STATE OF NEW JERSEY v. JAMEL LEWIS

Annotate this Case
NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NOS. A-2411-15T3
                                                                     A-2550-15T1
                                                                     A-2551-15T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JAMEL LEWIS, a/k/a ADUAL
LEWIS, TAREAK BOND, JAMAL
LEWIS, JAMIL LEWIS, KIREESE
OCONNER and KIRESE OCONNER,

     Defendant-Appellant.
_____________________________

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

ROBERT HARRIS,

     Defendant-Appellant.
_____________________________

STATE OF NEW JERSEY,
      Plaintiff-Respondent,

v.

SHARIF TORRES,

     Defendant-Appellant.
______________________________

            Submitted December 4, 2018 – Decided January 7, 2019

            Before Judges Fisher, Suter and Geiger.

            On appeal from Superior Court of New Jersey, Law
            Division, Union County, Indictment No. 10-03-0288.

            Joseph E. Krakora, Public Defender, attorney for
            appellants (Alison S. Perrone and Frank M. Gennaro,
            Designated Counsels, on the briefs in A-2411-15;
            Michael J. Confusione, Designated Counsel, on the
            brief in A-2550-15, and Michele A. Adubato,
            Designated Counsel, on the brief in A-2551-15).

            Michael A. Monahan, Acting Union County
            Prosecutor, attorney for respondent (Milton S.
            Leibowitz, Special Deputy Attorney General/Acting
            Assistant Prosecutor, of counsel and on the briefs).

            Appellant Robert Harris filed a pro se supplemental
            brief in A-2550-15.

PER CURIAM

      Defendants Jamel Lewis, Robert Harris, and Sharif Torres, separately

appeal their convictions for offenses that led to and caused Tanya Worthy's

death. We consolidate these appeals for purposes of affirming their convictions

                                                                       A-2411-15T3
                                      2
and the sentences imposed in a single opinion. In doing so, we reject – among

other things – defendants' arguments that the Supreme Court's recent decision

in Carpenter v. United States, 585 U.S. __,  138 S. Ct. 2206 (2018) – which held

that individuals possess a legitimate expectation of privacy in the records of

their physical movements as captured by cell-site location information (CSLI),

and that a government's acquisition of CSLI constitutes a Fourth Amendment

search – requires a remand for further proceedings about the State's acquisition

and use of CSLI at their trial.

      On the evening of October 28, 2008, Tanya Worthy ate in a Newark

restaurant, leaving about 6:15 p.m. She placed a take-out order for her boyfriend

Rahim Jackson, with whom she lived in Green Brook, but, rather than wait, she

asked the waitress to call her when the order was ready. She left the restaurant

and was never seen alive again.

      Jackson was home watching television. At about 8:40 p.m., he heard the

garage door open and thought it odd that Worthy would be returning home,

because he had earlier attempted to reach her several times without success and

learned from the restaurant that she didn't pick up his order. He apprehensively

opened a door to the garage and saw Worthy's car in the driveway. A masked

individual, who was holding a gun, exited the car's passenger door and told him


                                                                         A-2411-15T3
                                       3
not to move, but Jackson closed and locked the door. From inside the house,

Jackson observed the masked individual re-enter the car, which then backed out

of the driveway. Jackson ran to a neighbor's house and asked her to call police.

      At 10:47 p.m., police and other responders arrived at a field opposite a

parking lot in Elizabeth to find a white 2005 BMW convertible engulfed in

flames. Once the blaze was extinguished, they discovered Tanya Worthy's

severely-burned body lying face-down in the rear passenger seat.              An

investigation revealed she had been shot three times, twice in the chest and once

in the abdomen, prior to being burned.

      The State sought to prove at trial that Worthy was killed in the course of

a robbery gone awry. Defendant Jamel Lewis, the State argued, had planned

with his cousin Rashawn Bond to rob and then kidnap Worthy; they thought that

in this way they could gain access to and rob Jackson, alleged to be a wealthy

drug dealer. Lewis and Bond enlisted help from defendants Robert Harris and

Sharif Torres, as well as Titus Lowery, an unindicted co-conspirator.

      According to the State, while Worthy was visiting Bond, with whom she

was also romantically involved, defendants and Lowery stormed in, robbed her,

and kidnapped her, and then Lewis and Lowery drove away in her car, with

Worthy in the back seat, from Bond's Newark residence to Jackson's Green


                                                                         A-2411-15T3
                                         4
Brook residence. Bond, Harris, and Torres followed along in another car but

didn't reach Jackson's residence in time to carry out the intended home invasion

with Lewis and Lowery. Their plan botched, Lewis and Lowery fled Green

Brook with Worthy still in the car, and Bond, Harris, and Torres changed course

to meet up with them in Elizabeth to destroy the evidence, including Worthy and

her vehicle.

      The defense disputed any connection between or among defendants or

between or among defendants and Worthy. But witnesses testified at trial, often

with reference to photographs, that Bond and Lewis were cousins and close

friends, that both were acquainted with Harris, and that Harris was acquainted

with Torres.    One witness in particular, Sean Williams, testified that he

encountered Lewis, a family friend, at a party in Irvington three days prior to

the crimes; at that time, Lewis asked Williams to steal a four-door vehicle that

he needed to commit a "jux" – a home invasion and robbery – of "one of [Bond's]

bitches."   Lewis promised Williams that Bond would compensate him, but

Williams ultimately declined to steal the car Lewis sought.

      As for defendants' connection with Worthy, Bond's cousin Terron Billups

confirmed that Worthy and Bond had been romantically involved. And Jasmine

Campbell, another girlfriend of Bond's, found Worthy's business card in a black


                                                                        A-2411-15T3
                                       5
leather handbag Bond gave Campbell just hours after Worthy's body was set on

fire. The bag, which was eventually turned over to police, led the investigation

to Bond and then defendants.

      The State also relied at trial on CSLI for cell phones attributed to

defendants and to Bond, Lowery, and Worthy, as well as on contemporary call

records for the same phones, to piece together its case. Cell phones function by

connecting to a series of antennae (cell sites) and continuously scan, regardless

of whether the user is actively operating the phone, for the best signal, which

often but not always emanates from the closest cell site. Carpenter,  138 S. Ct. 
at 2220-21. A record of the location and time is created each time a phone

connects to a particular site, though the precision of the location data varies on

the size of the geographic area covered by a site and the concentration of sites

nearby. Id. at 2211-12.

      A Sprint records custodian testified about CSLI and call records and the

subscriber information for two accounts, one belonging to Worthy and used in

connection with her employment and the other belonging to Lewis. Records

custodians for Verizon Wireless and T-Mobile testified about their records and

subscriber information on accounts belonging, respectively, to Bond and Karima

Rose, who confirmed at trial that Harris was using her phone at that time. An


                                                                          A-2411-15T3
                                        6
AT&T radio frequency engineer identified Torres as the subscriber of one of the

company's accounts in the course of testifying to the records for that account,

and a representative of the Philadelphia County Adult Probation Department

testified, based on the department's records, about the phone number that

Lowery provided to a probation officer who was collecting his basic contact

information.

      The AT&T and Sprint engineers were qualified as experts and permitted

to provide opinions about the CSLI information. A representative of the Union

County Prosecutor's Office testified about maps prepared by that office's

Intelligence Unit that plotted the cell sites with which the phone for each account

made connections during the night in question. The individual who created the

maps testified that he prepared them based on CSLI records obtained from the

service providers for the respective phones.

      According to call records, Bond contacted Lewis, who then placed three

calls to Harris during the afternoon. During a thirty-minute span beginning at

around 5:30 p.m., while Worthy was at the Newark restaurant, Torres called

Bond, who called Worthy, then Lewis, and then Worthy again. Around 7:00

p.m., both Worthy's and Bond's phones connected with a cell tower near Bond's

Newark residence, supporting an inference that Worthy visited Bond after


                                                                           A-2411-15T3
                                        7
leaving the restaurant. Thirty minutes later, Worthy's phone, along with those

used by Bond, defendants, and Lowery, all connected with that same tower

within a few minutes of one another.

      Around 8:00 p.m., when the prosecution claimed the kidnapping occurred,

the phones attributed to Lewis, Lowery, and Worthy began connecting with a

westerly sequence of cell sites between Newark and Green Brook. Partway

there, Worthy's phone abruptly ceased to track with the others and last connected

with a site near the intersection of Interstate 78 and Route 24; her phone was

later recovered by police on the side of the road in that vicinity.

      Call records showed that while Lewis and Lowery were traveling with

Worthy to Green Brook, Bond called Campbell – the girlfriend to whom he

ultimately gave Worthy's handbag – several times, initially without success.

Campbell testified that when Bond finally reached her at 8:19 p.m., he asked her

to pick him up at a Newark intersection so she could lend him her car. She

complied, and he left with her vehicle after dropping her off at her residence.

CSLI records demonstrated that, soon thereafter, the phones attributed to Bond,

Harris, and Torres all began connecting with a series of cell towers from Newark

toward Green Brook.




                                                                         A-2411-15T3
                                         8
      At about 8:40 p.m., while the other three were on their way, Lewis's and

Lowery's phones connected to a cell site across Route 22 from Jackson's Green

Brook residence. That timing coincided with Jackson's recollection of when he

encountered the masked individual, and briefly preceded his neighbor's phone

call to police. Records confirmed that the neighbor's call was placed at 8:48

p.m. At the same time, phones belonging to Harris, Torres, and Bond were

connecting to cell sites near Watchung, ten minutes' driving distance from

Jackson's home. The same data revealed an abrupt change in direction after the

neighbor's call to police, showing that the phones used by the three began

connecting with an easterly sequence of cell sites back toward Newark. Around

the same time, Lewis's and Lowery's phones connected with a series of sites

headed in the same direction between Green Brook and Newark. Call records

also showed that Lewis and Harris were in constant contact during this period.

      CSLI revealed that defendants and their cohorts converged at

approximately 10:15 p.m., when their phones connected with a cell site in

Newark about a mile from where Worthy was found burned inside her car.

Images of the fire were captured on a nearby parking lot's surveillance system;

those images did not reveal the identity of any perpetrator.         Afterward,

Shakeerah Scott, the mother of Lewis's child, testified that she picked up Lewis


                                                                        A-2411-15T3
                                       9
and two others at another Newark location; she gave them a ride to Lewis's car.

Bond, meanwhile, returned Campbell's car to her at her house at 12:32 a.m., a

time confirmed by the record of a phone call he placed to her announcing his

arrival. When Campbell went outside to meet Bond, he handed her the car keys

as well as the handbag in which she eventually found Worthy's business card.

