STATE OF NEW JERSEY v. DANUWELI M. KELLER
Annotate this CaseNOT 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 NO. A-1623-17
A-3672-17
A-4177-17
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DANUWELI M. KELLER,
Defendant-Appellant.
_______________________
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ABDUTAWAB KIAZOLU,
Defendant-Appellant.
________________________
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
PHOBUS E. SULLIVAN,
Defendant-Appellant.
_______________________
Submitted November 30, 2020 – Decided December 10, 2021
Before Judges Sabatino, Gooden Brown, and
DeAlmeida.
On appeal from the Superior Court of New Jersey, Law
Division, Mercer County, Indictment Nos. 17-01-0009
and 11-12-1209,1 and Accusation No. 17-12-0801.
Joseph E. Krakora, Public Defender, attorney for
appellant Danuweli M. Keller (Michael Confusione,
Designated Counsel, on the brief).
Joseph E. Krakora, Public Defender, attorney for
appellant Abdutawab Kiazolu (Michele E. Friedman,
Assistant Deputy Public Defender, of counsel and on
the brief).
Joseph E. Krakora, Public Defender, attorney for
appellant Phobus E. Sullivan (John Vincent Saykanic,
Designated Counsel, on the brief).
Angelo J. Onofri, Mercer County Prosecutor, attorney
for respondent in A-1623-17 (Lauren Martinez,
Assistant Prosecutor, of counsel and on the brief).
Angelo J. Onofri, Mercer County Prosecutor, attorney
for respondent in A-3672-17 and A-4177-17 (Brittany
Saxton, Assistant Prosecutor, of counsel and on the
briefs).
1 Indictment No. 17-01-0009 supersedes Indictment No. 11-12-1209.
A-1623-17
2
Appellant, Danuweli M. Keller, filed a pro se supplemental brief.2
The opinion of the court was delivered by
GOODEN BROWN, J.A.D.
Defendant Danuweli M. Keller and others were charged in connection
with the kidnapping, robbery, and murder of Dar Dar Paye, 3 and the kidnapping
and robbery of Alfonso Slaughter. Following a jury trial, Keller was convicted
of most of the charges related to Paye, including murder, and witness tampering
related to Slaughter. The jury hung on the remaining charges. Keller was
sentenced to an aggregate term of sixty-one years' imprisonment, fifty-six years
of which are subject to an eighty-five percent period of parole ineligibility
pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
At trial, the State alleged that in late 2010, Keller and several codefendants
abducted Slaughter, held him at gunpoint in the basement of a house, restrained
him and robbed him, but Slaughter managed to escape. A little over two months
later, the men abducted Paye, held him at gunpoint in the basement of the same
house, restrained him and robbed him. However, unlike Slaughter, Paye was
2
Although the brief is labeled "[r]eplied" brief, we consider it a supplemental
brief.
3
Dar Dar alternately appears as Dardar in the record.
A-1623-17
3
fatally shot in the head by Keller, wrapped in garbage bags, and placed in the
trunk of Paye's car, a Buick LeSabre. Thereafter, Keller and his cohorts drove
the Buick and two other vehicles during a high-speed chase, eluding police who
attempted to conduct a motor vehicle stop after observing the drivers commit
numerous traffic violations. Once the Buick finally stopped, one of the car's
occupants repeatedly exclaimed he had "nothing to do with the guy in the back."
Because there was no other occupant in the vehicle, an officer opened the trunk
and found Paye's body.
On appeal, in his counseled brief, Keller raises the following points for
our consideration:
POINT I
THE TRIAL COURT DENIED DEFENDANT A FAIR TRIAL BY
DENYING DEFENDANT'S MOTION TO SEVER AND ORDER
SEPARATE TRIALS FOR THE SLAUGHTER AND PAYE
CRIMES.
POINT II
THE TRIAL COURT ERRED IN GRANTING THE STATE'S
MOTION TO ADMIT AT TRIAL HEARSAY STATEMENTS OF
ALFONSO SLAUGHTER PURSUANT TO N.J.R.E. 804(B)(9).
POINT III
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S
MOTION TO SUPPRESS EVIDENCE SEIZED BY POLICE.
A-1623-17
4
POINT IV
THE TRIAL COURT VIOLATED DEFENDANT'S RIGHT TO A
FAIR JURY TRIAL BY DENYING DEFENDANT'S MOTION
FOR A MISTRIAL AFTER THE JURY TWICE REPORTED
BEING DEADLOCKED.
POINT V
DEFENDANT'S SENTENCE IS IMPROPER AND
EXCESSIVE.
In his pro-se brief, Keller makes the following arguments:
POINT I
TRIAL COUNSEL WAS INEF[F]ECTIVE FOR NOT
BEING PRESENT DURING CRUCIAL STAGES OF
THE TRIAL.
POINT II
THE COURT[']S FAILURE TO [VOIR] DIRE THE
TWO JURORS IN DEFENDANT[']S TRIAL WHO
WAS [SIC] STATED IGNORING THE LAW AND
NOT TAKING THE OATH SERIOUSLY,
VIOLATED DEFENDANT[']S RIGHT TO A FAIR
TRIAL. THUS VIOLATING DEFENDANT[']S
SIXTH AMENDMENT [RIGHT] TO A FAIR TRIAL
UNDER THE UNITED STATES CONSTITUTION;
AMEND VI; AND ARTICLE 1 PARAGRAPH 10 OF
THE NEW JERSEY CONSTITUTION.
POINT III
FAILURE OF THE COURT TO NOT SUBSTITUTE
THE JURORS WHO WERE BIASED OR DECLARE
A MISTRIAL WAS IMPROPER TO CONTINUE TO
A-1623-17
5
HAVE BIASED JUROR[S] CONTINUE TO
DELIBERATE.
Defendant Phobus E. Sullivan is a codefendant of Keller who was also
charged in connection with the kidnapping, robbery, and murder of Paye and the
kidnapping and robbery of Slaughter. Sullivan, who was driving the Buick when
police tried to conduct the motor vehicle stop, fled on foot after stopping the car
on Route 1 in Pennsylvania, but was soon apprehended by police. After losing
his suppression motion related to the motor vehicle stop and other pre-trial
motions, Sullivan entered a negotiated guilty plea to first-degree kidnapping,
N.J.S.A. 2C:13-1(b), and admitted he participated in Paye's kidnapping. He was
sentenced to eleven years' imprisonment, subject to NERA, to run consecutive
to a sentence he was already serving on an unrelated homicide charge.
On appeal, Sullivan raises the following points for our consideration:
POINT I [4]
THE STOP OF THE BUICK WAS PRETEXTUAL
AND NOT SUPPORTED BY A REASONABLE
SUSPICION OF A TRAFFIC OR SAFETY
VIOLATION IN VIOLATION OF THE UNITED
STATES AND NEW JERSEY CONSTITUTIONS
(U.S. CONST. AMEND. IV; N.J. CONST. ART. 1,
PARA. 7).
4
To avoid redundancy, we have omitted the portions of the point headings titled
the standard of review, the law, and the Law Division decision.
A-1623-17
6
POINT II
THE WARRANTLESS SEARCH OF THE TRUNK OF
THE BUICK L[E]SABRE CANNOT BE JUSTIFIED
BY THE EMERGENCY AID EXCEPTION AND THE
SEIZURE OF THE BODY VIOLATED THE UNITED
STATES AND NEW JERSEY CONSTITUTIONS
MANDATING SUPPRESSION OF THE ILLEGALLY
SEIZED CORPSE (U.S. CONST. AMEND. IV; N.J.
CONST. ART. 1, PARA. 7).
POINT III
THE WARRANTLESS SEARCH OF THE TRUNK OF
THE BUICK L[E]SABRE CANNOT BE JUSTIFIED
BY THE INEVITABLE DISCOVERY EXCEPTION
AND THE SEIZURE OF THE BODY VIOLATED
THE UNITED STATES AND NEW JERSEY
CONSTITUTIONS MANDATING SUPPRESSION
OF THE ILLEGALLY SEIZED CORPSE (U.S.
CONST. AMEND. IV; N.J. CONST. ART. 1, PARA.
7).
Defendant Abdutawab Kiazolu is another codefendant of Keller but was
only charged with the offenses related to Paye. Kiazolu was an occupant of the
vehicle driven by Keller during the high-speed chase. Keller's vehicle was
tailgating the Buick when police attempted to conduct the motor vehicle stop.
Like Sullivan, after losing the suppression motion, Kiazolu entered a negotiated
guilty plea to a one-count accusation charging him with second-degree
conspiracy to disturb human remains, N.J.S.A. 2C:2-6(b)(4) and 2C:22-1(a)(1),
A-1623-17
7
and admitted he conspired with his codefendants in moving Paye's body. He
was sentenced to a flat ten-year prison term.
On appeal, Kiazolu raises the following points for our consideration:
POINT I
THE COURT'S FINDING THAT THE EMERGENCY
AID EXCEPTION TO THE WARRANT
REQUIREMENT WAS SATISFIED, BUT THAT
COMMUNITY CARETAKING DOCTRINE WAS
NOT, IS INCONSISTENT AND FUNDAMENTALLY
FLAWED.
A. The Motion Court's Determination
That The Community Caretaking Doctrine
Was Inapplicable, But There Was An
Exigency Sufficient To Justify The
Emergency Aid Doctrine, Is Legally
Inconsistent.
B. Under The Circumstances, There
Was No Objectively Reasonable Basis To
Believe That An Emergency Required The
Detective's Immediate Assistance Under
The Emergency Aid Doctrine.
POINT II
THE STATE FAILED TO DEMONSTRATE THAT
THE EVIDENCE IN THE TRUNK WOULD HAVE
BEEN DISCOVERED INEVITABLY ABSENT THE
UNCONSTITUTIONAL SEARCH.
The three appeals were submitted to us back-to-back. Because they share
common facts and legal issues, we now consolidate them for the purpose of
A-1623-17
8
issuing a single opinion. We have considered all the arguments presented in
light of the record and applicable legal principles. We reject each of the points
raised and affirm.
I.
On January 4, 2017, a Mercer County grand jury returned a twenty-three-
count superseding indictment against Keller, Sullivan, Kiazolu, and others 5
charging various crimes involving Paye and Slaughter.6 In counts one through
thirteen pertaining to Paye, the indictment charged Keller, Sullivan, and Kiazolu
with murder, N.J.S.A. 2C:11-3(a)(2) and 2C:2-6 (count two);7 two counts of
felony murder, N.J.S.A. 2C:11-3(a)(3) and 2C:2-6 (counts three and four); first-
degree robbery, N.J.S.A. 2C:15-1(a)(1) and 2C:2-6 (count five); first-degree
kidnapping, N.J.S.A. 2C:13-1(b) and 2C:2-6 (count six); two counts of third-
degree theft by unlawful taking, N.J.S.A. 2C:20-3(a)(3) and 2C:2-6 (counts
5
Mack Edwards and William Daquan Brown were also charged.
6
Trial was scheduled to begin in September 2016 on the original indictment
returned in 2011. After a jury was selected but before it was sworn, Slaughter
could not be located, prompting the trial judge to discharge the jury. As a result
of further investigation into witness tampering, a Mercer County grand jury
returned the superseding indictment that is the subject of these appeals.
7
In count one, Keller was also charged with murder, contrary to N.J.S.A. 2C:11-
3(a)(1), 2C:11-3(a)(2), 2C:11-3(b)(4)(f), and/or 2C:11-3(b)(4)(g).
A-1623-17
9
seven and eight); second-degree possession of a firearm for an unlawful purpose,
N.J.S.A. 2C:39-4(a) and 2C:2-6 (count nine); and fourth-degree tampering with
physical evidence, N.J.S.A. 2C:28- 6(a)(1) and 2C:2-6 (count twelve). In counts
ten and eleven, respectively, Keller and Sullivan were each charged separately
with second-degree eluding, N.J.S.A. 2C:29-2(b). In count thirteen, Sullivan
was charged with second-degree certain persons not to possess firearms,
N.J.S.A. 2C:39-7.
In counts fourteen through twenty-three pertaining to Slaughter, Keller
and Sullivan were charged with first-degree carjacking, N.J.S.A. 2C:15-2 and
2C:2-6 (count fourteen); first-degree kidnapping, N.J.S.A. 2C:13-1(b) and 2C:2-
6 (count fifteen); first-degree robbery, N.J.S.A. 2C:15-1 and 2C:2-6 (count
sixteen); and third-degree theft by unlawful taking, N.J.S.A. 2C:20-3(a) and
2C:2-6 (count twenty). In count twenty-one, Keller was charged with third-
degree witness tampering, N.J.S.A. 2C:28-5. In count nineteen, Sullivan was
charged with second-degree possession of a firearm for an unlawful purpose,
N.J.S.A. 2C:39-4(a), and in count twenty-three, he was charged with second-
degree certain persons not to possess firearms, N.J.S.A. 2C:39-7. In total, Keller
was charged in sixteen counts. The remaining counts charged other
codefendants who are not parties to these appeals.
