STATE OF NEW JERSEY v. DAVID COOPER

Annotate this Case

NOT FOR PUBLICATION WITHOUT THE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

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4692-18

STATE OF NEW JERSEY,

Plaintiff-Respondent,

DAVID COOPER,

Defendant-Appellant.
_______________________

Submitted March 21, 2022 – Decided April 13, 2022

Before Judges Mayer and Natali.

On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Indictment Nos. 16-12-1542,
17-02-0124 and 17-10-0670.

Joseph E. Krakora, Public Defender, attorney for
appellant (Peter T. Blum, Assistant Deputy Public
Defender, of counsel and on the briefs).

Matthew J. Platkin, Acting Attorney General, attorney
for respondent (Lauren Bonfiglio, Deputy Attorney
General, of counsel and on the brief).

PER CURIAM
Defendant David Cooper appeals from a June 17, 2019 judgment of

conviction after a jury found him guilty of murder and weapons charges. He

also appeals from an order admitting his statement made while in the hospital

being treated for a gunshot wound and various evidentiary rulings during the

trial. Additionally, defendant argues the judge erred in applying aggravating

factor six and seeks a remand for resentencing. We affirm defendant's

convictions but remand to the trial court for resentencing.

Defendant's appeal involves three separate indictments. Indictment 16-

12-1542 charged defendant with unlawful possession of a handgun, N.J.S.A.

2C:39-5(b)(1). Indictment 17-02-0124 charged defendant with first-degree

murder, N.J.S.A. 2C:11-3(a)(1) or 2C:11-3(a)(2); second-degree unlawful

possession of a handgun, N.J.S.A. 2C:39-5(b)(1); and second-degree possession

of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1). Indictment 17-

10-0670 charged defendant with second-degree aggravated assault, N.J.S.A.

2C:12-1(b)(1); and third-degree aggravated assault with a deadly weapon,

N.J.S.A. 2C:12-1(b)(2). Defendant pleaded guilty to the gun charges under

Indictment 16-12-1542 and the assault charges under Indictment 17-10-0670.

He proceeded to trial on the murder and related weapons charges under

Indictment 17-02-0124.

A-4692-18
2
We summarize the facts related to these indictments based on the

testimony adduced at defendant's pretrial hearing, plea hearing, and trial.

Indictment 16-12-1542

On July 31, 2016, defendant and two companions, Rshan White and

Shawn Wright, were shot in Jersey City. The three men were shot near a parked

car belonging to White's sister. At 3:30 a.m., detectives responded to a reported

shooting. Defendant suffered a gunshot wound to his thigh. Defendant told

detectives he did not see the shooter and did not hear any gun shots. Defendant

and Wright were taken by ambulance to a nearby hospital. White, who also

suffered a gunshot wound, left the scene on his own, eventually arriving at the

same hospital as defendant.

Detective Joseph Chidichimo arrived at the hospital at about 4:00 a.m.

Defendant and White were in the same trauma treatment room about six feet

apart and separated by a curtain. Wright was in a separate room. Detective

Chidichimo asked all three men how they suffered their gunshot wounds. Each

responded they did not see the shooter. According to the detective, despite

suffering a gunshot wound, defendant remained "pretty calm, conscious, alert."

A-4692-18
3
After speaking with the men, Detective Chidichimo received a telephone

call from his sergeant. He then arrested all three men based on a handgun

discovered in a car belonging to White's sister.

Detective Chidichimo arrested White, handcuffed him to the hospital bed,

and read him the Miranda warnings. According to the detective, White was

"pretty upset" and claimed the handgun did not belong to him. The detective

then arrested defendant, who remained in the same room as White, handcuffed

defendant to his hospital bed, and provided the Miranda warnings. The detective

testified defendant was "pretty quiet" and "didn't seem to be getting too upset."

Defendant also denied ownership of the handgun. The detective also arrested

and read the Miranda warnings to Wright. Wright denied any knowledge of a

handgun.

Detective Chidichimo left the room where defendant and White were

being treated to speak with his partner. While standing outside the hospital

room, the detective heard an upset White tell defendant, "this is B.S.," "[t]hat

ain't my gun," "[y]ou know, it ain't my gun," "you better do the right thing,"

"[b]etter man up," and "I['m] not trying to eat a gun charge."

Defendant then motioned for the detective to enter the room. Detective

Chidichimo walked over to defendant and asked, "what's up[?]" Defendant told

A-4692-18
4
the detective the handgun belonged to him. The detective explained defendant

did not "have to talk to [him]" and did not "have to tell [him] nothing."

Defendant responded, "yeah, I know . . . the gun's mine." Defendant was

charged with second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-

5(b)(1).

Prior to trial, the State moved to admit defendant's statement regarding his

ownership of the handgun. A pretrial motion judge conducted an evidentiary

hearing over three non-consecutive days. Two individuals testified for the State:

Detective Chidichimo and Detective Brian Glasser.

According to his testimony, Detective Glasser responded to the scene

where the shots were fired on July 31, 2016. The detective considered

defendant, White, and Wright as victims of a shooting by an unknown assailant.

Detective Glasser described the demeanor of the three men upon his arrival at

the scene and remarked defendant was calm and did not appear to be under the

influence of any substances. In speaking with Detective Glasser, each man

denied knowing who fired the shots.