      Defendants Lewis, Harris and Torres – as well as Bond – were charged

with: first-degree kidnapping,  N.J.S.A. 2C:13-1(b); two counts of first-degree

robbery,  N.J.S.A. 2C:15-1(a); first-degree felony murder,  N.J.S.A. 2C:11-

3(a)(3); second-degree possession of a weapon for an unlawful purpose,

 N.J.S.A. 2C:39-4(a); second-degree unlawful possession of a weapon,  N.J.S.A.

2C:39-5(b); and second-degree aggravated arson,  N.J.S.A. 2C:17-1(a).

      Before trial, defendants moved, pursuant to Miranda v. Arizona,  384 U.S. 436 (1966) and Bruton v. United States,  391 U.S. 123 (1968), to suppress

statements Torres made to police.     At the hearing's conclusion, the judge

determined that the statements could be admitted with certain redactions. At the

conclusion of a lengthy trial, defendants were acquitted of the weapons offenses

but convicted of kidnapping, felony murder, arson, and second-degree robbery.1


1
  Bond was separately tried and convicted of a similar set of offenses, and we
separately disposed of his appeal. State v. Bond, No. A-2317-14 (App. Div.
Oct. 18, 2017).
                                                                        A-2411-15T3
                                      10
The trial judge denied their motions for judgment of acquittal or, in the

alternative, for a new trial.

      Lewis was sentenced to an aggregate life prison term, and Harris and

Torres were both sentenced to aggregate sixty-year terms, all subject to a period

of parole ineligibility under the No Early Release Act,  N.J.S.A. 2C:43-7.2.

      Defendants separately appeal. Lewis argues:

             I.  DEFENDANT'S CONFRONTATION CLAUSE
             RIGHTS WERE VIOLATED BY ADMISSION OF A
             NON-TESTIFYING CO-DEFENDANT'S STATE-
             MENT TO POLICE.

             II. THE TRIAL COURT'S FAILURE TO DECLARE
             A HUNG JURY AFTER THE JURY WAS
             DEADLOCKED WAS ERROR THAT DENIED
             DEFENDANT A FAIR TRIAL.

             III. THE IMPROPER ADMISSION OF PHOTOS
             SUGGESTED GANG AFFILIATION DEPRIVED
             DEFENDANT OF HIS RIGHT TO A FAIR TRIAL.

             IV. DEFENDANT'S CONVICTIONS MUST BE
             VACATED BECAUSE THE STATE FAILED TO
             PROVE DEFENDANT'S GUILT BEYOND A
             REASONABLE DOUBT.

             V. THE PROSECUTOR EXCEEDED FAIR
             COMMENT ON THE EVIDENCE, THEREBY
             DEPRIVING DEFENDANT OF HIS RIGHT TO A
             FAIR TRIAL.




                                                                         A-2411-15T3
                                      11
            VI. THE DISSEMINATION OF A PHOTOGRAPH
            OF THE DEFENDANT IN HANDCUFFS IN COURT
            AT HIS TRIAL DEPRIVED HIM OF A FAIR TRIAL.

            VII. DEFENDANT'S LIFE TERM IS MANIFESTLY
            EXCESSIVE AND REQUIRES A REMAND FOR
            RESENTENCING.

Harris argues:

            I. THE TRIAL COURT ERRED IN DENYING [HIS]
            MOTION FOR ACQUITTAL OR AT LEAST IN
            FAILING TO GRANT [HIS] MOTION FOR A NEW
            TRIAL IN LIGHT OF THE CUMULATIVE EFFECT
            OF THE TRIAL ERRORS BELOW.

                 A. The Evidence Against [Harris] Was
                 Insufficient As A Matter Of Law Or, At
                 Least, Should Have Been Set Aside As A
                 Manifest Denial Of Justice.

                 B. The Photos Suggested Gang Affiliation
                 For Defendant And Caused Him An Unfair
                 Trial.

                 C. Defendant's Confrontation     Clause
                 Rights Were Violated.

                 D. The Prosecutor Exceeded Fair Com-
                 ment On The Evidence And, Considering
                 The At Best Thin Evidentiary Basis For
                 Defendant's Guilt, Contributed To The
                 Unfair Trial For Defendant Below.

                 E. The Trial Judge Should Have Declared
                 A Hung Jury; The Court's Instruction To
                 The Jury In Response To The
                 Announcement     Of     [A]   Deadlock

                                                            A-2411-15T3
                                   12
                    Prejudiced Defendant's Right To Fair Jury
                    Deliberation.

              II. THE TRIAL COURT ERRED IN DENYING
              DEFENDANT'S    MOTION  FOR   MISTRIAL
                                 [2]
              BECAUSE OF A BRADY VIOLATION.

              III. DEFENDANT'S SENTENCE IS IMPROPER
              AND EXCESSIVE.

In a pro se supplemental brief, Harris also argues:

              I.   THE TRIAL COURT'S INSTRUCTIONS
              UNCONSTITUTIONALLY RELIEVED THE STATE
              OF ITS BURDEN OF PROOF AND/OR SHIFTED
              THE BURDEN OF PROOF ON DEFENDANT ON ITS
              ACCOMPLICE LIABILITY CHARGE.

              II. THE TRIAL COURT ERRED BY FAILING TO
              GRANT DEFENDANT'S MOTION FOR AN
              ACQUITTAL DUE TO INSUFFICIENT EVIDENCE
              TO SUPPORT THE CONVICTIONS.

And Torres argues:

              I. THE DEFENDANT'S TWO STATEMENTS TO
              THE POLICE SHOULD NOT HAVE BEEN
              ADMITTED INTO EVIDENCE BECAUSE HIS
              FIFTH AMENDMENT RIGHT AGAINST SELF-
              INCRIMINATION WAS VIOLATED.

              II. THE TRIAL COURT'S FAILURE TO DECLARE
              A HUNG JURY AFTER THE JURY WAS
              DEADLOCKED WAS ERROR THAT DENIED
              DEFENDANT A FAIR TRIAL.


2
    Brady v. Maryland,  373 U.S. 83 (1963).
                                                                A-2411-15T3
                                      13
            III. THE ADMISSION OF STATEMENTS MADE BY
            CO-DEFENDANTS LEWIS AND BOND AT TRIAL
            UNDER THE CO-CONSPIRATOR EXCEPTION TO
            THE HEARSAY RULE WAS ERROR THAT
            VIOLATED . . . TORRES['] CONSTITUTIONAL
            RIGHT OF CONFRONTATION.

            IV. THE ADMISSION OF CERTAIN INFLAM-
            MATORY EVIDENCE OVER THE DEFENSE
            OBJECTION DEPRIVED DEFENDANT OF A FAIR
            TRIAL.

            V. THE DISSEMINATION OF A PHOTOGRAPH OF
            THE DEFENDANT IN HANDCUFFS IN COURT AT
            HIS TRIAL DEPRIVED HIM OF A FAIR TRIAL.

            VI. DENIAL OF THE DEFENDANT'S MOTION FOR
            NEW TRIAL WAS ERROR.

            VII. THE AGGREGATE SENTENCE IMPOSED
            UPON THE DEFENDANT OF SIXTY (60) YEARS
            WITH THIRTY (30) YEARS OF PAROLE
            INELIGIBILITY WAS EXCESSIVE AND SHOULD
            BE MODIFIED AND REDUCED.

            VIII. THE AGGREGATE ERRORS                     DENIED
            DEFENDANT A FAIR TRIAL.

      After all briefs were filed, each defendant wrote to the court – pursuant to

Rule 2:6-11(d) – to argue that Carpenter, which was decided after their

convictions but while this appeal was pending, necessitates a remand so the trial

court may decide whether the use of CSLI at trial violated their Fourth

Amendment rights.


                                                                          A-2411-15T3
                                      14
      For the reasons that follow, we reject: (1) defendants' arguments that

Carpenter requires a remand; (2) Torres's argument that the admission of

statements he gave police violated his right against self-incrimination; (3)

defendants' arguments that the admission of certain statements – Torres's

statements, a statement made by Lewis, and another made by an alleged co -

conspirator – violated their right to confront adverse witnesses at trial; (4)

defendants' arguments that their right to a fair trial was impaired by the judge's

decision not to declare a hung jury; (5) defendants' arguments that the admission

of certain evidence and photographs suggested a gang affiliation and deprived

them of a fair trial; (6) defendants' arguments that the evidence was insufficient

to convict; (7) defendants Lewis and Torres's arguments that they were deprived

of a fair trial because of the dissemination on social media of a photograph of

them in handcuffs; (8) defendant Harris's argument that the judge abused his

discretion in denying his motion for a mistrial because of an alleged Brady

violation; (9) defendants Lewis and Harris's arguments that the prosecutor

exceeded the bounds of advocacy during his summation; (10) defendant Harris's

pro se argument that the judge's instructions shifted the burden of persuasion to

him on accomplice liability; (11) all defendants' arguments that the cumulative




                                                                          A-2411-15T3
                                       15
effect of errors warrant either a judgment of acquittal or a new trial; and (12) all

defendants' arguments that they received excessive sentences.



                                          I

      As noted above, because Carpenter was decided not only long after

defendants' lengthy trial that started on February 25 and ended on May 20, 2015,

but also well after the parties filed their appellate briefs, defendants did not raise

the application of Carpenter – or the issues considered by the Court in Carpenter

– until they filed their Rule 2:6-11(d) letters shortly after Carpenter was decided.

Carpenter held that the Fourth Amendment encompasses a government's attempt

to seek CSLI from third parties possessing such information because individuals

possess a reasonable expectation of privacy in their physical movements as

captured in CSLI. Carpenter,  138 S. Ct.  at 2209-10. In response, the State

argues there was no Carpenter violation because the State secured court orders

– what it claims are the equivalent of search warrants – that approved the seizure

of this information.

      We decline to consider this untimely contention. To be sure, Carpenter

was decided after this case was tried and during the pendency of these appeals.

But by the time these defendants were tried, our Supreme Court had already


                                                                              A-2411-15T3
                                         16
recognized a reasonable expectation of privacy and established a warrant

requirement for similar information in State v. Earls,  214 N.J. 564, 584 (2013).

Moreover, defendants never sought the suppression of the CSLI used at their

trial, never objected to its admission, and, so, we are presented with no factual

record by which to examine whether the principles upon which Carpenter was

based were violated by the State's securing of this information. We conclude

that the search and seizure issues that defendants raise for the first time on appeal

were not properly preserved for appellate review. State v. Robinson,  200 N.J.
 1, 20-22 (2009).


