STATE OF NEW JERSEY v. MADA T. EOFF (17-06-0360, MERCER 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NOT FOR PUBLICATION WITHOUT THE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-0514-18

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MADA T. EOFF,

Defendant-Appellant.
_______________________

Submitted October 25, 2021 – Decided March 4, 2022

Before Judges Messano, Accurso and Enright.

On appeal from the Superior Court of New Jersey, Law
Division, Mercer County, Indictment No. 17-06-0360.

Joseph E. Krakora, Public Defender, attorney for
appellant (Michael Confusione, Designated Counsel,
on the briefs).

Angelo J. Onofri, Mercer County Prosecutor, attorney
for respondent (Tasha Kersey, Assistant Prosecutor, of
counsel and on the briefs).

Appellant filed a pro se supplemental brief.

PER CURIAM
 On September 18, 2016, at approximately 2:49 p.m., Trenton police

responded to shots fired near Prospect Street and East Stuyvesant Avenue. They

discovered the lifeless body of nineteen-year-old Lance Beckett in a grassy alley

behind nearby houses on Rutherford Avenue; Beckett was pronounced dead at

the scene, the victim of multiple gunshot wounds. Authorities charged

defendant Mada T. Eoff, and co-defendants, Quashawn Emanuel and his cousin

Omar Kennedy, with Beckett's homicide.

Defendant was seventeen years old at the time, and the State moved to

waive jurisdiction from the Family Part to the Law Division and prosecute

defendant as an adult. See N.J.S.A. 2A:4A-26.1; Rule 5:22-2. The Family Part

judge held a hearing and granted the State's request. A Mercer County grand

jury returned an indictment charging defendant, Emanuel and Kennedy with

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

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

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

Defendant was tried separately. Emanuel, who pled guilty to second-

degree manslaughter with a maximum sentence recommendation of eight years'

imprisonment, was the State's key witness at trial. 1 The jury convicted defendant

1
At the time of trial, the charges against Kennedy remained pending.
A-0514-18
2
of murder but acquitted him of the weapons offenses. After denying motions

for judgment notwithstanding the verdict (JNOV), Rule 3:18-2, or alternatively

a new trial, Rule 3:20-1, the judge sentenced defendant to a thirty-eight-year

term of imprisonment, with an eighty-five percent period of parole ineligibility

pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2.

Before us, defendant raises the following points for our consideration:

POINT 1

THE TRIAL COURT ERRED IN GRANTING THE
STATE'S MOTION TO TRY [DEFENDANT] AS AN
ADULT IN THE LAW DIVISION.

POINT 2

THE TRIAL COURT ERRED IN DENYING
DEFENDANT'S MOTIONS FOR ACQUITTAL,
[JNOV], AND NEW TRIAL.

POINT 3

DEFENDANT'S SENTENCE IS IMPROPER AND
EXCESSIVE.

In a pro se supplemental brief, defendant raises the following arguments:

POINT I

THE TRIAL COURT ERRED WHEN IT FAILED TO
INCLUDE ACCOMPLICE LIABILITY OR CO-
CONSPIRATOR IN THE JURY CHARGE

A-0514-18
3
 POINT II

TRIAL COURT ERRED WHEN IT FAILED TO
GRANT [DEFENDANT] A MISTRIAL

POINT III

[DEFENDANT] MUST BE RE-SENTENCED
PURSUANT TO THE NEW LEGISLAT[ION]
SIGNED INTO LAW BY GOVERNOR MURPHY ON
OCTOBER 19, 2020.2

After designated counsel filed his brief, the Office of the Public Defender

moved to order additional transcripts of jury selection. We granted that motion,

and, after receipt of those transcripts, counsel filed a letter pursuant to Rule 2:6-

11(d), citing the Court's grant of certification of our judgment in State v. Little,