A-1623-17
10
Following the adjudication of several pre-trial motions, Keller was tried
jointly with codefendant Edwards, beginning May 30, 2017. After sixteen non-
consecutive days of trial, during which the State produced twenty-three
witnesses consisting primarily of law enforcement officers, on June 29, 2017,
Keller was found guilty of counts two, three, four, five, nine, ten as amended,8
twelve, and twenty-one. The jury hung on the remaining eight counts. Keller
did not testify or produce any witnesses at trial. We glean the following facts
from the trial record.
Crimes Involving Victim Alfonso Slaughter:
At about 8:00 a.m. on November 1, 2010, Alfonso Slaughter went to the
Trenton Police Department and reported to Officer Hector Gonzalez and
Detectives James Letts and Christopher Doyle that he had been "kidnapped and
robbed." On that date, Slaughter gave a video recorded statement during which
he did not identify the perpetrators. Subsequently, on June 10, 2011, after being
charged with drug-related offenses and hoping to obtain leniency, 9 Slaughter
provided a more detailed sworn written statement to Sergeant Michael
8
Keller was found guilty of the lesser included offense of third-degree eluding.
9
Slaughter had an extensive prior criminal history consisting primarily of drug
distribution offenses.
A-1623-17
11
Kruchinsky of the Trenton Police Department and Lieutenant James Francis of
the Mercer County Prosecutor's Office, positively identifying the participants in
the kidnapping and robbery as Keller, Edwards, Sullivan, Kiazolu,10 Brown, and
Tarweh Morris.11
During the June 10, 2011 statement, Slaughter explained he did not
identify anyone during his initial report because he feared retaliation and "was
afraid of [the defendants]." Slaughter's fear was well founded because
subsequently, in September 2016, Keller and Edwards contacted Slaughter
through threatening letters, phone calls, and other menacing means and
convinced him not to testify against them at trial, notwithstanding the fact that
Slaughter was held in contempt of court for violating a subpoena to testify and
risked voiding his plea agreements with the State. As a result, on the State's pre-
trial application, the trial judge admitted Slaughter's statements to police under
10
Although Slaughter positively identified Kiazolu as a participant, he was
never indicted for these charges.
11 On July 8, 2011, about a month after giving his sworn statement, Slaughter
entered into a plea agreement with the State to resolve his pending drug charges.
Under the terms of the plea agreement, Slaughter agreed to provide truthful
testimony in any matter involving the prosecution of Keller, Edwards, Sullivan,
Kiazolu, Brown, and Morris. Thereafter, Slaughter was charged with another
drug-related offense, leading to the execution of a second plea agreement on
March 9, 2016.
A-1623-17
12 N.J.R.E. 804(b)(9), which allows the admission of a statement against a party
whose wrongdoing caused the declarant's unavailability as a witness. Thus,
during the trial, Slaughter's November 1, 2010 and June 10, 2011 statements
were presented to the jury in lieu of his live testimony.
In his statements, Slaughter told police he had arranged to meet Keller and
Brown for a drug deal at 729 Monmouth Street in Trenton, a residence familiar
to all the parties.12 Slaughter had contacted Keller and Brown earlier after
learning they had been robbed in Newark of "$12,000 worth of dope." At about
midnight on November 1, 2010, Slaughter "parked on Monmouth Street" to
await Keller's arrival. Suddenly, "two dudes with guns ran up to the car," "put
a bag over [Slaughter's] head," and forced Slaughter into the backseat of his car.
The men then "drove around the block" before taking Slaughter "into a house."
Inside the house, the men removed the bag, brought Slaughter "into the
basement," "put [him] in a chair," "took [his] boots," and "duct taped [his] hands
and legs."13 Slaughter recognized the basement as 729 Monmouth Street
12
The house was owned by a relative of Sullivan. Sullivan resided there and
rented rooms to various individuals.
13
Officer Gonzalez noted that when Slaughter arrived at the police station on
November 1, 2010, he had duct tape "partially wrapped around his wrist" and
A-1623-17
13
because "[he] had been there before." The men informed Slaughter they wanted
"drugs or money" and proceeded to search Slaughter, taking his "keys, two
phones, a cross, a set of yellow diamond earrings, [his] hat, . . . a scarf, and $80."
However, "[t]hey missed [$3,500 he] had tucked in [his] briefs." Realizing he
had been set up by his friends, Slaughter asked the men "why they were doing
all this." One of the men replied, "it's not personal, . . . it's all about money,"
and stated "they were planning to get more people." As Slaughter "kept talking,"
the men "told [him] to shut up," and one man "hit [him] in the head with a little
black gun,"14 causing Slaughter to "f[a]ll out of the chair." The men "then redid
the duct tape on [Slaughter's] hands and feet and put duct tape over [his] mouth."
Later, Slaughter was "tied . . . to a pole in the basement with a phone cord."
Slaughter eventually told the men he had "some money at [his] mom's
house," and the men decided they would go to Slaughter's mother's house after
she left for work in the morning to search for the money. However, they
threatened Slaughter that if they did not find any money, "they [were] going to
kill [his] mother," and kill Slaughter "if [he told] anybody." The men then "went
was not wearing any shoes. Gonzalez also testified Slaughter appeared "scared
[for] his life."
14
According to Slaughter, he observed the man with the black gun put on "latex
gloves."
A-1623-17
14
upstairs and left [Slaughter] alone in the basement." Slaughter used the
opportunity to "break[] out of the tape and the phone cord." When he heard the
men leave the house, Slaughter crawled out of the basement, "ran out the door,"
"hopped two fences," and "flagged . . . down" a friend who drove Slaughter to
his girlfriend's house. Upon arrival, Slaughter told his girlfriend everything that
had happened. After Slaughter saw the car the men had taken from him "drive
past [his] girlfriend's house," he went to the police station and reported the
crimes.
Tarweh Morris testified for the State at trial and corroborated Slaughter's
statements. Morris was initially indicted for his role in kidnapping Slaughter
and pled guilty to criminal restraint pursuant to a plea agreement with the State
that required him to testify against defendants. Morris explained that Keller
planned to rob drug dealers to "[r]eplenish the funds" stolen from him in
Newark. Morris also testified that at Keller's behest, he attempted to get
Slaughter to sign an affidavit recanting his statements.
Crimes Involving Victim Dar Dar Paye:
About two months after Slaughter's abduction, on January 15, 2011, Dar
Dar Paye was brought to the basement of 729 Monmouth Street where he was
restrained, robbed, and killed.
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15
Morris was visiting 729 Monmouth Street at the time and testified that
Keller, Edwards, Sullivan, Kiazolu, and Brown were also at the house.
However, Morris stated he remained upstairs most of the time "[w]atching a
football game" on television. Ray Manigo testified at trial that he was a resident
of 729 Monmouth Street and was also upstairs watching a football game at the
time in question. Although Manigo had given statements to police implicating
defendants in Paye's murder, at trial, Manigo recanted his statements and
testified he had lied to the police. As a result, Manigo's January 20, 2011 video
recorded statement to Lieutenant Francis and Detective Kruchinsky was played
for the jury during the trial after the judge granted the State's application to admit
the statement as a prior inconsistent statement pursuant to N.J.R.E. 803(a)(1).
In the statement, Manigo explained that while he was watching the
football game upstairs, he was instructed to go to the basement. Keller,
Edwards, Sullivan, and Kiazolu were present as well as "three other guys . . .
[he] had never seen before." In the basement, Manigo observed a man he did
not know "taped to [a] chair" and Keller with a "gun in his hand." The man was
"struggling at first, but . . . wasn't going nowhere," and the others, including
Keller, were "standing there watching him." Keller gave Manigo twenty dollars
A-1623-17
16
and instructed him to go to a nearby store and "get two containers of bleach and
. . . the big box of . . . trash bags."
When Manigo returned with the bleach and trash bags, the man was still
in the chair, "squirming" and "struggling trying to get the tape off." Manigo was
instructed to stay in the basement "for a while" because Sullivan "did not want
[anyone] going out or coming in." Manigo stated everyone except him had on
latex gloves. According to Manigo, Keller was "yelling" at the man, "ranting"
and "cuss[ing]" him out, and "puffing his . . . chest up" as he "pac[ed] back and
forth." Eventually, Keller "pointed the gun at [the man's] head" and "pulled the
trigger," approximately "three inches away from [the man's] head." Manigo
recounted the man's "head flew back, then it fell forward," and he "saw blood
dripping down from [the man's] head."
Manigo stated everyone was silent for "maybe ten, [fifteen] seconds" after
Keller shot the man. Then, Keller "started giving out instructions," and
discussing how to get "rid of the body." Sullivan directed Manigo to go back
upstairs. From there, Manigo observed Keller and Edwards "carry[] . . . a big
black trash bag," containing what he "believed [to be the man's] body," outside
of the residence and place it into the trunk of a "brown car."
A-1623-17
17
Morris, who was outside after being instructed to leave the residence, also
observed "[b]lack trash bags" containing what he believed was "[a] body" being
placed in the trunk of "[a] Buick." After, Sullivan and Edwards entered the
Buick while Keller and Kiazolu entered a white minivan parked in front of the
Buick. Brown entered a silver Lincoln which was parked on the corner.
According to Morris, all three cars then left in a "[c]onvoy," "following each
other."
Testimony adduced from several law enforcement witnesses as well as
video footage detailed defendants' path, driving in the three vehicles through
Trenton towards Pennsylvania. Shortly before 1:00 a.m. on January 16, 2011,
Trenton police officers recounted observing the vehicles traveling "in tandem"
at "high speeds," "tailgating," and failing to "stop[] or yield[]" at intersections.
The officers called for backup and attempted to conduct a motor vehicle stop
but the vehicles eluded police in a high-speed pursuit that finally ended on Route
1 South near "the Oxford Valley [Mall] exit" in Pennsylvania. There, the Buick
came to "an abrupt stop." The driver, later identified as Sullivan, "exit[ed] the
vehicle and fled on foot," running "across the highway," but was eventually
apprehended and detained.
A-1623-17
18
Contemporaneously, the passenger in the Buick, later identified as
Edwards, was apprehended after he exited the vehicle and attempted to bypass
the officers. When Edwards was detained, he began "screaming uncontrollably"
that he had "nothing to do with the guy in the back." Based on his statement,
officers "scanned the interior of the vehicle, . . . open[ing] the rear passenger
side door, and shin[ing a] flashlight [onto] the floorboard area," but "did [not]
see anybody there." As Edwards continued to yell "I got nothing to do with the
guy in the back,"15 an officer opened the trunk and "observed a body" wrapped
in "garbage bags."
Meanwhile, the white minivan continued to elude police, but was
eventually stopped by Pennsylvania State Troopers on Interstate 95 after spike
strips were deployed to disable the vehicle. The driver and passenger, later
identified as Keller and Kiazolu, respectively, were arrested at the scene of the
stop. The silver Lincoln escaped capture.
The Buick was secured and ultimately towed to police headquarters. The
body in the trunk, which was wrapped in black plastic garbage bags with "[r]ed
drawstrings," was later identified as Dar Dar Paye. The medical examiner
15
Police also observed a "rubber glove on the driver's seat of the [Buick]."
A-1623-17
19
testified Paye was killed by a "gunshot wound to the head" from close range.
After the vehicle was impounded, a registration check revealed Paye was the
owner of the Buick.
Upon obtaining a search warrant for the Buick, officers found "[sixteen]
bags of suspected . . . heroin" and "a bag of marijuana in the front compartment
of the vehicle," as well as rubber gloves on the "driver's seat" and "passenger
side" floor. A subsequent search of the minivan conducted pursuant to a search
warrant revealed black plastic garbage bags with red drawstrings containing
various items. One bag contained "used gray duct tape," another contained "a
latex glove" and a bloodstained piece of cardboard, and a third contained a
bloodstained coat.16 Subsequent DNA testing revealed that the blood on the coat
and the cardboard matched Paye's.
During the ensuing investigation, police searched 729 Monmouth Street
and recovered "a black leather wallet" containing Paye's "New Jersey driver[']s
license" in "a storage area above the basement stairs." In various areas of the
house, police also discovered an "empty box of . . . trash bags . . . with . . . red
drawstrings," "a trash bag with a red tie," and rolls of duct tape. A chair, an
16
Pennsylvania authorities obtained and executed the search warrants.
