the trial court to sanitize the
evidence when appropriate." Barden,
195 N.J. at 390 (citation
omitted).
Whenever the State seeks to admit evidence of other crimes,
wrongs, or acts, the court must make a threshold determination as
to whether it is subject to a N.J.R.E. 404(b) analysis or whether
the evidence is intrinsic to the charged crime and admitted as an
exception to the Rule. State v. Rose,
206 N.J. 141, 179 (2011).
"[E]vidence that is intrinsic to the charged crime is exempt from
the strictures of [N.J.R.E.] 404(b) even if it constitutes evidence
of uncharged misconduct that would normally fall under [N.J.R.E.]
404(b) because it is not evidence of other crimes, wrongs, or
acts." Id. at 177. To determine what is intrinsic, the Court
adopted the test in United States v. Green,
617 F.3d 233, 248-49
(3d Cir. 2010), and held that evidence is considered intrinsic if
it "directly proves" the crime charged or if the acts in question
are performed contemporaneously with, and facilitate, the
commission of the crime charged. Id. at 180 (quoting Green, 617
F.3d at 248-49). Courts have utilized a "case-by-case approach"
in making this determination. Id. at 179.
30 A-3677-13T2
In addition, the Court appeared to have broadened the
intrinsic evidence exception by noting "that other crimes evidence
may be admissible if offered for any non-propensity purpose,
[including] the need 'to provide necessary background information'
about the relationships among the players as a proper purpose."
Id. at 180-81 (alteration in original) (quoting Green, 617 F.3d
at 249). The Court held that such background evidence is
admissible "outside the framework of [N.J.R.E.] 404(b)," and when
admissible for this purpose, the evidence is subject to the
probative value/prejudice balancing test under N.J.R.E. 403, not
N.J.R.E. 404(b). Id. at 177-78, 181. The Court added:
There is no need to regard [N.J.R.E.] 404(b)
as containing an exhaustive list of the non-
propensity purposes permitted of other crime
evidence. . . . [T]here is no reason that our
courts cannot allow, under [N.J.R.E.] 404(b),
evidence to be admitted for a . . . 'necessary
background' or, as otherwise stated, 'the need
to avoid confusing the jury, non-propensity
purpose.'
[Id. at 181 (quoting Green, 617 F.3d at 249).]
Defendant concedes he did not object to the admission and use
of his street nickname "Pimp" at trial. "[I]if the party appealing
did not make its objection to admission known to the trial court,
the reviewing court will review for plain error, only reversing
if the error is 'clearly capable of producing an unjust result.'"
Id. at 157 (quoting R. 2:10-2).
31 A-3677-13T2
The "use of defendant's street nickname during trial cannot
serve as a per se predicate for reversal." State v. Paduani,
307 N.J. Super. 134, 146 (App. Div. 1998). When a nickname is
pejorative, such as "Marijuana" or "Trouble[,]" it should
generally be kept from the jury unless it is relevant for some
purpose. Id. at 147. The admission of irrelevant nicknames does
not mandate reversal unless "some tangible form of prejudice is
demonstrated, i.e., where such names have been intentionally
offered as indicia of guilt." Ibid. (quoting State v. Salaam,
225 N.J. Super. 66, 73 (App. Div. 1988)).
Here, defendant's nickname was not used intentionally as
indicia of his guilt or bad character, and he acquiesced to its
repeated use throughout the trial. Use of his nickname was
relevant and necessary to identify him because the witnesses knew
him only by that nickname. The court carefully instructed the
witnesses not to mention defendant's connection to promoting
prostitution and the witnesses complied with that mandate.
Moreover, defense counsel frequently used and referenced the
street nicknames of defendant, witnesses, and other drug dealers,
and relied on those nicknames as part of his trial strategy that
defendant was merely a low-level drug dealer lacking the power to
order an execution and other drug dealers from whom Reid stole
drugs may have murdered him.
32 A-3677-13T2
Despite the negative connotation of defendant's street
nickname, he failed to show any tangible form of prejudice from
its use. There was no evidence presented connecting defendant to
promoting prostitution. In view of the overwhelming evidence of
defendant's guilt of the crimes charged, use of his street nickname
was not clearly capable of producing an unjust result. See Salaam,
225 N.J. Super. at 76 (holding "in view of the overwhelming proof
of defendant's guilt, there was no real possibility that the trial
court's reference to defendant's [alias] names 'led the jury to a
result it otherwise might not have reached'"). Accordingly, we
find no error in the admission and use of defendant's street
nickname "Pimp" throughout the trial.