2
In a letter filed pursuant to Rule 2:6-11(d), counsel advanced the same
argument. The referenced legislation, effective October 19, 2020, well after the
trial in this case, amended N.J.S.A. 2C:44-1(b) by adding a new mitigating
sentencing factor that "only requires a finding . . . '[t]he defendant was under
[twenty-six] years of age at the time of the commission of the offense.'" State
v. Tormasi, 466 N.J. Super. 51, 66 (App. Div. 2021) (first alteration in original)
(quoting N.J.S.A. 2C:44-1(b)(14)), certif. granted and remanded on other
grounds, ___ N.J. ___ (2022). The Court recently heard argument in State v.
Lane, certif. granted, 248 N.J. 534 (2021), where it considered whether the new
mitigating sentencing factor applied retroactively. Unless and until the Court
holds to the contrary in Lane, we see no reason to deviate from our holding in
State v. Bellamy, 468 N.J. Super. 29, 46–48 (App. Div. 2021), that mitigating
factor fourteen does not apply retroactively to sentences imposed prior to the
effective date of N.J.S.A. 2C:44-1(b)(14), and may properly be applied only to
sentencings, including re-sentencings following a remand on appeal, occurring
on or after N.J.S.A. 2C:44-1(b)(14)'s October 19, 2019 effective date.
A-0514-18
4
No. A-4146-17 (App. Div. Feb. 5, 2020). See 243 N.J. 533 (2020). Although

he did not have the benefit of the Court's subsequent decision affirming our

judgment as modified, see State v. Little, 246 N.J. 402 (2021), defendant

contends a question posed by the judge to all prospective jurors during jury

selection violated his right to a fair trial.

We have considered these arguments in light of the record and applicable

legal standards and reverse.

I.

When police processed the homicide scene, they found a cell phone and

blue sweatshirt on the ground but were unable to obtain fingerprints, trace

evidence or DNA from either. There were no shell casings, and the State Police

could not access the cell phone. However, police were able to obtain

surveillance video footage from a nearby home and stores. The footage showed

Beckett in the company of the three co-defendants as they walked into the

alleyway and out of the cameras' view. Defendant was wearing a blue

sweatshirt. The video footage was shown to the jury.

Detective Michael Castaldo of the Mercer County Prosecutor's Office

testified that investigators identified and located Emanuel using the surveillance

footage, canvassing witnesses at the scene, and through photos on Facebook.

A-0514-18
5
During questioning by the officers over two successive days, Emanuel

ultimately named defendant as the shooter. Police executed a search warrant at

defendant's home, which yielded nothing of evidentiary value.

At trial, Emanuel testified that he and Kennedy were present at Beckett's

killing. Emanuel knew Beckett for several years beforehand; both had fathered

a child with the same woman. Their relationship had "ups and downs," and

Emanuel acknowledged that approximately one year earlier, he was robbed, and

it was rumored Beckett was involved. Emanuel also knew defendant and had a

cordial relationship with him.

On the day of the murder, Emanuel received separate telephone calls from

Kennedy and Beckett, and he agreed to meet them later that day. After first

meeting Beckett and then Kennedy, all three went to a deli on Prospect Avenue.

Near the deli, they encountered defendant, who was wearing a blue hooded

sweatshirt. Defendant left and returned about twenty minutes later; he

telephoned Emanuel from a short distance away. According to Emanuel,

defendant said he was going to "bang bro," which Emanuel understood to mean

defendant intended to harm Beckett. Emanuel testified it was rumored that

Beckett stole a gun from Emanuel's uncle, nicknamed "Crazy Horse." Defendant

told Emanuel, "I got Crazy Horse," which Emanuel took to mean defendant

A-0514-18
6
would hurt Beckett as payback for his theft of Crazy Horse's gun. Emanuel did

not tell Beckett about the call.

Shortly thereafter, Emanuel, Beckett, and Kennedy were standing in front

of a liquor store near the deli when defendant approached and asked if they

wanted to see a gun, which defendant described as an "AR," and claimed was

hidden nearby. The group agreed and followed defendant toward an alley near

Rutherford Avenue. Defendant directed the group down the alley, where he said

he hid the gun. Except for Beckett, the group searched for the gun. Emanuel

described what happened next:

From there I heard [defendant] say, you don't want to
help them look for it? And a shot fired off. When a
shot fired off my back was still turned. By the time I
turned, the second shot fired. Now Lance done say, oh
shit, and he started running. So by the time he did that
I looked up and he had a hole in his back. . . . The rest
of the shots went off, about three – three more shots.
Like five total.