A-1623-17
20
"empty" bottle of Clorox bleach, "a piece of duct tape," and "pieces of
cardboard" were found in the basement.
After the State rested, Keller moved for a judgment of acquittal pursuant
to Rule 3:18-1, which the judge denied. Following the jury verdict, Keller was
sentenced on September 7, 2017, and a conforming judgment of conviction was
entered on September 22, 2017.
On December 8, 2017, Sullivan pled guilty to first-degree kidnapping of
Paye (count six) and was sentenced on January 26, 2018. A conforming
judgment of conviction was entered on January 29, 2018, and amended on
February 12, 2018. On December 22, 2017, Kiazolu pled guilty to second-
degree conspiracy to disturb human remains in connection with the removal of
Paye's body and was sentenced on January 26, 2018. A conforming judgment
of conviction was entered on January 29, 2018. These appeals followed.
II.
All three defendants challenge the denial of their respective motions to
suppress the evidence seized from the trunk of the Buick, specifically Paye's
body. Keller argues "[t]he State did not prove that the stop of the Buick was
premised on the required 'articulable and reasonable suspicion that the driver
has committed a motor vehicle offense.'" Specifically, Keller asserts the
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21
testimony given by detectives at the suppression hearing was "unrelated to the
claimed speeding," and "there was no separate speeding ticket issued by law
enforcement." Therefore, Keller proffers, "[t]he officers created a pretext to
pursue the three vehicles." Keller further argues "[e]ven if the stop was valid,
the State did not establish that the emergency-aid exception permitted the
warrantless search of the Buick" because "there was no emergency in the case."
Additionally, Keller asserts the State "did not prove the inevitable discovery
doctrine applied." Accordingly, Keller urges us to reverse the judge's denial of
his suppression motion and "vacate [his] subsequent convictions [which were]
premised in large part on the evidence unlawfully seized by the police."
Sullivan's arguments are similar. He asserts "the stop was pretextual and
not based on any legitimate motor vehicle violations," but rather "an
unsubstantiated and unsupported hunch." Sullivan also asserts there was no
"reasonable basis for a belief that an emergency life-threatening situation
existed" to obviate the warrant requirement, and "[t]he State's argument as to
the applicability of the inevitable discovery exception is purely speculative."
Kiazolu does not contest the motor vehicle stop but argues the judge's
"finding that there was no exigency under the community caretaking doctrine,
but there was nonetheless a sufficient exigency under the emergency aid
A-1623-17
22
exception to the warrant requirement, is legally inconsistent" and
"fundamentally flawed." Specifically, Kiazolu argues "[i]f there were no
emergent circumstances for purposes of the community caretaking exception –
as the motion court correctly found – then, there also must have been no
exigency in the context of the emergency-aid sister doctrine." Kiazolu also
argues "there is no basis in the record to support the conclusion that the evidence
in the Buick's trunk would have inevitably been discovered."
During the four-day suppression hearing, the judge heard testimony from
the "three detectives involved in the high-speed pursuit," Detectives Charles
Steever, Jason Astbury, and Aaron Bernstein, respectively, an eight-and-a-half-
year, fifteen-year, and ten-year veteran of the Trenton Police Department. The
judge also reviewed "video surveillance" showing the three vehicles' "failure to
yield to the detective's emergency lights," and examined the motor vehicle
tickets issued, computer-aided dispatch (CAD) reports, and audio recordings of
the police dispatch admitted into evidence. Thereafter, on June 30, 2014, the
judge issued an order and accompanying thirty-five-page written opinion
denying the motions to suppress the evidence found in the Buick's trunk.
In the opinion, the judge made credibility assessments, finding the three
"experienced detectives" to be "credible witnesses." The judge found their
A-1623-17
23
testimony to be "forthcoming," "truthful," "consisten[t]" in "the major aspects,"
and supported by "the CAD radio transmission." Crediting their testimony, the
judge made the following factual findings:
After midnight on Sunday, January 16, 2011,
Detective Charles Steever and partner, Detective Jason
Astbury were operating as Unit 543, an unmarked
police vehicle, as part of the City of Trenton Police
Department Tactical Anti-Crime (T.A.C.) unit. At the
time, both [d]etectives were dressed in the TAC
uniform of the day, which prominently displayed police
identifiers.
At approximately 12:54 a.m. the detectives were
on patrol in the area of Anderson Street and Hamilton
Avenue in the City of Trenton. They were parked, with
the engine running, on South Anderson approximately
[fifty] yards south of the intersection with Hamilton
Avenue . . . . Both detectives testified they had an
unobstructed and well[-]lit view of North Anderson and
observed three vehicles driving south on North
Anderson and each made a right hand turn on to
Hamilton Avenue within several feet of each other
driving one after another at a high rate of speed.
The vehicles were as follows: (1) a silver four
door vehicle, followed by (2) a tan, four door Buick
("Buick") with a different colored driver's side door
panel,[17] followed by (3) a white minivan.
17
Although the detectives suspected the Buick was the subject of a "be on the
lookout" (BOLO) alert related to its suspected involvement in a series of recent
home invasions, the State only relied on the motor vehicle violations as the legal
basis for the stop.
A-1623-17
24
Having observed and determined the vehicles
committed the aforesaid motor vehicle violations, the
detectives made a left from Anderson Street onto
Hamilton Avenue, to follow the three vehicles. The
two detectives observed the vehicles maintain a close
proximity to each other at an estimated speed up to 40
to 50 MPH in excess of the 25 MPH speed limit down
Hamilton Avenue, a residential area, toward Chestnut
Avenue. Detective Steever drove the patrol car while
Detective Astbury operated radio communications.
Back-up units were called to assist as detectives
continued to follow the speeding vehicles down
Hamilton Avenue by South Clinton Avenue. At this
intersection the three vehicles almost struck another
vehicle . . . . At this point, the detectives made a
decision to stop the three vehicles for motor vehicle
violations.
The vehicles continued at a high rate of speed,
making a right on South Clinton Avenue, a left onto
Market Street, a right onto Stockton Street and a final
right onto Route 1 South. At this point, back up Unit
#411 comprised of Officer Gliottone and Carrigg,
joined the pursuit, pulling behind Detective Astbury
and Detective Steever. As the detectives were in an
unmarked vehicle that would not be as noticeable,
Detective Astbury instructed Unit #411 to activate its
lights and siren in the hope all three vehicles would
stop.
Unit #411 activated its lights and sirens, yet all
three vehicles continued to travel at a high rate of
speed. None of the vehicles yielded to the officers'
signals as they travelled down Route 1 South.
....
A-1623-17
25
. . . The high[-]speed pursuit continued onto
Route 1 [s]outhbound in Pennsylvania . . . , where the
Buick cut off several vehicles causing the vehicles to
swerve out of the way to avoid being struck. The chase
reached speeds of 70 to 80 miles per hour.
The silver vehicle was able to exit at Route 1
South at the Route 13 exit and escape capture. As there
were only two police units in pursuit, Detectives
Steever and Astbury continued their pursuit of the tan
Buick, and Officers Carrigg and Glittone continued
their pursuit of the minivan. [18]
The Buick continued on Route 1 South for
several miles with Detectives Steever and Astbury in
pursuit with flashing lights and sirens, where it swerved
at one point toward the right shoulder almost leaving
the roadway and continued in the shoulder for a short
distance as if the occupants were attempting to discard
something out of the moving vehicle. . . . The vehicle
then swerved back into the roadway and continued on
Route 1 South before coming to an abrupt halt near the
Sesame Place/Oxford Valley Road exit.
As the Buick stopped, Detectives Steever and
Astbury parked their unmarked sedan behind it. At the
time of the Buick's stop, Detectives Ramos and
Bernstein arrived on the scene and blocked the front of
the Buick to prevent its ability to leave the scene. The
driver, later identified as defendant, Phobus Sullivan,
immediately exited the vehicle and fled on foot. . . .
Detective Steever chased after Phobus Sullivan, giving
clear and direct orders to stop.
18
According to the judge, when "[t]he minivan was eventually stopped by the
Pennsylvania State Police on [Interstate] 95 South in . . . Pennsylvania[,]" the
occupants, "Keller and Kiazolu were arrested."
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26
At the same time, Detective Astbury approached
the passenger side of the Buick to detain the passenger,
later identified as defendant Mack Edwards. As
Edwards exited the vehicle, Detective Astbury ordered
him to show his hands and remain where he was.
Edwards did not comply with orders, and attempted to
force his way past Detective Astbury. . . . Believing
that Edwards was armed with a weapon, Detective
Astbury placed Edwards in a headlock and ordered him
to place his hands behind his back. Edwards again did
not comply with the orders. . . . [A] struggle[] ensued
until Edwards finally relinquished his hands and
submitted to arrest.
. . . Detective Bernstein assisted Astbury in
securing Edwards. . . . After [Edwards] was handcuffed
and positioned on the shoulder of Route 1 [S]outh,
Edwards was screaming "oh no," "I got nothing to do
with the guy in the back." Detective[s] Astbury and
Bernstein looked at each other since they were not
aware of any "guy in the back" and such a person could
potentially pose a danger to them. Bernstein had
entered the front driver door to move the gear shift into
park and Astbury had struggled with Edwards as he
exited the open front passenger door but neither had
seen an additional person in the Buick. [19]
Concerned for his safety, Detective Astbury
opened the passenger back door of the Buick, but
observed no one. He quickly scanned the interior of the
vehicle with a flashlight, and observed a green colored
19
The judge noted that Edwards' statement "was not captured by the officers'
radio[s] worn on their vest[s], nor by the vehicle radio" and therefore was not in
the CAD report. However, the judge found "[t]he CAD transcript support[ed]
the detectives['] testimony that their personal radios worn on their vests were
not working."
A-1623-17
27
rubber glove on the front driver's seat. [20] Detective
Astbury walked around to the open driver's door while
Edwards continued to yell "I got nothing to do with the
guy in the back!"
According to the judge, at that juncture, Detective Astbury considered the
following in deciding how to proceed:
[the] statements of Edwards that an individual was in
the back of the vehicle, the high[-]speed chase from
Trenton into Pennsylvania, the fact Sullivan ran from
the vehicle to continue his attempt to elude capture, the
attempt by Edwards to run past Astbury to escape,
Edwards['s] excited state, and no person located in the
interior cabin of the vehicle.
Based on those considerations, out of "concern[] for the safety of the 'guy,'"
Astbury "pushed the trunk release button to check the trunk for the 'guy' Edwards
was yelling about," "lifted the trunk and observed a body." Astbury promptly
"checked for a pulse, but could not locate one."
The judge recounted that "[t]he vehicle was secured as a homicide scene
by Detectives Astbury and Bernstein," and "[i]t was later determined the Buick's
owner was the victim, Dardar Paye." The judge noted "the Buick would not be
20
The judge found that "Detective Astbury visually examined the green colored
rubber glove," which "appeared to be inside out, as if someone had removed it
from their hand," and "alerted the other units in pursuit via radio that a suspect
in the Buick was wearing rubber gloves." The detectives testified that "a suspect
may wear gloves to avoid leaving fingerprints."
A-1623-17
28
released to any of the defendants[] arrested since none of the four [was] the
owner." Further, "[t]he standard procedure of the Trenton Police Department
[was] to contact the owner," or "a family member" to "obtain consent to search
the vehicle." If those attempts were unsuccessful, "the Trenton [p]olice would
request a search warrant to search the car." In that regard, the judge credited
Detective Astbury's testimony "that although he never viewed any CDS in the
vehicle, he was advised there was suspected marijuana inside the vehicle in plain
view by the front passenger seat," which "observation . . . would have led the
detectives to apply for a search warrant to search the Buick."
Applying the governing legal principles, the judge first determined the
motor vehicle stop was lawful based on the detectives' objectively reasonable
belief that motor vehicle violations had occurred. Detectives Steever and
Astbury observed all three vehicles engage in various motor vehicle violations
as a result of which Sullivan, the Buick's driver, was ultimately issued tickets
for careless driving, N.J.S.A. 39:4-97, "encompass[ing] . . . tailgating, speeding,
and failure to come to a complete stop at [the] Anderson and Hamilton Avenue
stop sign," reckless driving, N.J.S.A. 39:4-96, for almost striking another
vehicle "at the intersection of Hamilton and South Clinton Avenues," and failure
to yield to an emergency vehicle, N.J.S.A. 39:4-91, "at the Warren Street ramp
A-1623-17
29
onto Route 1 South." In rejecting defendants' contention that the detectives'
failure to issue a speeding ticket was fatal to the State's proofs, the judge credited
Detective Steever's testimony that "such a ticket was not issued because there
was no radar detection system in his vehicle."
