STATE OF NEW JERSEY VS. MARCUS ST. CLAIRE WHITE STATE OF NEW JERSEY VS. ROBBY R. WILLISÂ (10-08-0481, BURLINGTON 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NOT FOR PUBLICATION WITHOUT THE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-5598-12T4
A-5611-12T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARCUS ST. CLAIRE WHITE,
a/k/a MARCUS WHITE, MARCUS
ST. CLAIR WHITE, DOT MARCUS
ST. CLAIR and MARCUS ROBERTS,

Defendant-Appellant.
____________________________

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROBBY R. WILLIS, a/k/a ROBERT
WILLIS and RANDY WILLIS,

Defendant-Appellant.
__________________________________________________

Submitted April 4, 2017 – Decided July 26, 2017

Before Judges Messano and Espinosa.

On appeal from the Superior Court of New
Jersey, Law Division, Burlington County,
Indictment No. 10-08-0841.
 Joseph E. Krakora, Public Defender, attorney
for appellant in A-5598-12 (Michael J.
Confusione, Designated Counsel, on the brief).

Joseph E. Krakora, Public Defender, attorney
for appellant in A-5611-12 (Alison S. Perrone,
Designated Counsel, on the brief).

Robert D. Bernardi, Burlington County
Prosecutor, attorney for respondent (Lisa
Sarnoff Gochman, Legal Assistant, of counsel
and on the brief).

Appellant Marcus White filed a pro se
supplemental brief.

PER CURIAM

We have consolidated these appeals to issue a single opinion.

Following a joint trial, the jury found defendant Robby Willis

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

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

N.J.S.A. 2C:15-2(a)(4); three counts of first-degree felony

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

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

firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a); and third-

degree terroristic threats, N.J.S.A. 2C:12-3(a). The jury found

co-defendant Marcus St. Claire White guilty of robbery,

carjacking, two counts of felony murder, and unlawful possession

of a handgun, but acquitted him of the other counts in the

indictment.

2 A-5598-12T4
 After appropriate mergers, the judge sentenced Willis to:

life imprisonment, with an eighty-five percent period of parole

ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A.

2C:43-7.2, on the felony murder conviction; a consecutive thirty-

year term of imprisonment, with a NERA parole ineligibility period

on the kidnapping conviction; a consecutive ten-year term of

imprisonment, with a five-year period of parole ineligibility

pursuant to the Graves Act, N.J.S.A. 2C:43-6(c), on the weapon

possession conviction; and a concurrent twenty-year term of

imprisonment, with a NERA period of parole ineligibility on the

robbery conviction.

As to White, after appropriate mergers, the judge imposed a

life sentence with a NERA period of ineligibility on the felony

murder conviction; a concurrent twenty-year term of imprisonment

with a NERA period of parole ineligibility on the robbery

conviction; and a consecutive ten-year term of imprisonment, with

a five-year parole ineligibility period under the Graves Act for

the weapon possession conviction.

In A-5611-12, Willis raises the following points for our

consideration:

POINT ONE

THE ADMISSION OF TESTIMONY LINKING DEFENDANT
TO THE BLOODS GANG DEPRIVED DEFENDANT OF HIS
RIGHT TO A FAIR TRIAL.

3 A-5598-12T4
 POINT TWO

THE PROSECUTOR'S IMPROPER TACTICS IN SUMMATION
DEPRIVED DEFENDANT OF A FAIR TRIAL. (Partially
Raised Below)

POINT THREE

THE TRIAL COURT LACKED TERRITORIAL
JURISDICTION OVER THE ROBBERY, CARJACKING,
TERRORISTIC THREATS, CONSPIRACY AND FELONY
MURDER CHARGES AND NEGLECTED TO CHARGE THE
JURY ON THE ISSUE OF TERRITORIAL JURISDICTION.
(Not Raised Below)

POINT FOUR

THE TRIAL COURT ABUSED ITS DISCRETION IN
SENTENCING DEFENDANT TO A TERM OF LIFE PLUS
40 YEARS WITH 94.25 YEARS OF PAROLE
INELIGIBILITY BECAUSE A PROPER ANALYSIS OF THE
AGGRAVATING FACTORS DOES NOT SUPPORT SUCH A
SENTENCE.

In A-5598-12, White raises the following points:

POINT 1

THE PROSECUTOR'S COMMENTS AND THE TRIAL
COURT'S JURY CHARGES DISTORTED THE LAW OF CO-
CONSPIRATOR LIABILITY, WARRANTING REVERSAL
AND REMAND FOR A NEW TRIAL ON THE ROBBERY,
CARJACKING, AND FELONY MURDER CRIMES OF WHICH
DEFENDANT WAS FOUND GUILTY BELOW.

