STATE OF NEW JERSEY VS. MICHAEL WASHINGTON (16-08-0636, 17-10-0572, and 18-01-0045, SOMERSET COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-2537-18

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL WASHINGTON,
a/k/a RED WASHINGTON,

Defendant-Appellant.

Argued September 16, 2021 – Decided October 12, 2021

Before Judges Alvarez, Haas, and Mawla.

On appeal from the Superior Court of New Jersey, Law
Division, Somerset County, Indictment Nos. 16-08-
0636, 17-10-0572, and 18-01-0045.

Daniel S. Rockoff, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Daniel S. Rockoff, of
counsel and on the brief).

Paul H. Heinzel, Assistant Prosecutor, argued the cause
for respondent (Michael H. Robertson, Somerset
County Prosecutor, attorney; Paul H. Heinzel, of
counsel and on the brief).
PER CURIAM

A jury convicted defendant Michael Washington, also known as Red

Washington, of certain counts of Indictment No. 18-01-0045: first-degree

aggravated manslaughter as a lesser-included offense of murder, N.J.S.A.

2C:11-4(a)(1) (count one); second-degree possession of a weapon for an

unlawful purpose, N.J.S.A. 2C:39-4(a)(1) (count two); and second-degree

unlawful possession of a handgun, N.J.S.A. 2C:39-5(b)(1) (count three). On

June 29, 2018, three days after the trial ended, defendant pled guilty to the fourth

count of that indictment, third-degree drug possession, N.J.S.A. 2C:35-10(a)(1),

and two unrelated charges: second-degree unlawful possession of a handgun,

Indictment No. 16-08-0636; and third-degree possession of a controlled

dangerous substance (CDS), Indictment No. 17-10-0572. The plea agreement

called for a seven-year prison term with three and one-half years of parole

ineligibility, consecutive to the trial judge's sentence on the tried offenses, and

four years on the drug charges, to be served concurrently to the other sentences.

At the sentence hearing on October 29, 2018, the trial judge merged count

two, possession of a weapon for an unlawful purpose, into the aggravated

manslaughter conviction, and sentenced defendant to thirteen years'

incarceration subject to the No Early Release Act's eighty-five percent parole

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ineligibility. See N.J.S.A. 2C:43-7.2. He imposed a consecutive seven-year

term, half of which he made parole ineligible, on count three, second-degree

unlawful possession of a handgun. On Indictment No. 16-08-0636, unlawful

possession of a handgun, the judge imposed a consecutive seven-year sentence

as called for in the plea agreement, subject to three and one-half years of parole

ineligibility. Thus, defendant's aggregate sentence was twenty-seven years, of

which eighteen years and one month was parole ineligible.

We affirm the convictions because defendant's arguments attacking the

judge's jury instructions lack merit. However, we remand for the judge to

conduct a new sentence hearing, as he did not engage in the necessary State v.

Yarbough analysis. See 100 N.J. 627 (1985).

I.

We briefly describe the facts as developed at trial. At approximately 6:30

p.m. on October 16, 2017, Bound Brook Police Department Officer Janos Bojtos

responded to a "shots fired" report on Church Street. When he arrived, Bojtos

found the victim, William Roberts, lying on his back with a gunshot wound to

his abdomen. Roberts died later that night. He wore a red sweatshirt and had

no weapon. Bojtos found no firearms on the scene.

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 The police did find three spent shell casings and two full cartridges at the

scene. The State's forensic ballistics expert testified that the three shell casings

were brass .22 caliber bullets all fired from the same weapon. The expert stated

that the two cartridges were also brass .22 caliber hollow-point rounds consistent

with the shell casings. The bullet fragments taken from the victim's body were

also consistent with hollow point .22 caliber projectiles.

The State presented several witnesses, including Daniel Jennings, who

had spent the day with Roberts and his sister, Estelle Haskins, at her Church

Street apartment. About ten minutes before the shooting, the men went outside.

While walking in the neighborhood, a couple of people told them "to get out of

there" because "the block was going to get shot up." They began to head back

to Church Street.

Once there, Roberts told Jennings that someone was approaching. Before

Jennings could turn around, he heard the sound of gunshots fired behind him.

Jennings knelt next to a parked car, then spotted defendant across the street.

Jennings heard another shot before Roberts grabbed himself, exclaiming that he

"got hit." Jennings ran back to Haskins' apartment.

Jennings testified that neither he nor Roberts were armed that day. He

said that if Roberts had been carrying a gun, "he'd still be here."