                                         II

      Torres argues the trial judge infringed his right against self-incrimination

by admitting into evidence statements he gave police during two interviews.

Torres has not asserted what part of the statements were of concern to him. In

reviewing the statements, we note that Torres largely denied knowing

defendants or the victim or claimed he had never been in Newark. He did,

however, acknowledge ownership and primary use of a cellphone and he

identified his service provider.

      An accused enjoys a right against self-incrimination that is guaranteed

both as a federal matter by the Fifth and Fourteenth Amendments, Malloy v.

                                                                             A-2411-15T3
                                        17
Hogan,  378 U.S. 1, 6 (1964), and as a state matter by our common law and

evidence rules, State v. Hartley,  103 N.J. 252, 260 (1986). In light of the

inherently coercive nature of a custodial interrogation, an accused must be

advised of the right to remain silent, that any statement may be used against the

accused, and that the accused has the right to an attorney. Miranda,  384 U.S.  at
 444. An accused's invocation of those rights must be "scrupulously honored."

Michigan v. Mosley,  423 U.S. 96, 103 (1975).

      A trial court may not admit any incriminating statement the accused may

make in the context of such an interrogation unless the accused was duly advised

of and validly waived those rights prior to making the statement. Miranda,  384 U.S.  at 444-45. The prosecution must prove the predicates for admission beyond

a reasonable doubt and must establish any purported waiver was knowing,

voluntary, and intelligent. State v. Presha,  163 N.J. 304, 313 (2000). Whether

a purported waiver meets those criteria depends on

            the totality of the circumstances, including both the
            characteristics of the defendant and the nature of the
            interrogation. Relevant factors to be considered
            include the suspect's age, education and intelligence,
            advice concerning constitutional rights, length of
            detention, whether the questioning was repeated and
            prolonged in nature, and whether physical punishment
            and mental exhaustion were involved.

            [State v. Galloway,  133 N.J. 631, 654 (1993).]

                                                                         A-2411-15T3
                                      18
      At times, uncertainties arise as to whether an interview constitutes a

custodial interrogation. According to the Supreme Court, a custodial

interrogation is any "questioning initiated by law enforcement officers after a

person has been taken into custody or otherwise deprived of his freedom of

action in any significant way." Miranda,  384 U.S.  at 444. There need not be a

formal arrest or physical restraint, and the interrogation need not occur at a

police station. State v. P.Z.,  152 N.J. 86, 103 (1997). Absent a formal arrest,

the "critical determinant of custody is whether there has been a significant

deprivation of the suspect's freedom of action based on the objective

circumstances, including the time and place of the interrogation, the status of

the interrogator, the status of the suspect, and other such factors," ibid., such

that the restraint on the accused's freedom of movement is "of the degree

associated with a formal arrest," California v. Beheler,  463 U.S. 1121, 1125

(1983); accord P.Z.,  152 N.J. at 103.

      A judge's findings of fact on these questions command our deference when

supported by sufficient credible evidence in the record. State v. Elders,  192 N.J.
 224, 242-44 (2007). A judge's conclusions as to matters of law, however, are

not entitled to deference. State v. Shaw,  213 N.J. 398, 411 (2012).



                                                                          A-2411-15T3
                                        19
      At the Miranda hearing, the judge heard from a detective present for both

of Torres's statements, as well as from Torres, and the judge reviewed the video

recordings of both interviews. According to the detective, he and a colleague

traveled to Philadelphia to interview Torres for the first time on April 22, 2009,

after learning from a witness that Bond had used Torres's cell phone to call

Worthy's cell phone on the night of the kidnapping and that CSLI records

showed Torres's phone had been in Newark that night.

      The two detectives, accompanied by Philadelphia police, visited Torres at

his home, and he voluntarily agreed, albeit grudgingly, to accompany them to

the police department; Torres's mother went along. Torres was informed he was

not under arrest and was being interviewed as a witness for any information

helpful in the investigation into Worthy's death.           Torres agreed to be

photographed, and he agreed the interview could be video-recorded, but he

declined to sign a consent form. After a forty-five-minute interview, during

which he provided information about his cellphone, Torres agreed to speak with

the police again if they had any further questions. He then left the station freely.

      On May 20, 2009, the detective and another officer, accompanied by

Philadelphia police, again visited Torres at his home. Again, Torres grudgingly

agreed to accompany them to the police department for another interview. He


                                                                            A-2411-15T3
                                        20
was neither arrested nor charged with any offenses in connection with the

homicide, but he was informed of his Miranda rights and presented with a form.

He told the detective he understood his rights, but he declined to sign the form,

explaining he didn't want to make a "statement," a word used on the form. When

told by the detective that it "wasn't necessarily a statement" but an "interview,"

Torres agreed to be interviewed and to be video-recorded but would not sign the

consent form.

        During the course of the interview that followed, Torres stated at one point

that he had "nothing to say." The detectives inquired whether he wanted to

continue the conversation, and he assured them that he did. But eventually

Torres made clear that he no longer wished to continue, and the detectives

immediately ceased the interview. Though never explicitly told he was free to

leave, Torres was never placed under arrest nor restrained in any manner. At

the conclusion of the interview, he was permitted to leave and was given a ride

home.

        Torres was twenty years old at the time, had a tenth grade education, and

had been arrested on several prior occasions. He testified at the hearing that he

woke up on April 22, 2009, to find more than five police officers downstairs,

others waiting outside, and his mother crying. He persistently refused to go with


                                                                            A-2411-15T3
                                        21
them for an interview until his mother advised that he "had to go or they were

going to lock [him] up."

      Torres recounted that a similar series of events occurred ahead of the May

20, 2009 interview, noting that on this occasion police officers repeatedly

insisted he "ha[d] to go down" to the police station each time he refused.

According to Torres, on neither occasion did he believe he had any choice, nor

did he feel free to leave. He signed no forms and, at the second interview, made

clear he did not want to make a statement.

      Based on his observation of the testimony and with the benefit of a review

of the video recordings, the judge credited the detective's version of events over

Torres's. The judge declared he was "satisfied beyond a reasonable doubt" that

both statements were voluntarily given, noting that Torres was not in custody

and that the record did not support a claim that Torres's will had been overborne.

The judge held that Miranda warnings were not required on either occasion, but,

even so, a Miranda warning was given on the second occasion, as was evident

from the video recordings. The judge therefore determined that the statements

were admissible subject to any redaction required by Bruton,  391 U.S.  at 123.

      Although the judge's ruling, as he acknowledged, was somewhat

"perfunctory," Torres does not argue that the judge failed to render sufficient


                                                                          A-2411-15T3
                                       22
findings; he instead argues that the judge drew the wrong conclusion from the

evidence. Torres contends that, on both occasions, a large police presence

arrived at his home and brought him to the station, that he was interviewed by

multiple officers, and that he was video-recorded despite his refusal to sign the

consent form. On the first occasion, he emphasizes that he was given no

Miranda warning at all and was told he was only being interviewed as a witness,

yet he was questioned about information that became significant evidence

against him at trial in an interrogation that was clearly designed or likely to elicit

incriminating responses.

      Torres acknowledges that warnings were given on the second occasion but

asserts that he told the detectives several times that he did not wish to make a

statement and that the police disregarded his "attempt to end the interrogation,"

and pressed him to continue, insisting that it was not a "statement" and

reminding him that he was not under arrest. He further argues, given this

evidence's significance in the context of a highly circumstantial case, that

admission of his statements clearly caused prejudice. Again, Torres doesn't

argue how he was prejudiced – because he has not referred us to those parts of

the statement that caused prejudice – but we assume his concern regarded

statements he made about his cellphone.


                                                                              A-2411-15T3
                                         23
      We find no merit in Torres's arguments. The judge found the detective

reliable. And, while the detective acknowledged Torres was never explicitly

advised of his right to leave, that Torres refused to sign any of the forms, and

that he expressed on the second occasion that he did not want to make a

"statement," Torres was explicitly advised each time he was not under arrest,

Torres indicated his consent to the video recordings even though he refused to

sign the forms, and on the second occasion acknowledged he understood his

rights. He left freely after both interviews and ended the second himself by

stating he no longer wished to talk, a request the detectives immediately

honored, and one that would not likely have been made had he sincerely felt

coerced. Considered in light of Torres's familiarity with the criminal justice

system, and with the benefit of a review of the video recordings, the judge was

entitled to conclude from the totality of the circumstances that Torres's

statements were voluntary and there was no restraint to his freedom of

movement that would have rendered the interviews custodial interrogations i n

the first place. Though the record was not one-sided, the testimony and evidence

the judge found reliable was sufficient to support his findings, which are

therefore entitled to deference on appeal. Elders,  192 N.J. at 242-44.




                                                                         A-2411-15T3
                                      24
                                       III

      All defendants argue the admission of certain out-of-court statements

deprived them of their right to confrontation: (a) Lewis and Harris challenge the

admission of Torres's statements that were discussed in Section II of this

opinion; (b) Harris also takes issue with the admission of a statement Lowery

made to a parole officer; and (c) Torres quarrels with the admission of

statements Lewis and Bond made to third parties. We find no merit in these

arguments.


                                        A

      Criminal defendants enjoy coextensive federal and state constitutional

rights to confrontation of any witnesses called to testify against them. State v.

Roach,  219 N.J. 58, 74 (2014).        This constitutional protection, however,

excludes only those out-of-court statements that are "testimonial," Crawford v.

Washington,  541 U.S. 36, 68 (2004), which, as pertinent here, include at least

those statements that are the "product of police interrogation," State v. Cabbell,

 207 N.J. 311, 329 (2011). Statements given to police qualify as testimonial if

the surrounding "circumstances objectively indicat[e] that . . . the primary

purpose of the interrogation is to establish or prove past events potentially


                                                                          A-2411-15T3
                                       25
relevant to later criminal prosecution." Davis v. Washington,  547 U.S. 813, 822

(2006). Hearsay that is non-testimonial, on the other hand, may be admitted

without running afoul of these constitutional principles to the extent the

statements fit a recognized exception to the hearsay rule. State v. Weaver,  219 N.J. 131, 151 (2014).