The defense called two witnesses who treated defendant after his gunshot

wound: David Fowler and Dr. Vincent Ruiz. Fowler, a paramedic and

emergency medical services technician, testified he treated defendant for a

A-4692-18
5
gunshot wound to the thigh and administered fifty micrograms of Fentanyl for

pain. Fowler described defendant as alert and oriented. Fowler did not observe

any slurred speech or involuntary body movements, negating any concern

defendant might be under the influence of an illegal substance.

Dr. Ruiz treated defendant in the hospital emergency room. He

administered morphine for defendant's gunshot wound. Dr. Ruiz wrote in his

discharge report that defendant was awake, alert, and had no neurological or

cognitive dysfunction. The doctor also noted diagnostic testing was negative

for alcohol in defendant's system.

In a written post-hearing brief, defendant argued his statement should be

suppressed because it was not voluntary and "illegally compelled by the State"

absent a proper Miranda waiver. In its post-hearing written submission, the

State asserted defendant's "[s]pontaneous, uninterrogated statements [were]

admissible and d[id] not implicate Miranda." The State also claimed defendant

"acknowledge[d] his rights before making the inculpatory statement a second

time."

In an August 18, 2017 order and attached written decision, the judge

granted the State's motion to admit defendant's statement in the hospital

regarding ownership of the gun. The judge concluded defendant was under

A-4692-18
6
arrest and in custody at the time he made the statement to Detective Chidichimo.

However, she determined defendant was not being interrogated when he made

the statement. The judge found defendant "called [Detective] Chidichimo into

the room to inform him that the gun was his and initiated the questioning

himself." The judge held there "was no evidence that the officers asked him any

questions regarding whether the gun was his, and accordingly, he was not being

interrogated at the time that he stated that the gun was his." Because defendant's

statement was spontaneous, the judge concluded "Miranda was not required."

Even if defendant's statement had been the product of an interrogation, the

judge found defendant waived his Miranda rights. Based on the testimony

during the suppression hearing, the judge found defendant was conscious, alert,

and capable of communicating and answering questions when he was in the

hospital. In her decision, the judge wrote:

[Defendant] is a 25-year-old man who was detained for
no longer than twenty (20) minutes before he
spontaneously stated the handgun was his. Det[ective]
Chidichimo did not conduct repeated questioning.
Rather, [defendant] called him over and Det[ective]
Chidichimo repeated to [defendant] that he was under
no obligation to speak with the detective. Therefore,
[defendant] made a knowing, intelligent, and voluntary
decision to speak with Det[ective] Chidichimo, and his
waiver of his Miranda rights was valid.

A-4692-18
7
Indictment 17-02-0124

On September 19, 2016, a surveillance camera depicted an individual

approach Ahmin Colclough from behind and shoot him in the back of the head.

Defendant's girlfriend, Alexis Brennan, testified she lived at 14A Rose

Avenue in Jersey City in September 2016. The night before the Colclough

shooting, defendant stayed at Brennan's house.

On the morning of the shooting, defendant drove Brennan to work in her

2001 Chevy Prism sedan. A surveillance camera showed a bearded black man

leaving 14A Rose Avenue, wearing a dark hat with a star logo, dark jacket, dark

jeans, and sneakers. After dropping Brennan at work, defendant continued

driving Brennan's car.

Various surveillance cameras showed Brennan's car travelling on Forrest

Street between 9:29 a.m. and 10:00 a.m. on the day of the shooting. Colclough

and another companion were walking in the opposite direction on Forrest Street

around 9:37 a.m. that morning. The shooter, wearing clothing similar to the

clothing worn by the individual shown in the surveillance video from 14A Rose

Avenue, exited his car and followed Colclough. The shooter took a handgun

from his pocket and shot Colclough at close range. The shot severed Colclough's

spinal cord. The shooter then fled the scene.

A-4692-18
8
Detectives reviewed surveillance camera videos from the area of the

shooting. Based on the video camera footage, the detectives suspected

Brennan's car, seen circling the area, was involved in Colclough's murder.

Police then located the suspected shooter's car at 14A Rose Avenue and placed

the car under surveillance.

On the morning of September 21, defendant drove Brennan to work in the

same car under police observation. Detectives seized the car, took Brennan to

the police station, and photographed the car.

At the station, detectives interviewed Brennan. Her statements to the

detectives were video and audio recorded. Brennan told the detectives defendant

spent the night of September 18 in her home and drove her to work the next

morning. The detectives asked Brennan to identify defendant and her car in still

images taken from surveillance camera video footage. When Brennan was first

asked to identify her car and the man from the still photographs, she was hesitant

and unsure. Brennan could not be certain the vehicle was her car without seeing

the license plate. Nor could Brennan confirm the man in the photograph was

defendant because the individual's face was too blurry, and Brennan was

uncertain if defendant owned the specific items of clothing worn by the shooter

in the still images.

A-4692-18
9
Brennan told the detectives that defendant carried a handgun and sold

drugs when she first met him. The detectives questioned Brennan about

defendant's illegal activities, and she consistently stated she did not know

anything about defendant's possible criminal activity.

After a while, the detectives and Brennan left the interrogation room to go

to another room with video equipment for watching the surveillance camera

footage. There was no recording of communications, if any, between the

detectives and Brennan while Brennan watched the surveillance camera video.

