STATE OF NEW JERSEY VS. WILLIAM D. BROWNSTATE OF NEW JERSEY VS. NIGIL J. DAWSONÂ (12-05-0474, MERCER COUNTY AND STATEWIDE)(CONSOLIDATED)

NOT FOR PUBLICATION WITHOUT THE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-4898-14T1
A-5221-14T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WILLIAM D. BROWN,

Defendant-Appellant.

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

NIGIL J. DAWSON,

Defendant-Appellant.
____________________________________

Argued (A-4898-14) and Submitted (A-5221-14)
April 25, 2017 – Decided June 1, 2017

Before Judges Yannotti and Sapp-Peterson.

On appeal from Superior Court of New Jersey,
Law Division, Mercer County, Indictment No.
12-05-0474.

David A. Gies, Designated Counsel, argued the
cause for appellant in A-4898-14 (Joseph E.
 Krakora, Public Defender, attorney; Mr. Gies,
on the briefs).

Michael D. Grillo, Assistant Prosecutor,
argued the cause for respondent in A-4898-14
(Angelo J. Onofri, Mercer County Prosecutor,
attorney; Laura Sunyak, Assistant Prosecuor,
of counsel and on the brief).

Joseph E. Krakora, Public Defender, attorney
for appellant in A-5221-14 (Michele A.
Adubato, Designated Counsel, on the brief).

Angelo J. Onofri, Mercer County Prosecutor,
attorney for respondent in A-5221-14 (Laura
Sunyak, Assistant Prosecutor, of counsel and
on the brief).

PER CURIAM

Defendants William D. Brown and Nigil J. Dawson were tried

before a jury and found guilty of the murder of Tracy Crews, and

other offenses. Defendants were both sentenced to aggregate terms

of fifty years of incarceration, subject to the No Early Release

Act (NERA), N.J.S.A. 2C:43-7.2. They appeal from the judgments of

conviction dated June 8, 2015. We address both appeals in this

opinion.

For the reasons that follow, we affirm defendants'

convictions and the sentences imposed, with the exception of the

sentences imposed on count three for possession of a weapon for

an unlawful purpose. We remand the matter to the trial court for

entry of corrected judgments of conviction merging count three

with count one, in which defendants were charged with murder.

2 A-4898-14T1
 I.

A Mercer County grand jury returned an indictment charging

defendants with first-degree murder, N.J.S.A. 2C:11-3(a)(2);

N.J.S.A. 2C:2-6 (count one); first-degree felony murder, N.J.S.A.

2C:11-3(a)(3); N.J.S.A. 2C:2-6 (count two); first-degree robbery,

N.J.S.A. 2C:15-1 and N.J.S.A. 2C:2-6 (count three); and second-

degree possession of a weapon for an unlawful purpose, N.J.S.A.

2C:39-4(b) and N.J.S.A. 2C:2-6 (count four).

We briefly summarize the evidence presented at trial. On

September 12, 2008, at approximately 11:00 p.m., Crews, a known

member of the Bloods street gang, was shot three times at his home

on Whittaker Avenue in Trenton. One of the shots struck Crews in

the neck, and he later died as result of the injuries he sustained

in the shooting.

Crews' wife, Sheena Robinson-Crews, was sitting in her car

nearby, speaking with a friend on the telephone, and heard the

gunshots. Robinson-Crews observed a person standing in front of

her residence. The person stumbled along the sidewalk and came

into the light from a nearby liquor store. Robinson-Crews then

recognized the person as her husband.

Robinson-Crews hung up the phone and rushed toward her

husband, as he tried to get into the store. She grabbed Crews and

they fell down on the sidewalk. Robinson-Crews held Crews and

3 A-4898-14T1
attempted to apply pressure to his neck wound. She asked Crews

"who did this to you."

According to Robinson-Crews, her husband replied, "Paperboy,"

which is Brown's alias. Robinson-Crews called 9-1-1. She also made

other phone calls, including at least three calls to Crews' mother,

Barbara Portis. During one of those calls, Robinson-Crews told

Portis that "Paperboy and Youngin" shot Crews. "Youngin" is

Dawson's alias. The following morning, Robinson-Crews went to

Portis' home, and again told her that "Paperboy and Youngin" shot

Crews.

Officers from the Trenton Police Department (TPD) arrived on

the scene. Crews was unresponsive and began to lose consciousness.

Robinson-Crews told the officers that her husband had been shot

inside the home, and a toddler was in the house. The officers

entered the home through the backdoor and observed one or two

shell casings on the kitchen floor. The officers also observed

some blood where the doorway led to the rest of the apartment. An

officer located the toddler and placed her in the care of another

officer.