      The Confrontation Clause further demands that, in the context of a joint

trial, a non-testifying defendant's confession may not be admitted at trial to the

extent it directly incriminates a co-defendant, even if an appropriate limiting

instruction is given, unless the statement is redacted to exclude all incriminatory

references to the co-defendant. Bruton,  391 U.S.  at 126. The same principle,

however, does not apply when a defendant's statement is "'not incriminating [to

the co-defendant] on its face,'" but "linked to the [co-defendant] only through

other evidence." Weaver,  219 N.J. at 153 (quoting Richardson v. Marsh,  481 U.S. 200, 208 (1987)). And a "statement is not facially incriminating merely

because it identifies" a co-defendant. United States v. Angwin,  271 F.3d 786,

796 (9th Cir. 2001), overruled in part on other grounds, United States v. Lopez,

 484 F.3d 1186 (9th Cir. 2007). The statement "must also have a sufficiently

devastating or powerful inculpatory impact" for its admission to run afoul of

these constitutional principles. Ibid.


                                                                           A-2411-15T3
                                         26
      Lewis and Harris take issue with the admission of Torres's statements to

police in which he neither confessed to the crime nor implicated either of co-

defendant. The critical aspect of the statements in this context was that Torres

acknowledged he was the subscriber and primary user of his cell phone. As

discussed in Section II, the judge admitted the statements subject to considerable

redaction and an appropriate limiting instruction, though the reference to Lewis

and Harris as acquaintances remained. Consequently, Lewis and Harris argue

the admission of this evidence deprived them of their right to confrontation,

emphasizing in particular that the statements were testimonial, they had no

opportunity to cross-examine Torres, and the statements named them directly.

      Although correct that the statements were testimonial, their admission

does not run afoul of Crawford principles because the statements were not

admitted against these two defendants, only against Torres. United States v.

Harris,  167 Fed. Appx. 856, 859 (2d Cir. 2006). In that connection, the trial

judge explicitly instructed the jury that, if it found a particular statement had

been made, it could "consider that statement only against the individual who

made the statement." Nor did the admission of the statements run afoul of

Bruton, because they did not directly incriminate any of the defendants on their

face so as to undermine the reliability of the limiting instruction. Weaver, 219


                                                                          A-2411-15T3
                                        27 N.J. at 153. That they happened to mention Lewis and Harris by name is of no

moment in itself. Angwin, 271 F.3d         at 796.


                                       B

      Harris challenges the admission of testimony of a representative from the

City of Philadelphia Probation Department that Lowery provided his parole

officer with the number for his cell phone; other evidence in the record revealed

that cell phone had contact with defendants' phones at the time of the crimes.

Following a N.J.R.E. 104 hearing, the judge admitted the evidence via the

business records exception to the hearsay rule, N.J.R.E. 803(c)(6).

      Harris does not challenge admissibility on that ground; he instead argues

the record of the phone number incorporated hearsay from both the parole

officer and Lowery that was testimonial in nature and should therefore have been

excluded. We reject this argument; the statements were not testimonial. The

records custodian testified that the phone number was collected and recorded by

the parole officer when gathering Lowery's pedigree information and not for the

purpose of gathering evidence as part of a criminal investigation. So, the

evidence's admission at trial did not violate Crawford principles.




                                                                         A-2411-15T3
                                      28
                                       C

      Torres takes issue with the admission of testimony about a statement Bond

made to a girlfriend asking whether she had spoken to the police and directing

her not to "tell anybody," and statements Lewis made to a girlfriend to convince

her to give him a ride the night of the crimes. The judge concluded all this

evidence was admissible pursuant to the co-conspirator exception to the hearsay

rule, N.J.R.E. 803(b)(5).

      Statements made by a co-conspirator are admissible against all conspiracy

members via N.J.R.E. 803(b)(5) if the prosecution establishes: "(1) the statement

was 'made in furtherance of the conspiracy'; (2) the statement was 'made during

the course of the conspiracy'; and (3) there is 'evidence, independent of the

hearsay, of the existence of the conspiracy and [the] defendant's relationship to

it.'" State v. Cagno,  211 N.J. 488, 530 (2012) (quoting State v. Taccetta,  301 N.J. Super. 227, 251 (App. Div. 1997)). Completion of the criminal act does

not preclude a statement made after the act, State v. James,  346 N.J. Super. 441,

458-59 (App. Div. 2002), if the statement serves a "current purpose, such as to

promote cohesiveness, provide reassurance to a co-conspirator, or prompt one

not a member of the conspiracy to respond in a way that furthers the goals of the

conspiracy," Taccetta,  301 N.J. Super. at 253.


                                                                         A-2411-15T3
                                      29
      Torres argues that Bond's and Lewis's statements do not qualify, noting

that they were made after the criminal acts had already been completed, that

there was no evidence to suggest the purported conspiracy included Torres when

the statements were made, and that the statements were not made in furtherance

of a conspiracy. He also claims admission of the statements deprived him of the

right of confrontation because he had no opportunity to cross-examine either

declarant. We disagree.

      It is well-established that admission of evidence through the co-

conspirator exception does not transgress the Confrontation Clause. State v.

Savage,  172 N.J. 374, 402 (2002).       So, the only question is whether the

statements satisfied that exception. Viewed in context, there is no question that

the statements furthered the conspiracy: in Bond's case to secure a witness's

cooperation, and in Lewis's to facilitate transportation. Torres advances no more

than a bald assertion to the contrary. And it is appropriate to conclude the

statements were made during the course of the conspiracy, notwithstanding the

fact that the homicide had already occurred, because they were made to escape

detection. Moreover, cell phone location data as well as witness testimony as to

the connections between and among defendants and their similar movements to

certain locations during certain critical timeframes on the evening in question


                                                                         A-2411-15T3
                                      30
provided evidence of a conspiracy independent of these statements. It follows

that the judge's decision to admit the statements fell well within his discretion.

See State v. Prall,  231 N.J. 567, 580 (2018).


                                       IV

      Defendants next contend the judge infringed their right to a fair trial by

refusing to declare a mistrial after the deliberating jury announced an impasse

and, also, by giving the jury what defendants believe was an inappropriately

coercive instruction to continue deliberating.

      The record reveals that on the fourth day of deliberations the jury sent the

judge a note advising that "[a]s of now we are deadlocked and we do not foresee

a unanimous decision to be in agreement on any count for any of the three

defendants." They asked the judge, "[h]ow would you like us to proceed?" All

defendants sought a mistrial but the judge denied those requests in light of the

relatively brief time the jurors had deliberated; the judge directed the jury to

continue to deliberate, explaining:

            Ladies and gentlemen, we started jury selection in this
            case on January 6th of this year. We went through 27
            days of trial testimony. We had over a month of jury
            selection. We've called 56 witnesses. You have had
            the case since May 7th. But over that period of time,
            you've only had -- excluding lunch periods, excluding
            periods of time for read back, you've only had the case

                                                                          A-2411-15T3
                                       31
            for ten or so hours. Given the amount of time, the
            complexity of the case, I'm not willing to accept that
            decision at this point in time.

            I want you to return to the jury room and continue your
            deliberations with the following proviso that it is your
            duty, as jurors, to consult with one another and to
            deliberate with a view to reaching an agreement, if you
            can do so without violence to individual judgment.
            Each of you must decide the case for yourself, but do
            so only after an impartial consideration of the evidence
            with your fellow jurors. In the course of your
            deliberations, do not hesitate to reexamine your own
            views and to change your opinion if convinced it is
            erroneous. But do not surrender your honest conviction
            as to the weight or effect of the evidence solely because
            of the opinion of . . . your fellow jurors, or for the mere
            purpose of returning a verdict. Remember, you are not
            partisans. You are judges, judges of the facts. And
            with that proviso, I ask you to return to the jury room
            and continue your deliberations.

Defendants focused on the judge's comment that he was "not willing to accept"

the jury's claim of a deadlock. Defendants raised the issue again when moving

for a new trial prior to sentencing.

      Defendants argue now that the judge was bound to declare a mistrial,

noting that the jury's message was unambiguous about a deadlock and the jury

had already reached its fourth day of deliberations. The judge compounded the

error, they argue, by expressing within the ordinary supplemental charge his

unwillingness to accept a hung jury and by referring to the considerable length


                                                                          A-2411-15T3
                                       32
of the trial. They contend the jurors would reasonably understand the judge's

comments as admonishing that they would abdicate their responsibilities if they

failed to reach a verdict, and that the judge would force deliberations to continue

indefinitely until a verdict was reached. In short, defendants assert the charge

was coercive, undermined the integrity of the verdict, and deprived them of a

fair trial. We reject this argument.

      To be sure, criminal defendants enjoy both a state and federal

constitutional right to trial by a fair and impartial jury, State v. Valenzuela,  136 N.J. 458, 467-68 (1994), at the core of which is the right to a "free and

untrammeled verdict," State v. Czachor,  82 N.J. 392, 400 (1980). Because the

deliberative process is integral to a jury's fact-finding responsibilities, a judge

must ensure its "insulation" from any "influences that could warp or undermine

the jury's deliberations and its ultimate determination." State v. Corsaro,  107 N.J. 339, 346 (1987). That includes any influence from the court itself. State

v. Shomo,  129 N.J. 248, 257 (1992).

      When a jury declares an impasse, a judge should ordinarily "inquire . . .

whether further deliberation will likely result in a verdict." Valenzuela,  136 N.J.

at 469. If the judge concludes, in light of the "length and complexity of trial and

the quality and duration of the jury's deliberations," Czachor,  82 N.J. at 407, that


                                                                            A-2411-15T3
                                        33
the "difference of opinion between [its] members . . . is clearly intractable," it

should declare a mistrial, Valenzuela,  136 N.J. at 469.             But, if those

circumstances have not been demonstrated, the judge may instruct the jury to

continue its deliberations. State v. Ross,  218 N.J. 130, 144-45 (2014). In short,

judges are vested with broad discretion in such situations, and appellate courts

will intercede only when able to conclude the judge abused that discretion. State

v. Paige,  256 N.J. Super. 362, 381 (App. Div. 1992). We are satisfied the judge

soundly exercised his discretion. Considering the extraordinary leng th of time

in both selecting a jury and eliciting evidence and testimony from dozens of

witnesses, the judge was entitled to deem that ten hours of deliberations were

insufficient to conclude, even from the jurors' perception that they were

deadlocked, that a mistrial was the only proper course.

      Of course, in sending the jury back to further deliberate, a judge's

instructions must not be coercive or otherwise improperly influence dissenting

jurors to change their votes for the sake of a verdict. State v. Figueroa,  190 N.J.
 219, 238 (2007). Errors that "impact substantially and directly on fundamental

procedural safeguards, and particularly upon the sensitive process of jury

deliberations, are not amenable to harmless error rehabilitation." Czachor,  82 N.J. at 404.


                                                                           A-2411-15T3
                                       34
      The remarks defendants question were neither inaccurate nor coercive

when considered in their context. The judge mentioned the length of time spent

on the trial, but only to explain that the time jurors had deliberated was brief by

comparison. Nor could the judge's comments be reasonably understood to

express an abject unwillingness to ever accept a hung jury, as defendants assert.