POINT 2

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S
MOTION FOR ACQUITTAL OR FOR NEW TRIAL.

4 A-5598-12T4
 POINT 3

THE PROSECUTOR WENT BEYOND FAIR COMMENT DURING
SUMMATION, DEPRIVING DEFENDANT OF A FAIR
TRIAL.

POINT 4

UNFAIR OTHER WRONGS EVIDENCE CAUSED AN UNFAIR
TRIAL FOR DEFENDANT.

POINT 5

DEFENDANT'S SENTENCE IS IMPROPER AND
EXCESSIVE.

In a pro se supplemental brief, White argues:

POINT I

THE ADMISSION OF TESTIMONY LINKING DEENDANT
TO THE BLOODS GANG DEPRIVED DEFENDANT OF HIS
RIGHT TO A FAIR TRIAL.

Lastly, pursuant to Rule 2:6-11(d), White filed a letter in which

he contends our decision in State v. Gonzalez, 444 N.J. Super. 62

(App. Div.), certif. denied, 226 N.J. 209 (2016), decided after

the briefs were filed, requires reversal.

We considered these arguments in light of the record and

applicable legal standards. We affirm.

5 A-5598-12T4
 I.

We set forth the testimony adduced at trial to the extent

necessary to address defendants' legal arguments.1

On September 2, 2009, police discovered the lifeless body of

Lyudmilla Bershteyn in a field in Mansfield Township, a short

distance from the New Jersey Turnpike. A witness who was jogging

nearby told police he saw the woman staggering in the field before

she collapsed; another witness described an SUV entering the road

from a nearby wooded area at a high rate of speed.

The victim operated a property management company and was

last seen earlier in the morning of September 2 after inspecting

an apartment in Philadelphia. At the time, she was sitting in her

silver 2009 Murano SUV. An autopsy revealed she died from a single

contact gunshot wound below her ear.

In the morning of September 3, at approximately 1:30 a.m.,

Officer Charles Coleman of the Summerton Police Department in

South Carolina, stopped a speeding silver Murano with Pennsylvania

license plates driven by Laurance. Five other people were inside,

including both defendants; Willis's cousin, seventeen-year-old

1
The State adduced much of the same evidence at the separate
trial of defendants' co-defendant, Lenroy Laurance, which we
summarized in our opinion in that appeal. State v. Laurance,
A-3696-11 (App. Div. Apr. 7, 2015), certif. denied, 223 N.J. 283
(2015).

6 A-5598-12T4
Kareem Harrison; White's girlfriend, eighteen-year-old Shaniqua

Williams; and Williams's half-sister, sixteen-year-old Bacquea

Thomas. Laurance could not produce a driver's license and, upon

producing Bershteyn's registration, he told the officer the SUV

belonged to his girlfriend's mother. The officer saw the occupants

passing around a bag of snacks, grew suspicious and ordered

everyone out of the car.

A subsequent search of the Murano revealed three handguns,

including one hidden inside the snack bag, the victim's debit card

and other personal items, a portable navigation unit, an EZ-Pass

transponder and a New Jersey Turnpike toll ticket. All six

individuals were taken into custody and South Carolina authorities

confirmed with Philadelphia police that the owner of the car had

been reported missing. Local police and members of the Burlington

County Prosecutor's Office who arrived in South Carolina

questioned the occupants. Both defendants provided statements

that were introduced to the jury in redacted form.

Police pieced together events of the days leading up to, and

following, the September 2 carjacking of Bershteyn. Williams,

Thomas and Harrison testified as State's witnesses at trial.

Harrison's testimony was critical to the State's case. He provided

eyewitness testimony of Bershteyn's abduction by himself, Laurance

and Willis, and her shooting death at Laurance's hand. From the

7 A-5598-12T4
EZ-Pass transponder and navigational device, the State introduced

details of the SUV's location at various points and times, which

corroborated much of this testimony and placed the car near the

murder site at the time of the shooting.

In his statement, White claimed he was not involved in the

abduction of the victim but joined the others thereafter and knew

she was in the car. He remained in the SUV as Laurance dragged

the victim into the field and shot her with Harrison's gun.

Willis denied any involvement at all and said he checked into

an employment and training agency on the morning of September 2,

but was sent home without any work. He remained home all day

until late in the afternoon, when he and the others left for South

Carolina.

