STATE OF NEW JERSEY v. RASHAN WASHINGTON

NOT FOR PUBLICATION WITHOUT THE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
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-5069-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

RASHAN WASHINGTON,
a/k/a DAVID HOLDER,
RASHON WASHINGTON,
and RASHAN WILLIAMS,

     Defendant-Appellant.
_________________________

                   Argued October 21, 2020 – Decided November 25, 2020

                   Before Judges Accurso, Vernoia, and Enright.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Essex County, Indictment No. 15-08-1833.

                   Kelley M. Brogan, Designated Counsel, argued the
                   cause for appellant (Joseph E. Krakora, Public
                   Defender, attorney; Kelley M. Brogan, on the brief).

                   Steven Cuttonaro, Deputy Attorney General, argued the
                   cause for respondent (Gurbir S. Grewal, Attorney
                   General, attorney; Steven Cuttonaro, of counsel and on
                   the brief).
PER CURIAM

      Defendant Rashan Washington appeals from an October 20, 2017

judgment of conviction finding him guilty of second-degree unlawful possession

of a handgun,  N.J.S.A. 2C:39-5(b), and second-degree possession of a handgun

for an unlawful purpose,  N.J.S.A. 2C:39-4(a), claiming the jury verdict was the

product of an unfair trial. He also argues his sentence is excessive. We affirm.

      The facts are straightforward. On April 3, 2014, at around 3:10 p.m. ,

Shaquan Grant and Bernardo Coleman were walking out of the Garden Spires

Housing Complex in Newark, where Grant and his family lived. As the men left

the complex, defendant and two others exited a black Chevy Trailblazer and

opened fire on Coleman and Grant. A bullet grazed Coleman's forehead, but

Grant was unharmed. Grant returned fire, while defendant and his accomplices

took cover nearby. A school bus and parked cars were caught in the crossfire.

Grant retreated, and defendant and his cohorts drove off in the Trailblazer.

      Surveillance video captured three individuals running toward the Garden

Spires Housing Complex, and showed the driver exiting the car wearing a black

hooded sweatshirt and sporting dreadlocks.       When the police interviewed

Coleman about the shooting, he could not identify his assailants, but stated the

attackers fled in a Trailblazer. He identified a photograph of the vehicle.

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      On April 4, 2014, Grant was arrested based on his involvement in the

shooting. He agreed to give a statement to the police, using the pseudonym,

"Juan Hernandez." Grant told the police one of the shooters was "[s]hort, kind

of brown-skinned, [with] dreads" and nicknamed "Shooter G" or "Shooter." He

identified defendant as "Shooter" when the police showed him a photo of

defendant.

      The police arrested defendant on April 5, 2014, and searched a black

Chevy Trailblazer parked across the street from his home. During the search,

they found defendant's wallet, a notebook, his bank statement, and a computer

hard drive.

      At trial, defendant chose not to testify. When the State produced Grant

and Coleman to testify, both claimed they could not remember certain details of

the shooting. Accordingly, over defendant's objection, the trial judge permitted

the State to reference the police statements of these witnesses. The State also

produced a ballistics expert, who testified that nine of at least twenty-three shots

fired were from one gun, and the remainder were fired from another. The jury

found defendant guilty of the weapons offenses but could not reach a unanimous

verdict on the more serious charges, including two counts of first-degree




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attempted murder,  N.J.S.A. 2C:5-1 and 2C:11-3(a), and one count of first-degree

conspiracy to commit murder,  N.J.S.A. 2C:5-2 and 2C:11-3(a)(1).

      At sentencing, the judge granted the State's motion for an extended term

and imposed a sentence of fourteen years with a seven-year parole disqualifier

on the possession of a weapon for an unlawful purpose charge. Additionally,

the judge imposed a concurrent seven-year term with a forty-two-month parole

disqualifier on the remaining charge. All other charges were dismissed.

      On appeal, defendant raises the following arguments:

        POINT I

            THE PROSECUTOR'S IMPROPER COMMENTS
            AND       MISCHARACTERIZATION OF THE
            EVIDENCE DURING SUMMATION PREJUDICED
            DEFENDANT AND REQUIRE A NEW TRIAL.
            (Partially Raised Below).