The judge communicated only an unwillingness to accept that result "at th[at]

point in time." And any concern defendants raise that dissenting jurors might

have been pressured to surrender honest convictions for the sake of reaching a

verdict is belied by the judge's delivery of a slightly modified version of the

standard charge, which carefully reminded jurors not to do so.

      We conclude the judge did not abuse his discretion either in declining to

grant a mistrial or in the manner he instructed the jury to continue deliberations.


                                        V

      All defendants argue the judge abused his discretion and deprived them of

a fair trial by permitting admission of redacted "gang" photographs featuring

Harris and Torres, among others.        Torres also contends the admission of

references to the gang "B-Block" and to Lowery had the same effect.

      Generally, our evidence rules permit the admission of all relevant

evidence – evidence having a "tendency in reason to prove or disprove any fact

                                                                           A-2411-15T3
                                       35
of consequence to the determination of the action," N.J.R.E. 401 – unless

excluded by other rules. State v. Scharf,  225 N.J. 547, 568-69 (2016). The

argument here focuses on whether this relevant evidence should have been

excluded because "its probative value [was] substantially outweighed by the risk

of . . . undue prejudice." N.J.R.E. 403(a). Such a determination rests within a

trial judge's broad discretion, State v. Sands,  76 N.J. 127, 144 (1978), and will

not be disturbed unless "so wide of the mark that a manifest denial of justice

resulted," State v. Cole,  229 N.J. 430, 449, 453 (2017).

      Defendants challenge the admission of four group photographs obtained

from MySpace that were introduced to establish a familiarity among those

identified in the pictures. Lewis does not appear in any of the photographs, but

Harris and Torres were among those pictured in the first, second, and fourth;

Torres appears in the third, along with Bond's cousin. One bone of contention

at trial was the fact that in the first three photographs, several pictured

individuals were making middle-finger gestures – Harris made that gesture in

the second photograph – and others were making different hand gestures of

unidentified significance in the second and third.     One person in the first

photograph had a red bandanna hanging out of his pocket, while someone in the




                                                                         A-2411-15T3
                                      36
third had a bandanna of the same color tied around his wrist. The fourth

photograph included none of these elements.

      Defendants objected to admission of all of the photographs, requesting a

redaction that would remove the bandannas, hand gestures, and any individuals

aside from those involved in this case so the jury would not speculate that

defendants or those with whom they associated were gang members. The State

agreed to eliminate the bandannas, but the judge admitted the exhibit with no

further redaction, reasoning that none of the hand gestures was suggestive of

gang affiliation absent expert testimony to that effect, and reasoning further that

the photographs were not otherwise so prejudicial as to warrant exclusion.

Torres complains about another set of group photographs, also obtained from

MySpace and introduced for the same purpose. These photos were similarly

redacted.

      Defendants contend that, even in redacted form, the photographs

suggested defendants were Bloods members or, at best, associated with members

of the Bloods, and assert that this undue prejudice clearly outweighed the

photographs' limited probative value. Lewis acknowledges he was not in any of

the photographs, but nonetheless believes the evidence tarnished his defense

through "guilt by association." Lewis and Harris add that, because of the gang-


                                                                           A-2411-15T3
                                       37
affiliation prejudice that they believe accompanied these photographs, their

admission should have been evaluated pursuant to N.J.R.E. 404(b), which limits

the prosecution's use of other-crimes evidence.

      We agree evidence of gang membership must be evaluated through a

N.J.R.E. 404(b) analysis. See State v. Cofield,  127 N.J. 328, 338 (1992); State

v. Goodman,  415 N.J. Super. 210, 227-28 (App. Div. 2010). But that argument

was never asserted at trial and the photographs were never introduced to show

gang affiliation. Moreover, they were redacted specifically to remove the red

bandannas and a sign mentioning "B-Block," the only obvious indicia of that

affiliation, as well as the hand gestures mimicking holding a gun and the picture

on the t-shirt, the only portions obviously suggestive of violence.

      That is not to say that the redacted photographs are otherwise sterile.

Many of them, for example, depicted individuals giving an obscene gesture, but

that gesture is ubiquitous and not unique to gang members. None of the other

unredacted hand gestures had their significance explained by any expert at trial,

so there was no reason to believe a juror would draw an inference that the

individuals depicted were gang members. Defendants have not shown that the




                                                                         A-2411-15T3
                                      38
judge's rulings were so wide of the mark as to justify reversal. Cole,  229 N.J. at
 453.3


                                        VI

        Defendants next argue the evidence was insufficient to sustain their

convictions. Lewis and Harris specifically contend they were entitled to a

judgment of acquittal because the record was inadequate to establish proof of

their guilt beyond a reasonable doubt, particularly when – as they have argued

here – numerous errors were committed. Harris and Torres argue that they

should at least have been granted a new trial for this reason.

        On a Rule 3:18-1 motion for judgment of acquittal, a trial judge must

determine "'whether, viewing the State's evidence in its entirety . . . and giving

the State the benefit of all its favorable testimony as well as all of the favorable


3
   To the extent Torres asserts that references to "B-Block" and Lowery were
clearly prejudicial and irrelevant, he is only half-correct and only as to the first
respect because the judge ordered that "B-Block" be redacted at every mention
from Torres's statement. And, although all required redactions were made to the
transcript, only one single mention was inadvertently left in the video recording
played to the jury. That reference was fleeting and there was no testimony in
the record that would explain to the jury what the term meant, so we conclude
no prejudice could result from it. The judge was well within his discretion in
denying Torres's motion for a mistrial. As to the other part of Torres's argument,
references to Lowery were clearly relevant because Lowery was the subscriber
of the phone that Bond used on the night of the crimes and with which Lewis
had contact.
                                                                            A-2411-15T3
                                        39
inferences which reasonably could be drawn therefrom, a reasonable jury could

find guilt . . . beyond a reasonable doubt.'" State v. Wilder,  193 N.J. 398, 406

(2008) (quoting State v. Reyes,  50 N.J. 454, 459 (1967)). We apply the same

standard when reviewing the disposition of such a motion. State v. Josephs,  174 N.J. 44, 81 (2002).

      When Rule 3:20-1 is invoked, a judge may grant a new trial "in the interest

of justice" but must not "set aside the verdict of the jury as against the weight

of the evidence unless, having given due regard to the opportunity of the jury to

pass upon the credibility of the witnesses, it clearly and convincingly appears

that there was a manifest denial of justice under the law." A judge's decision on

such an application is discretionary and entitled to great deference. State v.

Brooks,  366 N.J. Super. 447, 454 (App. Div. 2004). So, even though essentially

the same standard – whether there was a manifest denial of justice – is applied

on appeal, the reviewing court must "weigh[] heavily" the judge's "views of

credibility of witnesses, their demeanor, and [the judge's] general 'feel of the

case.'" State v. Sims,  65 N.J. 359, 373 (1974); accord State v. Brown,  118 N.J.
 595, 604 (1990).

      Defendants argue the judge erred in denying their motions at the close of

the prosecution's case and later, after the verdict but before sentencing, because,


                                                                           A-2411-15T3
                                       40
in their view, the record was simply insufficient to support their convictions.

They emphasize that all of the evidence was circumstantial and that the bulk of

it was simply data, which, at best, inexactly established their locations at certain

times. There were, they argue, no witnesses, no physical evidence, and no other

direct evidence to establish either their intentional participation in these crimes

or their precise roles or involvement. Indeed, Harris asserts that even the State's

evidence confirms he was not in the car when Worthy was brought to Green

Brook.    He and Torres also contend that if a judgment of acquittal was

unwarranted they should nonetheless have been given a new trial.

      We reject these arguments. The significance of CSLI to this case was not

that it ambiguously placed defendants at approximate locations at any one

particular time, but that it demonstrated the unusual coincidence of their

locations and directions of travel throughout the extended period during which

this sequence of crimes occurred and during which call records revealed they

remained in contact with one another. Harris and Lewis remained in frequent

contact throughout, and Lewis and Torres were both in contact with Bond just

before the kidnapping. CSLI then showed that all three converged in the vicinity

of Bond's home at the same time Worthy was there, and that the two sets of

cohorts separately made their way west toward Green Brook and then suddenly


                                                                            A-2411-15T3
                                        41
east back toward Newark after Jackson encountered the masked individual in

Worthy's car. Though Harris and Torres failed to reach Green Brook by that

time, a cell cite across the highway from Jackson's home placed Lewis there

right in time for the encounter.

      Harris is correct that the evidence showed he was not in the car with

Worthy when she was driven to Green Brook. But he ignores that CSLI revealed

he was proceeding in the same direction from the same starting point near Bond's

home, that he abruptly changed directions at the time Jackson's neighbor called

the police, and that he ended up in Elizabeth where Worthy's body was later

found. The same can be said for Torres, whose phone followed the same

approximate path. And so did that of Bond, whose gift of Worthy's handbag to

Campbell ultimately steered the criminal investigation in defendants' direction.

      Harris asserts in his pro se brief that the State failed to establish even that

he was the user of the phone attributed to him because evidence showed several

calls from that phone were likely placed by Bond. But Billups testified that he

communicated with both Harris and Bond on that phone, and Rose, the

subscriber on that phone's account, unequivocally testified that Harris was the

phone's user when the crimes occurred. Lastly, insofar as Harris points out that

Campbell never identified him as one of the individuals with Bond when she


                                                                             A-2411-15T3
                                        42
lent Bond her car, and that Scott never identified him as one of those she picked

up with Lewis later that night, neither fact, even taken at face value, undermines

the evidence we have already summarized to a degree that would call into

question the integrity of the jury's verdict.

      In short, the evidence may have been circumstantial and perhaps not

overwhelming, but the evidence was sufficient to permit a rational juror to find

guilt as to each defendant beyond a reasonable doubt. The judge, therefore, did

not err in denying the motions for judgment of acquittal or for a new trial.



                                        VII

      Lewis and Torres next contend they were deprived of a fair trial as a

consequence of the purported online dissemination of a photograph of Harris

and Torres at trial in handcuffs.

      Integral to a criminal defendant's constitutional right to trial by an

impartial jury is the requirement "that the jury's verdict be based on evidence

received in open court, not from outside sources." Sheppard v. Maxwell,  384 U.S. 333, 351 (1966).      When prejudicial mid-trial publicity "threatens the

fairness and integrity of a defendant's trial," the "procedure of questioning an




                                                                          A-2411-15T3
                                        43
impaneled jury . . . should not be invoked begrudgingly." State v. Bey,  112 N.J.
 45, 89 (1988).