Other officers from the TPD arrived and aided in the search

for the shooter. In a nearby construction yard, an officer observed

freshly-disturbed gravel and footprints. The officer covered the

footprints with the lid of a garbage can to preserve them. The

4 A-4898-14T1
officer recovered a cell-phone charger on the grass in the

construction yard. On a nearby street, the officer also found a

cell phone next to a parked vehicle and a tan jacket, which had

been turned inside out. Another officer recovered a camouflage ski

mask on the ground in the passageway between two houses in the

area.

A crime scene detective from the TPD also collected "reddish"

stains from Whittaker Avenue, impressions of the footprints, and

the shell casings from the kitchen floor of the Crews home. The

officer later executed a search warrant for Robinson-Crews'

vehicle, in which he recovered a cell-phone box. Another detective

found a 9-millimeter handgun on the roof of a nearby building.

A forensic scientist from the New Jersey State Police (NJSP)

testified that she collected DNA evidence from the camouflage ski

mask and tan jacket. Another NJSP forensic scientist compared the

samples with DNA samples provided by defendant, and concluded that

he could not be excluded as a source of the DNA found on the mask.

A ballistics expert from the NJSP testified that the shell casings

found in the kitchen of the Crews home had been discharged from

the gun recovered from the nearby building.

Confidential informants Isaiah Franklin and Terrell Black

also testified. Franklin stated that he spoke with Dawson about

the case, while he and Dawson were housed in the Mercer County

5 A-4898-14T1
Corrections Center (MCCC). According to Franklin, Dawson said he

was involved in the Crews murder. He told Franklin he went to

Crews' house to steal $40,000 from him, but the robbery went wrong.

Dawson said Crews recognized him, so he shot Crews in the neck and

escaped out the back door. He said that Crews' "child-mother"

arrived and recognized him. According to Dawson, Crews said he

could not believe "Youngin would do this to me."

Franklin further testified that he had similar conversations

with Brown while in the MCCC. According to Franklin, Brown told

him that the mask the police found at the scene had his DNA on it,

but he was going to have his girlfriend write an alibi indicating

that he tried the mask on and somehow Dawson obtained it. On cross-

examination, Franklin said that Brown told him that he and Dawson

ran out of Crews' house, jumped over the gate, threw the gun away,

and hopped in the car with Brown's girlfriend.

Black testified that he also had conversations with both

defendants while they were incarcerated at the MCCC. Dawson told

Black he participated in the plan to rob Crews of $40,000, and

that he was wearing a ski mask at the time. Dawson said Crews

recognized him during the robbery, so he got nervous and shot

Crews in the neck. Dawson stated that after he shot Crews, Crews

said he could not believe "Paperboy and Youngin" would do this to

6 A-4898-14T1
him. He stated that he and Brown ran out the back of the Crews

house.

Black further testified that Brown told him he set up a plan

to rob Crews of $40,000 from his home, and that he was wearing a

ski mask during the robbery. Brown stated that Crews was shot in

the neck in the house, and Crews' "child mother" came home. Brown

left from the back of Crews' home. He said he was going to have

his girlfriend write a letter indicating that he tried on the mask

and gave it to Dawson, which was how his DNA got on the mask.

Brown's girlfriend also would write that Brown was with her at the

time of the murder.

Maria Cappelli, an inmate at a State prison in Muncy,

Pennsylvania, was called as a witness for the defense. Cappelli

was incarcerated with Robinson-Crews. According to Cappelli,

Robinson-Crews told her that Crews was killed one night after he

returned home. Robinson-Crews said she gave the keys to "a guy"

and that "it was all set up." Robinson-Crews also told Cappelli

she was "part of the set up" because Crews had been mentally and

physically abusive to her.

Cappelli admitted, however, that she waited two years to

report this information to the authorities, but did so because she

had an attack of conscience. She said she did not get any benefit

in exchange for reporting the information. Cappelli stated that

7 A-4898-14T1
Robinson-Crews indicated the murder had been committed by two gang

members, but she did not identify the perpetrators.

The jury found defendants guilty of murder, felony murder,

robbery, and possession of a weapon for an unlawful purpose. The

judge merged count two (felony murder) with count one (murder),

and sentenced both defendants to fifty years of incarceration,

with periods of parole ineligibility established pursuant to NERA.

The judge also sentenced both defendants to concurrent twenty-year

prison sentences for robbery, and ten years of incarceration for

the weapons charge. The judge filed judgments of conviction dated

June 8, 2015. Defendants' appeals followed.

On appeal, Brown raises the following arguments:

POINT ONE

THE TRIAL COURT ERRED WHERE IT DID NOT DISMISS
WITH PREJUDICE THE INDICTMENT DUE TO DETECTIVE
BRITTON'S FLAGRANT MISBEHAVIOR WHICH RESULTED
IN THE SUPPRESSION OF MATERIAL EVIDENCE
FAVORABLE TO THE DEFENDANT.