Next, the judge held that while the community caretaking exception did
not apply to the search of the trunk, the facts fell squarely within the scope of
the emergency aid doctrine. In finding the community caretaking exception did
not apply, the judge explained:
The community caretak[ing] exception to the warrant
requirement applies in situations where the police are
already aware of an immediate emergency which
requires their attention. Here, Detective Astbury had a
belief there may be a person in the trunk of the vehicle,
however, he had no reason to believe a specific person
was in the trunk. Police were not actively looking for
the victim, as he had not been reported missing.
On the other hand, applying the emergency aid doctrine, the judge found:
[I]n light of defendant Edward's statement as to the
"guy in the back" along with the [o]fficers' observation
[that] no person was in the passenger compartment of
the vehicle, under the totality of the circumstances, it
was reasonable for Detective Astbury to believe an
individual may have been in the trunk of the vehicle,
and may have required immediate life-saving
assistance.
A-1623-17
30
The judge further noted he did not have to find that "Detective Astbury's
belief was 'a near certainty as to the presence of the person at risk in the [trunk].'"
Additionally, according to the judge, because "the vehicle had just been in a
high-speed chase and Edwards and Sullivan both attempted to flee, it was
reasonable for Detective Astbury to conclude there may have been a person in
peril in the trunk of the vehicle." The judge found Detective Astbury's "intention
when looking in the trunk was to provide life-saving aid to a person he believed
he would find inside," and was "limited" to the "specific purpose of checking to
see if there was a person in the trunk." Notably, "after determining the victim
was deceased, Detective Astbury did not continue to search the trunk or the
interior compartment of the Bu[i]ck."
Finally, the judge concluded that even if the emergency aid doctrine did
not apply, "the victim's body would have inevitably been discovered through
legitimate means" independent of Detective Astbury's discovery. The judge
expounded:
It is clear to this [c]ourt the vehicle would have been
impounded as none of the arreste[es was] the owner of
the vehicle. After being impounded, the Buick would
have undergone a search, either due to an inventory
search, a warrant based upon the marijuana and rubber
glove found in the vehicle, or the impending odor that
would have occurred as a result of the decomposition
of the body. Any one of these lawful means of
A-1623-17
31
searching the vehicle would have resulted in the
victim's body being discovered, and would have
occurred, wholly independently of the discovery of the
victim's body as a result of a warrantless search.
Additionally, as testified to by the Trenton detectives,
the . . . search of the vehicle[']s registration showed the
car belonged to the victim whom police would have
attempted to find. After contacting family members
and not finding the missing person, police would have
obtained a warrant to search the vehicle to determine
the owner[']s whereabouts. . . . [T]he State need not
demonstrate the precise manner which would have led
to the discovery, only present facts sufficient to
persuade this court by a clear and convincing
[evidence] standard the body would have been
discovered. Here, the court finds by clear and
convincing evidence the victim's body would have
ultimately been discovered through one of the means
the State suggested. Therefore, the evidence found in
the trunk of the Buick does not require suppression.
In our review of the denial of a suppression motion, we "must uphold the
factual findings underlying the trial court's decision, provided that those
findings are 'supported by sufficient credible evidence in the record.'" State v.
Sencion, 454 N.J. Super. 25, 31 (App. Div. 2018) (quoting State v. Boone, 232 N.J. 417, 425-26 (2017)). We defer to the judge's factual findings "because the
motion judge, unlike an appellate court, has the 'opportunity to hear and see the
witnesses and to have the "feel" of the case, which a reviewing court cannot
enjoy.'" State v. Gonzales, 227 N.J. 77, 101 (2016) (quoting State v. Johnson,
42 N.J. 146, 161 (1964)). However, "[w]e owe no deference . . . to conclusions
A-1623-17
32
of law made by trial courts in suppression decisions, which we instead review
de novo." Sencion, 454 N.J. Super. at 31-32 (citing State v. Watts, 223 N.J. 503,
516 (2015)).
Here, we are satisfied the judge's factual findings are amply supported by
sufficient credible evidence in the record and turn to our de novo revie w of the
judge's legal conclusions. We begin our analysis by considering whether the
stop was justified.
"To be lawful, an automobile stop 'must be based on reasonable and
articulable suspicion that an offense, including a minor traffic offense, has been
or is being committed.'" State v. Bacome, 228 N.J. 94, 103 (2017) (quoting
State v. Carty, 170 N.J. 632, 639-40 (2002)). The required "'articulable reasons'
or 'particularized suspicion' of criminal activity must be based upon the law
enforcement officer's assessment of the totality of circumstances with which he
is faced . . . in view of [the] officer's experience and knowledge, taken together
with rational inferences drawn from those facts." State v. Davis, 104 N.J. 490,
504 (1986).
Here, the automobile stop "had all the indicia of validity." Bacome, 228 N.J. at 103. As the judge found, the stop followed the detectives' observations
of multiple traffic code violations for which the driver was issued numerous
A-1623-17
33
motor vehicle summonses. We reject Keller's and Sullivan's arguments that the
stop was pretextual because there was no specific motor vehicle summons issued
for speeding. The issuance of such a summons would have been superfluous
under the circumstances. Because the objective reasonableness of the stop was
amply supported by the record, we discern no legal or factual basis to interfere
with the judge's well-founded decision.
Next, we turn to the propriety of the warrantless search of the trunk. "Both
the United States Constitution and the New Jersey Constitution guarantee an
individual's right to be secure against unreasonable searches or seizures." State
v. Minitee, 210 N.J. 307, 318 (2012); see also U.S. Const. amend. IV; N.J. Const.
art. I, ¶ 7. "'[O]ur constitutional jurisprudence evinces a strong preference for
judicially issued warrants . . . .'" State v. Chisum, 236 N.J. 530, 545 (2019)
(quoting State v. Mann, 203 N.J. 328, 337 (2010)). "So important is the
requirement that the police obtain a warrant before proceeding to conduct a
search that a search conducted without a warrant is presumed to be invalid."
Minitee, 210 N.J. at 318. For that reason, when a warrantless search is
challenged, the State bears the burden of proving by a preponderance of the
credible evidence that the search is "justified by one of the '"well-delineated
A-1623-17
34
exceptions" to the warrant requirement.'" State v. Shaw, 213 N.J. 398, 409
(2012) (quoting State v. Frankel, 179 N.J. 586, 598 (2004)).
"One such exception to the warrant requirement . . . is the emergency-aid
doctrine." State v. Hathaway, 222 N.J. 453, 468 (2015) (citation omitted). "The
emergency-aid doctrine is a 'species of exigent circumstances . . . .'" Id. at 468-
69 (quoting United States v. Martins, 413 F.3d 139, 147 (1st Cir. 2005)). To
invoke this doctrine, the State must show "(1) the officer had an objectively
reasonable basis to believe that an emergency require[d] that he provide
immediate assistance to protect or preserve life, or to prevent serious injury and
(2) there was a reasonable nexus between the emergency and the area or places
to be searched." Id. at 470 (alteration in original) (quoting State v. Edmonds,
211 N.J. 117, 132 (2012)).
The primary rationale for the doctrine is that neither the
Fourth Amendment nor Article I, Paragraph 7 of our
State Constitution requires "that public safety officials
stand by in the face of an imminent danger and delay
potential lifesaving measures while critical and
precious time is expended obtaining a warrant."
[Id. at 469 (quoting Frankel, 179 N.J. at 599).]
"The emergency aid doctrine only requires that public safety officials
possess an objectively reasonable basis to believe – not certitude – that there is
a danger and need for prompt action." Id. at 470 (quoting Frankel, 179 N.J. at
A-1623-17
35
599). Thus, "[t]he reasonableness of a decision to act in response to a perceived
danger in real time does not depend on whether it is later determined that the
danger actually existed." Ibid. To that end, "[w]hen viewing the circumstances
of each case, a court must avoid 'the distorted prism of hindsight' and recognize
'that those who must act in the heat of the moment do so without the luxury of
time for calm reflection or sustained deliberation.'" Id. at 469 (quoting Frankel,
179 N.J. at 599). Indeed, "[a] court must 'examine the conduct of those officials
in light of what was reasonable under the fast-breaking and potentially life-
threatening circumstances that were faced at the time.'" Ibid. (quoting Frankel,
179 N.J. at 599). Additionally, "[p]olice officers oftentimes must rely on
information provided by others in assessing whether . . . there is an objectively
reasonable basis to believe an ongoing emergency threatens public safety." Id.
at 470-71.
"The scope of the search under the emergency aid exception is limited to
the reasons and objectives that prompted the search in the first place." Id. at 470
(quoting Frankel, 179 N.J. at 599). "Therefore, police officers looking for an
injured person may not extend their search to small compartments such as
'drawers, cupboards, or wastepaper baskets.'" Ibid. (quoting Frankel, 179 N.J.
at 599). "If, however, contraband is 'observed in plain view by a public safety
A-1623-17
36
official who is lawfully on the premises and is not exceeding the scope of the
search,' that evidence will be admissible." Ibid. (quoting Frankel, 179 N.J. at
599-600).
While "related," the emergency aid and community caretaking exceptions
are doctrinally "separate exceptions." State v. Witczak, 421 N.J. Super. 180,
192 (App. Div. 2011). Under the community caretaking exception, first
enunciated by the United States Supreme Court in Cady v. Dombrowski, 413 U.S. 433 (1973), police may "engage in what has been 'described as community
caretaking functions, totally divorced from the detection, investigation, or
acquisition of evidence relating to the violation of a criminal statute.'" State v.
Garbin, 325 N.J. Super. 521, 525 (App. Div. 1999) (quoting State v. Navarro,
310 N.J. Super. 104, 108 (App.Div.1998)). In that capacity, "police officers,
who act in an objectively reasonable manner, may check on the welfare or safety
of a citizen who appears in need of help on the roadway without securing a
warrant or offending the Constitution." State v. Scriven, 226 N.J. 20, 38 (2016);
see also State v. Diloreto, 180 N.J. 264, 275 (2004) ("The 'community caretaker
doctrine' provides another basis on which to excuse the warrant requirement."
(quoting State v. Cassidy, 179 N.J. 150, 161 n.4 (2004))).
A-1623-17
37
However, "the community caretaking responsibility must be a real one,
and not a pretext to conduct an otherwise unlawful warrantless search." State v.
Bogan, 200 N.J. 61, 77 (2009). Generally, "the community caretaker
doctrine . . . is based on a service notion that police serve to ensure the safety
and welfare of the citizenry at large," Diloreto, 180 N.J. at 276 (quoting John F.
Decker, Emergency Circumstances, Police Responses, and Fourth Amendment
Restrictions, 89 J. Crim. L. & Criminology 433, 445 (1999)), while "[t]he
emergency aid exception focuses on . . . 'the existence of an emergency as
viewed objectively, . . . a search not motivated by a desire to find evidence and
. . . a nexus between the search and the emergency.'" Witczak, 421 N.J. Super.
at 192 (quoting Cassidy, 179 N.J. at 161). "Thus, the emergency aid exception
is one aspect of the police's community caretaking functions, but '[t]he
community caretaker exception . . . is an independent and broader exception to
the Fourth Amendment.'" Ibid. (alterations in original) (quoting State v. Deneui,
775 N.W.2d 221, 251-52 (S.D. 2009) (Meierhenry, J., dissenting)).
Here, we agree with the judge that the emergency aid exception justified
the warrantless search of the trunk. Contrary to defendants' assertions, based on
the swiftly moving events and uncertain circumstances confronting him,
Detective Astbury had an objectively reasonable basis to believe an emergency
A-1623-17
38
required immediate assistance to protect or preserve life or prevent serious
injury. In that regard, Astbury was confronted with Edwards's excited utterances
about an individual in the back of the vehicle when there was no other person in
the car's passenger compartment, the high-speed chase from Trenton into
Pennsylvania, Sullivan's flight from the vehicle to continue to elude capture, and
Edwards' attempt to flee. Further, there was a reasonable nexus between the
emergency and the area searched as the trunk was the only other part of the
vehicle where a person could have been located, and the search was, in fact,
confined to the trunk.