The State called a witness from the employment and training

agency who testified the program was closed on September 2. The

State introduced a letter, written by Willis to Harrison while

both were in jail, in which Willis expressed anger at Harrison's

"snitching," and told him to blame everything on Laurance.

Defendants neither testified nor produced any witnesses at

trial.

8 A-5598-12T4
 II.

Willis contends for the first time on appeal that we should

vacate his convictions because the trial court lacked territorial

jurisdiction. In a single paragraph, White makes the same claim.

These arguments lack sufficient merit to warrant extended

discussion. R. 2:11-3(e)(2). We add only the following.

Territorial jurisdiction is a non-material element of an

offense, N.J.S.A. 2C:1-14(i), and, as such, the issue is "never

submitted to the jury unless there is some factual dispute

concerning whether the crime occurred in this State." State v.

Denofa, 187 N.J. 24, 41 (2006).

In any appeal from a conviction in which the
defendant did not request a territorial
jurisdiction charge, an appellate court first
must determine whether the record clearly
indicated that the crime's location was at
issue. If territorial jurisdiction was not
clearly in dispute, then the appellate court
must still be satisfied regarding the
sufficiency of the evidence. On that issue,
the standard of review is "whether, viewing
the State's evidence in its entirety, be that
evidence direct or circumstantial, and giving
the State the benefit of all its favorable
testimony as well as all of the favorable
inferences which reasonably could be drawn
therefrom, a reasonable jury could find"
beyond a reasonable doubt that the crime
occurred within the State.

[Id. at 44 (quoting State v. Reyes, 50 N.J.
454, 458-59 (1967)).]

9 A-5598-12T4
Here, there was no pretrial motion seeking dismissal on

jurisdictional grounds, nor did either defense counsel raise the

issue with the judge or request any instructions.2

Moreover, there was proof beyond a reasonable doubt that all

the crimes "occurred" in New Jersey. See N.J.S.A. 2C:1-3(a)(1)

("[A] person may be convicted under the law of this State of an

offense committed by his own conduct or the conduct of another for

which he is legally accountable if . . . [e]ither the conduct

which is an element of the offense or the result which is such an

element occurs within this State . . . .") (emphasis added). The

elements of robbery and carjacking include conduct that occurs "in

the course of committing" other conduct, which includes flight

thereafter. See N.J.S.A. 2C:15-1(a)(1); 2C:15-2(a)(4).

Similarly, kidnapping requires the unlawful removal or confinement

of another "[t]o facilitate commission of any crime or flight

thereafter." N.J.S.A. 2C:13-1(b)(1). In short, these crimes were

ongoing in New Jersey until the execution-style killing of the

victim.

The panel in Laurance's appeal considered the same issue and

reached the same result. Laurance, supra, slip op. at 16-21.

2
Counsel for White objected during the prosecutor's opening
statement, when he told the jury that New Jersey was the "right
place" for the trial. However, the prosecutor moved on without
awaiting a ruling, and the issue never arose again.

10 A-5598-12T4
While that decision is not binding upon us, when faced with the

same issue, "an appellate panel may look to the reasoning of a

coordinate panel's opinion in the case of a co-defendant." State

v. K.P.S., 221 N.J. 266, 279 (2015). The evidence adduced in this

case compels the same legal conclusion reached by our colleagues

on the evidence adduced during Laurance's trial.

III.

During the prosecutor's direct examination of Harrison, the

following colloquy occurred:

[Prosecutor]: So you're back in the car,
you're back on the road, tell us any other car
stops that you can remember along the way down
to South Carolina?

[Harrison]: We stopped at the truck stop to
get, I think we got Heinekens.

. . . .

[Prosecutor]: Anything else bought there?

[Harrison]: And the little badge.

[Prosecutor]: Tell us about the badge,
please. Who bought the badge?

[Harrison]: [Lenroy Laurance]

[Prosecutor]: What kind of badge was it?

[Harrison]: Like a little fake sheriff badge.
Fake sheriff badge.

. . . .

11 A-5598-12T4
 [Prosecutor]: Did [Laurance] say why he
wanted a fake sheriff's badge?

[Harrison]: Because he was Blood.

[Prosecutor]: He was what?

[Harrison]: He was Blood.

Willis's counsel immediately objected and, at sidebar, requested

a mistrial. The prosecutor responded by saying he was surprised

by the testimony. The judge denied the request for a mistrial but

offered to provide an appropriate jury instruction. Both defense

counsel rejected the judge's offer and the trial proceeded.