Emanuel testified that he saw defendant fire the shots using a stainless-

steel revolver. After the shooting, defendant and Kennedy immediately ran from

the scene; Emanuel hid in the bushes. Emanuel testified that before Kennedy

fled, he jumped on Beckett's head. Although Beckett was still breathing,

Emanuel thought there was nothing he could do to help and ran too.

A-0514-18
7
 On the day after the shooting, Emanuel gave detectives a statement about

the homicide which, he admitted included "fake names" and "bogus stuff,"

suggesting that someone named "Little Marty" had committed the murder. He

gave another statement to detectives the next day and for the first time identified

defendant as the person who shot Beckett.

The State introduced records from the cellphone service provider

confirming shortly before the men went toward the alley and shots rang out,

Emanuel's phone received a call from defendant's phone. When the State rested,

defendant moved for a judgment of acquittal pursuant to Rule 3:18-1, which the

judge denied.

Defendant did not testify and recalled only Detective Castaldo as a

witness. He provided brief and inconsequential testimony about the crime

scene.

The theme of defense counsel's summation was that Emanuel, not

defendant, shot Beckett. Counsel noted that Crazy Horse was Emanuel's uncle,

and, if anyone had a motive to shoot Beckett — the alleged thief of Crazy

Horse's gun — it was Emanuel, not defendant. Defense counsel pointed out

Emanuel's claim, included in his statements to police, that Beckett had "set him

up" to be robbed one year earlier.

A-0514-18
8
 The prosecutor argued that the video footage and phone records

corroborated key points in Emanuel's testimony. He noted that Emanuel was

alone with Beckett for some time before the others arrived, and if he wanted to

shoot Beckett he had ample opportunity to do so. Despite the absence of any

DNA or trace evidence to support the assertion, the prosecutor suggested the

blue sweatshirt found in the alley was the same sweatshirt defendant was

wearing in the video footage, and that it was carefully placed on the ground as

defendant fled, fully intending at some point to retrieve it. He noted the phone

records corroborated Emanuel's testimony that defendant called him shortly

before the shooting.

The jury deliberated over parts of three days, with significant time

consumed by the playback of testimony and responses to numerous questions.

As noted, the jury found defendant guilty of murder but acquitted him of the

other charges.

II.

Initially, we address defendant's contention that it was error for the Family

Part judge to grant the State's motion to transfer jurisdiction to the Law Division.

Defendant argues that most of the statutory factors contained in N.J.S.A. 2A:4A-

26.1 weighed in favor of defendant. We disagree.

A-0514-18
9
 The waiver statute was amended effective March 1, 2016, and reflects the

Legislature's intention, among other things, to replace the previous waiver

procedure "with a streamlined process for determining whether a juvenile case

should be transferred to an adult criminal court." Assemb. Appropriations

Comm. Statement to S. 2003 2 (June 15, 2015). Under the amended law

applicable to this case,

the prosecution must offer proof of two things: (1) that
the juvenile was fifteen years or older at the time of the
alleged delinquent act, N.J.S.A. 2A:4A-26.1(c)(1), (as
compared to fourteen years or older under the prior law,
N.J.S.A. 2A:4A-26(a)(1)); and (2) that there is probable
cause to believe that the act, if committed by an adult,
would constitute one of a number of listed offenses,
N.J.S.A. 2A:4A-26.1(c)(2).

[State in re N.H., 226 N.J. 242, 251 (2016).]