POINT TWO

THE TRIAL COURT'S DECISION TO REVERSE THE
MOTION COURT'S PRETRIAL RULING REGARDING THE
ALLEGED DYING DECLARATION WAS NOT BASED ON THE
PROPER STANDARD IN ANALYZING ITS ADMISSIBILITY
WHERE IT DID NOT FOCUS ON THE FACTS KNOWN TO
OR OBSERVED BY CREWS AND AS SUCH UNDULY
PREJUDICED THE DEFENDANT'S RIGHT TO A FAIR
TRIAL.

8 A-4898-14T1
 POINT THREE

THE TRIAL COURT ERRED WHERE IT RULED
INADMISSIBLE THE WRITTEN STATEMENTS PREPARED
UNDER OATH SHOWING [ROBINSON-CREWS']
KNOWLEDGE OF THE PLOT AND OF THE SHOOTER.

POINT FOUR

THE TRIAL COURT ERRED WHERE IT RULED
ADMISSIBLE AS AN EXCITED UTTERANCE PORTIS'S
TESTIMONY REGARDING [ROBINSON-CREWS']
STATEMENT TO HER ABOUT CREWS' ALLEGED DYING
DECLARATION.

POINT FIVE

THE TRIAL COURT ERRED WHERE IT DENIED THE
DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL
BECAUSE THE STATE'S EVIDENCE WAS INSUFFICIENT
TO WARRANT A CONVICTION AS TO ANY COUNT IN THE
INDICTMENT.

POINT SIX

WHERE THE TRIAL COURT'S EVALUATION OF THE
AGGRAVATING FACTORS APPEARS TO RELATE ONLY TO
THE DEFENDANT'S PRIOR RECORD, A SENTENCE
GREATER THAN THE MANDATORY MINIMUM TERM OF 30
YEARS IS EXCESSIVE.

In his appeal, Dawson raises the following arguments:

POINT I

THE STATE'S EGREGIOUS AND CONTINUOUS FAILURE
TO MAKE TIMELY DISCLOSURE OF DISCOVERY
THROUGHOUT THIS TRIAL DEPRIVED DEFENDANT OF
HIS RIGHT TO A FAIR TRIAL.

POINT II

COMMENTS MADE BY MS. ROBINSON-CREWS ON THE
TELEPHONE OVERHEARD BY DETECTIVE BOLOGNINI AND
MADE A PART OF THE STATE'S SEARCH WARRANT

9 A-4898-14T1
AFFIDAVIT SHOULD HAVE BEEN ADMITTED INTO
EVIDENCE AS PAST RECOLLECTION RECORDED.

POINT III

THE ADMISSION OF TESTIMONY OF SHEENA ROBINSON-
CREWS REGARDING THE "DYING DECLARATION" OF
TRACY CREWS WHICH WAS CONTRARY TO A PRE-TRIAL
RULING MADE BY ANOTHER COURT OF EQUAL
JURISDICTION WAS ERRONEOUS AND DEPRIVED THE
DEFENDANT OF A FAIR TRIAL.

POINT IV

TESTIMONY OF BARBARA PORTIS CONCERNING A
CONVERSATION WITH SHEENA [ROBINSON-CREWS] WAS
HEARSAY WHICH SHOULD HAVE BEEN EXCLUDED FOR
EVIDENCE.

POINT V

THE TESTIMONY OF JAIL SNITCHES VIOLATED
DEFENDANT'S RIGHT OF CONFRONTATION AND SHOULD
HAVE BEEN EXCLUDED FROM EVIDENCE.

POINT VI

IT WAS ERROR FOR THE SENTENCING COURT TO FAIL
TO MERGE THE CONVICTION FOR POSSESSION OF A
WEAPON FOR AN UNLAWFUL PURPOSE WITH THE MURDER
CONVICTION. (Not raised below).

POINT VII

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

POINT VIII

THE SENTENCE IMPOSED UPON THE DEFENDANT OF
FIFTY (50) YEARS WITH 85% PAROLE INELIGIBILITY
WAS EXCESSIVE AND SHOULD BE MODIFIED AND
REDUCED. (Not raised below).

10 A-4898-14T1
 POINT IX

THE AGGREGATE ERRORS DENIED DEFENDANT A FAIR
TRIAL. (Not raised below).

II.

We first consider defendants' contention that the trial judge

erred by refusing to dismiss the indictment due to the State's

delayed disclosure of certain evidence.

The record indicates that after the trial commenced, the

State produced seventeen police reports, which included an

affidavit the State had submitted in support of its application

for a search warrant. The search-warrant affidavit included

statements attributed to Robinson-Crews, which indicated she may

have had prior knowledge of the robbery and the identity of the

perpetrators. Several days later, the State produced a document

dated May 3, 2013, prepared by officials at the Muncy prison in

Pennsylvania. The document stated that Cappelli claimed Robinson-

Crews told her she was involved in Crews' robbery and murder.