        POINT II

            IN LIGHT OF THE GRAVE DANGER OF
            WRONGFUL      CONVICTION    POSED     BY
            INHERENTLY UNRELIABLE JAILHOUSE SNITCH
            TESTIMONY, ITS INTRODUCTION AT TRIAL IS
            INCOMPATIBLE WITH THE DUE PROCESS
            RIGHTS GUARANTEED UNDER THE NEW
            JERSEY CONSTITUTION AND, THUS, THE
            STATE'S   HEAVY    RELIANCE   ON    SUCH
            TESTIMONY    IN   THIS  CASE    REQUIRES
            REVERSAL OF [DEFENDANT'S] CONVICTIONS.
            IN THE ALTERNATIVE, REVERSAL IS REQUIRED
            BECAUSE THE COURT FAILED TO HOLD A

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             PRETRIAL HEARING ON THE RELIABILITY OF
             THE JAILHOUSE SNITCH TESTIMONY AND
             FAILED TO PROPERLY INSTRUCT THE JURY ON
             HOW TO EVALUATE SUCH TESTIMONY. (Not
             Raised Below).

        POINT III

             THE CUMULATIVE EFFECT OF THE ERRORS AT
             DEFENDANT'S TRIAL DEPRIVED [DEFENDANT]
             OF THE RIGHT OF DUE PROCESS OF LAW AND A
             FAIR TRIAL. (Not Raised Below).

        POINT IV

             THE SENTENCE IMPOSED WAS EXCESSIVE,
             UNDULY PUNITIVE, AND THEREFORE MUST BE
             REDUCED. (Not Raised Below).

      Regarding Point I, defendant contends the State relied on "inflammatory

and misleading statements in its summation" that "angered and misled the jury,"

and "deprived him of a fair trial." We need not address each of defendant's

complaints about the prosecutor's closing remarks. Instead, we highlight a few

to explain why we are satisfied the prosecutor's summation provides no basis for

appellate relief.

      Defendant claims the prosecutor materially deviated from the evidence

presented at trial. He also contends she misled the jury into believing Grant,

Coleman, and defendant knew each other well.         Moreover, he argues the

prosecutor improperly impassioned the jury by repeatedly painting Grant as a

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hero and referencing Grant's family.         Defendant points to the prosecutor's

comment that defendant "brought the war to Garden Spires. He brought the war

to Grant, where Grant lives with his family," and "if Shaquan Grant didn't have

that gun, lives would have been lost."         Additionally, defendant argues the

prosecutor improperly told the jury that the reason Coleman could not remember

the details of the shooting during trial was because of "fear."

      Initially, we note that the trial judge interrupted the State's summation on

two occasions, expressing concern that the prosecutor was making statements

that were not connected to evidence in the case. The judge cautioned her to "be

careful about testifying to . . . things that are not in the record." After the judge

first interrupted her summation, the prosecutor promptly informed the jury she

was referencing "what the State believes are strong inferences from all the facts

that you receive. It's up to you to make that final determination. You are the

final arbiter of the facts and the strong inferences that you can make when it

comes to what happened that day." Subsequently, the judge interrupted the

prosecutor and issued a curative instruction after the prosecutor stated that

detectives have "no problem" with a victim, like Grant, using an alias when

speaking to the police. The judge's curative instruction included the statement

that "if you hear either of the attorneys say something that you believe was not


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in the case or was never testified to in the case, then you have the right to

disregard it." Similarly, when he charged the jury, he reminded jurors that

"summations of counsel are not evidence."

      "A prosecutor must 'conscientiously and ethically undertak[e] the difficult

task of maintaining the precarious balance between promoting justice and

achieving a conviction,' ensuring that at all times his or her 'remarks and actions

[are] consistent with his or her duty to ensure that justice is achieved.'" State v.

Jackson,  211 N.J. 394, 408 (2012) (alterations in original) (quoting State v.

Williams,  113 N.J. 393, 447-48 (1988)). "Notwithstanding the high standard to

which a prosecutor is held as he or she gives an opening statement or summation,

'not every deviation from the legal prescriptions governing prosecutorial

conduct' requires reversal." Id. at 408-09 (quoting Williams,  113 N.J. at 452).

      "[P]rosecutorial misconduct is not grounds for reversal of a criminal

conviction unless the conduct was so egregious as to deprive defendant of a fair

trial." State v. Wakefield,  190 N.J. 397, 437 (2007) (quoting State v. Papasavvas

(I),  163 N.J. 565, 625 (2000)). Indeed, even if improper arguments were made

at closing, if those remarks do not produce an unjust result, they are harmless.

State v. McGuire,  419 N.J. Super. 88, 145 (App. Div. 2011). It is well-settled

that remarks do not constitute reversible error when an objection is made and


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the jury is directed to disregard offending remarks. State v. R.B.,  183 N.J. 308,

333-34 (2005); State v. Murphy,  412 N.J. Super. 553, 560 (App. Div. 2010).