      When ascertaining whether voir dire is appropriate, a judge must

"examine the information disseminated to determine if it has the capacity to

prejudice the defendant," and, if so, the judge must then consider whether "there

is a realistic possibility that such information may have reached one or more of

the jurors" in light of the "extent, notoriety, and prominence" of the publicity.

Id. at 84, 86. Our courts have long recognized that prejudice may result from a

defendant's appearance before a jury in restraints, State v. Artwell,  177 N.J. 526,

534 (2003), so it follows that a photograph seen by jurors depicting that

circumstance may likewise cause prejudice.

      At least as far as is evident from the record, the photograph at issue here

was discussed and the issue resolved entirely in the course of the following brief

exchange approximately halfway through the lengthy trial:

            THE COURT: All right. Counsel, before we started the
            proceedings today, Mr. Hinrichs brought to my
            attention an issue that may have occurred yesterday in
            court. He represented that his client's mother advised
            him that S[hy]eisa Robichaw had placed on her
            Instagram account a photograph of Mr. Harris and Mr.
            Torres being taken from court, outside the presence of
            the jury at the close of the day, in handcuffs. And that
            Instagram account picture had been taken and placed on


                                                                           A-2411-15T3
                                       44
               various other Instagram accounts, and it is proliferating
               in the Internet as we speak.

               MR. HINRICHS [Counsel for Torres]: That's my
               understanding. I did not see it personally, but that's
               what I was told.

               THE COURT: Mr. Liguori, you'd like to be heard?

               MR. LIGUORI [Counsel for Harris]: Well, Judge, I'm
               concerned about that my client is going to be seen and
               possibly be seen by these jurors. I don't know if they
               frequent Instagram, and I have no idea how Instagram
               works frankly. But I think what might be appropriate
               is some re-instruction to the jury that, you know,
               throughout the course of the trial, they should not
               consult social media, they should not, you know -- the
               instruction you've already given about that maybe
               should be regiven at this time.

               THE COURT: All right. That's the instruction given
               at the first break. I'll do it again at the conclusion of
               the case, but I will also give it to them now.

As promised, when the jurors returned to the courtroom, the judge reminded

them not to:

               talk about this case among yourselves, don't listen to
               anyone else. That's my standard instruction. . . . But I
               also wanted to let you know that you're not to read or
               have anyone read to you any newspaper accounts or
               search the Internet for any media accounts about this
               trial or have anyone read to you or search the Internet
               for any blogs, tweets, Face Book pages, Instagram.
               What other social media things do I use to spy on my
               son? Face Book, Instagram, Pinterest. Don't go on the
               Internet and look for anything about this case or anyone

                                                                           A-2411-15T3
                                         45
            connected to this case. And that's just a continuing
            instruction that we have.

      Both Lewis and Torres now argue that the judge had an obligation to

question the jurors as to their knowledge of the purported photograph and, if

seen by a juror, grant a mistrial. They assert that the judge's failure to take that

step deprived them of a fair trial, reasoning that, in the context of this heavily

circumstantial case, any prejudice from the photograph would have undermined

their rights to an impartial jury and negated the presumption of innocence.

      We find no merit in this argument. The photograph's existence and what

it depicted, if it did exist, were conjecture and a matter of hearsay. Torres's

counsel admitted he had not seen the photograph and only learned of it from his

client's mother, who had apparently found it on the social media account of a

witness that none of the ultimately impaneled jurors acknowledged having

known during voir dire. Counsel represented he was told that the photograph

had proliferated beyond that account, but without specifying the extent – and

defendants having never presented a copy of the photograph either in the trial

court or on appeal so that it could be subject to evaluation for any actual

prejudice – the claim of prejudice in failing to voir dire jurors about the

photograph is without merit.



                                                                            A-2411-15T3
                                        46
      We would also add that Lewis fails to explain how the proliferation of

such a photograph could have prejudiced him, let alone "completely obliterated"

his right to a fair trial, if he was not depicted. His arguments on appeal suggest

he was depicted, but, if that was the case, it was never brought to the attention

of the trial judge. Moreover, neither his counsel nor Torres's ever requested that

the jury be subjected to voir dire as to their knowledge of the photograph. It

was Harris's counsel who suggested that the jury merely be reminded of its

obligation not to consult social media during the trial, and the other defendants'

attorneys acquiesced.

      Arguably, the invited error doctrine might have application here, see State

v. Corsaro,  107 N.J. 339, 345 (1987), but we see no error at all. A decision

whether or in what manner to conduct voir dire in such a circumstance is subject

to review on appeal only for an abuse of discretion. State v. R.D.,  169 N.J. 551,

559-60 (2001).     The judge did not abuse his discretion in declining to

unilaterally conduct a voir dire of jurors as to whether they saw on social media

a photograph whose existence was speculative, notwithstanding that they had

already been instructed not to visit social media at all and should be presumed

to have followed that instruction. State v. Loftin,  146 N.J. 295, 390 (1996).




                                                                          A-2411-15T3
                                       47
                                       VIII

      Harris argues that the judge erred in failing to grant a mistrial to remedy

the prosecutor's failure to timely disclose a statement that Rose, Harris's cousin,

gave to police.

      In the interest of guaranteeing fair and just trials and promoting the search

for truth, our court rules generally provide criminal defendants with broad pre -

trial discovery. State v. Scoles,  214 N.J. 236, 251-52 (2013). They entitle an

accused to the automatic discovery of any evidence the State gathers to support

its charges, id. at 252, and require that the State promptly furnish copies or

permit inspection of any such evidence, particularly if it is exculpatory, R. 3:13-

3(a)(2), (b)(1). The State has an obligation – beyond the rules themselves – to

disclose any evidence that is material and favorable to the defense pursuant to

Brady,  373 U.S.  at 87, as a matter of due process.

      To establish a violation of that obligation, a defendant must demonstrate

that "(1) the prosecutor failed to disclose . . . evidence, (2) the evidence was of

a favorable character to the defendant, and (3) the evidence was material" to the

outcome of the case. State v. Parsons,  341 N.J. Super. 448, 454 (App. Div.

2001). Evidence that is not directly exculpatory in itself but that has value for

impeachment purposes satisfies the standard. State v. Nash,  212 N.J. 518, 544

                                                                           A-2411-15T3
                                       48
(2013). Moreover, where "no request is made by the defendant or only a general

request is made, information not revealed by the prosecutor will be considered

material only if 'the omitted evidence creates a reasonable doubt that did not

otherwise exist. . . .'" State v. Carter,  91 N.J. 86, 112 (1982) (quoting United

States v. Agurs,  427 U.S. 97, 112 (1976)).

      A judge's determination whether evidence is subject to disclosure under

Brady presents a mixed question of law and fact. State v. Marshall,  148 N.J. 89,

185 (1997). A judge's legal conclusions will be subject to de novo review, while

underlying findings of fact will be disturbed only if clearly erroneous. United

States v. Pelullo,  14 F.3d 881, 886 (3d Cir. 1994).

      The evidence at issue here is a statement that Rose gave to the prosecution

on March 6, 2015, just after the trial began and a week before her anticipated

testimony.   Harris was not immediately advised and did not learn of the

statement until Rose's direct examination on March 12, 2015, after she testified

that she had lent her phone to "quite a few" other individuals in addition to

defendant and could not recall the precise time frames she did so. The State's

attempt to confront her with the transcript of a contrary statement she gave to

police on April 29, 2009, prompted the following exchange:

             Q. Have you ever talked to the police regarding your
             cellphone?

                                                                         A-2411-15T3
                                      49
            A. Uh, to my recollection, I don't know what I talked
            to police about. I told you in 2008 I used to be under
            the influence at all times.

            Q. On April 29, 2009, did you talk to a police
            investigator regarding your cellphone?

            A. You all said I did. I don't know. I don't remember.

            Q. Have you had an opportunity to review a transcript
            of --

            A. Like I said to you . . . and I'm saying it again, that
            transcript is a bunch of crap. In 2008, I can't remember
            two weeks ago. How I'm supposed to remember 2008?

            [(Emphasis added).]

Because Rose suggested she had spoken to the prosecution about her condition

and the quality of the transcript of the April 2009 interview outside the context

of any statement already disclosed to the defense, Harris's counsel immediately

objected and moved for a mistrial on Brady grounds.

      An assistant prosecutor acknowledged that Rose said just before

proceedings began that day that she did not want to testify, that the transcript

was a "piece of crap," and that she was under the influence at the time of the

interview. The judge excused the jury and held a hearing during which Rose

confirmed she made those remarks earlier that day. She further testified that she

made the same remarks, at least with respect to the quality of the transcript and

                                                                         A-2411-15T3
                                      50
her being under the influence, to another assistant prosecutor and a detective on

March 6, 2015, the first time she was shown the transcript.

      The detective Rose identified, however, testified at the hearing that Rose

left after the assistant prosecutor reviewed the transcript of her statement with

her and could not recall her mentioning anything about being intoxicated when

she gave the statement. Another detective present at the same meeting recalled

hearing Rose say, "this is bullshit, I have no involvement, I'm not a witness to

anything"; he could not recall her mention anything about being under the

influence.

      To the extent Rose's recollection of events contrasted with that of the two

detectives, the judge credited the detectives' versions and found, based on their

testimony and the assistant prosecutor's consistent representations, that Rose

had at most told them she was reluctant to testify. That did not, the judge

concluded, constitute evidence covered by Brady and so did not warrant a

mistrial. Nonetheless, given that the issue of Rose's possible substance abuse

came to light, and believing it was relevant to her credibility, the judge ordered

that Rose be excused for the time being. She was not called to testify for at least

two weeks to allow time for investigation of the matter. Rose was recalled to

the stand on April 1, 2015, at which point Harris's counsel exercised his


                                                                           A-2411-15T3
                                       51
opportunity to cross-examine her as to whether she had been under the influence

when she gave the statement, and she testified that she had been.

      Harris maintains on appeal that he was entitled to a mistrial, asserting that

the claimed violation infringed his right to disclosure and, as a consequence, his

right to a fair trial. He points out that the prosecutor conceded failing to disclose

Rose's statement and Rose, who could have been impeached with the statement,

was crucial to the State's circumstantial case against him. But, even taking

Rose's version of events as to what she said at the March 6, 2015, meeting at

face value – and the judge, as was his prerogative, did not view it that way –

that left an opportunity for disclosure prior to her testimony. The State, of

course, disclosed nothing within that window, but, even if it had been bound to

do so pursuant to Brady, the information at issue was nonetheless brought to

light in a timely enough fashion to eliminate any harm from the State's failure

in that regard. See United States v. Higgs,  713 F.2d 39, 43-44 (3d Cir. 1983)

(recognizing, in similar circumstances, that "[n]o denial of due process occurs"

so long as such "material is disclosed . . . in time for its effective use at trial").