"[C]riminal homicide, other than death by auto," is one of the enumerated

offenses. N.J.S.A. 2A:4A-26.1(c)(2)(a). The statute requires the waiver motion

be "accompanied by a written statement of reasons" from the prosecutor "clearly

setting forth the facts used in assessing all [of the enumerated waiver] factors . . .

together with an explanation as to how evaluation of those facts supports waiver

for each particular juvenile." N.J.S.A. 2A:4A-26.1(a); see also State in re Z.S.,

464 N.J. Super. 507, 516 (App. Div. 2020).

Pursuant to the revised statute:

A-0514-18
10
 The court may deny a motion by the
prosecutor to waive jurisdiction of a juvenile
delinquency case if it is clearly convinced that the
prosecutor abused his discretion in considering
the following factors in deciding whether to seek
a waiver:

(a) The nature and circumstances of the
offense charged;

(b) Whether the offense was against a
person or property, allocating more weight
for crimes against the person;

(c) Degree of the juvenile's culpability;

(d) Age and maturity of the juvenile;

(e) Any classification that the juvenile is
eligible for special education to the extent
this information is provided to the
prosecution by the juvenile or by the court;

(f) Degree of criminal sophistication
exhibited by the juvenile;

(g) Nature and extent of any prior history
of delinquency of the juvenile and
dispositions imposed for those
adjudications;

(h) If the juvenile previously served a
custodial disposition in a State juvenile
facility operated by the Juvenile Justice
Commission, and the response of the
juvenile to the programs provided at the
facility to the extent this information is

A-0514-18
11
 provided to the prosecution by the Juvenile
Justice Commission;

(i) Current or prior involvement of the
juvenile with child welfare agencies;

(j) Evidence of mental health concerns,
substance abuse, or emotional instability of
the juvenile to the extent this information
is provided to the prosecution by the
juvenile or by the court; and

(k) If there is an identifiable victim, the
input of the victim or victim's family.

[N.J.S.A. 2A:4A-26.1(c)(3) (emphasis added).]

An abuse of discretion may be found where the decision failed to consider

all relevant factors, considered irrelevant or inappropriate factors, or "amounted

to a clear error in judgment." State in re V.A., 212 N.J. 1, 22 (2012) (quoting

State v. Bender, 80 N.J. 84, 93 (1979)). "The revised statute does continue the

strong presumption in favor of waiver for certain juveniles who commit serious

acts and maintains the associated 'heavy burden' on the juvenile to defeat a

waiver motion." Z.S., 464 N.J. Super. at 519 (quoting State v. R.G.D., 108 N.J.

1, 12 (1987)).

The prosecutor's written statement of reasons in this case was thorough

and complied with the requirements of the statute. It tracked and commented

on each of the eleven factors in N.J.S.A. 2A:4A-26.1 with a reasonable level of

A-0514-18
12
explanation. The prosecutor candidly acknowledged that some of the factors

weighed in defendant's favor and against waiver. Defendant's other contentions

regarding the prosecutor's statement of reasons lack sufficient merit to warrant

extensive discussion. R. 2:11-3(e)(2).

The Family Part judge, in turn, considered the evidence produced by the

State, including the surveillance video footage and a statement Kennedy gave to

police in which he, too, alleged defendant shot Beckett. He considered

defendant's educational records and participation in behavioral counseling. In

sum, the judge properly concluded the prosecutor had not clearly and

convincingly abused his discretion in seeking to transfer jurisdiction to the Law

Division, and we affirm that order.

III.

It is well settled that a defendant is entitled to be tried "before an impartial

jury." State v. Loftin, 191 N.J. 172, 187 (2007). "Our case law consistently

endorses voir dire questions that 'probe the minds of the prospective jurors to

ascertain whether they hold biases that would interfere with their ability to

decide the case fairly and impartially.'" Little, 246 N.J. at 417 (quoting State v.

Erazo, 126 N.J. 112, 129 (1991)). "[I]nquiring about a juror's ability to follow

the trial judge's instructions or to deliberate with an open mind," is entirely

A-0514-18
13
appropriate, "so long as the questions do not indoctrinate prospective jurors

about the issues that the jury will decide." Ibid. (citing State v. Fortin, 178 N.J.

540, 577 (2004)).

"We review the trial court's conduct of voir dire . . . in accordance with a

deferential standard." Id. at 413. "[A] trial court's decisions regarding voir dire

are not to be disturbed on appeal, except to correct an error that undermines

the selection of an impartial jury.'" Ibid. (quoting State v. Winder, 200 N.J. 231,

252 (2009)). Relying on Little, defendant contends he was denied a fair trial

because of a question posed to prospective jurors during voir dire.