Kiazolu argues "the dearth of sounds emanating from the car should have
objectively dispelled any suspicion that the trunk contained a person in need of
emergency medical care." On the contrary, under the circumstances, the
detective would have been remiss in his duties if he had failed to open and search
the trunk after confirming there was no other occupant in the interior
compartment. To hold otherwise would subject our examination of the
detective's conduct to the prohibited "distorted prism of hindsight." Frankel,
179 N.J. at 599. "That the perceived danger, in fact, may not have existed does
not invalidate the reasonableness of the decision to act at the time." Ibid. Thus,
A-1623-17
39
the search of the trunk and the seizure of the body were justified under the
emergency aid doctrine.
We need not resolve whether the community caretaking exception also
allowed the detective to open the trunk without a warrant to ensure the safety of
any potential victim. Suffice it to say that the detective's actions fell well within
the legally accepted limits of the emergency aid doctrine, and we reject Kiazolu's
contention that any "legal-incongruity" between the judge's finding that the
emergency aid doctrine applied but the community caretaking exception did not,
rendered the ruling "legally inconsistent" or "fundamentally flawed." On that
point, contrary to Kiazolu's assertion, the judge's rejection of the applicability
of the community caretaking doctrine was not predicated on insufficient
exigency.
We briefly address defendants' challenge to the judge's separate
determination that the body in the Buick's trunk would have been inevitably
discovered even if the warrantless search was not justified. The "inevitable-
discovery" doctrine is an "exception to the exclusionary rule" permitting the use
of unlawfully seized evidence in criminal prosecutions. State v. Holland, 176 N.J. 344, 361 (2003).
A-1623-17
40
Under the "inevitable discovery" doctrine, the State
must "show by clear and convincing evidence" the
following:
(1) proper, normal and specific
investigatory procedures would have been
pursued in order to complete the
investigation of the case; (2) under all of
the surrounding relevant circumstances the
pursuit of those procedures would have
inevitably resulted in the discovery of the
evidence; and (3) the discovery of the
evidence through the use of such
procedures would have occurred wholly
independently of the discovery of such
evidence by unlawful means.
[State v. Maltese, 222 N.J. 525, 552 (2015) (quoting
State v. Johnson, 120 N.J. 263, 289 (1990)).]
"[U]nder this standard, 'the State need not demonstrate the exact
circumstances of the evidence's discovery . . . . It need only present facts
sufficient to persuade the court, by a clear and convincing standard, that the
[evidence] would be discovered.'" Ibid. (second and third alterations in original)
(quoting State v. Sugar, 108 N.J. 151, 158 (1987)). "If the State can show that
'the information ultimately or inevitably would have been discovered by lawful
means . . . the deterrence rationale [of the exclusionary rule] has so little basis
that the evidence should be received.'" Id. at 551-52 (alterations in original)
(quoting Nix v. Williams, 467 U.S. 431, 444 (1984)).
A-1623-17
41
Guided by these principles, we conclude the State met its burden of
establishing by clear and convincing evidence that normal police procedures
would inevitably have led to the discovery of the body in the Buick's trunk
wholly independently of the warrantless search. Contrary to Keller's and
Sullivan's arguments, the State did not merely "speculate[] on what might have
occurred," but demonstrated several different ways in which the body could have
been discovered. The State "'need not establish the exclusive path leading to the
discovery. . . . It may [satisfy its burden] by demonstrating that such discovery
would occur in one or in several ways. A number of possibilities may
cumulatively constitute clear and convincing evidence that the evidence would
be discovered.'" State v. Finesmith, 406 N.J. Super. 510, 523 (App. Div. 2009)
(alterations in original) (quoting Sugar, 108 N.J. at 158-59). Accordingly, we
are satisfied the judge properly applied the doctrine's three-prong test and reject
defendants' contentions to the contrary.
III.
In Point I of his counseled brief, Keller argues the judge erred in denying
his motion to sever the Paye counts from the Slaughter counts. According to
Keller, the abduction of Slaughter and the murder of Paye were separate and
distinct offenses and "[p]ermitting the evidence from the Slaughter incident was
A-1623-17
42
highly prejudicial to defendant on the charges of the Paye incident" for which
he was found guilty. Keller contends the only "commonality between the two
incidents was [that] the abduction and robbery [occurred] inside the basement
of the same home." Conversely, Keller asserts "the incidents occurred more
than two months apart," and while Slaughter was "lured to the location via the
promise of a drug sale," there was "insufficient evidence [to] show[] that this
lure was used in the Paye crime."
Whether severance should be granted is within the trial judge's discretion,
and we will defer to that decision absent an abuse of discretion. State v.
Chenique-Puey, 145 N.J. 334, 341 (1996). An abuse of discretion "arises when
a decision is 'made without a rational explanation, inexplicably departed from
established policies, or rested on an impermissible basis.'" Flagg v. Essex Cnty.
Prosecutor, 171 N.J. 561, 571 (2002) (quoting Achacoso-Sanchez v. Immigr. &
Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)). "An appellate court
can also discern an abuse of discretion when the trial court fails to take into
consideration all relevant factors and when its decision reflects a clear error in
judgment." State v. S.N., 231 N.J. 497, 515 (2018) (quoting State v. C.W., 449 N.J. Super. 231, 255 (App. Div. 2017)).
A-1623-17
43
Rule 3:7-6 permits joinder when two or more offenses are "of the same or
similar character or are based on the same act or transaction or on [two] or more
acts or transactions connected together or constituting parts of a common
scheme or plan." However, a court may sever joined charges "[i]f . . . it appears
that a defendant or the State is prejudiced by a permissible or mandatory joinder
of offenses." R. 3:15-2(b). Although a defendant must offer "[m]ore than a
cavil allegation of prejudice . . . to warrant an order for separate trials of properly
joined offenses," State v. Reldan, 167 N.J. Super. 595, 598 (Law Div. 1979),
aff'd in part, rev'd in part on other grounds, 185 N.J. Super. 494 (App. Div.
1982), the remedy of severance "should be liberally granted if there is a
possibility of substantial harm." Pressler & Verniero, Current N.J. Court Rules,
cmt. 1.1 on R. 3:7-6 (2021).
In deciding a motion for severance, the trial court must "weigh the
interests of judicial economy and efficiency against the right of every accused
to have the merits of his case fairly decided." State v. Scioscia, 200 N.J. Super.
28, 43 (App. Div. 1985). While judicial economy and efficiency are important
considerations, the "key factor in determining whether prejudice exists from
joinder of multiple offenses is 'whether the evidence of [those] other acts would
be admissible in separate trials under [N.J.R.E. 404(b).]'" State v. Krivacska,
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44
341 N.J. Super. 1, 38 (App. Div. 2001) (alterations in original) (quoting State v.
Moore, 113 N.J. 239, 274 (1988)). Thus, when determining whether counts must
be severed, a court must examine each charge sought to be severed and
determine if evidence of each charge "would be admissible under [N.J.R.E.
404(b)] in the trial of the remaining charges"; if so, such charge shall not be
severed. State v. Sterling, 215 N.J. 65, 73 (2013) (alteration in original) (quoting
Chenique-Puey, 145 N.J. at 341).
Under N.J.R.E. 404(b), evidence of other crimes is inadmissible to prove
a "defendant's criminal disposition as a basis for establishing guilt of the crime
charged." State v. Covell, 157 N.J. 554, 563 (1999). However, evidence
generally inadmissible under N.J.R.E. 404(b) is expressly admissible "to prove
other facts in issue, such as 'motive, intent, plan, knowledge, identity, or absence
of mistake or accident.'" Id. at 563-64 (quoting State v. Stevens, 115 N.J. 289,
293 (1989)). Other-crimes evidence may also "be admitted when relevant to
some fact in issue not specifically referred to in N.J.R.E. 404(b)(2)." Biunno,
Weissbard, & Zegas, Current N.J. Rules of Evidence, cmt. 15 on N.J.R.E. 404
(2021).
To be admissible under N.J.R.E. 404(b), other-crimes evidence must
satisfy the well-established four-prong test set forth in State v. Cofield, 127 N.J.
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328 (1992). Specifically, to be admissible, evidence of other crimes must: 1)
be "'relevant to a material issue'"; 2) "'be similar in kind and reasonably close in
time to the offense charged'"; 3) "'be clear and convincing'"; and 4) have
probative value that is not "'outweighed by its apparent prejudice.'" Id. at 338
(quoting Abraham P. Ordover, Balancing the Presumptions of Guilt and
Innocence: Rules 404(b), 608(b) and 609(a),
38 Emory L.J. 135, 160-61
(1989)).21 We accord a trial judge "ample discretion in determining whether to
grant relief from joinder of offenses because of the potential for prejudice ."
State v. Pitts, 116 N.J. 580, 601 (1989).
Here, in his June 10, 2016 written opinion denying Keller's motion to
sever, the judge determined severance was not warranted because the Slaughter
and Paye crimes were "not only similar, connected and probative of one another,
but such evidence [was] admissible N.J.R.E. 404(b) evidence under the Cofield
analysis." The judge noted both crimes involved the same "three defendants;
. . . occurred at night in the basement of 729 Monmouth Street; and . . . involved
a nearly identical method consisting of duct taping the victim to a wooden chair
and robbing them."
21
Our Supreme Court has since recognized that the second prong does not
necessarily apply in all cases. State v. Williams, 190 N.J. 114, 130-34 (2007).
A-1623-17
46
Specifically, in applying the first prong of the Cofield test, the judge found
the evidence of the Slaughter crimes relevant to motive, identity, and
opportunity in the Paye crimes. Acknowledging that Slaughter was a self-
proclaimed drug dealer, the judge credited Slaughter's statement "that he was
targeted because . . . defendants believed he would have cash and/or drugs on
him," as well as Morris's statement that "defendants were targeting and robbing
other drug dealers after Keller and Brown were robbed in Newark." The judge
determined the statements revealed defendants' motive and was satisfied the
"motive for kidnapping and robbing Paye [could] be demonstrated through the
Slaughter kidnapping and robbery."
Regarding opportunity, the judge stated defendants "had the ability to
carry out crimes of this complexity" without raising the suspicion of neighbors
or other residents of the house because they had "unfettered access" to "a private
location to perform them," namely, the basement of 729 Monmouth Street. As
to identity, the judge found "Slaughter and Paye were both duct[-]taped to an
old wooden chair in the basement of the residence" and therefore the residence
"[could] be used to identify the defendants involved in the crimes."
Next, the judge determined the second prong of the Cofield test was
satisfied because the "offenses were similar in that the method in which they
A-1623-17
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were completed . . . were nearly identical," and "they were committed two[-
]and[-]one[-]half . . . months apart." As to the third prong of the Cofield test,
the judge found "the standard of clear and convincing evidence [was] met" based
"on the eyewitness statements of Slaughter, Tarweh Morris, and Ray Manigo, as
well as other evidence discovered at . . . 729 Monmouth [Street]" including "[a]n
empty box of black garbage bags with red drawstrings, an empty bottle of
bleach, and items belonging to Paye." Finally, turning to the fourth prong of the
Cofield test, the judge found "the evidence from the kidnapping and robbery of
Slaughter [was] highly probative in the trial for the murder of Paye ," and
"[w]hile there is always a threat of prejudice in any 'other-crimes' analysis, the
probative value of the evidence . . . is not outweighed by its potential prejudice
to defendants."
We discern no abuse of discretion in the judge's denial of Keller's
severance motion. We know the jury was able to consider guilt as to each victim
separately because it did not convict Keller of the kidnapping and robbery of
Slaughter. Thus, contrary to Keller's contention, joinder of crimes related to
both victims in one trial was not unduly prejudicial.
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48
IV.
In Point II of his counseled brief, Keller argues the judge "erred in
permitting Slaughter's hearsay testimony to go before the jury per N.J.R.E.
804(b)(9)," the admission of which "infringed defendant's federal and state
confrontation rights." We disagree.
"We begin by noting that '[a] trial court's evidentiary rulings are entitled
to deference absent a showing of an abuse of discretion, i.e., there has been a
clear error of judgment.'" State v. Rinker, 446 N.J. Super. 347, 358 (App. Div.
2016) (alteration in original) (quoting State v. Nantambu, 221 N.J. 390, 402
(2015)). "However, when the trial court fails to apply the proper test in
analyzing the admissibility of proffered evidence, our review is de novo." Ibid.
Pursuant to N.J.R.E. 804(b)(9), the so-called forfeiture-by-wrongdoing
exception to the hearsay rule, the hearsay statement of an unavailable witness is
admissible against a party if that party "engaged, directly or indirectly, in
wrongdoing that was intended to, and did, procure the unavailability of the
declarant as a witness." In State v. Byrd, 198 N.J. 319, 324 (2009), our Supreme
Court embraced this exception to the hearsay rule to achieve "three important
policy objectives." First, the rule "ensure[s] that a criminal defendant will not
profit from making a witness unavailable to testify." Id. at 324-35. Second, it
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49
"provide[s] a powerful disincentive against witness intimidation." Id. at 325.