      "Thus, '[t]o justify reversal, the prosecutor's conduct must have been

"clearly and unmistakably improper," and must have substantially prejudiced

defendant's fundamental right to have a jury fairly evaluate the merits of his

defense.'"   Wakefield,  190 N.J. at 438 (alteration in original) (quoting

Papasavvas,  163 N.J. at 625). In making this determination, we

             consider several factors, including whether "timely and
             proper objections" were raised, whether the offending
             remarks "were withdrawn promptly," and whether the
             trial court struck the remarks and provided appropriate
             instructions to the jury. Additionally, [we] will
             consider whether the offending remarks were prompted
             by comments in the summation of defense counsel. If,
             after completing such a review, it is apparent . . . that
             the remarks were sufficiently egregious, a new trial is
             appropriate, even in the face of overwhelming evidence
             that a defendant may, in fact, be guilty. In contrast, if
             the prosecutorial remarks were not "so egregious that
             [they] deprived the defendant of a fair trial[,]" reversal
             is inappropriate.

             [State v. Smith,  212 N.J. 365, 403-04 (2012)
             (alterations in original) (citations omitted) (quoting
             State v. Frost,  158 N.J. 76, 83 (1999)).]

      "[P]rosecutors are afforded considerable leeway in their closing

arguments" and are "expected to make vigorous and forceful closing arguments

. . . ." State v. Smith,  167 N.J. 158, 177 (2001). Still, prosecutors "should not

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make inaccurate legal or factual assertions during a trial and . . . must confine

their comments to evidence revealed during the trial and reasonable inferences

to be drawn from that evidence." Wakefield,  190 N.J. at 437 (quoting State v.

Reddish,  181 N.J. 553, 641 (2004)). A prosecutor "is entitled to be forceful and

graphic in his [or her] summation to the jury, so long as [the prosecutor is]

confine[d] . . . to fair comments on the evidence presented." State v. DiPaglia,

 64 N.J. 288, 305 (1974) (citing State v. Johnson,  31 N.J. 489, 510-11 (1960)).

      Guided by these principles, we are satisfied that the prosecutor's

comments, while at times problematic, did not substantially prejudice

defendant's fundamental right to have a jury fairly evaluate the merits of his

defense.   In fact, it appears the jury followed the judge's instructions, as

defendant was not convicted of the more serious charges involving attempted

murder or conspiracy to commit murder. See State v. Lane,  288 N.J. Super. 1,

11-12 (App. Div. 1995) (noting that had jurors been unfairly influenced by the

prosecutor's comments, they would likely have convicted him of the greater

offense instead of the lesser included). Also, the judge forcefully instructed the

jurors twice during the State's summation and again in his charge that remarks

by counsel made in summation were not to be considered as evidence, the jury

should determine the case based solely on its recollection of the evidence, the


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State had the burden of proof and defendant was entitled to a presumption of

innocence. See State v. Smith,  212 N.J. 365, 409 (2012) (holding a prosecutor's

improper remarks made during summation can be cured so long as the trial court

"clearly instruct[s] the jury that the remarks made . . . were not evidence, but

argument"); see also State v. Loftin,  146 N.J. 295, 390 (1996) (citing State v.

Manley,  54 N.J. 259, 271 (1969)) (accepting the presumption that juries follow

a court's instructions). Accordingly, we are not convinced the prosecutorial

conduct of which defendant complains "was so egregious" as to deprive him of

a fair trial." Wakefield,  190 N.J. at 437 (quoting Papasavvas,  163 N.J. at 625).

      We are satisfied Point II lacks merit and warrants no discussion in a

written opinion. R. 2:11-3(e)(2). Also, given our assessment of Point I, we need

not address Point III at length. "A defendant is entitled to a fair trial, not a

perfect one." Wakefield,  190 N.J. at 537 (quoting Lutwak v. United States,  344 U.S. 604, 619 (1952)). "[D]evised and administered by imperfect humans, no

trial can ever be entirely free of even the smallest defect. [The court's] goal,

nonetheless, must always be fairness." State v. Weaver,  219 N.J. 131, 155

(2014). However, the cumulative error doctrine requires that a court grant a new

trial before a new and impartial jury in two instances. State v. Orecchio,  16 N.J.
 125, 129 (1954). First, when legal errors are of such a magnitude that the


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defendant has been prejudiced. Ibid. Second, when legal errors have, in the

aggregate, caused the trial to be unfair. Ibid.; see State v. Koskovich,  168 N.J.
 448, 540 (2001) (explaining that aggregate effect of errors may cause unfair

trial).    When a defendant claims that the cumulative effect of trial errors

prejudiced him or her, an appellate court must evaluate whether the defendant

received a fair trial and must consider the impact of the errors on the defendant's

ability to present a defense. Wakefield,  190 N.J. at 538.