      Rose's purported statement came to light early in her initial direct

examination, and defendants were given more than two weeks to investigate the

most pertinent credibility-related evidence therein prior to conducting cross-


                                                                              A-2411-15T3
                                         52
examination. Even if there was anything to the statement that was subject to

mandatory earlier disclosure under Brady, Harris could have suffered no harm

from the State's failure to disclose it, because he learned the information in time

to "effectively use" it for impeachment purposes at trial. Ibid.


                                        IX

       We also reject the arguments of Lewis and Harris that comments the

prosecutor made during summation were not reasonably supported by the

record, misled the jury as to the facts at issue, and thereby deprived them of a

fair trial.

       A prosecutor is "charged not simply with the task of securing victory for

the State but, more fundamentally, with seeing that justice is served." State v.

Reddish,  181 N.J. 553, 641 (2004). Although "afforded considerable leeway"

during summation, "a prosecutor must refrain from improper methods that result

in wrongful conviction." State v. Smith,  167 N.J. 158, 177 (2001). In particular,

prosecutors must confine their comments to "evidence revealed during the trial

and reasonable inferences to be drawn from that evidence." Id. at 178.

       Yet "'not every deviation from the legal prescriptions governing

prosecutorial conduct' requires reversal." State v. Jackson,  211 N.J. 394, 408-

09 (2012) (quoting State v. Williams,  113 N.J. 393, 452 (1988)). A reviewing

                                                                           A-2411-15T3
                                       53
court evaluates challenged remarks not in isolation but in the context of the

summation as a whole. State v. Atwater,  400 N.J. Super. 319, 335 (App. Div.

2008) (citing Carter,  91 N.J. at 105). Reversal is warranted only when the

remarks are "clearly and unmistakably improper" and when the remarks

"substantially prejudice" the accused's right to a fair evaluation of the evidence.

State v. Harris,  181 N.J. 391, 495 (2004); see also State v. Ingram,  196 N.J. 23,

42 (2008). In evaluating the remarks, a reviewing court should consider "(1)

whether defense counsel made timely and proper objections to the improper

remarks; (2) whether the remarks were withdrawn promptly; and (3) whether the

court ordered the remarks stricken from the record and instructed the jury to

disregard them." Smith,  167 N.J. at 182.

      In their appeals, Lewis and Harris complain of the prosecutor's following

remarks about the significance of the numbers in cell phone records showing

calls between the phones attributed to the two:

            Interesting thing about the Robert Harris calls . . . .

            [T]hat 1 (267) in front of the numbers in the Sprint
            records show that that's a call that you have in your
            contacts. That call is saved in your contacts. So all
            those obsessive calls, those 20 consecutive calls from
            Mr. Lewis' telephone, those are all calls to someone
            who he's close enough to have in his contacts. That's
            one of his personal contacts.


                                                                           A-2411-15T3
                                       54
Alluding to other remarks the prosecutor already made about calls from the same

phone to Lewis's fiancé and other friends and relatives, the prosecutor argued

that this coincidence of contacts revealed that Lewis was the individual who had

used the phone when the crimes were committed.

      Harris and Lewis both objected, asserting that Harris was not listed in

Lewis's contacts and that there had been no testimony about the significance of

the prefixes in the call records that would suggest otherwise. The prosecutor

responded that he remembered testimony from a T-Mobile representative to

precisely that effect, and though the judge did not share that recollection, he

concluded that, if on review of the record, no such testimony could be found, he

would entertain a motion to strike the challenged remarks before the jury b egan

deliberations. In the interim, the judge reminded the jury that, "with respect to

the prosecutor's comments regarding the dialed digit and 1 followed by 267,

[whether] that indicates that is a number that is in someone's contacts, you'll

have to rely on your recollection of the evidence as to what was testified in that

regard."

      Lewis's counsel again brought the matter to the judge's attention during a

sidebar on a different objection, asserting that a Sprint representative had

testified in Bond's trial that the significance of the introductory numeral "1" was


                                                                           A-2411-15T3
                                       55
likely that it was pressed when dialing long distance from a landline. But the

judge noted that the prosecutor had cited testimony from a different witness, and

again assured counsel that the testimony would be reviewed for the accuracy of

the prosecutor's earlier remarks.

      The stenographer searched the record at the judge's request during a break

and found the following testimony, albeit from a different witness than the

prosecutor recalled, as to the significance of the number:

            It means that there was a 1 that was dialed prior to the
            area code, when it was dialed, or it also means that on
            Sprint phones when you put in a number into your
            contact list or a speed dial list, it often puts a 1 in.

The prosecutor assured the trial judge that he would clarify his remarks to reflect

that testimony and promptly told the jury:

            Just to clear up any issues regarding when I talked
            about the Sprint telephones and talking to the custodian
            of records and saying when there was a 1 in front of the
            area code, as in 1(267) in the dialed digits columns,
            what I believe the Sprint custodian said -- I asked him,
            what does that mean. He says, there was a 1 dialed, or
            in a Sprint phone, if you add a name to -- or number to
            your contact list or you add a name to your speed dial
            list, the phone automatically puts that 1 in.

            So I made the inference that that number 1 was added
            from a contact list or a speed dial list that the person
            with the phone would have had to enter.



                                                                           A-2411-15T3
                                       56
      Lewis's counsel interjected – claiming the prosecutor's statement was

inaccurate – and the judge again reminded the jurors that their own recollection

of the testimony would prevail. Lewis's and Harris's counsel brought the matter

up again when the prosecutor ended his summation, arguing the remarks

remained misleading, but the judge overruled their objection because the

prosecutor's clarification had been a "fair comment based on the testimony."

      For his part, Harris also takes issue with the prosecutor's mention, in the

course of the following argument in summation, that a particular phone cal l

occurred between Harris and Shyiesha Robichaw:

            So, how about the defendants in this case? Well, Lewis,
            at 6:35, is hitting off a cell tower at 460 Main Avenue
            [in Lodi]. . . . Mr. Harris, who is from Philadelphia,
            Pennsylvania, is communicating with Shyiesha
            Robichaw, another person that you heard. She was
            having a dating relationship. You heard from her. She
            came into court. And at 6:32 p.m., Mr. Harris' phone is
            hitting off of 460 [M]ain Avenue in Lodi. Sharif
            Torres, another person from Philadelphia, at 6:21 p.m.
            is hitting off a cell tower at 460 Main Avenue in
            Wallington, near Lodi. The inference that you can draw
            from those facts is that the three of them were together
            and that they were up near Jamel Lewis' house,
            dropping off Jamel's car in a parking complex before
            traveling to Newark.

            [(Emphasis added).]




                                                                         A-2411-15T3
                                      57
      Harris's counsel did not immediately object, but later brought the issue up

during a sidebar regarding the other challenged remarks addressed above. He

pointed out that the call made at 6:32 p.m. had not actually been to Robichaw's

number and asked that the prosecutor's contrary comment be corrected. The

judge promptly reminded the jury that its recollection of the evidence would

control, but no correction was made, and the State now concedes the remark was

inaccurate.

      Lewis and Harris maintain on appeal that the prosecutor's initial remarks

about the contact list were inaccurate or misleading. Though they acknowledge

that he eventually offered a clarification, they assert that the damage had already

been done, noting that even the judge expressed displeasure with the

prosecutor's conduct during summation when the issue was brought up on

defendants' motions for a new trial. Harris adds that the prosecutor's erroneous

reference to the call with Robichaw likewise unfairly prejudiced him and

deprived him of a fair trial.

      To the extent the prosecutor's initial remarks could be deemed misleading,

simply because he did not specify that he had drawn an inference from particular

testimony, he later was more explicit about that claimed inference. At each turn,

the judge reiterated that the jurors' own recollection of the evidence would


                                                                           A-2411-15T3
                                       58
control, and we adhere to the principle that jurors are presumed to follow a

judge's instructions. Loftin,  146 N.J. at 390. To be sure, as Lewis and Harris

point out, the judge did ultimately express some displeasure with the

prosecutor's delay in clarifying his remarks, but not without appropriately

acknowledging that those remarks entailed a reasonable inference from the

evidence that he was entitled to argue in summation.

      The prosecutor's reference to the call between Harris and Robichaw, on

the other hand, was undisputedly inaccurate.       Ideally, it would have been

stricken from the record or at least, as Harris's counsel requested, corrected for

the jury. But we view the mistake as harmless when considered in context.

Records otherwise showed contact between the phones attributed to Harris and

Robichaw, along with those of other of his acquaintances, tending to show his

use of the phone during the appropriate time period. The only significance of

the 6:32 p.m. call to the prosecutor's argument was that it demonstrated Harris's

location near Lodi when Lewis and Torres were there. Whether the contact was

with Robichaw or not was superfluous to that argument.

      In short, the prosecutor's comment about Harris being included in Lewis's

phone contacts, once clarified, was neither inaccurate nor misleading, and his




                                                                          A-2411-15T3
                                       59
remark as to the phone call between Harris and Robichaw, while inaccurate, was

not harmful.


                                         X

      Harris argues in his pro se supplemental brief that the instructions to the

jury inappropriately suggested that he, rather than the State, was saddled with

the burden of persuasion on accomplice liability.

      Central to the constitutional guarantee of a fair criminal trial is the judge's

"obligation to insure that the jury's impartial deliberations are based solely on

the evidence and are made in accordance with proper and adequate instructions."

State v. Purnell,  126 N.J. 518, 531 (1992). Instructions should serve as a "road

map to guide the jury" in its deliberations, State v. Martin,  119 N.J. 2, 15 (1990),

and provide an accurate and "comprehensible explanation of the questions that

[it] must determine, including the law of the case applicable to the facts that [it]

may find," State v. Green,  86 N.J. 281, 287-88 (1981). Although inaccurate

instructions are generally viewed as "poor candidates for rehabilitation" and are

"ordinarily presumed to be reversible error," State v. Afanador,  151 N.J. 41, 54

(1997), our Supreme Court has recognized that not every inaccuracy warrants

reversal, State v. Jordan,  147 N.J. 409, 422 (1997). In the absence, as here, of

any timely objection to an instruction, a reviewing court will reverse only for

                                                                             A-2411-15T3
                                        60
plain error. Afanador,  151 N.J. at 54. That is, reversal will occur only when the

error, considered in the context of the charge as a whole, "prejudicially affect[s]

the substantial rights of the defendant sufficiently grievous[ly] to justify notice

by the reviewing court and to convince the court that of itself the error possessed

a clear capacity to bring about an unjust result." Jordan,  147 N.J. at 422 (quoting

State v. Hock,  54 N.J. 526, 538 (1969)).