Defendants did not seek a mistrial, but sought dismissal of

the charges with prejudice. The judge ordered the State to produce

four police officers the next day, so they could be questioned

regarding the late production of the evidence. The officers

appeared as required, and the judge conducted a N.J.R.E. 104

11 A-4898-14T1
hearing to explore the reasons the aforementioned evidence had not

been produced earlier.

At the conclusion of the hearing, defense counsel again

informed the judge that they were not seeking a mistrial because

they thought they had "a good case." Brown's counsel told the

judge defendants wanted to proceed with the trial because they did

not want to give the State "a second bite at the apple," which it

was not entitled to and did not deserve.

The judge considered whether defendants would suffer any

prejudice as a result of the late production of the records.

Defendants' attorneys focused upon the Muncy report. Dawson's

attorney stated that perhaps the matter could be resolved "by some

type of phone conference" with Cappelli. The State agreed to

arrange the call. The judge determined that in the meantime, the

trial would continue.

Defense counsel did not object to the resumption of the trial.

The conference call with Cappelli took place, and defendants

thereafter decided to call Cappelli as a witness. Neither defendant

renewed his motion to dismiss the charges with prejudice. Defense

counsel cross-examined Robinson-Crews regarding her statements to

Cappelli. They also cross-examined Detective Gary Britton of the

TPD regarding a meeting he had with Cappelli.

12 A-4898-14T1
 On appeal, defendants argue that the trial judge should have

granted their motions to dismiss due to the State's "flagrant"

misconduct. We disagree.

The State has a "constitutional obligation to provide

criminal defendants with exculpatory evidence in the State's

possession." State v. Marshall, 148 N.J. 89, 154, cert. denied,

522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). "[T]he

suppression by the prosecution of evidence favorable to an accused

upon request violates due process where the evidence is material

either to guilt or to punishment, irrespective of the good faith

or bad faith of the prosecution." State v. Knight, 145 N.J. 233,

245 (1996) (quoting Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct.

1194, 1196-97, 10 L. Ed. 2d 215, 218 (1963)).

In order to establish a claim under Brady, a defendant must

show: "(1) the prosecution suppressed evidence; (2) the evidence

is favorable to the defense; and (3) the evidence is material."

State v. Martini, 160 N.J. 248, 268 (1999) (citation omitted).

Evidence is material "if there is a reasonable probability that,

had the evidence been disclosed to the defense, the result of the

proceeding would have been different." State v. Parsons, 341 N.J.

Super. 448, 455 (App. Div. 2001) (quoting United States v. Bagley,

473 U.S. 667, 682, 105 S. Ct. 3375, 3383, 87 L. Ed. 2d 481, 494

(1985)).

13 A-4898-14T1
 We note that the evidence at issue did not exculpate

defendants. The evidence indicated that Robinson-Crews may have

had prior knowledge of and some involvement in her husband's

robbery and murder, but the evidence did not disclose the names

of any third-parties who may have committed the crimes.

In any event, we conclude that the State should have disclosed

the evidence. See Giglio v. United States, 405 U.S. 150, 154, 92

S. Ct. 763, 766, 31 L. Ed. 2d 104, 108 (1972) (holding that the

State is required to produce evidence that links one of its

witnesses to the charged offense). Nevertheless, the judge did not

err by failing to dismiss the charges against defendant.

"[T]he decision whether to dismiss an indictment lies within

the discretion of the trial court, and that exercise of

discretionary authority ordinarily will not be disturbed on appeal

unless it has been clearly abused." State v. Hogan, 144 N.J. 216,

229 (1996) (citations omitted). Indeed, as we recently observed:

[O]ur courts have long held that a dismissal
of an indictment is a draconian remedy and
should not be exercised except on the clearest
and plainest ground. Dismissal is the last
resort because the public interest, the rights
of victims and the integrity of the criminal
justice system are at stake. Even in a case
in which we found an investigating officer's
brazen misconduct to be wholly reprehensible,
we reversed the dismissal of seventeen
indictments, stating, "we question whether the
public must pay the price by forfeiting its
day in court on otherwise properly found

14 A-4898-14T1
 indictments." Therefore, although a motion to
dismiss an indictment is directed to the sound
discretion of the court, an indictment should
stand unless it is palpably defective.

[State v. Williams, 441 N.J. Super. 266, 271-
72 (App. Div. 2015) (citations omitted.]