Upon returning to the original room for further questioning, a detective asked

Brennan "can we confidently say that this is [] your vehicle?" She responded,

"yeah."

The detectives also asked Brennan about defendant's clothing, specifically

any hats or jackets worn by defendant. The detectives showed Brennan a still

photograph from the surveillance video footage of the clothing worn by the

shooter. Again, Brennan equivocated in response to the detectives' questions.

The detectives returned with Brennan to the other room to watch another video

showing the shoot. After returning to the interview room, the detectives showed

Brennan the same still image displayed earlier and asked, "[d]o you believe this

A-4692-18
10
is [defendant]?" Brennan answered, "[y]eah." At the detectives' request,

Brennan signed the back of the still photographic images.

Indictment 17-10-0670

While in custody in the Hudson County jail awaiting trial on the murder

and gun related charges, defendant threw hot liquid on an inmate. The incident

was captured on video. The victim suffered serious second-degree and third-

degree burns. Defendant was charged with second-degree aggravated assault,

N.J.S.A. 2C:12-1b(1), and third-degree aggravated assault, N.J.S.A. 2C:12-

1b(2).

On December 18, 2017, defendant pleaded guilty to Indictment 16-12-

1542, the unlawful possession of a gun charge. As part of his guilty plea under

this indictment, defendant reserved the right to challenge the admission of his

statement in the hospital room regarding ownership of the handgun. He also

pleaded guilty under Indictment 17-10-0670 to third-degree aggravated assault

with a deadly weapon.

Murder trial

In February and March 2019, defendant was tried before a jury on the

murder and gun charges. Brennan testified at trial. She told the jury she had

been in a relationship with defendant and defendant spent the evening of

A-4692-18
11 September 18, 2016 in Brennan's home at 14A Rose Street. She explained

defendant drove her car and took her to work on the morning of September 19.

Brennan had no idea where defendant went with her car after dropping her off

at work.

At trial, Brennan described being taken to the police station and

interviewed by detectives. She told the jury the detectives showed her a

surveillance camera video of the shooting and several still photographs taken

from the video footage. Brennan's trial testimony was consistent with her

recorded interview at the police station. At trial, Brennan identified still

photographs showing her car on Forrest Street and "someone driving her car."

Brennan then told the jury the "someone" in her car was defendant.

During cross-examination, defendant's counsel sought to highlight

changes in Brennan's responses to the detectives' interview questions after she

went to an unrecorded room to watch the surveillance camera videos. With the

prosecutor's consent, defense counsel played three short portions of the video

recording of Brennan's interview with the detectives. Defendant's attorney also

used an audio transcript of Brennan's recorded interview to refresh her

recollection at trial regarding her initial responses to the detectives' questions

before being escorted to another room.

A-4692-18
12
When defendant's counsel attempted to play additional portions of

Brennan's video recorded interview for the jury, the prosecutor objected. At

sidebar, the judge ruled defense counsel could play the entire video of Brennan's

three-hour recorded interview with the detectives or, alternatively, obtain the

prosecutor's consent as to specific portions of the recorded interview to be

shown to the jury. Defense counsel elected not to play the entire video of

Brennan's recorded interview because the interview included highly prejudicial

statements about defendant, such as his drug dealings, potential gang affiliation,

prior criminal incarceration, suspension of his driver's license, and possession

of a gun.

The State did not ask Brennan any question on re-direct. However, the

judge asked Brennan several clarifying questions. Defense counsel objected

only to one of the judge's questions. Counsel objected when the judge asked

whether anyone forced Brennan to sign the back of the still photographs at the

police station. The judge overruled the objection and Brennan answered "no."

The judge allowed counsel to pose follow-up questions. Neither counsel asked

Brennan any further questions.

During the trial, the State offered the testimony of Detective Lamar

Nelson for admission of the still photographs of defendant and Brennan's car

A-4692-18
13
taken from the surveillance camera video footage. After counsel questioned the

officer, the judge asked Detective Nelson about the "significance" of the

photographs. According to Nelson, the still photograph showed a man who wore

clothing similar to the clothing worn by the man leaving 14A Rose Street on the

morning of the shooting. Nelson explained the other photograph showed the

vehicle driven by the "actor." In response to the judge's question s, Detective

Nelson described the man as "our suspect." Defense counsel objected, arguing

the detective improperly provided lay opinion testimony and usurped the role of

the jury in determining who and what was depicted in the still photographs. The

judge overruled defense counsel's objection, stating the detective did not provide

opinion testimony.

The State offered additional evidence at trial. Special Agent Ajit David,

assigned to the Federal Bureau of Investigation, testified as an expert in the field

of cellular analysis. Agent David testified defendant's cell phone-location data

confirmed his presence in the area around the time of the Colclough shooting.

The State also presented a "selfie" photograph defendant sent to Brennan

on September 7, 2016. In the "selfie" photograph, defendant had a beard and

wore a blue hat with a star logo.

A-4692-18
14
Additionally, the State proffered evidence obtained during a search of an

apartment associated with defendant. In the apartment, the police found

defendant's driver's license and letters addressed to defendant. The police also

found five Winchester nine-millimeter live rounds under a dresser in the

apartment. The bullets found in the apartment were similar to Winchester nine-

millimeter empty shell casings found at the scene of Colclough's murder.