During deliberations, the jury sent out a note requesting a read

back of Harrison's testimony referencing "We Blood" or "We be

Blood." Willis's counsel renewed his request for a mistrial,

arguing that despite redactions made to eliminate gang references,

the jury was contaminated by Harrison's reference to the Bloods.

The judge again denied the request for a mistrial, finding

specifically that the prosecutor did not intend to elicit

Harrison's statement and never re-emphasized the comment during

summation. She ordered the read back of Harrison's testimony as

requested by the jury, and immediately thereafter provided the

following instructions:

Now, because you've asked this question,
I would like to give you an instruction about
how to receive this information as I have done
at other points in the trial. And based upon

12 A-5598-12T4
 that reference or that information, I want to
make sure that it is important you understand
that that reference is not something that you
may consider at all with regard to your
verdict as to Marcus White or Robby Willis
. . . .

So in terms of how you receive that
information, I do give you that cautionary
instruction, especially since that's
something that you asked for. . . . So please
do not consider that at all in reaching your
verdict as to these two defendants . . . Robby
Willis . . . and Marcus White.

Neither defense counsel requested any further instruction by the

court.

Both defendants argue Harrison's reference to the Bloods

street gang was prejudicial and requires reversal. We again

disagree.

As the Court has explained:

[A] trial is not a perfectly scripted and
choreographed theatrical presentation;
rather, it is an extemporaneous production
whose course is often unpredictable given the
vagaries of the human condition. Attorneys
will sometimes pose inartfully crafted
questions, and even the most precise question
may bring an unexpected response from a
witness. In any trial, "inadmissible evidence
frequently, often unavoidably, comes to the
attention of the jury."

[State v. Yough, 208 N.J. 385, 397 (2011)
(quoting State v. Winter, 96 N.J. 640, 646
(1984)).]

13 A-5598-12T4
"A curative jury instruction is one method to remedy trial error,

and is sometimes required to address testimony that should not

have been heard by the jury . . . ." State v. McKinney, 223 N.J.

475, 497 (2015) (citing Verdicchio v. Ricca, 179 N.J. 1, 36

(2004)). The trial court is in the best position to determine

whether a curative instruction can neutralize any prejudice or the

"extraordinary remedy" of a mistrial is required. Yough, supra,

208 N.J. at 397.

Here, the reference was fleeting, and both defense counsel

specifically rejected the judge's invitation to provide an

immediate curative charge. In responding to the jury's note, the

judge gave a strong curative instruction, which clarified that

Harrison's gang reference did not apply to either defendant and

could not be used by the jury in considering defendants' guilt.

IV.

While prosecutors are entitled to zealously argue the merits

of the State's case, State v. Smith, 212 N.J. 365, 403 (2012),

cert. denied, 568 U.S. 1217, 133 S. Ct. 1504, 185 L. Ed. 2d 558

(2013), they occupy a special position in our system of criminal

justice. State v. Daniels, 182 N.J. 80, 96 (2004). "A prosecutor

must refrain from improper methods that result in a wrongful

conviction, and is obligated to use legitimate means to bring

14 A-5598-12T4
about a just conviction." Ibid. (quoting State v. Frost, 158 N.J.

76, 83 (1999)).

Both defendants argue the prosecutor's improper summation

comments deprived them of a fair trial. In considering the

argument, we examine whether a timely objection was made, whether

the remarks were withdrawn, or whether the judge acted promptly

and provided appropriate instructions. Smith, supra, 212 N.J. at

403. The prosecutor is permitted to vigorously rebut specific

arguments made by defense counsel. State v. R.B., 183 N.J. 308,

329-30 (2005).

"Our task is to consider the fair import of the State's

summation in its entirety." State v. Jackson, 211 N.J. 394, 409

(2012) (citation and internal quotation marks omitted). "Whether

particular prosecutorial efforts can be tolerated as vigorous

advocacy or must be condemned as misconduct is often a difficult

determination to make. In every instance, the performance must

be evaluated in the context of the entire trial . . . ." State

v. Negron, 355 N.J. Super. 556, 576 (App. Div. 2002). Finally,

even if the prosecutor exceeds the bounds of proper conduct, "[a]

finding of prosecutorial misconduct does not end a reviewing

court's inquiry because, in order to justify reversal, the

misconduct must have been 'so egregious that it deprived the

15 A-5598-12T4
defendant of a fair trial.'" State v. Smith, 167 N.J. 158, 181

(2001) (quoting Frost, supra, 158 N.J. at 83).