Defendants have not shown that they suffered any undue

prejudice as a result of the State's late production of the

evidence. Moreover, the judge took reasonable measures to ensure

that defendants had a fair trial, notwithstanding the late

production of the evidence. See State v. Allah, 170 N.J. 269, 280

(2002) (holding that if there is "an appropriate alternative course

of action," extraordinary relief such as a mistrial or dismissal

with prejudice is not a proper exercise of discretion).

As we have explained, the judge gave defendants time to review

the evidence, and allowed them time to conduct a conference call

with Cappelli. Defendants also were able to cross-examine

Robinson-Crews and Britton about the statements Cappelli

attributed to Robinson-Crews.

Based on the record before us on appeal, there is no

indication that defendants were unduly hampered in their ability

to challenge Robinson-Crews' credibility, based on her alleged

prior knowledge of and involvement in the robbery and murder.

Therefore, we conclude that the judge's decision to deny

defendants' motion to dismiss the charges based on the State's

15 A-4898-14T1
failure to make timely disclosure of the evidence was not a

mistaken exercise of discretion.

III.

Next, defendants argue that the trial judge erred by admitting

testimony by Robinson-Crews regarding statements Crews made to her

shortly before he died. As noted previously, Robinson-Crews

asserted that after Crews was shot, he stumbled out to the street.

Robinson-Crews went to his aid and asked him who "did this to

you." According to Robinson-Crews, defendant replied "Paperboy,"

which is Brown's alias.

The motion judge determined that Robinson-Crews could not

testify at trial because she was not a credible witness. The judge

stated that the testimony Robinson-Crews provided at the pre-trial

hearing differed from several statements she made to the

investigating officers at or about the time the offenses were

committed.

Indeed, Robinson-Crews had conceded that some of her prior

statements were false. In ruling on the motion, the motion judge

also considered a statement by William Rivera. He said that

although Robinson-Crews had repeatedly asked Crews who shot him,

he was not able to respond to her questions.

We are convinced, however, that the trial judge did not err

by reconsidering the motion judge's determination, after hearing

16 A-4898-14T1
Robinson-Crews testify at trial and conducting a N.J.R.E. 104

hearing at which Robinson-Crews, Rivera, and Portis testified. The

"law of the case" doctrine "is designed to avoid re-litigation of

the same issue in the same controversy." State v. Ruffin, 371 N.J.

Super. 371, 390 (App. Div. 2004). Even so, application of the

doctrine is discretionary and it is to be "flexibly applied in the

interests of justice." Ibid. (citing State v. Reldan, 100 N.J.

187, 205-06 (1985)).

At the N.J.R.E. 104 hearing, Rivera conceded that he was on

the phone with the 9-1-1 dispatcher while Robinson-Crews was

speaking with her husband, and Crews may have said something to

Robinson-Crews that he did not hear. In addition, Portis testified

that on the night of the shooting, Robinson-Crews called her

several times and during one call stated that "Paperboy and Youngin

shot him." Portis also said that later, Robinson-Crews again told

her that "Paperboy and Youngin" shot Crews.

The trial judge's decision to reconsider whether to admit

Robinson-Crews' testimony was justified by the more complete

record available to the judge. The record supports the judge's

finding that Robinson-Crews' testimony about what Crews said to

her regarding the shooting was sufficiently credible to allow it

to be presented to the jury.

17 A-4898-14T1
 Defendants argue that the judge erred by finding that Crews'

statement was admissible under N.J.R.E. 804(b)(2). We review the

trial court's evidentiary determination under an abuse-of-

discretion standard. State v. Buda, 195 N.J. 278, 294 (2008)

(citing Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008)).

"In a criminal proceeding, a statement made by a victim

unavailable as a witness is admissible if it was made voluntarily

and in good faith and while the declarant believed in the imminence

of declarant's impending death." N.J.R.E. 804(b)(2). See also

State v. Graham, 59 N.J. 366, 370 (1971). In evaluating the

admissibility of a dying declaration, the trial court should

consider "'all the attendant circumstances . . . including the

weapon which wounded [the declarant], the nature and extent of the

[the declarant's] injuries, [the declarant's] physical condition,

[the declarant's] conduct, and what was said to and by [the

declarant].'" State v. Hegel, 113 N.J. Super. 193, 201 (App. Div.

1971) (citation omitted).

Here, there is sufficient credible evidence in the record to

support the trial judge's determination that Crews' statement to

Robinson-Crews was admissible under N.J.R.E. 804(b)(2). Crews was

obviously unavailable at trial. He made the statement in response

to Robinson-Crews' questions, and there is no indication that his

statement was coerced or forced. The record also supports the

18 A-4898-14T1
conclusion that Crews made the statement in good faith, and that

he believed his death was imminent at the time.