Last, it "further[s] one of the primary goals of every trial – the search for truth."
Ibid.
"Significantly, the admission of evidence under the forfeiture -by-
wrongdoing [exception] does not offend the Sixth Amendment to the United
States Constitution," because "one who obtains the absence of a witness by
wrongdoing forfeits the constitutional right to confrontation." Id. at 339-40
(quoting Davis v. Washington, 547 U.S. 813, 833 (2006)). "Accordingly, the
forfeiture-by-wrongdoing [exception] is grounded in common sense, supported
by public policy, and does not run afoul of the federal Confrontation Clause. "
Id. at 340.
"When the State intends to introduce a witness's statement through
[N.J.R.E. 804(b)(9)], it must make known its intention as soon as reasonably
practicable." Id. at 350. "Ordinarily, the State should advise defense counsel
and the court as soon as it becomes aware that the defendant's wrongful conduct
has made the witness unavailable and that it intends to offer the witness's out-
of-court statement into evidence." Ibid. Indeed, "N.J.R.E. 807 . . . specifically
permits the judge to exclude the evidence when 'it appears that the proponent's
intention to offer the statement in evidence was not made known to the adverse
A-1623-17
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party at such time as to provide that party with a fair opportunity to meet it. '"
Rinker, 446 N.J. Super. at 359 (quoting N.J.R.E. 807).
"Next, the trial court must conduct an N.J.R.E. 104(a) hearing," where
"the State will bear the burden of proving by a preponderance of the evidence"
the predicates for admission. Byrd, 198 N.J. at 350-52. "In other words, the
State must demonstrate that the defendant by his wrongful conduct, directly or
indirectly, caused the witness's unavailability − that is, caused the witness's
physical absence or the witness's refusal or inability to testify." Id. at 352. To
sustain its burden of proof, the State may present "circumstantial evidence of
defendant's direct or indirect 'wrongdoing.'" Rinker, 446 N.J. Super. at 364.
Last, "the court must determine that the statement bears some indicia of
reliability." Byrd, 198 N.J. at 352. In that regard, a witness's statement found
"to be reliable in light of all the surrounding circumstances, will be admissible
as substantive evidence if the State establishes that the defendant wrongfully
procured the witness's unavailability." Id. at 353.22
In those cases in which the witness is available to testify
but refuses to do so, due to alleged threats or fear
induced by the defendant, the court ordinarily should
advise the witness of his obligation to testify and that if
22
The Byrd Court adopted the methodology applied in State v. Gross, 121 N.J. 18, 29 (1990), to determine the reliability of statements in the case of recanting
witnesses pursuant to N.J.R.E. 803(a)(1). Byrd, 198 N.J. at 352-53.
A-1623-17
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he refuses to do so, he will be held in contempt. A
witness must know that there will be consequences if a
court order is disobeyed. If the witness continues to
refuse to testify after the threat of contempt, he will be
deemed an unavailable witness.
[Id. at 351-52.]
See also N.J.R.E. 804(a)(2) (stating a witness who "persists in refusing to testify
concerning the subject matter of the [hearsay] statement despite an order of the
court to do so," is "unavailable" for purposes of hearsay exceptions detailed in
N.J.R.E. 804(b)).
Here, the State moved to admit prior statements made by Slaughter against
Keller and others pursuant to N.J.R.E. 804(b)(9). During an evidentiary hearing
conducted on May 9, 2017, the State produced Slaughter, Morris, and Mercer
County Prosecutor's Office Detective Marc Masseroni as witnesses . The State
also introduced numerous exhibits, including call list records from the Mercer
County Correctional Center where Keller was confined prior to trial, recorded
phone conversations between Keller and Slaughter, and unsigned recantation
letters and other documents seized from Keller's cell. Following the hearing,
the judge granted the State's motion in an oral opinion delivered from the bench
on the same date. The judge memorialized his decision in an order entered May
25, 2017.
A-1623-17
52
At the hearing, Slaughter confirmed he was unwilling to testify against
Keller and other defendants at their upcoming trial, despite being held in
contempt of court for violating a subpoena to testify, being incarcerated, and
risking the revocation of his plea agreements with the State. Slaughter explained
he would not testify because he "got threatening letters . . . at [his] house" and
"[his] mother's house" and he was in fear for his life and the lives of his family
members. Based on Slaughter's testimony, the judge entered an order holding
Slaughter "in contempt of court" and found "the State . . . met its burden of proof
. . . that th[e] witness [was] unavailable for the trial."
To establish the other prerequisites for admission of Slaughter's
statements under N.J.R.E. 804(b)(9), Detective Masseroni testified regarding his
investigation of witness tampering allegations involving Slaughter. According
to Masseroni, when Keller's trial was previously scheduled to begin on
September 26, 2016, Slaughter notified him that he received "threatening" letters
that were delivered on September 25, 2016, to "his mother's house" and "his
child's mother's house." During a September 27, 2016 meeting, Slaughter gave
Masseroni a letter that was "left . . . between the door and the screen door of his
child's mother's house" and a letter that was "left in the door slot of his mother's
house." Both letters were admitted into evidence for purposes of the hearing.
A-1623-17
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The letter delivered to Slaughter's child's mother's house read:
This for your baby dad. If he come to court you already
know what it is. If he comes to court anybody can get
it. He know it is a lot of us, and he know what it is. He
know what we capable of doing. P.S. Don't be no fool,
and because the other witness took his statement back.
The letter delivered to Slaughter's mother's house read:
I ain't gonna say no name but you already know who
this is. My people about to start court, so you already
know, so you know what it is about. My people know
where you at, including your mom, your daughter, your
daughter mom house . . . P.S. If you come to court you
already know. I ain't got to know more. You know
what it is already.
Slaughter suspected Morris delivered the letters because Morris "was the
only one involved in the case [who] knew where he lived" and was not in custody
at the time. Slaughter also told Masseroni "he was getting calls from . . .
defendants through three-way phone calls from the jail" and provided Masseroni
with the incoming phone number. According to Masseroni, Slaughter was
"shaken up" and "seemed . . . scared."
Once Masseroni located Keller at the Mercer County Correctional Center,
he subpoenaed records for the number Slaughter had provided for the period
July 1 to September 28, 2016, and discovered that Keller had placed Slaughter's
number on a fellow inmate's call list to circumvent the jail's screening process,
A-1623-17
54
which prevented inmates from communicating with victims and witnesses. The
inmate, Immanuel Covington, told Masseroni he provided Keller and Keller's
cellmate "with his call list because he only used the phone for one person, so he
had nine openings in his list." Keller added phone numbers to Covington's call
list, including Slaughter's, to facilitate the calls.
As a result, Masseroni obtained a modified wiretap order for recordings
of the "phone calls . . . made to . . . Slaughter's cell phone." Masseroni identified
"at least seven" calls in which Keller spoke directly to Slaughter. Masseroni
also obtained search warrants for "any kind of documentation" located in
Keller's cell and seized numerous letters from Keller's cell, including two
unsigned "recantation letters." One of the recantation letters was prepared for
Slaughter's signature and indicated that Slaughter lied when he provided
statements to police.23 Other letters seized consisted of communications
between defendants about the case.
From October to December 2016, Slaughter's whereabouts were unknown
to Masseroni and other law enforcement officers. On December 13, 2016, when
Slaughter was eventually located, he "yell[ed] and scream[ed]" about law
23
The other recantation letter was prepared for Ray Manigo, the only eyewitness
to Paye's murder.
A-1623-17
55
enforcement's inability to protect him and divulged to Masseroni for the first
time that "two guys . . . with guns" had come "to his house the day before he
was supposed to come in for the [aborted] trial." Although Slaughter did not
"know their names," he "knew . . . they were . . . friends of . . . Keller." Slaughter
said the men "spoke about the case" and "ask[ed] hm if he was going to testify."
According to Slaughter, "[h]e told [the men] what they wanted to hear so that
they would leave." Slaughter's daughter was with him when the men showed up
at his house.
During the December 13 meeting, Slaughter told Masseroni he would no
longer cooperate in the prosecution of Keller and the other defendants and would
not testify at their trial. Nonetheless, Masseroni questioned Slaughter about the
phone calls from the jail, and Slaughter identified himself as well as Keller on
the calls. According to Slaughter, the calls started around the time an article
appeared in the newspaper indicating he was going to testify at the trial. Some
of the calls were three-way calls and some were direct calls from Keller. During
those calls, Keller inquired whether Slaughter would testify and warned
Slaughter to stay away from the police. Because "[h]e was scared," Slaughter
responded by telling Keller "what he wanted to hear, which was that he wasn't
going to [testify]." When Masseroni showed Slaughter the recantation letter
A-1623-17
56
found in Keller's cell, Slaughter said he never saw the specific letter before but
noted it was similar to a letter Morris "tried to get him to sign." Slaughter
avoided signing the letter by giving Morris "an excuse."
On January 27, 2017, Masseroni met with Slaughter again. Slaughter told
Masseroni that "somebody had approached [Slaughter's] mother and had given
her a piece of paper with a phone number" and instructed her to have Slaughter
"call th[e] number." According to Slaughter, his mother "tore . . . up" the paper
and "threw it away." Once again, Slaughter reiterated "he was not going to
testify" because "he was scared for himself and his family[]." However,
Slaughter never recanted his statements nor suggested they were not truthful.
Masseroni followed up with Slaughter's mother, who confirmed
Slaughter's account about her receipt of the "piece of paper." However, she
refused to cooperate with law enforcement out of fear. Masseroni also met with
Morris on March 23, 2017. Morris, who was also scheduled to testify at Keller's
aborted September 26, 2016 trial, told Masseroni that he was also contacted by
Keller through Keller's girlfriend. Through subpoenas, Masseroni corroborated
those contacts.
During Morris's testimony at the hearing, he confirmed he had been
contacted by Keller wherein Keller told him Slaughter was not going to testify.
A-1623-17
57
Keller directed Morris to "[j]ust stay home" and not testify either. Further,
according to Morris, "[s]ome months . . . before the [aborted] trial," Keller asked
Morris to "get [Slaughter] to sign an affidavit" taking "his statement back."
However, every time Morris asked Slaughter to sign the affidavit, Slaughter
would "mak[e] an excuse" to avoid signing. Morris testified he approached
Slaughter about signing the affidavit "[a]t least three times" at Slaughter's house
but denied delivering any threatening letters to Slaughter's house.
Addressing the remaining requirements for admissibility under N.J.R.E.
804(b)(9), the judge concluded the State "met its burden of demonstrating by a
preponderance of the evidence" that Keller engaged, directly or indirectly, in
wrongdoing, that the wrongdoing was intended to procure the unavailability of
Slaughter as a witness, and the wrongdoing did in fact procure the unavailability
of Slaughter as a witness. In rendering his decision, the judge recounted that he
had discharged the unsworn jury and adjourned the trial when he and defense
counsel were advised by the State that Slaughter, the State's key witness, "could
not be located" and there was a "concern[] that threats had been made on his
life."
Based on Masseroni's "credible" and "forthright" testimony regarding the
ensuing investigation into witness tampering, which the recorded phone calls
A-1623-17
58
between Slaughter and Keller as well as the items seized from Keller's jail cell
corroborated, the judge determined the evidence established Keller directly or
indirectly sent threatening letters to Slaughter's home, made multiple
threatening phone calls to Slaughter from jail, threatened Slaughter's family,
sent men with guns to Slaughter's home on the day he was scheduled to testify,
and attempted to obtain Slaughter's signature on a recantation letter.
Specifically, according to the judge, the letters delivered to Slaughter's
mother's house and Slaughter's child's mother's house were clearly "a threat to
[Slaughter]." Although the judge did not find Keller "necessarily authored [the
letters]," the judge inferred under "the totality of [the] circumstances," that "the
motivation behind the[] threats" in the letters was to prevent Slaughter from
testifying at Keller's upcoming trial. Further, the judge was satisfied "Keller
used . . . subterfuge in order to make [telephonic] contact with [Slaughter]" by
"using the number assigned to Immanuel Covington," a fellow inmate in "the
same pod of the Mercer County Corrections Center" as Keller. The judge
recounted one call in particular in which Slaughter stated: "I'm not gonna put
you all in no harm's way, as long as you don't put me in harm's way . . . ." The
judge found Slaughter's comment was consistent with his intent to "tell . . .
A-1623-17
59
Keller . . . anything that will get him off his back" because he was "in fear of
[him]."