At the conclusion of the testimony, the judge conducted a charge

conference with counsel. In her charge to the jury, the judge instructed the jury

not to be influenced by any questions the judge asked the witnesses. She

explained:

The fact that I may have asked questions of a witness
in the case must not influence you in any way in your
deliberations. The fact that I asked such questions does
not indicate that I hold any opinion one way or another
as to the testimony given by that witness.

On Brennan's identification of defendant, the judge gave the jury the

relevant portion of the identification charge. Specifically, the judge instructed

the jury as follows:

. . . David Cooper, as part [of his] general denial of
guilt, contends that the State has not presented
sufficient reliable evidence to establish beyond a
reasonable doubt that he is the person who committed
the alleged offense . . . .

A-4692-18
15
The State has presented testimony that on a prior
occasion before this trial, Alexis Brennan identified
David Cooper as the person captured in the still
photograph that was marked for you as S-97, as the
person who committed the murder.
....
According to Ms. Brennan, her identification of
the defendant was based upon her viewing of the still
photograph, Exhibit S-97, and the video from Exhibit
S-31 she was shown by detectives from the Hudson
County Prosecutor's Office.

It is your function to determine whether [the]
witness's identification of the defendant is reliable and
believable, or whether it is based on a mistake or for
any reason is not worthy of belief. You must decide
whether it is sufficiently reliable evidence that this
defendant is the person who committed the offenses
charged.

In addition to the foregoing, the judge instructed the jury on assessing the

credibility of the witnesses in accordance with the Model Jury instruction.

Counsel gave closing arguments, and the judge instructed the jury on

March 15, 2019. The same day, the jury returned a verdict, finding defendant

guilty on all counts.

Sentencing

On May 31, 2019, the trial judge sentenced defendant on all the three

indictments. For the murder conviction, Indictment 17-02-0124, the judge

sentenced defendant to life in prison with a twenty-five-year parole disqualifier.

A-4692-18
16
She further sentenced defendant to seven years for each of the gun charges.

Based on the negotiated plea related to the unlawful possession of a weapon,

Indictment 16-12-1542, the judge sentenced defendant to five years. Consistent

with defendant's negotiated plea to third-degree aggravated assault, Indictment

17-10-0670, the judge imposed a five-year flat sentence. The aggregate sentence

was life imprisonment plus five years with twenty-five years of parole

ineligibility.

On appeal, defendant raises the following arguments:

POINT I

THE TRIAL COURT'S EXCLUSION OF THE VIDEO
OF THE OUT-OF-COURT IDENTIFICATION OF
[DEFENDANT] - WHICH SHOWED THAT THE
CRUCIAL IDENTIFICATION WAS LESS
RELIABLE THAN THE PROSECUTOR
PORTRAYED - WAS IMPROPER UNDER THE
EVIDENCE RULES. U.S. CONST. amends. VI, XIV;
N.J. CONST. art. I, ¶¶ 1, 10.

POINT II

THE TRIAL COURT IMPROPERLY APPEARED TO
TAKE THE PROSECUTOR'S SIDE BY
CONDUCTING ITS OWN REDIRECT
EXAMINATION OF THE PROSECUTOR'S
CRUCIAL IDENTIFICATION WITNESS, ASKING,
"DID ANYONE FORCE YOU TO SIGN THESE
PHOTOGRAPHS?" U.S. CONST. amend. XIV; N.J.
CONST. art. I, ¶ 1.

A-4692-18
17
POINT III

THE TRIAL COURT IMPROPERLY ELICITED THE
INCRIMINATING LAY OPINION OF A
DETECTIVE - WHO WAS NOT AN EYEWITNESS
AND HAD NO PERSONAL KNOWLEDGE OF
EVENTS OR [DEFENDANT] - THAT PHOTOS
DEPICTED "OUR SUSPECT" AND THE "SUSPECT
CAR." U.S. CONST. amend. XIV; N.J. CONST. art. I,
¶ 1.

POINT IV

[DEFENDANT]'S STATEMENT TO A DETECTIVE
SHOULD BE SUPPRESSED BECAUSE IT WAS
MADE UNDER INTERROGATION, AND THE
PROSECUTOR PRESENTED NO EVIDENCE THAT
[DEFENDANT] RESPONDED TO OR
UNDERSTOOD THE MIRANDA WARNINGS. U.S.
CONST. amends. V, XIV; N.J. CONST. art. 1, ¶ 1.

POINT V

[DEFENDANT] SHOULD BE RESENTENCED
BECAUSE THE COURT IMPROPERLY
CONSIDERED THE OFFENSES FOR WHICH
[DEFENDANT] WAS BEING SENTENCED IN
FINDING AGGRAVATING FACTOR SIX – WHICH
SHOULD ONLY APPLY WHEN THE
DEFENDANT'S "PRIOR" RECORD IS BAD.

We defer to a trial court's evidentiary ruling absent an abuse of discretion.

State v. Garcia, 245 N.J. 412, 430 (2021). We review such evidentiary rulings

"under the abuse of discretion standard because, from its genesis, the decision

A-4692-18
18
to admit or exclude evidence is one firmly entrusted to the trial court's

discretion." State v. Prall, 231 N.J. 567, 580 (2018) (quoting Est. of Hanges v.