      As to accomplice liability, the judge utilized the precise language of the

model charge, Model Jury Charges (Criminal), "Liability for Another's Conduct

(N.J.S.A. 2C:2-6)" (rev. May 22, 1995), in explaining that accomplice liability

could be proven by circumstantial evidence:

            Mere presence at or near the scene does not make one a
            participant in the crime, nor does the failure of a
            spectator to interfere make him a participant in the
            crime. It is, however, a circumstance to be considered
            with the other evidence in determining whether he was
            present as an accomplice. Presence is not in itself
            conclusive evidence of that fact. Whether presence has
            any probative value depends upon the total
            circumstances. To constitute guilt there must exist a
            community of purpose and actual participation in the
            crime committed.

            While mere presence at the scene of the perpetration of
            a crime does not render a person a participant in it,
            proof that one is present at the scene of the commission
            of the crime, without disapproving or opposing it, is
            evidence from which, in connection with other
            circumstances, it is possible for the jury to infer that he

                                                                           A-2411-15T3
                                       61
            assented thereto, lent to it his countenance and approval
            and was thereby aiding the same. It depends upon the
            totality of the circumstances as those circumstances
            appear from the evidence.

            [(Emphasis added).]

      Harris seizes on the highlighted language and contends it implies that,

once the prosecution established his presence at the scene, the jury could infer

his participation from that lone fact unless he affirmatively demonstrated that

he disapproved of or opposed the crime, an impossibility in a case where he

denied being present. Harris argues, relying on Moore v. Ponte,  186 F.3d 26,

33-34 (1st Cir. 1999), and Gilbert v. Moore,  134 F.3d 642, 647 (4th Cir. 1998),

that the instruction thereby inappropriately shifted the burden of persuasion, and

he asserts that this mistake constituted plain error in the context of a

circumstantial case that turned nearly entirely on proof of his whereabouts while

the crimes were committed.

      We initially note that the instructions in the federal cases on which Harris

relies were held not to justify reversal, even though the prosecution conceded in

both cases the instructions were unconstitutional. Moore, 186 F.3d at 33-34;

Gilbert, 134 F.3d         at 647, 652. The concern in both those cases was that the

instructions created a mandatory presumption, that is, that the instruction could

be understood by jurors as requiring them to infer an element of a charged

                                                                          A-2411-15T3
                                       62
offense from a basic fact in evidence. Moore, 186 F.3d at 33-34; Gilbert, 134 F.3d         at 647. The constitutional infirmity is that such an instruction relieves the

prosecution of its burden to prove every element of the offense beyond a

reasonable doubt by shifting the burden of persuasion to the accused to rebut the

presumed fact. Sandstrom v. Montana,  442 U.S. 510, 524 (1979).

      The challenged instruction here, however, cannot reasonably be construed

to create such a presumption. The model charge, to which the judge adhered,

merely explains that evidence of a defendant's presence at the crime scene,

considered along with the surrounding circumstances, could "possibl[y]" give

rise to an inference that the defendant participated in commission of the crime.

The instruction makes clear that a person's "mere presence . . . does not render

[the defendant] a participant," and that whether the inference should be drawn

must depend on the "totality of the circumstances."

      Confronted with evidence supporting such an inference, a defendant

certainly retains the option to present evidence either tending to show

disapproval or opposition to the crime notwithstanding the defendant's presence

at the scene, or rebutting that the defendant was even present at the scene in the

first place. But nothing in the instruction suggests a defendant has any burden

to do either of those things or otherwise undermines the defendant's right to


                                                                          A-2411-15T3
                                       63
simply put the prosecution to its proofs, In re Winship,  397 U.S. 358, 364

(1970); State v. Parsons,  341 N.J. Super. 448, 457 (App. Div. 2001), which

Harris exercised here. The jury simply did not reach the conclusion he urged.


                                        XI

      Harris and Torres argue the cumulative effect of the alleged errors

justified a judgment of acquittal or new trial and warrant reversal now. To be

sure, reversal may be justified when the cumulative effect of a series of errors

is harmful, even if each is harmless in itself. State v. Jenewicz,  193 N.J. 440,

473 (2008). But, as we have already explained, defendants' arguments lack

merit, so the premise for this argument hasn't been established.


                                       XII

      All defendants contend their sentences were excessive.

      Trial judges possess considerable discretion when sentencing defendants.

State v. Dalziel,  182 N.J. 494, 500 (2005). A judge's decision will not be

disturbed so long as it follows the applicable statutory guidelines, identifies and

weighs all applicable aggravating and mitigating factors, and finds the support

of sufficient credible evidence in the record. State v. Natale,  184 N.J. 458, 489




                                                                           A-2411-15T3
                                       64
(2005). Beyond that, a sentence will be reversed only if it "shocks the judicial

conscience." State v. O'Donnell,  117 N.J. 210, 215-16 (1989).

      When sentencing Lewis, the judge found as aggravating factors the nature

and circumstances of the offense,  N.J.S.A. 2C:44-1(a)(1), and the gravity and

seriousness of the harm to the victim,  N.J.S.A. 2C:44-1(a)(2).         The judge

recognized that finding both may at times constitute double counting on a charge

of felony murder, but he believed the length of time Worthy "suffer[ed] at [his]

hands" justified applying both factors.      The judge additionally found as

aggravating factors the risk of reoffense,  N.J.S.A. 2C:44-1(a)(3), Lewis's

extensive criminal record,  N.J.S.A. 2C:44-1(a)(6), and the need for deterrence,

 N.J.S.A. 2C:44-1(a)(9), explaining that Lewis's criminal history was

"atrocious."4   The judge concluded that these aggravating factors clearly

outweighed the mitigating factors because he, in fact, found no applicable

mitigating factor.

      The judge sentenced Lewis to a term of life imprisonment with a

mandatory minimum of thirty years on the felony murder conviction. He merged

the robbery conviction with the felony murder conviction and sentenced Lewis


4
   Lewis had convictions for six indictable offenses, a municipal ordinance
violation, a disorderly person offense, ten juvenile adjudications, and a juvenile
probation violation.
                                                                          A-2411-15T3
                                       65
to a concurrent thirty-year term on the kidnapping conviction, as well as lesser

concurrent terms on the remaining convictions.

      In sentencing Harris and Torres, the judge found all the same aggravating

factors, except the sixth, and again concluded those factors clearly outweighed

the mitigating factors, of which he found none. Both Harris and Torres were

sentenced to sixty-year prison terms, with mandatory minimums of thirty years,

on the felony murder conviction, and lesser concurrent terms – after merging the

Worthy robbery conviction into the felony murder conviction – on the remaining

convictions.

      Lewis argues on appeal that the judge's finding of the first and second

aggravating factors double counted not only each other but the elements of the

offenses as well. He also claimed the judge should not have given much weight

to the third, sixth, and ninth factors, all of which, he believes, are interrelated

and arguably apply to any criminal case. Lewis is certainly incorrect in the last

respect; indeed, if that were so, the judge would have found, but did not find,

the sixth aggravating factor when sentencing Harris and Torres. Insofar as

Lewis contends that none of the aggravating factors should have been weighed

heavily, it remains that the judge correctly found no competing mitigating

factors and Lewis suggests none now. Moreover, although he is correct that the


                                                                           A-2411-15T3
                                       66
facts establishing the elements of an offense must not be counted as aggravating

circumstances, State v. Kromphold,  162 N.J. 345, 353 (2000), the judge

specified that the first two aggravating factors were supported by the

considerable length of time Worthy was subjected to harm by these defendants,

a circumstance that is not an element of the offense.

      Harris, for his part, raises the same double counting argument as to the

first two aggravating factors. But he and Torres also quarrel with the judge's

finding of those factors on the ground that the evidence failed to reveal the roles

they played in these offenses.     Harris reasons in particular that the jury's

acquittal of him on both weapons offenses leaves no evidence that he personally

committed any of the acts on which the first two aggravating factors could be

based; he relies on State v. Rogers,  236 N.J. Super. 378, 387 (App. Div. 1989),

aff'd,  124 N.J. 113 (1991), for that proposition. Torres adds that, given the

weakness of the evidence establishing his participation in these offenses, the

lack of any evidence as to his particular role in them, and his relatively young

age – twenty at the time of his arrest – the minimum sentence of thirty years

would have been sufficient punishment.

      To be sure, those contentions are arguable but the judge considered them;

the only question is whether the judge's conclusions as to what constituted


                                                                           A-2411-15T3
                                       67
proper and just prison sentences for these defendants fell within his discretion.

Dalziel,  182 N.J. at 500. In that connection, it is certainly the case that the jury

acquitted both Harris and Torres of the weapons charges and it is also true that

the evidence failed to show the precise role each played throughout this series

of criminal transactions. But it does not inexorably follow that the basis for

finding either of the first two aggravating factors here was not personal to each

defendant.

        At issue in Rogers,  236 N.J. Super. at 387, were aggravating factors based

on the circumstances that two of the victims were police officers and one walked

with a limp and was therefore particularly vulnerable. We held there that the

sentencing judge's findings in those regards were inappropriate because there

was no evidence that the defendant actually knew of any of those circumstances.

Ibid.     We explained that, "[a]lthough a defendant may be vicariously

accountable for the crimes his accomplice commits, he is not vicariously

accountable for aggravating factors that are not personal to him." Ibid.

        In contrast, the judge specified that the basis for his finding of the first

two aggravating factors was the sheer length of time Worthy was subject to

harm. The jury's conclusion that Harris and Lewis both participated in the series

of offenses resulting in her harm for that length of time, based on evidence


                                                                            A-2411-15T3
                                        68
tending to show that each participated throughout, sufficed to support the

aggravating factors found here, regardless of their precise individual roles or

whether either of them personally used a weapon.

      We are satisfied that the sentences imposed on all three defendants were

within the judge's discretion and that defendants' arguments to the contrary are

without merit.


                                     ***

      To the extent we have not discussed any other issue raised in the parties'

extensive submissions, it is because we find them to have insufficient merit to

warrant further discussion in a written opinion. R. 2:11-3(e)(2).

      Affirmed.




                                                                        A-2411-15T3
                                      69