In Little, the defendant was charged with aggravated assault and weapons

offenses. 246 N.J. at 406. The gun allegedly used in commission of the crimes

was never recovered. Id. at 407. Over objection of defense counsel, and after

modifying the question as first proposed by the prosecutor, the judge agreed to

ask prospective jurors the following: "[t]he law does not require that the State

recover a gun, even though the defendant has been charged with weapons-related

offenses. If the State does not produce the physical firearm allegedly used in

this case will this affect your ability as a juror?" Id. at 409 (alteration in

original).

A-0514-18
14
 Although most prospective jurors answered in the negative, three

expressed some reservations. Id. at 410. The prosecutor used a peremptory

challenge to excuse all three. Id. at 410–11. To further clarify, the judge subtly

modified the question as follows:

The law does not require that the State produce a
gun at trial even though the defendant has been charged
with weapons offenses. If the State did not recover and
does not produce the gun allegedly used in this case,
but presents evidence in the form of testimony, how
will this affect your ability as a juror?

[Id. at 411.]

"In response to the revised question, the majority of the prospective jurors stated

that the State's inability to produce a gun would not affect their ability to serve

as jurors. Several commented that they would consider all the evidence in

deciding the case." Ibid. The State exercised peremptory challenges for two

jurors who expressed some reservations in responding to the revised inquiry.

Ibid. On appeal, we reversed, "agree[ing] with [the] defendant that the questions

asked of prospective jurors during jury selection predisposed the jury to ignore

the fact that no gun was recovered and to find defendant guilty." Id. at 412.

The Court noted it had "not previously considered the propriety of voir

dire questions addressing the State's inability to produce a particular category of

evidence at trial," but held "[i]n appropriate cases, the State's inability to present

A-0514-18
15
a particular category of evidence can be a legitimate subject for the trial judge

to address in voir dire." Id. at 417. Particularly relevant to this appeal, the Court

cited two decisions from other states that "upheld inquiry into prospective jurors'

views on the prosecution's inability to present specific categories of evidence ,"

specifically, DNA or fingerprint evidence. Ibid. n.1 (citing Commonwealth v.

Gray, 990 N.E.2d 528, 536–37 (Mass. 2013); Goff v. State, 14 So. 3d 625, 652–

53 (Miss. 2009)).

The Court agreed that the trial court's question regarding the "absence of

the weapon allegedly possessed by [the] defendant was a legitimate area of

inquiry in voir dire." Id. at 419. But the Court explained:

A jury, however, would be permitted to consider
the State's inability to produce the handgun at issue as
a factor when it decided whether the State had met its
burden to prove beyond a reasonable doubt the
elements of each offense. That aspect of the governing
law was not explained in either version of the question
asked to prospective jurors in this case. Neither
question posed by the trial court presented the issue to
the jurors in a balanced manner.

. . . The questions posed to prospective jurors
about the weapon, however, improperly suggested that
jurors should not consider the absence of a handgun as
a factor when they evaluated the State's proofs.

[Ibid. (emphasis added).]

A-0514-18
16
 The Court held "[i]f a trial court inquires during voir dire about the

absence of evidence, it should pose a balanced question." Id. at 420. It proposed

the trial court use the following language to make inquiry of prospective jurors

if the case were tried again:

The State is not legally required to produce a gun
if a defendant is charged with weapons offenses, but
you as a juror may choose to consider the absence of
any evidence in deciding whether the State has met its
burden of proving defendant guilty beyond a reasonable
doubt. If the State did not recover and does not produce
the gun allegedly used in this case, but presents
evidence in the form of testimony, will you be able to
be a fair and impartial juror and decide whether the
State has proven that defendant is guilty beyond a
reasonable doubt of the offenses charged?

[Ibid. (emphasis added).]