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 At the apartment, Haskins heard three shots and opened the door to find

Jennings running and yelling at her to call an ambulance. Haskins ran outside

while a friend, Jessica Sanchez, called 9-1-1.

Sanchez saw defendant running from the scene. She said Roberts and

Jennings were not armed that day.

Several neighbors also testified. One described a man in gray clothes

putting away a gun while two other men—one wearing red—headed up the

street. Another resident heard the shots, then saw a man wearing gray gesture

to a man in a black hoodie across the street, who then ran to a man wearing a

red hoodie on the same side of the street. As the shots were fired, the two ran

away.

Another resident, Karol Rodriguez, heard two loud "pops" and looked out

her window to see two men across the street from another wearing a gray jacket

with black shoulder patches. The man in gray shot at the men on the other side

of the street—including the unarmed individual in red.

John Hewitt also heard a shot then looked out his window. He saw a man

in a gray hoodie carrying a gun. Hewitt called 9-1-1 and then saw the man in

gray fire "more shots."

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 The police investigated and obtained an image captured by a surveillance

camera at 6:21 p.m. of a man dressed in gray pants and a dark hoodie with gray

sleeves. The police arrested defendant two weeks after the shooting. He was

hiding in the basement of a house within walking distance of Church Street.

When police executed a search warrant there, they recovered a gray, hooded

sweat jacket with a dark body and gray hood, and a pair of gray sweatpants.

While defendant was in the Somerset County Jail, he told two inmates—

both of whom testified at trial—that he shot Roberts. Steven Ferrara testified

defendant told him he had an "issue" with an old friend and "shot him" in the

stomach. Defendant claimed his gun "wouldn't be found" because he had

"recycled" it, and that he wore gray during the shooting.

Defendant later told Ferrara that about six months before the shooting

Roberts had put a gun to the head of defendant's infant son after an argument.

Defendant further revealed his plan to lie to the prosecutor's office in an attempt

to place the blame on a man defendant called "Junior."

The other inmate, Brody Crowley, testified that defendant admitted

retaliating against Roberts by shooting him. Defendant also told Crowley he

planned to tell the prosecutor's office he wore a blue shirt on the day of the

shooting.

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 On February 7, 2018, defendant, accompanied by his attorney, gave a

sworn statement to prosecutors. The statement, in which defendant said that on

the day of the shooting he was with a man named "Junior," was played for the

jury. Defendant claimed he was wearing a blue shirt that day, while Junior was

dressed in gray.

According to defendant, Junior came to Bound Brook to sell marijuana.

He and Junior ran into Roberts and Jennings at the train station, and Roberts told

defendant that he was "going to switch your shit," which defendant interpreted

as a threat to shoot him. When on Church Street, defendant stated he ran away

when he saw Roberts pull out a gun. He heard a shot and saw that Junior had

shot Roberts. Defendant further alleged that about six months earlier, Roberts

and another man came to his house and threatened him because defendant had

provided the police with information about one of Roberts' associates, Isaiah

Wilson.

After the State rested, defendant took the stand and repudiated the

February 7, 2018 statement concerning Junior's alleged involvement in the

shooting. For the first time, he claimed that he shot Roberts in self-defense.

Defendant said that in June 2017, police arrested Wilson when defendant

implicated Wilson in a crime. Roberts and Jackson then came to his house,

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threatened defendant, and pointed a gun at defendant's son's head. Defendant

did not report the incident to the police.

On the day of the shooting, according to defendant, Roberts told him he

was going to "split your shit." Defendant ran and saw Roberts pull out a gun

and take a shot at him. Defendant claimed he then took out his own gun and

fired back at Roberts. He denied trying to hurt Roberts, claiming he only wanted

to get away.

Defendant admitted wearing the gray jacket and pants the police found

during their search, and agreed he was the man pictured in the surveillance

video. He also conceded that when he went to the prosecutor's office to give his

statement about Junior's alleged involvement in the shooting, he falsely swore

he wore blue that day because he knew the witnesses had described the shooter

as wearing gray.

We address the jury charges and the sentence in the relevant sections. On

appeal, defendant raises the following claims of error:

POINT I

THE COURT FAILED TO INSTRUCT THE JURY
THAT IT WAS REQUIRED TO ACQUIT THE
DEFENDANT OF ALL HOMICIDE CHARGES IF IT
DETERMINED THAT THE STATE HAD NOT
DISPROVEN SELF-DEFENSE BEYOND A
REASONABLE DOUBT. (Not Raised Below).