It suffices to say that in summation, both defense counsel

launched blistering attacks upon the credibility of Harrison and

Williams. Counsel for White emphasized that her client was not

present when the victim was abducted, and the State's case rested

solely on the testimony of Harrison and Williams, both of whom had

reasons to lie. Counsel for Willis called Harrison a "liar," a

"schemer," a "career criminal," and a "drug addict" who would do

or say anything to get what he wanted.

In response to White's counsel's arguments, the prosecutor

said:

You've been consistently urged by the defense
to consider issues that are legally totally,
totally irrelevant and have no bearing under
the law. For example, . . . Marcus White
wasn't there in the beginning. He didn't
participate in kidnapping her. Of course,
[counsel] doesn't even address the law about
a co-conspirator that joins in . . . . Marcus
White never touched her. He didn't say
anything to her. How could he be guilty.
Cause that's not the law. That's why. So if
you misapply the law, we will get an unjust
result here.

[(Emphasis added).]

There was no objection to the prosecutor's comment.

In discussing Willis's counsel's cross-examination of a State

trooper, the prosecutor said:

16 A-5598-12T4
 Cross-examination of Trooper Mitchell by
[defense counsel], and again it's the theme
that they're trying to sell to you folks, and
I don't say there's anything improper, but
it's just not the truth. Okay. And this is
like a big jigsaw puzzle. They want to start
pulling pieces of the puzzle to the point that
you can't see the picture. . . .

[(Emphasis added).]

White's counsel objected and, at sidebar, argued the prosecutor

was denigrating the defense. The prosecutor denied this was the

case. The judge ruled that the State was entitled to respond to

the defense counsel's arguments and view of the facts, although

she cautioned the prosecutor to avoid any personal references.

Defense counsel requested no further instruction to the jury.

Without naming defense counsel, and without further

objection, the prosecutor continued:

As I was saying . . . the trial is very similar
to a giant jigsaw puzzle. If somebody starts
pulling the pieces of the puzzle out and you
can't see the face anymore, what I'd like to
do with you over the next hour is put those
pieces back so you can see the fact that
clearly spells guilt as to both defendants.

[(Emphasis added).]

Thereafter, the prosecutor made the following remarks:

Let's talk about Marcus White's conduct, not
what his lawyers say, oh, he didn't touch her.
His conduct governs here, folks, and his
conduct tells you he became part of this as
much as the other three. And [the judge is]
going to tell you in the law – this is why the

17 A-5598-12T4
 law is so important – that a conspirator, a
person who joins in on an illegal crime can
join in. They don't have to be there at the
beginning. They can join in at some later
point in time. You're going to hear that from
[the judge]. It's one sentence out of
probably a 50 page charge but that is so
pertinent to Marcus White because again he
made that decision to join and he joined them
with that purpose and he's equally
responsible. That is the law, not the law
that they want to have you believe.

[(Emphasis added).]

There was no objection.

Later, the prosecutor addressed the attacks on Harrison's

credibility, suggesting that, contrary to defense counsel's

argument that the case rose or fell on the credibility of the

State's cooperating witnesses, other evidence proved defendants'

guilt.

When [defense counsel] – and again he does
nothing wrong by this. I'm not suggesting
there's anything improper. It is in an effort
to focus you away from their clients. They
have to focus the attention on somebody who's
an easy target. Kareem Harrison is no match
for skilled lawyers, highly trained lawyers
. . . .

[(Emphasis added).]

Counsel for White objected, and the judge indicated she would

provide appropriate instructions at the end of the prosecutor's

summation. When the prosecutor finished, over defense counsel's

continued objection, the judge told the jury

18 A-5598-12T4
 There were some comments made in the State's
closing about the skillful lawyers and that
they're no match for these skillful lawyers,
and I want to make sure that you understand
that there's nothing wrong with having a
skillful lawyer and it's entirely
inappropriate if that were to be interpreted
as anything improper which I know [the
prosecutor] did go out of his way to say
there's nothing improper about it, but I want
you to hear that from me, too, that all of
these lawyers deserve respect and that they're
doing their jobs and they're doing it well,
and that's a good thing and that's the way
that the system should work. So I want to
make sure you understand that. And I'm sure
[the prosecutor] did not mean anything by it
but I think it is also helpful for you to hear
that from the Court.

The court also cautioned the jury to disregard any comments by

counsel expressing personal beliefs. In her final jury

instructions, the judge reiterated that the arguments of counsel

were not evidence.