Defendants argue, however, that Crews' statement was not

reliable. In his brief, Brown asserts that Crews' statement was

made in response to Robinson—Crews' self-serving inquiry. He also

asserts that Robinson-Crews was not a credible witness, as

evidenced by the inconsistent statements she made about the robbery

and murder. In addition, both Brown and Dawson contend that because

the perpetrators wore masks, Crews could not have identified them.

We find no merit in these arguments. As we noted previously,

based on Robinson-Crews' trial testimony and the testimony

presented at the N.J.R.E. 104 hearing, the trial judge properly

determined that Robinson-Crews was a credible witness and that the

jury should be permitted to hear her testimony as to what Crews

said to her after the shooting.

Moreover, the evidence shows that Brown was Crews' close

friend, and for a while, Brown lived with Crews and his wife. In

addition, Robinson-Crews said that Brown and Dawson were together

all the time. Thus, a jury could reasonably find that Crews was

sufficiently familiar with defendants to identify them, even if

they were wearing masks. See United States v. Ellis, 121 F.3d 908,

926-27 (4th Cir. 1997) (holding that, although the defendant was

masked and wore a hooded sweatshirt, the identification of the

19 A-4898-14T1
defendant was admissible because the witness had known him for

about five years), cert. denied, 522 U.S. 1068, 118 S. Ct. 738,

139 L. Ed. 2d 674 (1998).

IV.

Defendants contend that the trial judge erred by admitting

Portis' testimony about Robinson-Crews' statements to her

regarding the murder. Defendants assert that the judge admitted

these statements pursuant to N.J.R.E. 803(c)(2), the hearsay

exception for statements "relating to a startling event or

condition made while the declarant was under the stress of

excitement caused by the event or condition and without opportunity

to deliberate or fabricate."

The record shows, however, that the judge admitted the

testimony pursuant to N.J.R.E. 803(a)(2). The rule provides that

a prior statement by a witness may be admissible if it "would have

been admissible if made by the declarant while testifying and the

statement . . . is consistent with the witness' testimony and is

offered to rebut an express or implied charge against the witness

of recent fabrication or improper influence or motive[.]" Ibid.

As noted previously, the judge did not err by permitting

Robinson-Crews to testify as to Crews' statements to her after the

shooting. On cross-examination, defense counsel attacked Robinson-

Crews' credibility by asking her about inconsistencies in the

20 A-4898-14T1
statements she provided to the police following the robbery and

murder. They also implied that her statements showed she had prior

knowledge of and was involved with the offenses.

Thus, defense counsel essentially charged Robinson-Crews with

a recent fabrication and an attempt to cover up her own involvement

with the charged offenses. The record therefore supports the trial

judge's ruling that Portis' testimony as to what Robinson-Crews

said her to was admissible under N.J.R.E. 803(a)(2) to rebut these

allegations.

V.

Defendants further argue that the trial judge erred by

excluding statements attributed to Robinson-Crews in an affidavit

that Detective Matthew Norton prepared to support the State's

search-warrant application. Defendants argue that the statements

were admissible under N.J.R.E. 803(c)(5), the hearsay exception

for past recollection recorded. N.J.R.E. 803(c)(5) provides in

pertinent part that the court can admit

[a] statement concerning a matter about which
the witness is unable to testify fully and
accurately because of insufficient present
recollection if the statement is contained in
a writing or other record which (A) was made
at a time when the fact recorded actually
occurred or was fresh in the memory of the
witness, and (B) was made by the witness or
under the witness' statement at the time it
was made, and (C) the statement concerns a
matter of which the witness had knowledge when

21 A-4898-14T1
 it was made, unless the circumstances indicate
that the statement is not trustworthy; . . .

In the State's search-warrant application, Norton stated that

Detective Nathan Bolognini responded to the scene after the

shooting and heard Robinson-Crews make several phone calls.

According to the search-warrant affidavit, the first call

"appeared to be with" the shooter, and Robinson-Crews had stated,

"You didn't have to shoot him. You got what you came for. You did

not need to shoot him." In addition, the affidavit indicated that

Robinson-Crews called another person and said, "Those boys did not

have to shoot him. They got what they came for. They didn't have

to shoot my baby."

Bolognini had testified outside the presence of the jury that

he remembered being near Robinson-Crews after the shooting. He

recalled that she made several phone calls, but he had no

recollection of the content of those calls. He also could not

recall reporting anything in particular regarding the calls to his

superiors or those investigating the shooting. In addition, Norton

testified that he had received a report that Bolognini had

overheard Robinson-Crews' calls, however, he could not be sure if

the report came directly from Bolognini.

The trial judge conducted a N.J.R.E. 104 hearing to further

explore whether the statements in the search-warrant affidavit

22 A-4898-14T1
should be admitted. Bolognini again testified that he had no

recollection of the substance of Robinson-Crews' telephone calls.