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 POINT II

THE COURT FAILED TO PROVIDE TAILORED
GUIDANCE TO THE JURY ON HOW TO
EVALUATE THE AGGRAVATED
MANSLAUGHTER CHARGE. (Not Raised Below).

POINT III

A RESENTENCING REMAND IS REQUIRED
BECAUSE (1) THE COURT IMPOSED
CONSECUTIVE TERMS WITHOUT CONSIDERING
THE STATE V. YARBOUGH [1] FACTORS; (2) THE
CONSECUTIVE TERMS ALSO VIOLATED
PRECEDENT; AND (3) THE COURT ERRED BY
NOT CONSIDERING MITIGATING FACTOR 12.

After reviewing the record in light of the contentions advanced on appeal,

we affirm defendant's convictions but remand for resentencing.

II.

"A person may justifiably use force against another if he 'reasonably

believes that such force is immediately necessary for the purpose of protecting

himself against the use of unlawful force by such other person on the present

occasion.'" State v. Galicia, 210 N.J. 364, 389 (2012) (quoting N.J.S.A. 2C:3-

4(a)). "The use of deadly force is not justifiable . . . unless the actor reasonably

believes that such force is necessary to protect himself against death or serious

1
Yarbough, 100 N.J. at 627.
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bodily harm . . . ." N.J.S.A. 2C:3-4(b)(2). Moreover, the use of deadly force is

not justifiable if "[t]he actor knows that he can avoid the necessity of using such

force with complete safety by retreating . . . ." N.J.S.A. 2C:3-4(b)(2)(b).

After conferring with counsel, the judge charged the jury on aggravated

manslaughter and reckless manslaughter as lesser-included offenses to the

murder charge. It is well established that the defense of self-defense applies to

all forms of homicide, including aggravated manslaughter and reckless

manslaughter. State v. O'Neil, 219 N.J. 598, 601 (2014) (citing State v.

Rodriguez, 195 N.J. 165, 172-74 (2008)).

To ensure the jury was properly instructed on this point, the judge and the

attorneys tailored the self-defense charge to include this information. During

the charge conference, the judge and counsel agreed the self-defense instruction

should follow the judge's instructions on the elements of murder and the lesser -

included offenses of aggravated manslaughter and reckless manslaughter. The

attorneys also agreed that the judge should begin the self-defense instruction by

telling the jury:

I'm now going to charge you on a portion of the
Criminal Code, N.J.S.A. 2C:3-4, justification, self-
defense.

The Indictment charges that the defendant has
committed the crime of first-degree murder.

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 There are also for your consideration, as
previously expressed, the charges of aggravated
manslaughter and reckless manslaughter.

This instruction applies to all of those forms of
homicide.

The defendant contends that . . . if the State
proves he used force upon the other, William Roberts,
that such force was justifiably used for his
self[-]protection.

[(Emphasis added).]

The judge then read the model self-defense instruction2 as modified by the

agreement of both counsel. At the end of that instruction, the judge told the

jury:

The burden of proof is upon the State to prove
beyond a reasonable doubt that the defendant knew he
could have retreated with complete safety. If the State
carries its burden, then you must disallow the defense.
If the State does not satisfy this burden and you do have
a reasonable doubt, then it must be resolved in favor of
the defendant and you must allow the claim of self-
defense and acquit the defendant.

[(Emphasis added).]

In Point I of his brief, defendant argues for the first time that the trial

judge committed plain error by not specifically instructing the jury to "also

2
Model Jury Charges (Criminal), "Justification – Self Defense in Self
Protection (N.J.S.A. 2C:3-4)" (rev. June 13, 2011).
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acquit [defendant] of aggravated and reckless manslaughter if it found while

deliberating the murder charge that the State had failed to disprove self -defense

beyond a reasonable doubt." We conclude that the court clearly instructed the

jury that self-defense was a defense to both lesser-included manslaughter

charges, and that the jury should acquit if it found self-defense applied to either.

"Appropriate and proper charges to a jury are essential for a fair trial."

State v. Green, 86 N.J. 281, 287 (1981). The charge is the jury's "road map" of

the law to guide it in its deliberations. State v. Martin, 119 N.J. 2, 15 (1990).

We assume jurors follow the court's instructions. State v. T.J.M., 220 N.J. 220,

237 (2015).