Additionally, the judge considered the "unsigned recantation statement[]
prepared for . . . Slaughter" found in Keller's cell during the execution of the
search warrants as well as Morris's testimony that he had been contacted by
Keller and directed "to reach out to [Slaughter] to see if he could effectuate
execution of [the recantation statement]." The judge also referred to the other
letters found during the execution of the search warrants evidencing Keller's
belief that "he had successfully intimidated [Slaughter]" to prevent him from
testifying at Keller's upcoming trial, a belief validated by the necessity to abort
the September 2016 trial based on "Slaughter's unavailability."
Regarding the two armed men who reportedly came to Slaughter's house
the day before he was supposed to testify at the aborted trial, the judge noted
while there was "no corroborating evidence that this occurred," it was
"clearly . . . not out of character" given the violent nature of the acts alleged in
the indictment. Finally, as to the unidentified person who approached
Slaughter's mother and handed her a "piece of paper," the judge found the
incident was confirmed by Masseroni's investigation and corroborated "the
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60
concerted effort" being made "to intimidate . . . Slaughter, . . . his mother, . . .
[and] the mother of his small child."
The judge also determined the sworn written statement provided by
Slaughter on June 10, 2011, the video recorded interview of Slaughter dated
November 1, 2010, and Slaughter's statements to Masseroni during the witness
tampering investigation "were reliable in light of all the surrounding
circumstances." Applying the Gross factors adopted in Byrd, the judge found
Slaughter's statements
truthful because he was incriminating himself. Mr.
Slaughter said I sell dope. . . . [H]e has no motive to
fabricate that he was the victim of this abduction and
robbery. These were his friends, and he seemed
somewhat confounded as to why his friends would
allegedly perpetrate these crimes against him. The
police did not pressure him to give these statements.
The [c]ourt finds all these statements have an inherent
believability to them. And it appears that there is
corroborative evidence of the statements he gave based
upon all the testimony the [c]ourt heard . . . .
We discern no abuse of discretion in the judge's decision to admit
Slaughter's statements at trial as substantive evidence under N.J.R.E. 804(b)(9).
The judge meticulously followed the framework outlined in Byrd, made factual
findings that are amply supported by the record, and properly applied the legal
standards. Contrary to Keller's arguments, the State complied with the notice
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61
requirement, and Slaughter's refusal to obey the subpoena on pain of contempt
and incarceration rendered him unavailable within the meaning of N.J.R.E.
804(b)(9).
V.
In Point IV of his counseled brief, Keller argues the trial judge "erred in
denying [his] motion for [a] mistrial and sending the jury back for further
deliberations, directly resulting in the partial, confused jury verdict
subsequently delivered." Keller asserts he is entitled to a new trial because the
judge failed to ensure his right to a fair trial with an impartial jury.
The jury began deliberations at about 2:00 p.m. on June 27, 2017, after
the final charge was delivered. On that date, the jury requested a read-back of
Slaughter's statements, which lasted over an hour, before being excused for the
evening.24 The jury continued deliberating the following day, June 28, 2017.
On that date, the jury requested a read-back of a portion of Ray Manigo's video
statement but then withdrew its request when told it would have to watch the
nearly two-hour statement in its entirety.
The jury continued deliberating the following day, June 29, 2017. During
the morning of June 29, the judge received a note from the jury stating: "If we
24
Generally, the judge excused the jury for the evening at 4:30 p.m.
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62
are hung on even one charge, are we hung on all? If so, we are currently hung
and I unfortunately believe we are unable to move forward." While the judge
discussed an appropriate response to the jury's question with counsel, he was
informed by his Sheriff's Officer that one of the jurors had left the jury room.
In the presence of counsel but outside the presence of the other jurors, the judge
questioned the juror, asking "Do you believe you can return to the jury room and
deliberate with your fellow jurors?" The juror responded she could and gave the
impression she left the jury room to regain her composure because all the jurors
were "emotional." The judge instructed the juror to "return[] with her fellow
jurors" but not deliberate until they received further instructions from the court.
The judge then instructed the jury as follows:
The jury's verdict must be unanimous as to each count.
The inability to reach a unanimous verdict on any one
count does not render unanimous verdicts on any other
count void. In other words, you can consider each of
the . . . counts individually. You must consider each
defendant and each count separately.
Now, I'm going to give you another instruction to
assist you with your further deliberations throughout
the day. 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.
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63
In the course of your deliberations do not hesitate
to re-examine your own views and change your opinion
if convinced it is erroneous but do not surrender your
honest conviction as to the weight or effect of evidence
solely because of the opinion of your fellow jurors or
for the mere purpose of returning a verdict. You are not
partisans. You are judges, judges of the facts.
So now, ladies and gentlemen, you've heard
testimony over a four-week period. This was a very
lengthy trial. I know you've been working very hard.
We all appreciate the time you've put in and with that
instruction I'm going to ask the [twelve] of you to return
and continue your deliberations . . . .
There was no objection to the instructions.
The jury resumed deliberations. Following the luncheon recess, the judge
received another note from the jury stating: "We are currently hung on the
following charges, [c]ount [one] for one defendant, 1(a), 2(a) for both, . . .
[c]ount [eight] for one defendant, and [c]ounts [twelve] through [fifteen]. Please
advise us on further instructions." After consulting with counsel, the judge
explained "[g]iven the length of the trial, . . . the complexity of [the] cases and
knowing that [the jurors were] committed [to serve] through the end of the
afternoon, [he was] inclined to give them additional time to deliberate."
After further discussion and over defense counsel's objection, the judge
gave the following instruction in response to the jury's note:
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64
Ladies and gentlemen, we've received your note
indicating that you have reached a partial verdict and
that you have reached a unanimous verdict as to certain
counts involving one or more of the defendants and that
you are hung on other counts. Yesterday you requested
to watch the portion of Ray Manigo's video statement
of January 20[], 2011 that the State showed in their
closing statement. It describes the events in the
basement.
Yesterday I advised you that the only alternative
was to bring you into court to watch the entire video
statement of Ray Manigo lasting one hour and [fifty]
minutes. The [c]ourt can now provide you with the
information you requested yesterday, however, based
upon your deliberations over the last [twenty-four]
hours, you may no longer have any interest in viewing
any portion of Ray Manigo's video statement. In
addition, we can show you his entire video statement.
I'm going to have you return to the jury room so you
can discuss this issue if you care to and your foreperson
will advise me in writing how you wish to proceed.
In addition, I want to once again give you
instruction to guide you with your continuing
deliberations. 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 through an impartial
consideration of the evidence with your fellow jurors.
In the course of your continuing deliberations do
not hesitate to reexamine your own views and change
your opinion if convinced it is erroneous but do not
surrender your honest conviction as to the weight or
effect of evidence solely because of the opinion of your
fellow jurors or for the mere purpose of returning a
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verdict. You are not partisans. You are judges, judges
of the facts.
After deliberations resumed, the judge received a series of notes from the
jury. One note stated the jury was "undecided whether or not . . . to watch [the
video of Manigo's testimony]." A second note stated the jury was "hung on all
counts" despite advising the court earlier of a partial verdict. The judge received
a third note from the foreperson stating there were "two jurors . . . ignoring the
law[]" on accomplice liability and "not taking their oath seriously." Keller's
attorney requested a mistrial "based on the dysfunction of the jury," and "the
fact that there have already been two Allen [25] charges."
The judge denied Keller's request based on the jury's earlier note that it
"had reached a partial verdict." The judge also clarified he had not given the
"outlawed" Allen charge but rather "the model jury instruction about further
deliberations," also known as the modified Allen charge or the Czachor charge.
See State v. Czachor, 82 N.J. 392, 404-06 (1980) (modifying the charge
approved in Allen); see also Model Jury Charges (Criminal), "Judge's
Instructions on Further Jury Deliberations" (approved Jan. 14, 2013).
The judge then instructed the jury as follows:
25
Allen v. United States, 164 U.S. 492 (1896).
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[L]adies and gentlemen, I received a note from your
foreperson . . . which states . . . unfortunately, after
going back after lunch, the jury is hung on all counts.
Please advise.
The [c]ourt finds that somewhat perplexing
because as you indicated in an earlier note, you had
reached a partial verdict . . . . And there really doesn't
appear to be any new information.
The foreperson also gave me another note
indicating that perhaps some jurors are not following
the law as to accomplice liability. That is a complex,
legal term. You asked . . . for a layman's explanation
and as I was struggling to come up with an answer, the
note came in, in effect, you figured it out and moved
on.[26] But certainly, accomplice liability is difficult to
understand for judges and for lawyers. It's especially
difficult for lay people. So I understand that you're
struggling.
I'm going to send you back for further
deliberations. You know, this has been a very lengthy
trial and we're hopeful if possible to get a verdict. If
you're not unanimous as to any count, you're going to
tell me that and we respect that. But given the length
of this trial, the time and resources you the jury have
put in as well as the [c]ourt and counsel, I'm going to
send you back. I'm going to give you an additional
charge.
So you have indicated to me, ladies and
gentlemen, that your deliberations have reached an
impasse. Do you feel that further deliberations will be
beneficial or do you feel that you've reached a point at
which further deliberations would be futile?
26
The judge was referring to a note he had received from the jury the day before.
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Now, I'm going to ask you to return to the jury
room. It's about 4:30. Given everything I've said, I'm
going to ask you to deliberate another half hour to five
o’clock. At five o'clock . . . you're going to send me a
note saying, Judge, we're deadlocked, we have a partial
verdict, whatever it is. But I'm going to ask all [twelve]
of you to return to the jury room, deliberate another half
hour . . . so we're hopeful if you can agree unanimously
as to any one of the . . . counts, . . . obviously, if you're
deadlocked and you cannot reach any unanimous
agreement, . . . I will accept that from you . . . .
Subsequently, the jury sent a note indicating it had a partial verdict. Upon
Keller's agreement, the judge accepted the partial verdict, specifying the counts
on which the jury unanimously agreed. See R. 3:19-1(a) (setting forth the
procedure for partial jury verdicts).
Keller asserts the judge erred in denying his request for a mistrial given
the "dysfunction in the jury" evidenced by the jury having twice reported being
deadlocked and one juror having left the jury room.
"The grant of a mistrial is an extraordinary remedy . . . ." State v. Yough,
208 N.J. 385, 397 (2011). "Whether an event at trial justifies a mistrial is a
decision 'entrusted to the sound discretion of the trial court.' Appellate courts
'will not disturb a trial court's ruling on a motion for a mistrial, absent an abuse
of discretion that results in a manifest injustice.'" State v. Smith, 224 N.J. 36,
47 (2016) (citations omitted) (first quoting State v. Harvey, 151 N.J. 117, 205
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68
(1997); and then quoting State v. Jackson, 211 N.J. 394, 407 (2012)). Similarly,
the "determination as to whether a Czachor charge is warranted" is left to the
"'sound discretion'" of the trial court and may be reversed only for an abuse of
discretion. State v. Ross, 218 N.J. 130, 144 (2014) (quoting Czachor, 82 N.J. at
407).
In Czachor, our Supreme Court "provided guidance to trial courts
confronted with a jury's declaration that its deliberations have progressed to an
impasse." Ross, 218 N.J. at 143. The Court "adopted the model charge
suggested by the American Bar Association," which was subsequently
incorporated as the Model Jury Charges (Criminal), "Judge's Instructions on
Further Jury Deliberations" (approved Jan. 14, 2013). Id. at 144. In deciding
whether to give a Czachor charge "[w]hen a jury communicates a deadlock, trial
courts 'should be guided in the exercise of sound discretion by such factors as
the length and complexity of trial and the quality and duration of the jury's
deliberations.'" Ibid. (quoting Czachor, 82 N.J. at 407). "When the '"difference
of opinion between members of the jury is clearly intractable," . . . then the jury
is deadlocked and a mistrial should be declared.'" Id. at 145 (alteration in
original) (quoting State v. Figueroa, 190 N.J. 219, 237 (2007)).
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69
In cases involving multiple counts to an indictment or multiple defendants
tried together, a trial court may accept a partial verdict "specifying the counts
on which [the jury] has agreed." R. 3:19-1(a). "[T]rial courts possess the
discretion to accept [partial] verdicts absent a showing of prejudice to the
defendant." State v. Johnson, 436 N.J. Super. 406, 422-23 (App. Div. 2014)
(alteration in original) (quoting State v. Shomo, 129 N.J. 248, 257 (1992)).