As noted, in this case, there was no DNA evidence, trace evidence, or

fingerprints recovered from the homicide scene or anywhere else that linked

defendant to Beckett's murder. During jury selection, in addition to using the

model voir dire questions, the judge posed without objection the following

question, or slight variations thereof, to each potential juror individually and

privately at a courtroom podium:

Sometimes prosecutors present cases where there's no
forensic evidence such as fingerprints or DNA. Do you
believe that the prosecutor, the State of New Jersey can

A-0514-18
17
 reach its burden of proof beyond a reasonable doubt
without any type of scientific proofs? 3

In most instances, regardless of the juror's response, the judge followed up with

an open-ended request that the juror explain his or her answer and permitted the

prosecutor or defense counsel to pose additional questions to the juror. Two

jurors who said scientific proof would be necessary were excused for cause; one,

on motion of the prosecutor, the other on the court's own motion.

The prosecutor used a total of eight peremptory challenges; defense

counsel used eleven. We cannot discern a pattern in the use of these challenges

necessarily related to the initial answers given by these jurors or colloquies that

followed. However, neither the judge nor counsel "presented the issue to the

jurors in [the] balanced manner" required by Little. Id. at 419. Jurors were

never told they could "consider the absence of any [forensic] evidence in

deciding whether the State has met its burden of proving defendant guilty

beyond a reasonable doubt." Id. at 420.

3
The appellate record does not include any discussion about this question prior
to the judge posing it to each juror. Logically, the prosecutor must have
requested its use, and while the record as it exists does not reveal defense
counsel objected to the question, we cannot say whether the issue was discussed
in proceedings that were not transcribed.
A-0514-18
18
 That the absence of forensic evidence was something jurors could

consider in deciding whether the State carried its burden of proof arose

tangentially with only two of the fourteen jurors ultimately seated. We quote

from the transcript:

Prosecutor: If there's a case where someone is charged
with a crime but there's no DNA or fingerprints linking
them to it, you would hear testimony from witnesses,
would you be able to evaluate their testimony? If they
give you enough would you be comfortable saying you
know what, I believe what the witnesses told me and I
think that this person has been proven guilty beyond a
reasonable doubt? Could you get that from just
witnesses without doing that?

Juror #6: I think that I would be able to based on the
witnesses and their testimonies. But I think I would be
able to come up with something other than actually
DNA.

Prosecutor: And the opposite is true, if it isn't enough
—

Juror #6: Right, of course.

[(Emphasis added).]

Juror #8 responded to the initial question: "That's a tough one. I guess if the

. . . non-scientific evidence is very good and from reliable sources, then I guess

it's true." The judge asked, "And if the evidence is not reliable you would return

a verdict of not guilty[?]" The juror answered, "I would do that, yeah."

A-0514-18
19
 It is difficult to discern whether the following colloquy with Juror #7, who

initially said she did not think the State could meet its burden of proof without

scientific evidence, touched on the subject:

Judge: You think they need scientific proofs.

Juror #7: Yeah. They would need something.

Judge: So in no case. Even if a witness seems to be
very believable, you find the prosecutor cannot meet its
burden of proof unless they have some scientific proofs
linking the defendant to a crime?

Juror #7: . . . I guess. ([I]naudible) scientific. You
would think (inaudible) it can be proved, you know.

Judge: Right. Well, I'm gonna ask the attorneys if they
have any follow up questions.

Prosecutor: . . . I do. I just want to (inaudible) a little
bit further.

....

As the judge says, as a juror you hear testimony
from witnesses.

....

And . . . I don't want to talk about this case 'cause
that's gonna happen later.

....

You'll hear testimony. But a hypothetical. When
you're sitting as a juror and you (inaudible) of an

A-0514-18
20
eyewitness and you believe that witness . . . will be
credible and the witness tells you, "I saw it," . . .
whatever the crime is, "I watched it with my own two
[e]yes." If you found that witness to be credible and
you believed her and you were firmly convinced that
they're telling the truth, would you still not find the
defendant guilty if there wasn't scientific evidence to
support that?

Juror #7: Yeah. (inaudible)

Prosecutor: So you need something more.

Juror #7: Yeah.

Prosecutor: Even if you were to believe what they were
telling you.

Juror #7: Well, no. If I believe what they tell me and
they or their character is, you know, as being someone
who's honest or could be, I'd say, "Yeah." I wouldn't
have any doubts that they –

Prosecutor: And . . . I don't want to (inaudible) if you
can't consider a lack of scientific evidence.