Defendants contend these comments and other comments by the

prosecutor denigrated the defense and defense counsel. Our courts

have sternly warned prosecutors that it is improper to "cast

unjustified aspersions on defense counsel or the defense." State

v. Lazo, 209 N.J. 9, 29 (2012) (citing Frost, supra, 158 N.J. at

86). While the prosecutor's comments tread perilously close to

the line, we cannot conclude they require a new trial.

Initially, there were no objections to many of the comments,

which indicates defense counsel "perceived no prejudice." Smith,

19 A-5598-12T4
supra, 212 N.J. at 407 (citing State v. Timmendequas, 161 N.J.

515, 576 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151

L. Ed. 2d 89 (2001)). Some comments were pointed rebuttals to the

defense summations, in particular, White's claim of mere presence

at the scene, and Willis's assertion that Harrison, a willing

participant in the crimes, was unbelievable. Lastly, the judge

gave a strong curative instruction when the prosecutor finished,

which she reiterated in her final instructions, and we presume the

jury understood and followed those instructions. Id. at 409.

V.

We address the remaining points raised by White before turning

to the sentencing arguments made by both defendants. White argues

the prosecutor's summation comments, together with the judge's

instructions, "distorted" the law of co-conspirator liability,

confusing the jury and permitting it to find White guilty of the

underlying robbery, carjacking and felony-murder counts if it

found him guilty of conspiracy. We disagree.

The State contended White was a willing co-conspirator with

Laurance, Willis and Harrison and therefore "legally accountable"

for their conduct. See N.J.S.A. 2C:2-6(b)(4). To the extent

White contends the prosecutor's opening statement or summation

misled the jury as to the applicable law, the argument lacks

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

20 A-5598-12T4
summation as a whole did not leave the jury with a mistaken

impression of the law, and the judge made clear that she, not the

attorneys, was responsible for providing instructions on

applicable legal standards.

During the charge conference, White objected to the inclusion

of any language defining the substantive offense of conspiracy

because the indictment contained no conspiracy count. The judge

disagreed, noting she was required to tailor Model Jury Charge

(Criminal), "Conspiracy — Vicarious Liability (N.J.S.A. 2C:2-

6b(4))" (Oct. 17, 1988), to the facts of the case. She did so by

including portions of Model Jury Charge (Criminal), "Conspiracy

(N.J.S.A. 2C:5-2)" (April 12, 2010). See State v. Mance, 300 N.J.

Super. 37, 63-64 (App. Div. 1997) (holding trial court had

"unquestionable" authority to provide the jury with an instruction

on conspiracy where State's theory of liability was premised on

N.J.S.A. 2C:2-6(b)(4)). Defense counsel expressed her continuing

objection, but stated she was not challenging the judge's proposed

language. The judge provided a written copy of her instructions

to the jury before it began deliberations.

During deliberations, the jury sent out a note asking for

"further guidance or explanation to co-conspirators and legally

accountable in laymen's terms." The judge indicated she could not

paraphrase the instructions already provided, but, if the jury

21 A-5598-12T4
could identify with specificity which part was troublesome, she

would try to provide further guidance. The jury never did.

White argues the instructions as given permitted the jury to

find him guilty of conspiracy, not the substantive crimes

underlying the felony murder convictions. We acknowledge that

when the State seeks a felony murder conviction based on legal

accountability for the predicate crime as a co-conspirator, a jury

finding of guilt only as to conspiracy to commit the crime,

pursuant to N.J.S.A. 2C:5-2, will not suffice. State v. Grey, 147

N.J. 4, 15-16 (1996). Rather, the felony murder conviction must

rest on the jury's finding of guilt for the substantive offense,

pursuant to N.J.S.A. 2C:2-6. Ibid.

However, the judge's instructions were clear. The jury was

never asked to determine if White was guilty of conspiracy. The

judge repeatedly told the jurors that they could not convict White

of any felony murder count unless they also found him guilty of

the underlying substantive crime. The jury apparently carefully

considered the evidence as to White and his involvement in the

underlying crimes because it acquitted him of the kidnapping, the

State having acknowledged he was not present when the victim was

abducted. In short, we cannot conclude the judge's instructions

led to an "ultimate determination of guilt or innocence . . .

22 A-5598-12T4
based on speculation, misunderstanding, or confusion." State v.

Olivio, 123 N.J. 550, 568 (1991).

White also contends our decision in Gonzalez compels

reversal. He argues that the judge's use of the phrase "and/or"

during the jury charge on co-conspirator liability was plain error.

R. 2:10-2. While we do not condone the continued use of this

long-disfavored language, which is all too prevalent in our Model

Jury Charges as written, we do not believe it was plain error

under the particular facts of this case.