He did not recall reporting anything in particular to any other

officers, and he did not remember whether he discussed the calls

with Norton. Norton testified that it was more likely than not

that he had received the information from Bolognini himself around

the time he prepared the search-warrant application, but he was

not one hundred percent sure that the information was reported

directly by Bolognini.

The trial judge found that Bolognini was unable to testify

fully and accurately about the substance of the phone calls because

he did not have sufficient present recollection of the matter. The

judge also found that the search-warrant affidavit had been

prepared close in time to the events at issue, and Norton prepared

the affidavit at Bolognini's direction or the direction of another

superior. The judge found, however, that under the circumstances,

the statements included in the affidavit were not trustworthy

because Norton was not certain as to whether he had received the

information directly from Bolognini or from some other officer.

Defendants contend Norton's testimony was sufficient to

establish that the statements attributable to Bolognini were

trustworthy. Defendants note that Norton had attested to the

truthfulness of the statements in the search-warrant affidavit.

23 A-4898-14T1
 We conclude, however, that the judge's ruling was not a

mistaken exercise of discretion. There is sufficient credible

evidence in the record to support the judge's finding that, in the

absence of some conversational link between Norton and Bolognini,

the statements attributable to Bolognini were not trustworthy.

The court noted that Bolognini did not document Robinson-

Crews' statements in any official report, and Norton could not

recall with any certainty who had provided him with the information

included in the affidavit. Bolognini also could not recall what

Robinson-Crews said during the phone calls. Another officer may

have told Norton what Bolognini said about the calls, and the

officer's statement may not have been accurate.

We also conclude that even if the judge erred by excluding

this evidence, the ruling does not give rise to a reasonable doubt

regarding the jury's verdict. State v. Macon, 57 N.J. 325, 336

(1971). The statements in the affidavit attributed to Robinson-

Crews would not have exonerated either defendant. The statements

indicated that Robinson-Crews may have had prior knowledge of and

some involvement with the robbery and murder, but she did not

identify the person or persons to whom she was speaking. Indeed,

a reasonable jury could have inferred that Robinson-Crews had been

speaking with one or both defendants.

24 A-4898-14T1
 Moreover, Cappelli testified that Robinson-Crews told her

that she knew of and was involved in the robbery and murder of her

husband. The statements in the affidavit attributed to Robinson-

Crews would have been cumulative evidence. Therefore, if the judge

erred by excluding this evidence, the error was harmless. The

exclusion of the evidence does not raise a reasonable doubt as to

whether defendants committed the charged offenses. Ibid.

VI.

Dawson argues that the admission of testimony from informants

Isaiah Franklin and Terrell Black violated his right to

confrontation. Dawson contends that Franklin and Black's testimony

included statements that Brown made about him, which implicated

Dawson in the robbery and murder. He contends that the admission

of this testimony violated his right to confrontation under the

Sixth Amendment to the United States Constitution because Brown

did not testify and he did not have the ability to confront Brown

about the statements.

The Confrontation Clause prohibits the admission of

testimonial statements of a witness who does not appear at trial,

unless the witness was unavailable, and the defendant had a prior

opportunity for cross-examination. Crawford v. Washington, 541

U.S. 36, 68, 124 S. Ct. 1354, 1374, 158 L. Ed. 2d 177, 203 (2004).

25 A-4898-14T1
Furthermore, hearsay statements of a co-defendant implicating a

defendant may not be admitted when the defendants are tried

together. Bruton v. United States, 391 U.S. 123, 135-36, 88 S. Ct.

1620, 1627-28, 20 L. Ed. 2d 476, 484-85 (1968).

However, Bruton only applies to testimonial statements that

are subject to the Confrontation Clause. United States v. Berrios,

676 F.3d 118, 128 (3d Cir. 2012); United States v. Dargan, 738

F.3d 643, 651 (4th Cir. 2013). Statements made unwittingly to a

government informant are not testimonial statements for purposes

of the Confrontation Clause. United States v. Hargrove, 508 F.3d

445, 449 (7th Cir. 2007) (citing Davis v. Washington, 547 U.S.

813, 824-25, 126 S. Ct. 2266, 2275, 165 L. Ed. 2d 177, 238-39

(2004), and Crawford, supra, 541 U.S. at 58, 124 S. Ct. at 1368,

158 L. Ed. 2d at 196-97).

Franklin and Black were confidential informants, who spoke

with Brown in the MCCC. Brown unwittingly made statements to

Franklin and Black regarding the murder and robbery. Brown's

statements were not testimonial and their admission did not deny

Dawson of his right to confrontation. Therefore, the trial judge

did not err by allowing Franklin and Black to testify about Brown's

statements implicating Dawson in the charged offenses.