          As discussed in Point I, the prosecutor's remarks in summation did not

unfairly prejudice defendant.      Moreover, as Point II lacks merit, we are

persuaded defendant is not entitled to appellate relief on the basis of cumulative

error.

          Regarding Point IV, defendant contends that his aggregate sentence was

"unduly punitive." He charges the sentencing judge abused his discretion by

improperly weighing the aggravating and mitigating sentencing factors. Again,

we disagree.

          Here, the sentencing judge found, and weighed heavily, aggravating

factors three (the risk that the defendant will commit another offense), six, (the

extent of the defendant's prior criminal record and the seriousness of the offenses

of which he has been convicted), and nine, (the need to deter the defendant and


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others from violating the law).  N.J.S.A. 2C:44-1(a)(3), (6), (9). The judge

found no mitigating factors and was "clearly convinced that the aggravating

factors substantially predominate."

      Defendant does not contest the aggravating factors found by the trial court

were properly supported by competent evidence in the record. Instead, he argues

the sentencing judge erred in failing to find mitigating factors.

      We are mindful defendant did not request or argue for mitigating factors

at sentencing.   Moreover, the record reflects the judge evaluated potential

mitigating factors, without necessarily identifying them, and found "[t]here were

no mitigating factors argued or suggested and . . . none are applicable here."

The judge's rationale for his sentencing decision can be deduced from the record,

whereby he noted:

            Defendant's past and present conduct indicates that
            nothing short of an extended sentence would prevent
            him from further criminal conduct. His adult felony
            activity goes back 12 years to when he turned 18.
            Furthermore, prior to that, he had no less than six
            contacts with the juvenile justice system, whereby he
            received the benefit of probation. As an adult,
            defendant has been given a benefit of probation, but
            violated the same by committing crimes. He has also
            been sentenced to four years in state prison . . . . [I]t is
            likely that the defendant will commit another offense.

                   ....


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            His prior criminal record is extensive. It is continuous
            and it is escalating, in terms of violence.

                  ....

            This defendant in particular needs to understand that
            this continued pattern of crime, which has now
            escalated in terms [of] violence, will not be tolerated.

      "An appellate court's review of a sentencing court's imposition of sentence

is guided by an abuse of discretion standard." State v. Jones,  232 N.J. 308, 318

(2018). We "must affirm the sentence of a trial court unless:

            (1) the sentencing guidelines were violated; (2) the
            findings of aggravating and mitigating factors were not
            "based upon competent credible evidence in the
            record"; or (3) "'the application of the guidelines to the
            facts' of the case 'shock[s] the judicial conscience.'"

            [State v. Bolvito,  217 N.J. 221, 228 (2014) (quoting
            State v. Roth,  95 N.J. 334, 364-65 (1984)).]

      This court is "bound to affirm a sentence, even if [we] would have arrived

at a different result, as long as the trial court properly identifies and balances

aggravating and mitigating factors that are supported by competent credible

evidence in the record." State v. O'Donnell,  117 N.J. 210, 215 (1989) (citing

State v. Jarbath,  114 N.J. 394, 400-01 (1989)). "[M]itigating factors that are

suggested in the record, or are called to the court's attention, ordinarily should

be considered and either embraced or rejected on the record."            State v.


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Blackmon,  202 N.J. 283, 297 (2010). A trial court need not "explicitly reject

each and every mitigating factor argued by a defendant." State v. Bieniek,  200 N.J. 601, 609 (2010). Where the aggravating factors predominate, the sentence

imposed will lean "toward the higher end of the range," giving appropriate

weight to all the factors. State v. Case,  220 N.J. 49, 64-65 (2014) (citations

omitted).

      Here, we discern no abuse of discretion in the trial court's identification

and weighing of the applicable aggravating factors. Further, the record fully

supports the trial court's finding regarding the lack of mitigating factors. As the

judge adhered to the sentencing guidelines and defendant's sentence does not

shock the judicial conscience, we perceive no basis to disturb defendant's

sentence.

      Affirmed.




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