We also find no error in the admission of evidence of
defendant's prior gun possession. Defendant was charged with
possession of a weapon for an unlawful purpose and unlawful
possession of a weapon. The State was required to present evidence
that defendant, who was vicariously liable for Jackson's actions,
knowingly possessed a handgun and possessed it with a purpose to
use it against another's person or property. Because the evidence
of defendant's prior gun possession directly proved the charged
offenses, it was intrinsic to the charged crimes, and thus, exempt
from the strictures of N.J.R.E. 404(b). Rose,
206 N.J. at 177,
180. Because the evidence was exempted from the strictures of
33 A-3677-13T
2 N.J.R.E. 404(b), no limiting instruction was necessary.
Even if not intrinsic, the evidence was admissible under
N.J.R.E. 404(b). When motive or intent are at issue, our courts
"generally admit a wider range of evidence." State v. Jenkins,
178 N.J. 347, 365 (2004) (quoting Covell,
157 N.J. at 565). "That
includes evidentiary circumstances that 'tend to shed light' on a
defendant's motive and intent or which 'tend fairly to explain his
actions,' even though they may have occurred before the commission
of the offense." Covell,
157 N.J. at 565 (quoting State v. Rogers,
19 N.J. 218, 228 (1955)).
In this case, the court found that evidence of defendant's
prior gun possession was relevant to his motive to kill Reid for
failing to pay a drug debt and as to his method of using guns in
his drug operation and using Jackson as an enforcer. The court
specifically found the evidence admissible because of defendant's
"access to guns in relation to the drug business. That this is
all relevant to the motive of the [d]efendant to kill [Reid]. That
it was done because he shorted him on the package allegedly. And
that it was important to his general street reputation as somebody
who would not be a pushover on the street in the drug business."
The State's theory of the case was that defendant ordered
Jackson to shoot Reid because Reid failed to pay a drug debt.
Thus, evidence related to access to guns, the threat with the gun,
34 A-3677-13T2
and the relationship between defendant and Jackson would shed
light on the motive, intent, and opportunity for the crime, and
was properly admissible under N.J.R.E. 404(b).
IV.
Defendant challenges his sentence in Point III. He argues a
remand is necessary because the court failed to engage in a
qualitative analysis of the aggravating and mitigating factors.
He also argues the court erred in failing to merge count two
(possession of a weapon for an unlawful purpose) into count one
(murder).
We review a court's sentencing decision under an abuse of
discretion standard. State v. Fuentes,
217 N.J. 57, 70 (2014).
As directed by the Court, we must determine whether:
(1) the sentencing guidelines were violated;
(2) the aggravating and mitigating factors
found by the sentencing court were not based
upon competent and credible evidence in the
record; or (3) "the application of the
guidelines to the facts of [the] case makes
the sentence clearly unreasonable so as to
shock the judicial conscience."
[Ibid. (alteration in original) (quoting State
v. Roth,
95 N.J. 334, 364-65 (1984)).]
"[T]he court must describe the balancing process leading to
the sentence." State v. Kruse,
105 N.J. 354, 360 (1987) (citations
omitted). "To provide an intelligible record for review, the
trial court should identify the aggravating and mitigating
35 A-3677-13T2
factors, describe the balance of those factors, and explain how
it determined defendant's sentence." Ibid. "Merely enumerating
those factors does not provide any insight into the sentencing
decision, which follows not from a quantitative, but from a
qualitative, analysis." Id. at 363 (citation omitted). We may
remand where the court errs in applying the aggravating and
mitigating factors to the facts in the record, or where no
qualitative analysis of sentencing factors was placed on the
record. Ibid.
In sentencing defendant to a forty-five year term subject to
NERA, the court made only these brief comments:
As mentioned, I've sat through the trial. You
testified at the trial. The jury obviously
didn't believe you. The testimony reflected
that, as does your criminal record, that you
spent a number of years drug dealing, in
possession and control of weapons. And the
jury in this case found that you ordered an
execution over a small debt. And it's really
a horrible reflection of yourself and the
environment on the streets where these drugs
are sold.
There's four adult indictments and I'm
considering this New York charge, a first-
degree robbery, as a juvenile charge, but
there was a three to six-year state prison
sentence, and it's a serious charge. It's the
only charge you have that involves violence.
I acknowledge that it happened at -- at [age
seventeen].
I find that aggravating factors three,
six, and nine outweigh no mitigating factors.
36 A-3677-13T2
You're sentenced to [forty-five] years,
[eighty-five] percent on the murder charge
concurrent to seven and concurrent to four on
the two drug -- gun charges, 982 days of jail
credit. DNA and prints. Three $50 fines,
three $75 fines, and one $30 fine.
The court did not engage in a qualitative analysis of the
aggravating and mitigating factors that applied to this case.
Although the court noted defendant's prior criminal record,
including four adult indictments, it then merely found three
aggravating factors without any discussion, analysis, or
application to defendant in particular. Accordingly, we remand
for resentencing and direct the court engage in a qualitative
analysis of the aggravating and mitigating factors. The court
shall also address the merger issue.
Defendant's conviction is affirmed, and the matter is
remanded for resentencing in accordance with this opinion. We do
not retain jurisdiction.
37 A-3677-13T2
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