Mero. Prop. & Cas. Ins. Co., 202 N.J. 369, 383-84 (2010)). Under that

deferential standard, we "review a trial court's evidentiary ruling only for a 'clear

error in judgment.'" State v. Medina, 242 N.J. 397, 412 (2020) (quoting State v.

Scott, 229 N.J. 469, 479 (2017)).

Defendant challenges several evidentiary rulings related to Brennan's trial

testimony. Defendant contends the judge erred by excluding portions of

Brennan's video recorded interview with the detectives pertaining to Brennan's

identification of defendant. According to defendant, the jurors needed to see the

relevant portions the video interview to evaluate "the reliability of Brennan's

claim that [defendant] was the shooter depicted" in the still photograph.

Defendant also argues the judge misapplied the rule of completeness regarding

Brennan's video recorded interview because the rule only authorizes admission

of additional parts of a conversation if related to the same subject matter.

Additionally, because Brennan lacked the ability to recollect in response

to questions at trial, defendant contends the audio transcript of her recorded

interview failed to adequately convey Brennan's hesitation and equivocation in

responding to the detectives' questions. Thus, defendant argues other portions

A-4692-18
19
of Brennan's video recorded interview should have been allowed to be shown to

the jury. Defendant also claims the audio transcript failed to "show the extent

to which the detectives pressured Brennan" to identify her car and defendant.

Defendant further argues the out-of-court identification by Brennan failed

to comport with the procedures established under State v. Henderson, 208 N.J.
208 (2011), and the identification was not properly recorded under State v.

Anthony, 237 N.J. 213, 227-30 (2019).

For the first time on appeal, defendant argues N.J.R.E. 803(a)(3), a

hearsay exception, allows admission of a witness's prior statement that is "a prior

identification of a person made after perceiving that person." Previously,

defense counsel argued portions of Brennan's video recorded interview should

be admitted for impeachment purposes.

We begin with defendant's assertion that N.J.R.E. 803(a)(3) supported

playing additional portions of Brennan's recorded interview for the jury.

Arguments raised for the first time on appeal are reviewed for plain error under

Rule 2:10-2 ("Any error or omission shall be disregarded by the appellate court

unless it is of such a nature as to have been clearly capable of producing an

unjust result"). A defendant who fails to raise an objection at trial "bears the

A-4692-18
20
burden of establishing that the trial court's actions constituted plain error[.]"

State v. Santamaria, 236 N.J. 390, 404 (2019) (quoting State v. Ross, 229 N.J.
389, 407 (2017)). The plain error standard requires a determination: "(1)

whether there was error; and (2) whether that error was 'clearly capable of

producing an unjust result,' R. 2:10-2; that is, whether there is 'a reasonable

doubt . . . as to whether the error led the jury to a result it otherwise might not

have reached.'" State v. Dunbrack, 245 N.J. 531, 544 (2021) (quoting State v.

Funderburg, 225 N.J. 66, 79 (2016)).

We reject defendant's argument N.J.R.E. 803(a)(3) supported admission

of other portions of Brennan's video recorded interview with the detectives.

N.J.R.E. 803(a)(3) provides certain statements are not excluded under the

hearsay rule provided "[t]he declarant-witness testifies and is subject to cross-

examination about a prior otherwise admissible statement, and the statement: . .

. is a prior identification of a person made after perceiving that person if made

in circumstances precluding unfairness or unreliability." The rationale for

admitting a prior identification is grounded on the notion the statements were

"made when the events and sensory impressions [were] fresh in the mind of a

witness." State v. Matlack, 49 N.J. 491, 498 (1967).

A-4692-18
21
Here, N.J.R.E. 803(a)(3) did not apply. Brennan's trial testimony was not

inconsistent with the statements she made to the detectives during her interview.

Additionally, Brennan was not an eyewitness to Colclough's murder. She

merely identified defendant from a still photograph and her statements were akin

to a confirmatory identification based on her relationship with defendant. See

State v. Sanchez, 247 N.J. 450, 477 (2021).

We also reject defendant's argument Brennan's identification of defendant

failed to comport with the requirements under Henderson. Because Brennan

was not an eyewitness to a crime, no showup or photo array was necessary, and

the detectives were not required to provide Henderson instructions prior to her

identification of defendant. Similarly, because Brennan's out-of-court

identification did not implicate Henderson, there was no need to record the

identification under Anthony.

We concur with the judge's determination regarding defendant's request

to play selected portions of Brennan's interview, applying the rule of

completeness. N.J.R.E. 106 provides "[i]f a party introduces all or part of a . . .

recorded statement, an adverse party may require the introduction at that time,

A-4692-18
22
of any other part, or any other . . . recorded statement, that in fairness ought to

be considered at the same time." "When a witness testifies on cross-examination

as to part of a conversation, statement, transaction or occurrence . . . the party

calling the witness is allowed to elicit on redirect examination, 'the whole

thereof, to the extent it relates to the same subject matter and concerns the

specific matter opened up.'" State v. James, 144 N.J. 538, 554 (1996) (citing

Virgin Islands v. Archibald, 987 F.2d 180, 188 (3d Cir. 1993)); see also State v.