In Gonzalez, supra, 444 N.J. Super. at 71, the panel

criticized jury instructions that made frequent use of the

imprecise "phrase 'and/or.'" In that case, the defendant testified

that he was at the scene of the fatal shooting with two co-

defendants, but that "his participation was the product of duress."

Id. at 73. The panel cited extensively to the jury instructions

which repeatedly used "and/or" in describing two different crimes

in the context of accomplice and coconspirator liability. Id. at

73-75. The panel found plain error, concluding

[t]he instructions were inherently ambiguous
because the judge failed to explain in clear
English what the jurors were required to
decide and, as a result, generated numerous
ways in which the jury could have convicted
without a shared vision of what defendant did,
or convicted defendant on some charges without
finding all the elements were proven beyond a
reasonable doubt.

23 A-5598-12T4
 [Id. at 77 (citation omitted) (citing State
v. Gentry, 183 N.J. 30, 32 (2005)).]

In this case, the judge frequently used "and/or" in describing

the substantive crimes for which the State argued White was legally

accountable as a co-conspirator of Laurance "and/or" Harrison.

However, she also told the jury that in order to find White guilty,

it must find beyond a reasonable doubt that White conspired to

commit "the same crime" as his co-conspirator, and the jury needed

to consider each crime "individually" and "separately." The judge

repeated the felony murder instructions three times, in each

instance making clear which underlying predicate crime was

implicated. The jury verdict form specifically directed the jury

to return separate verdicts as to each crime, which it did,

acquitting White of kidnapping and other charges.

Moreover, while the evidence made clear that White was not

with the others when the victim was initially abducted, Harrison's

testimony, and indeed White's own statement, placed him in the

stolen car with the others after a certain point in time and

essentially up until the stop in South Carolina. Under the

circumstances, the jury could not be confused about who White was

alleged to have conspired with and for whose conduct he was, the

State contended, legally accountable.

24 A-5598-12T4
 White also contends the judge improperly admitted evidence

of other uncharged crimes in violation of N.J.R.E. 404(b). The

judge held a pre-trial hearing to determine the admissibility of

testimony regarding White's and Laurance's possession of handguns

on August 30, 2009, and their attempts to recover them after

Williams and Thomas discarded them along the New Jersey Turnpike.

The evidence revealed that defendants needed a car in order to

return to the area to search for the guns. That led them to

carjack the victim's car.

The judge applied the standards set forth in State v. Cofield,

127 N.J. 328, 338 (1992), and ruled this testimony was admissible

to show White's motive, intent, a plan or scheme, and absence of

mistake with respect to the events of September 2, 2009. After

the jury heard this evidence, the judge issued an appropriate

limiting instruction, which she repeated in her final charge.

The decision to admit or exclude evidence of other crimes or

wrongs rests with the trial court's sound discretion and will only

be reversed upon an abuse of that discretion. State v. Gillispie,

208 N.J. 59, 84 (2011). In particular, "[a] wide range of motive

evidence is generally permitted, and even where prejudicial, its

admission has been allowed in recognition that it may have

'extremely high probative value.'" State v. Rose, 206 N.J. 141,

25 A-5598-12T4
165 (2011) (quoting State v. Long, 173 N.J. 138, 164-65 (2002)).

We find no reason to disturb the judge's decision.

For the first time, White also argues it was error to admit

evidence that he purchased and smoked marijuana while riding in

the stolen car and while the victim was still alive, and that he

threatened to kill Laurance later that evening. There was no

objection at trial, and the admission of this very limited

testimony does not raise a reasonable doubt that it led the jury

to a verdict it otherwise would not have reached. State v. Ross,

___ N.J. ___, ___ (2017) (slip op. at 31) (quoting State v.

Williams, 168 N.J. 323, 336 (2001)).

White also argues the judge should have granted his motion

for acquittal made at the end of the State's case, and his post-

verdict motion for a new trial as against the weight of the

evidence. The arguments lack sufficient merit to warrant

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

to say White's own statement was highly incriminating, there was

evidence he used some of the victim's money to purchase marijuana,

he was aware Laurance was going to kill the victim and he willingly

went to South Carolina, knowing that Laurance intended to take the

stolen car to a "chop shop."

26 A-5598-12T4
 VI.

Willis contends his sentence was excessive because the judge

erroneously applied aggravating sentencing factors. See N.J.S.A.

2C:44-1(a). White makes a similar argument and contends the judge

imposed consecutive sentences without performing a proper analysis

under State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475

U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).