Moreover, even if the judge erred by admitting Brown's

statements implicating Dawson, the admission of this testimony

26 A-4898-14T1
does not warrant reversal of the conviction because the error was

harmless beyond a reasonable doubt. Macon, supra, 57 N.J. at 336.

At trial, Franklin testified that Dawson told him he was involved

in Crews' robbery and murder. Dawson said he went to Crews' house

to rob him of $40,000, and stated that he shot Crews because Crews

had recognized him. Black provided similar testimony.

Based on Dawson's own admissions to Franklin and Black, the

jury had more than enough evidence to support its verdict finding

Dawson guilty of the charged offenses without any reliance upon

Brown's statements implicating Dawson. Thus, even if erroneous,

the admission of Franklin and Black's testimony as to what Brown

said about Dawson's involvement in the robbery and murder was

harmless.

VII.

Defendants argue that the judge erred by denying their motions

for acquittal and a new trial. They argue that the judge should

have granted the motion because of the State's discovery

violations, the judge's failure to follow the motion judge's ruling

on the admission of Crews' dying declaration, and the judge's

failure to admit the statements in Norton's search-warrant

application. Defendants also argue that the verdict was against

the weight of the evidence.

27 A-4898-14T1
 A motion for a new trial may not be granted unless the verdict

represents "a miscarriage of justice under the law." R. 2:10-1;

State v. Perez, 177 N.J. 540, 555 (2003). We have rejected

defendants' contentions regarding the State's untimely production

of evidence and the judge's evidentiary rulings. Therefore, these

rulings did not provide a basis for granting defendants' motion

for a new trial.

We also conclude that the verdicts were not against the weight

of the evidence. The State presented sufficient evidence from

which a reasonable jury could find defendants guilty of the charged

offenses beyond a reasonable doubt. State v. Reyes, 50 N.J. 454,

459 (1967).

Defendants further argue that they were denied a fair trial

due to the cumulative errors of the trial judge. This contention

lacks sufficient merit to warrant discussion. R. 2:11-3(e)(2).

VIII.

Defendants contend that their sentences are excessive. Here,

the trial judge found the following aggravating factors as to both

defendants: three, N.J.S.A. 2C:44-1(a)(3) (risk that defendant

will commit another offense); six, N.J.S.A. 2C:44-1(a)(6) (extent

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

offenses of which he has been convicted); and nine, N.J.S.A. 2C:44-

28 A-4898-14T1
1(a)(9) (need to deter defendant and others from violating the

law). The judge found no mitigating factors.

The judge merged count two (felony murder) with count one

(murder), and sentenced both defendants to fifty years of

incarceration for the murder, with eighty-five percent periods of

parole ineligibility pursuant to NERA. The judge also imposed

concurrent twenty-year terms on count three (robbery), and

concurrent ten-year terms on count four (possession of a weapon

for an unlawful purpose).

Brown asserts that the aggravating factors found here are

ordinarily found in every other criminal case. He asserts that the

judge's findings are based entirely on his prior criminal record.

He contends his sentence should not have exceeded thirty years of

incarceration.

Dawson argues for the first time on appeal that the judge

should have merged count three with count one. He contends that

because his prior convictions were for third- and fourth-degree

offenses, the judge should have sentenced him to thirty years of

incarceration with thirty years of parole ineligibility.

The scope of our review of the trial court's "sentencing

decisions is relatively narrow and is governed by an abuse of

discretion standard." State v. Blackmon, 202 N.J. 283, 297 (2010).

We may not set aside a sentence unless the trial court did not

29 A-4898-14T1
follow the sentencing guidelines; the court's findings of

aggravating and mitigating factors were not based upon sufficient

credible evidence in the record; or the court's application of the

sentencing guidelines to the facts of the case "shock[s] the

judicial conscience." State v. Bolvito, 217 N.J. 221, 228 (2014)

(alteration in original) (quoting State v. Roth, 95 N.J. 334, 364-

65 (1984)).

We agree with Dawson's contention that count three

(possession of a weapon for an unlawful purpose) should have merged

with count one (murder). See State v. Tate, 216 N.J. 300, 308

(2013) (noting that merger is required when the only unlawful

purpose in possession of a weapon is its use to commit the

substantive offense). Accordingly, we vacate the sentences imposed

on count three, and remand the matter to the trial court for entry

of corrected judgments of conviction for both defendants, merging

count three with count one.

However, in all other respects, the record shows that the

judge followed the sentencing guidelines, the findings of

aggravating factors are supported by sufficient credible evidence

in the record, and the sentences imposed do not represent an abuse

of the trial court's sentencing discretion.

30 A-4898-14T1
 Affirmed in A-4898-14 and A-5221-14, and remanded to the

trial court for entry of judgments of conviction as required by

this opinion. We do not retain jurisdiction.

31 A-4898-14T1