Here, given the complexity of the trial proofs in this multi-count, multi-
defendant case and the length of the trial, the judge was properly concerned
about the duration and quality of the jury's deliberations. We are satisfied the
judge properly exercised his discretion in response to the jury's communications
of an impasse by providing the model Czachor charge on two occasions and
directing the jury to continue deliberations. See Ross, 218 N.J. at 138, 145
(upholding the giving of a Czachor charge when, after five days of deliberations,
the jury stated it could not reach a unanimous decision). Indeed, the Czachor
charge "may, as a matter of sound discretion, be repeated if the trial judge finds
that the jury has been unable to agree." Czachor, 82 N.J. at 407; see also
Figueroa, 190 N.J. at 235 ("We therefore left it to the sound discretion of the
trial court to decide whether repeating the charge is appropriate when a jury
reports that it is unable to agree.").
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70
Significantly, only the final note stated the jury was hung "on all counts."
The two earlier notes communicated an ambiguous inquiry and a partial verdict,
respectively. Upon receipt of the final note, the judge properly asked whether
"further deliberations would be futile" using the Model Jury Charges (Criminal),
"Judge's Inquiry When Jury Reports Inability To Reach Verdict" (approved June
10, 2013). Because the "inquiry" charge "presumes that the jury has already
indicated its deadlock and has been instructed about continuing deliberations"
in accordance with the Czachor charge, it was proper to give the Czachor charge
first. Model Jury Charges (Criminal), "Judge's Inquiry When Jury Reports
Inability To Reach Verdict" n.1 (approved June 10, 2013).
Even if the judge had asked earlier whether "further deliberations would
be futile" and the jury had said "yes," it would still have been proper for the
judge to then give the Czachor charge. Johnson, 436 N.J. Super. at 415 n.10.
Indeed, the Ross Court rejected the idea "that an initial impasse signals the end
of meaningful deliberations"; our Court instead "contemplates that a previously
deadlocked jury can conduct fair and effective deliberations notwithstanding an
earlier impasse." 218 N.J. at 154; see also ibid. at n.5 (explaining Czachor "is
premised upon the principle that a properly instructed jury can and will
meaningfully deliberate, notwithstanding a prior declaration of an impasse").
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71
In Ross, the jury sent a note stating it was "'unable to reach a unanimous
decision on any count'" and asking for additional instructions. Id. at 138. The
Court found the jury's note "did not signal an intractable divide that would
warrant a declaration of mistrial. Instead, it communicated that its effort to
reach consensus on the issues had fallen short." Id. at 145. Here, given the
jury's earlier communication that it had reached a partial verdict, the judge
properly inferred the jury's purported impasse was not intractable.
Further, based on the questioning of the juror who temporarily left the jury
room and the juror's credible affirmation establishing her ability to resume
deliberating, the judge ensured any problems were due to juror interaction
during the deliberative process. Indeed, "[a] juror cannot be removed merely
because she is taking a position at odds with other jurors' views." State v.
Jenkins, 182 N.J. 112, 125 (2004). "A juror has the unassailable right to see the
evidence in her own way and to reach her own conclusions, regardless of how
overwhelming the evidence or how illogical her view may appear to other
jurors." Ibid. "'If a court suspects that the problems with the juror are due to
interactions with other jurors, the court should instruct the jury to resume
deliberations.'" Ibid. (quoting State v. Hightower, 146 N.J. 239, 254 (1996)).
That procedure was followed here.
A-1623-17
72
To be sure, "a juror may not be removed for reasons related to the
'deliberative process.'" State v. Banks, 395 N.J. Super. 205, 215 (App. Div.
2007), overruled in part on other grounds by Ross, 218 N.J. at 154-55; see also
Jenkins, 182 N.J. at 124 ("We have restrictively interpreted the phrase 'inability
to continue' in Rule 1:8-2(d)(1) to protect a defendant's right to a fair jury trial,
forbidding juror substitution when a deliberating juror's removal is in any way
related to the deliberative process." (quoting R. 1:8-2(d)(1))). Indeed, there are
"strong policy reasons which shield the deliberative process of juries." State v.
Young, 181 N.J. Super. 463, 468 (App. Div. 1981); see also State v. Corsaro,
107 N.J. 339, 346 (1987) ("The key to the proper discharge of th[e] duty by the
jury is the deliberative process, which must be insulated from influences that
could warp or undermine the jury's deliberations and its ultimate
determination."). Because we discern no abuse of discretion in the judge's
handling of the jury's notes or the juror's brief departure from the jury room,
there was also no manifest injustice requiring the extraordinary step of a
mistrial.
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VI.
In Point V of his counseled brief, Keller challenges his sentence as
excessive and the judge's finding of aggravating and mitigating factors as
improper. We disagree.
We review sentences "in accordance with a deferential standard," State v.
Fuentes, 217 N.J. 57, 70 (2014), and are mindful that we "should not 'substitute
[our] judgment for those of our sentencing courts.'" State v. Cuff, 239 N.J. 321,
347 (quoting State v. Case, 220 N.J. 49, 65 (2014)). Thus, we will
affirm the sentence unless (1) the sentencing guidelines
were violated; (2) the aggravating and mitigating
factors found by the sentencing court were not based
upon competent and credible evidence in the record; or
(3) "the application of the guidelines to the facts of [the]
case makes the sentence clearly unreasonable so as to
shock the judicial conscience."
[Fuentes, 217 N.J. at 70 (alteration in original) (quoting
State v. Roth, 95 N.J. 334, 364-65 (1984)).]
After appropriate mergers and dismissals, the judge sentenced defendant
to fifty-six years' imprisonment, subject to NERA, on the murder charge (count
two), a concurrent fifteen years' imprisonment, subject to NERA, on the robbery
charge (count five), a concurrent four years' imprisonment on the eluding charge
(count ten), a concurrent twelve months' imprisonment on the tampering with
evidence charge (count twelve), and a consecutive five years' imprisonment,
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74
with a two-and-one-half year period of parole ineligibility, on the witness
tampering charge (count twenty-one).27
The judge, who "had a great deal of exposure to th[e] case" based upon
his adept handling of "all the dispositive motions" as well as presiding over
"th[e] lengthy trial," found aggravating factors one, three, six, and nine, and no
mitigating factors. See N.J.S.A. 2C:44-1(a)(1) ("[t]he nature and circumstances
of the offense, and the role of the actor [therein], including whether or not it was
committed in an especially heinous, cruel, or depraved manner"); N.J.S.A.
2C:44-1(a)(3) ("[t]he risk that the defendant will commit another offense");
N.J.S.A. 2C:44-1(a)(6) ("[t]he extent of the defendant's prior criminal record
and the seriousness of the offenses"); and ( N.J.S.A. 2C:44-1(a)(9) ("[t]he need
for deterring the defendant and others from violating the law"). The judge was
"clearly convinced the aggravating factors substantially outweigh[ed] the non -
existing mitigating factors."
Regarding aggravating factor one, the judge stated:
[N]ormally even in a murder case I'm reluctant to find
aggravating factor number one, just because I'm always
concerned by double counting . . . . But the [c]ourt
27
In imposing the consecutive sentence, the judge applied the principles
enunciated in State v. Yarbough, 100 N.J. 627, 643–44 (1985), as well as the
requirement codified in N.J.S.A. 2C:28-5(e) for a consecutive sentence.
Defendant does not appear to challenge those determinations.
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75
finds support that this murder occurred in a very cruel
and depraved manner. That this victim was executed.
He was bound and tied with duct tape. He was
physically tormented . . . [and] he knew this defendant
and co[]defendants were planning on his execution.
His ears were not duct taped. Obviously he heard
orders being given that bleach and garbage bags should
be bought at a local deli. And, obviously, the victim
knew that was to clean up the murder that was about to
be taking place.
There's no question in the [c]ourt's mind that . . .
Keller was the leader of these [codefendants]. . . . He
was giving orders. He was the one who executed the
victim.
As to aggravating factor six, the judge cited Keller's prior criminal history
consisting of an adjudication of delinquency for a drug possession charge and
two prior indictable convictions for drug distribution related charges, for which
he served custodial terms in State prison. One of the prison terms was imposed
after Keller violated probation. The judge stressed "even though [Keller] was
only an adult for five years before the subject murder, for three[-]and[-]a half
years [of those five, he was] in [S]tate prison." Regarding aggravating factor
three, the judge had "no doubt" Keller would "commit another offense if given
the opportunity" because Keller had "led a life where [he had] completely
disregarded the laws of society." Moreover, according to the judge, the murder
showed Keller had "no regard [for] life" and "no [conscience]." Additionally,
A-1623-17
76
the judge gave "great weight" to aggravating factor nine, to deter Keller and
others from resorting to murder "to settle their scores."
Furthermore, the judge found no "credible evidence to support any
mitigating factor." The judge rejected Keller's contention that mitigating factor
eleven applied because of the hardship the sentence would impose on his six-
year-old daughter. See N.J.S.A. 2C:44-1(b)(11) ("[t]he imprisonment of the
defendant would entail excessive hardship to . . . [his] dependents"). The judge
stated, "while it's certainly a hardship for a young girl to grow up without
knowing her father," given the fact that Keller "has never financially supported
his daughter," it was "not an excessive hardship."
Defendant argues the judge engaged in impermissible double counting by
finding aggravating factor one because "this was already part and parcel of the
murder crime of which [Keller] was convicted." However, in appropriate cases,
as here, "a sentencing court may justify the application of aggravating factor
one, without double-counting, by reference to the extraordinary brutality
involved in an offense." Fuentes, 217 N.J. at 75. Defendant also argues the
record supported finding mitigating factor eleven. However, as we explained in
State v. Hyman, 451 N.J. Super. 429, 460 (App. Div. 2017), "[d]efendant did
not show that his child[] would experience 'excessive' hardship from his
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absence, and . . . presented no evidence that he was a significant source of
support for his . . . child[]" to justify finding mitigating factor eleven. See also
State v. Dalziel, 182 N.J. 494, 505 (2005) (finding mitigating factor eleven
unsupported by the record because the defendant "has never lived with or
supported his fiancée and child.").
In sum, based on our review of the record, we are satisfied the judge set
forth his reasons for Keller's sentence with sufficient clarity and particularity,
made findings that are amply supported by competent and credible evidence in
the record, correctly applied the sentencing guidelines in the Code, and did not
abuse his sentencing discretion.
VII.
We need not tarry long on Keller's pro se arguments. First, he asserts he
received ineffective assistance of counsel (IAC) because his trial counsel was
not available on June 27, 28, and 29, 2017, during the final charge and jury
deliberations. "Our courts have expressed a general policy against entertaining
[IAC] claims on direct appeal because such claims involve allegations and
evidence that lie outside the trial record." State v. Preciose, 129 N.J. 451, 460
(1992). Thus, such claims are better suited for post-conviction relief (PCR)
proceedings. Ibid.
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On this record, we find inadequate support for Keller's IAC claim. While
trial counsel was not physically present in the courtroom on the dates in question
because he had "injured himself" over the previous weekend and was undergoing
a medical procedure, a pool attorney was appointed to stand in as counsel during
the final charge and the beginning of jury deliberations on June 27. Trial counsel
returned and participated telephonically for the entirety of the June 28 and 29
proceedings. The judge also arranged for trial counsel to have confidential
telephonic conversations with Keller if needed. Nevertheless, "while we
conclude that this record is inadequate to support [the] claim, our affirmance is
without prejudice to defendant's petition for [PCR] on the subject." State v.
Sparano, 249 N.J. Super. 411, 419 (App. Div. 1991).
Finally, Keller's intertwined arguments that the judge erred in failing to
voir dire or substitute two unidentified jurors whom the foreperson claimed were
ignoring the law regarding accomplice liability were addressed in responding to
Point IV of his counseled brief and lack sufficient merit to warrant additional
discussion in a written opinion. R. 2:11-3(e)(2); see State v. Valenzuela, 136 N.J. 458, 464, 473 (1994) (finding reversible error in the trial court's decision to
discharge a deliberating juror for reasons "arising from the juror's interactions
with the other jurors" where the juror reportedly did not "understand the
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79
process"); State v. Dorsainvil, 435 N.J. Super. 449, 483 (App. Div. 2014) (noting
"a passionate exchange of conflicting views" is part of the sanctity of the jury's
deliberative process not warranting judicial intervention). 28
Affirmed.
28
The prosecutor aptly addressed the foreperson's note as follows:
With respect to the other note about two jurors maybe
not following the law, that's not for anyone – that's not
for any other juror to say . . . [;] just because someone
disagrees with . . . your vote . . . doesn't mean that they
are ignoring the law. There are a lot of different ways
to apply the law especially in this case so there are
going to be varying perspectives and obviously
different votes and . . . I don't know what kind of further
investigation there can be done with respect to the
foreperson saying they believe two jurors are ignoring
the law.
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