Lozada, 257 N.J. Super. 260, 272 (App. Div. 1992) (explaining an adverse

party's request to read a portion of a writing "may be required if it is necessary

to (1) explain the admitted portion, (2) place the admitted portion in context, (3)

avoid misleading the trier of fact, or (4) insure a fair and impartial

understanding") (quoting United States v. Soures, 736 F.2d 87, 91 (3d Cir.

1984)).

Here, defense counsel sought to introduce specific portions of Brennan's

out-of-court video recorded statement to argue she was coerced into identifying

her car and defendant when the detectives took her to a different, unrecorded

room to watch the surveillance camera video footage. On the other hand, the

State sought to admit other portions of Brennan's video recorded interview to

provide context for the video clips defendant sought to play, and to avoid

A-4692-18
23
misleading the jury. Those portions of the recorded interview the State claimed

were necessary to give the jury context and provide a fair understanding of the

evidence included Brennan uttering the following statements while the

detectives were not in the interview room, "It's just stupid . . . It's all there . . .

[t]here's nothing to ask. I see it's my car. It looks like him, so . . . ."

Brennan's video recorded interview also contained statements about

defendant's prior drug connections, ownership of a gun, and potential gang

affiliation. If those statements were presented to the jury, it is likely defendant

would have suffered prejudice. Consequently, it is likely defense counsel

strategically decided to forego playing additional clips from Brennan's video

recorded interview with the detectives.

Moreover, defense counsel effectively relied on the audio transcript of the

video recording of Brennan's interview to refresh her recollection and impeach

her credibility before the jury. In fact, during summation, defense counsel

argued Brennan's trial testimony was inconsistent with her video recorded

interview and she was pressured by the detectives off-camera to positively

identify her car and defendant.

N.J.R.E. 106 precluded defendant from selecting those portions of

Brennan's video recorded interview he wanted the jury to see without allowing

A-4692-18
24
the State to present other portions of the video interview to give the jury context

and avoid any misimpression as to events that transpired during Brennan's three-

hour interview with the detectives. Under the circumstances, there was no error,

let alone plain error, resulting from the judge's refusal to allow defendant to

select portions of Brennan's video recorded interview to be played for the jury

absent the prosecutor's consent.

II.

Defendant argues the judge's questions directed to Brennan and Detective

Nelson impermissibly demonstrated the judge sided with the State. Specifically,

defendant claims a follow up question asked by the judge concerning Brennan's

voluntary signing of the reverse side of the still photographs and questions

directed to Detective Nelson regarding the sequencing of the photographs he

authenticated were improper and elicited inappropriate lay witness testimony.

We reject these arguments.

Judges are authorized to question witnesses. N.J.R.E. 614. Although a

trial judge has wide latitude to question witnesses, a judge must exercise that

authority with "great restraint," especially during a jury trial. State v. Taffaro,

A-4692-18
25
195 N.J. 442, 451 (2008). Additionally, a judge must use care when questioning

witnesses to avoid influencing the jury. Ross, 229 N.J. at 408.

A judge may question a witness to expedite the proceedings, clarify

testimony, or assist a distressed witness in eliciting facts. Ibid. A trial judge

errs when her [or his] inquiries give the jury the impression that she [or he] takes

one party's side or that she [or he] believes one version of an event and not

another. See Taffaro, 195 N.J. at 451 (citing Village of Ridgewood v. Sreel Inv.

Corp., 28 N.J. 121, 132 (1958)). In determining whether a trial judge erred in

questioning a witness, we examine the record as a whole and consider the impact

of the court's questions. See id. at 454.

We reject defendant's claim the judge improperly questioned Brennan and

sided with the prosecutor by asking, "[d]id anyone force you to sign those

photographs?" Because the prosecutor did not ask questions of Brennan on

redirect, defendant contends the judge's question benefited the State and was

phrased so as to suggest to the jury nothing improper occurred when the

detectives spoke to Brennan in another room.

Here, we discern no evidence the jury perceived the judge favoring the

State. While it would have been better had the judge neutrally phrased the

A-4692-18
26
question directed to Brennan, the inquiry stemmed from defense counsel's cross-

examination and sought to clarify information for the jury. The judge did not

frame the question in an overtly suggestive manner.

Further, after Brennan responded to the judge's question, the judge

allowed counsel to ask Brennan additional questions and counsel declined.

More importantly, in charging the jury, the judge expressly instructed the jury

it should not be influenced by her questions directed to any witnesses. 1 Based

on the ample additional evidence presented to the jury, this single question by

the judge could not have affected the outcome of the trial.

We also reject defendant's assertion the judge improperly elicited

incriminating lay opinion testimony from Detective Nelson. Nelson

authenticated the still photographs from the surveillance camera video to admit

the photographs in evidence. Nelson, in response to the judge's questions

regarding the "significance" of the photographs, referred to the man depicted as

"our suspect." The detective also offered testimony that the still photographs of

the car, before and after Colclough's murder, showed the "same vehicle." Based

1
During the trial, the judge asked clarifying questions directed to other
witnesses. However, defendant challenges only the judge's questions directed
to Brennan and Detective Nelson.
A-4692-18
27
on Detective Nelson's responses to the judge's question, defendant claims the

witness usurped the jury's role by proffering impermissible lay opinion

testimony.