In reviewing a claim of error relating to a jury charge, we consider the

alleged error "in light of the entire charge" and evaluate it "in light 'of the overall

strength of the State's case.'" State v. Walker, 203 N.J. 73, 90 (2010) (quoting

State v. Chapland, 187 N.J. 275, 289 (2006)). When counsel fails to object "at

the time a jury instruction is given, 'there is a presumption that the charge was

not error and was unlikely to prejudice the defendant's case.'" State v. Montalvo,

229 N.J. 300, 320 (2017) (quoting State v. Singleton, 211 N.J. 157, 182 (2012)).

Finally, when the party challenging an instruction did not object at trial,

we review for plain error and "disregard any alleged error 'unless it is of such a

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nature as to have been clearly capable of producing an unjust result.'" State v.

Funderburg, 225 N.J. 66, 79 (2016) (quoting R. 2:10-2). Plain error in jury

charges is "[l]egal impropriety in the charge prejudicially affecting the

substantial rights of the defendant and sufficiently grievous to justify notice by

the reviewing court and to convince the court that of itself the error possessed a

clear capacity to bring about an unjust result." State v. Camacho, 218 N.J. 533,

554 (2014) (alteration in original) (quoting State v. Adams, 194 N.J. 186, 207

(2008)).

Here, we find no error in the judge's instructions. The judge instructed

the jury clearly and entirely consistently with the model jury charge. See Model

Jury Charges (Criminal), "Justification – Self-Defense in Self Protection

(N.J.S.A. 2C:3-4)" (rev. June 13, 2011). As agreed upon by the prosecutor and

defendant, the self-defense charge followed the judge's instructions on murder,

aggravated manslaughter, and reckless manslaughter.

To ensure the jury understood the self-defense instruction applied to all

three forms of homicide, the judge explained at the outset that the self-defense

"instruction applies to all of those forms of homicide." The judge also told the

jury that reasonable doubts had to "be resolved in favor of the defendant and

[the jury] must allow the claim of self-defense and acquit the defendant."

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 Defendant now asserts it would have been better if the judge had stated

that if the jury found that defendant's claim of self-defense was sufficient to

acquit him of murder, the jury must also acquit him of aggravated manslaughter

and reckless manslaughter. However, the judge's instruction did just that. After

all, the judge said the self-defense instruction "applie[d] to all of those forms of

homicide"—namely, murder, aggravated manslaughter, and reckless

manslaughter.

A defendant is not entitled to have the jury charged in his own words.

State v. Pigueiras, 344 N.J. Super. 297, 317 (App. Div. 2001). Thus, defendant

seeks to substitute his own set of words for the judge's words, which clearly

explained the same substantive legal principle to the jury.

The judge adequately instructed the jury that self-defense applied to each

of the homicide-related offenses and that if the defense was established,

defendant should be acquitted of all three of these crimes. The alleged error in

this case neither prejudiced defendant's substantial rights nor had the capacity

to bring about an unjust result. See State v. Alexander, 233 N.J. 132, 141-42

(2018). The contention has no merit.

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 III.

Defendant argues in Point II, again for the first time on appeal, that the

judge plainly erred by failing to provide the jury with a description of all of the

evidence presented at the trial that was relevant to recklessness in connection to

the lesser-included offense of aggravated manslaughter. This argument also

lacks merit because the judge's omission did not prejudice defendant's

substantial rights or cause an unjust result. See ibid.

The model jury charge for aggravated manslaughter gives the trial judge

the option of "[s]ummariz[ing], if helpful, all of the evidence relevant to

recklessness, including any contrasting accounts of events by the defense and

the State." Model Jury Charges (Criminal), "Murder and Aggravated/Reckless

Manslaughter" (rev. June 13, 2011). Neither party asked the judge to include

such a summary in the final jury instruction.

It is well established that "[t]rial courts have broad discretion when

commenting on the evidence during jury instruction." State v. Brims, 168 N.J.

297, 307 (2001). Generally, "summarizing the strengths and weaknesses of the

evidence is more appropriately left for counsel." State v. Robinson, 165 N.J.

32, 45 (2000) (citing State v. Walker, 322 N.J. Super. 535, 551 (App. Div.

1999)). Thus, the determination of when and how to comment on the facts and

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evidence during the jury instructions is left "to the sound discretion of the trial

court to decide on a case-by-case basis . . . ." Ibid.

Of course, "there are situations in which [courts] do require that jury

instructions be 'molded' or 'tailored' to the facts adduced at trial." Id. at 42; see

also State v. Concepcion, 111 N.J. 373, 379 (1988) (stating that a trial judge

may sometimes have to mold the model jury charge "in a manner that explains

the law to the jury in the context of the material facts of the case."). However,

this requirement usually only applies to potentially confusing or misleading

statements of law not couched in the relevant facts. Robinson, 165 N.J. at 42.