We begin by noting, "[a]ppellate review of the length of a

sentence is limited." State v. Miller, 205 N.J. 109, 127 (2011).

As the Court has frequently reiterated:

The appellate court must 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."

[State v. Fuentes, 217 N.J. 57, 70 (2014)
(alteration in original) (quoting State v.
Roth, 95 N.J. 334, 364-65 (1984)).]

Furthermore, "trial judges have discretion to decide if sentences

should run concurrently or consecutively." Miller, supra, 205

N.J. at 128. "When a sentencing court properly evaluates the

Yarbough factors3 in light of the record, the court's decision

3
The Yarbough factors are:

27 A-5598-12T4
will not normally be disturbed on appeal." Miller, supra, 205

N.J. at 129.

(1) there can be no free crimes in a system
for which the punishment shall fit the crime;
(2) the reasons for imposing either a
consecutive or concurrent sentence should be
separately stated in the sentencing decision;
(3) some reasons to be considered by the
sentencing court should include facts relating
to the crimes, including whether or not:
(a) the crimes and their objectives
were predominantly independent of
each other;
(b) the crimes involved separate
acts of violence or threats of
violence;
(c) the crimes were committed at
different times or separate places,
rather than being committed so
closely in time and place as to
indicate a single period of aberrant
behavior;
(d) any of the crimes involved
multiple victims;
(e) the convictions for which the
sentences are to be imposed are
numerous;
(4) there should be no double counting of
aggravating factors;
(5) successive terms for the same offense
should not ordinarily be equal to the
punishment for the first offense[.]

[Yarbough, supra, 100 N.J. at 643-44.]

A sixth factor, imposing an overall outer limit on consecutive
sentences, was superseded by legislative action. State v.
Eisenman, 153 N.J. 462, 478 (1998).

28 A-5598-12T4
 The judge sentenced both defendants on the same day. She

sentenced White first and found the following aggravating factors,

to which she accorded great weight: the nature and circumstances

of the offense; the gravity and seriousness of the harm inflicted

on the victim including whether the defendant knew that the victim

was incapable of resistance; the risk of re-offense; the need for

deterrence; and defendant used or possessed a stolen motor vehicle

while in the course of committing the crime including the immediate

flight therefrom. See N.J.S.A. 2C:44-1(a)(1), (2), (3), (9) and

(13)). The judge found no mitigating factors. See N.J.S.A. 2C:44-

1(b). In sentencing White, the judge found the same aggravating

sentencing factors and no mitigating factors.

Both defendants argue that, in finding aggravating factors

one, two and thirteen, the judge "double counted" facts that

established elements of the crimes for which they were being

sentenced. See Fuentes, supra, 217 N.J. at 74-75. We disagree.

"In appropriate cases, a sentencing court may justify the

application of aggravating factor one, without double-counting,

by reference to the extraordinary brutality involved in an

offense." Id. at 75 (citing State v. O'Donnell, 117 N.J. 210, 217

(1989)). The judge did that in this case when she sentenced each

defendant.

29 A-5598-12T4
 In applying aggravating factor two as to each defendant, the

judge emphasized that the victim was beaten and held captive in

her own car for an extended period of time before she was shot and

killed. The evidence revealed she repeatedly pled for her life.

In State v. Soto, 340 N.J. Super. 47, 72 (App. Div.), certif.

denied, 170 N.J. 209 (2001), we recognized that "the brutal

circumstances surrounding the victim's suffering," fully justified

the finding of aggravating factor two.

Factor thirteen, the use of a stolen car, an essential element

of carjacking, "could not also represent an aggravating factor in

sentencing for that offense." State v. Henry, 323 N.J. Super.

157, 165 (App. Div. 1999). However, the judge noted defendants

were in possession of the victim's stolen car during the commission

of the other crimes, including robbery, kidnapping and felony

murder. In other words, this aggravating factor applied to the

court's consideration of the sentence imposed on crimes other than

carjacking. See State v. Boyer, 221 N.J. Super. 387, 405-06 (App.

Div. 1987) (holding that when the court is sentencing for a group

of charges, inherent elements of one charge can be used as

aggravating factors for another), certif. denied, 110 N.J. 299

(1988).

Lastly, we find no mistaken exercise of discretion in imposing

a consecutive sentence on White's conviction for the unlawful

30 A-5598-12T4
possession of a handgun. The judge carefully weighed the Yarbough

factors and described in detail her reasoning.

Affirmed.

31 A-5598-12T4