A lay witness may testify in the form of opinions or inferences if the

testimony will help the trier of fact understand the testimony or determine a fact

in issue. See N.J.R.E. 701; State v. Singh, 245 N.J. 1, 15 (2021). In Singh, the

New Jersey Supreme Court found it was an error for a police officer , acting as

a lay witness, to describe the events depicted in surveillance video footage and

to refer to an individual depicted in the surveillance video as "the defendant."

Singh, 245 N.J. at 17. However, the Court found the error was harmless "given

the fleeting nature of the comment and the fact that the detective referenced

defendant as 'the suspect' for the majority of his testimony." Ibid.

Here, Detective Nelson did not refer to the individual depicted in the still

photograph as "the defendant." Rather, the detective referred to the individual

as "our suspect" and "the suspect." As approved in Singh, there was nothing

improper about Detective Nelson's description of the individual as "the suspect"

or "our suspect" as the meaning of the two phrases is no different. Given the

fleeting nature of Detective Nelson's comments regarding the individual

A-4692-18
28
depicted in the still photograph, the judge did not abuse her discretion in

allowing those comments.

The statements by the detective and the judge concerning "the vehicle,"

"same vehicle," and "suspect vehicle" are slightly more problematic. The

detective's use of these terms was not a one-time, fleeting reference. The "same

vehicle" was mentioned several times during the detective's testimony.

Additionally, the phrase "same vehicle" was repeated by the trial judge.

In Singh, the defendant argued it was improper for a witness to opine as

to the similarity between sneakers observed in a surveillance video and sneakers

worn by the defendant upon arrest. Id. at 19. The Court held N.J.R.E. 701 did

not require "the testifying lay witness be superior to the jury in evaluating an

item." Ibid. Additionally, the Court concluded the detective's observation of

the similarities between the defendant's shoes in the video footage and

defendant's shoes at the time of his arrest did not usurp the jury's role in

comparing defendant's footwear and the jury remained "free to discredit [the

detective's] testimony." Id. at 20. Thus, the Court determined admission of the

detective's testimony was not an abuse of discretion. Ibid.

Here, Detective Nelson never saw the actual car used by the shooter. The

detective merely watched the surveillance camera videos and authenticated the

A-4692-18
29
still photographs based on the surveillance footage. Thus, it is unlikely the

detective's opinion, stating the similarity between the depicted cars, was

superior to the jury being able to make the same comparison. However, to

warrant reversal "the error must be 'sufficient to raise a reasonable doubt as to

whether [it] led the jury to a result it otherwise might not have reached.'" State

v. Daniels, 182 N.J. 80, 95 (2004) (quoting State v. Macon, 57 N.J. 325, 336

(1971)).

Based on our review of the record, we conclude the judge's questions and

Detective Nelson's responses regarding the "same vehicle" were insufficient to

raise reasonable doubt regarding the jury's verdict based on the overwhelming

evidence of defendant's guilt. The evidence included Brennan's testimony

identifying her car and defendant from the still photographs and surveillance

camera videos taken near the murder scene. The State also proffered a "selfie"

photograph taken by defendant a few days prior to the murder, showing

defendant sporting a beard and wearing a blue hat with a star logo, the same as

the shooter in the surveillance camera videos. Additionally, the State provided

ballistic evidence that bullets found in defendant's apartment were the same as

the bullet used to murder Colclough. Further, the State presented cellular

telephone location evidence, placing defendant at the scene at the time of the

A-4692-18
30
murder. Thus, examining the record as a whole, the judge's clarifying questions

directed to Brennan and Detective Nelson did not unduly influence the jury or

affect the outcome of the case to warrant a new trial.

III.

Defendant claims the pretrial judge erred in admitting his statement to the

detectives while in the hospital regarding ownership of a handgun. He argues

his statement was made while he was under interrogation, the State failed to

prove he knowingly waived his Miranda rights, and he failed to understand the

warnings. We reject these arguments.

"In reviewing a motion to suppress, an appellate court 'must uphold the

factual findings underlying the trial court's decision so long as those findings

are supported by sufficient credible evidence in the record.'" State v. Handy,

206 N.J. 39, 44 (2011) (quoting State v. Elders, 192 N.J. 224, 243 (2007)). "A

trial court's findings should be disturbed only if they are so clearly mistaken '

that the interests of justice demand intervention and correction.'" State v.

Tillery, 238 N.J. 293, 314 (2019) (quoting State v. A.M., 237 N.J. 384, 395

(2019)). We review a trial judge's legal conclusions de novo. Ibid.

The Miranda warnings must be given during a custodial interrogation. See

Miranda v. Arizona, 384 U.S. 436, 467-69 (1966). A defendant can waive his

A-4692-18
31
Miranda rights, if the waiver is "knowing, intelligent, and voluntary in light of

all the circumstances." State v. Presha, 163 N.J. 304, 313 (2000).

After an evidentiary hearing, the pretrial judge aptly determined defendant

was under arrest and in custody when he made the statement to the detective.

However, the judge properly concluded defendant was not being interrogated

and he spontaneously informed the detective the handgun belonged to him.

"[A]n interrogation is 'any words or actions on the part of the police (other

than those normally attendant to arrest and custody) that the police should know

are reasonably likely to elicit an incriminating response from the suspect.'" State

v. Mallozzi, 246 N.J. Super. 509, 515 (App. Div. 1991) (quoting Rhode Island

v. Innis, 446 U.S. 291, 301 (1980)). "[U]nexpected incriminating statements

made by in-custody defendants in response to non-investigative questions" are

admissible without Miranda warnings. Id. at 516.