Here, omitting facts relevant to recklessness did not render the judge's

instruction confusing or misleading. As noted above, defense counsel did not

ask the judge to summarize these facts. Such a tactical decision is

understandable because the judge would have also included evidence damaging

to defendant. And the State's strong proofs contradicted defendant's version of

the events leading to the homicide.

Thus, the judge did not abuse his discretion or plainly err by electing not

to comment on the parties' proffered recklessness evidence. The evidence was

not complex, and the jury could not have been confused by the judge's clear

legal instructions.

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 IV.

In Point III, defendant argues we should vacate his consecutive sentences

and remand for resentencing because the judge did not provide a statement of

reasons for imposing them as required by Yarbough. We agree.

In Yarbough, the Court

established the factors a trial court must consider in
determining whether to impose consecutive sentences.
100 N.J. at 643-44. A court must "articulate [its]
reasons" for imposing consecutive sentences "with
specific references to the Yarbough factors." State v.
Abdullah, 184 N.J. 497, 515 (2005). "[A] statement of
reasons is a necessary prerequisite for adequate
appellate review of sentencing decisions . . . [in order
to] determine whether the trial court's imposition of
consecutive sentences was a valid exercise of
discretion." State v. Soto, 385 N.J. Super. 247, 256
(App. Div. 2006) (quoting State v. Miller, 108 N.J. 112,
122 (1987)).

[State v. Chavarria, 464 N.J. Super. 1, 19 (App. Div.
2020) (alterations in original).]

As our Supreme Court recently explained:

An explicit statement, explaining the overall
fairness of a sentence imposed on a defendant for
multiple offenses in a single proceeding or in multiple
sentencing proceedings, is essential to a proper
Yarbough sentencing assessment. It is the necessary
second part to a Yarbough analysis, as Miller
emphasized. 108 N.J. 122 (noting importance of
Yarbough factor two – placing reasons for consecutive
sentence on record). Acknowledging and explaining

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 the fairness of the overall sentence imposed on the
defendant advances critical sentencing policies of the
Code [of Criminal Justice], [3] as amplified by
Yarbough.

[State v. Torres, 246 N.J. 246, 268 (2021).]

Here, the judge did not provide any explanation for imposing two

consecutive seven-year terms. While he cited Yarbough in his oral decision and

in the judgments of convictions for each of the three indictments, he did not

analyze the Yarbough factors. Merely citing the case is not enough.

When a sentencing "court fails to give proper reasons for imposing

consecutive sentences . . . a remand [is] required for resentencing." State v.

Randolph, 210 N.J. 330, 353 (2012) (second alteration in original) (quoting State

v. Carey, 168 N.J. 413, 424 (2001)); see also Torres, 246 N.J. at 270 (noting that

"the sentencing court's explanation of its evaluation of the fairness of the overall

sentence is 'a necessary feature in any Yarbough analysis.'" (quoting State v.

Cuff, 239 N.J. 321, 352 (2019))); State v. Miller, 205 N.J. 109, 129 (2011)

(remanding for resentencing because Yarbough factors were not addressed).

Although "sentences can be upheld where the sentencing transcript makes it

3
N.J.S.A. 2C:1-1 to :104-9.
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possible to 'readily deduce' the judge's reasoning . . . , those cases are the

exception, not the rule." Miller, 205 N.J. at 129-30.

The State posits several reasons why consecutive terms were appropriate,

pointing out that the two unlawful possession of a handgun charges were

separate from the aggravated manslaughter conviction and that at least one of

the handgun offenses was committed after defendant had been released pending

disposition of a previous offense under N.J.S.A. 2C:44-5(h).4 However, the

judge made no mention of even these considerations. Thus, the sentence is

vacated.

Affirmed in part, vacated in part, and remanded for further proceedings in

accordance with this opinion. We do not retain jurisdiction.

4
In pertinent part, N.J.S.A. 2C:44-5(h) states "[w]hen a defendant is sentenced
to imprisonment for an offense committed while released . . . pending
disposition of a previous offense, the term of imprisonment shall run
consecutively to any sentence of imprisonment imposed for the previous offense
. . . ." However, the sentencing judge may impose a non-consecutive sentence
if, after considering "the character and conditions of the defendant," he or she
finds the "imposition of consecutive sentences would be a serious injustice
which overrides the need to deter such conduct by others." Ibid. Here, the judge
did not cite N.J.S.A. 2C:44-5(h) in his sentencing decision or make any pertinent
findings.

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