We agree with the judge's finding and legal conclusion there was no

interrogation of defendant. Here, defendant "called [Detective] Chidichimo into

the room to inform him that the gun was his and initiated the questioning

himself" and there "was no evidence that the officers asked him any questions

regarding whether the gun was his . . . ." Because defendant's statement was

spontaneous, the judge correctly concluded "Miranda was not required."

A-4692-18
32
Even if defendant's statement had been the product of an interrogation,

defendant knowingly waived his Miranda rights. In fact, Detective Chidichimo

advised defendant he was under no obligation to speak about the handgun after

defendant received the Miranda warnings. Defendant expressly acknowledged

he had no obligation to speak to the detective but twice spontaneously

volunteered the handgun belonged to him.

Because defendant's admitted ownership of the handgun was spontaneous

and unsolicited, we agree that Miranda was inapplicable, and the judge properly

granted the State's motion to admit defendant's hospital statement regarding

ownership of the handgun.

IV.

Defendant argues the sentencing judge improperly found aggravating

factor six, N.J.S.A. 2C:44-1(a), applicable when he was sentenced on Indictment

No. 17-02-00124. The State contends the sentence imposed was illegal and the

matter should be remanded for the judge to impose an eighty-five percent parole

disqualifier on the life sentence consistent with the governing statute.2

2 In an August 10, 2021 order, we denied the State's motion to file a notice of
cross-appeal as within time. However, we noted "the merits panel is free to
correct an illegal sentence at any time."
A-4692-18
33
A.

We review a sentence imposed by the sentencing court for abuse of

discretion. State v. Jones, 232 N.J. 308, 318 (2018). We should defer to the

sentencing court's factual findings and should not "second-guess" them. State

v. Case, 220 N.J. 49, 65 (2014). "Appellate courts must affirm the sentence of

a trial court unless: (1) the sentencing guidelines were violated; (2) the findings

of aggravating and mitigating factors were not 'based upon competent credible

evidence in the record;' or (3) 'the application of the guidelines to the facts' of

the case 'shock[s] the judicial conscience.'" State v. Bolvito, 217 N.J. 221, 228

(2014) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).

Under N.J.S.A. 2C:44-1(a), a sentencing court considers several

aggravating factors. Aggravating factor six requires the sentencing judge

consider "[t]he extent of the defendant's prior criminal record and the

seriousness of the offenses of which [the defendant] has been convicted."

N.J.S.A. 2C:44-1(a)(6). When a sentencing court considers improper

aggravating factors, we ordinarily remand for resentencing. See State v. Carey,

168 N.J. 413, 424 (2001).

In applying aggravating factor six, the judge explained:

A-4692-18
34
the extent that Mr. Cooper, his criminal record. It's not
that extensive. I must agree with [defense counsel] in
that. But something happened.

I don't know what it was, where all of a sudden, you
just went on one offense after another offense, after
another offense that that [sic] occurred over a number
of years. From weapons to aggravated assault, using
hot oil in prison.

Here, the judge's application of aggravating factor six was not supported

by the record because defendant's only prior crime involved a third-degree

shoplifting conviction. Because judgments of conviction had yet to be entered

on the indictments involving murder, weapons possession, and assault, the judge

should not have considered those crimes as prior offenses for application of

aggravating factor six.

The State contends the sentencing judge failed to impose the mandatory

period of parole ineligibility period for first-degree murder under the No Early

Release Act, N.J.S.A. 2C:43-7.2, rendering defendant's sentence illegal. The

State seeks a limited remand "for imposition of the mandatory-minimum term."

Defendant requests we remand for a plenary hearing on resentencing.

N.J.S.A. 2C:43-7.2(a) states "[a] court imposing a sentence of incarceration

for a crime of the first or second degree enumerated in subsection d. of this

A-4692-18
35
section shall fix a minimum term of 85% of the sentence imposed, during which

the defendant shall not be eligible for parole." Murder is an enumerated crime

under the relevant subsection. N.J.S.A. 2C:43-7.2(d)(1). Where a sentence fails

to include the statutory mandatory parole ineligibility term, it is an illegal

sentence. See State v. Baker, 270 N.J. Super. 55, 70 (App. Div.), aff'd, 138 N.J.
89 (1994); State v. Copeman, 197 N.J. Super. 261, 265 (App. Div. 1984).

Here, by sentencing defendant to life with a twenty-five-year parole bar,

the judge misapplied the mandatory minimum term required under the statute.

See N.J.S.A. 2C:43-7.2(b). As a result, defendant and the State request a remand

for the trial court to address the mandatory-minimum sentence.

On this record, we are constrained to remand for a new resentencing

hearing. Because defendant had not been convicted of murder, weapons

charges, and assault at the time of sentencing, he did not have an extensive

criminal history for application of aggravating factor six. Additionally, the

judge misapplied the statute governing the mandatory minimum term of

imprisonment.

To the extent we have not addressed any of defendant's remaining

arguments, we determine those arguments are without sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(2).

A-4692-18
36
Affirmed as to defendant's convictions. Remanded for resentencing. We

do not retain jurisdiction.

A-4692-18
37

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.