Juror #7: Sure.

Prosecutor: It's not like you can't consider that at all.

Juror #7: Yeah.

Prosecutor: But you believe what the witness was
telling you, you will be able to say, "You know what?
. . . I believe what they're telling me. I'm firmly
convinced and I can find the defendant guilty.["]

Juror #7: Yes.

A-0514-18
21
 [(Emphasis added).]

We do not quote some of the other sidebar exchanges with jurors that ultimately

decided the case, but we note that frequently the prosecutor posed questions that

focused on the juror's ability to consider the testimony of witnesses, decide

credibility and convict if they believed that testimony.

Defense counsel here apparently did not object to the question and

infrequently participated in any exchange with jurors at sidebar. We therefore

apply the plain error standard. See, e.g., Winder, 200 N.J. at 252 (holding plain

error regarding jury voir dire requires defendant "establish . . . there was error

'clearly capable of producing an unjust result'" (quoting State v. Burns, 192 N.J.

312, 342 (2007); R. 2:10-2)).

As in Little, in this case "[t]he questions posed to prospective jurors about

[forensic evidence], . . . improperly suggested that jurors should not consider

the absence [of such evidence] as a factor when they evaluated the State's

proofs." 246 N.J. at 419. This was critical, because as in Little, where the State

was unable to produce the gun used in the assault and the jury convicted the

defendant based primarily on the testimony of witnesses, there the victims, so

too here, the State's case relied almost entirely on Emanuel's testimony. The

prosecutor's assertion that Emanuel's testimony was corroborated by other

A-0514-18
22
evidence, i.e., cellphone records and surveillance footage, is true, but that

evidence did not corroborate the State's essential contention that defendant, not

Emanuel, nor his cousin Kennedy, shot Beckett.

Although Little was decided after the trial in this case, our jurisprudence

has long recognized the importance of appropriate, impartial juror voir dire in

"protecting a defendant's right to a fair trial." Winder, 200 N.J. at 251. More

than fifty years ago, in State v. Manley, the Court adopted Rule 1:8-3(a), which

then required trial judges to conduct jury voir dire but permitted the parties or

their attorneys to "supplement the court's interrogation in its discretion." 54 N.J.

259, 281 (1969). In doing so, the Court sought to "restore the fundamental basis

for preliminary questioning, i.e., an expedient selection of a fair and impartial

jury, one that will decide the case fairly under the evidence presented and the

instructions of the court." Id. at 280. Among other things, this meant

eliminating . . . efforts to indoctrinate, to persuade, to
instruct by favorable explanation of legal principles
that may or may not be involved, to lecture on the law
and the facts and the relation of one to the other, the
lecture ending in a question for form's sake. It mean[t]
also a prohibition of the hypothetical question intended
and so framed as to commit or to pledge jurors to a point
of view or a result before they have heard any evidence,
argument of counsel or instructions of the court.

[Id. at 280–81 (emphasis added).]

A-0514-18
23
Because the question posed to jurors in this case sought to ensure they could

convict defendant despite the absence of forensic evidence, but failed to ask if

jurors understood a reasonable doubt could be raised by the lack of such

evidence, it was not balanced as the Court required in Little. Instead, before

hearing any evidence, the chosen jurors committed themselves to a one-sided

proposition that inured to the State's benefit. We reverse.

IV.

Although our decision means we need not consider defendant's sentencing

arguments, for the sake of completeness, we address the other arguments

advanced, all of which are unavailing.

A.

The judge denied defendant's motion for judgment of acquittal at the end

of the State's case, citing Emanuel's testimony, the surveillance video footage,

and the medical examiner's testimony regarding the cause of Beckett's death .

Giving the State the benefit of all favorable evidence and inferences, the judge

concluded it was sufficient for a jury to find guilt beyond a reasonable doubt.

See, e.g., State v. Reyes, 50 N.J. 454, 458–59 (1967). On appeal, we apply the

same standard as the trial judge, State v. Cruz-Pena, 243 N.J. 342, 348 (2020),

A-0514-18
24
and conduct our review de novo. State v. Dekowski, 218 N.J. 596, 608 (2014).

The judge properly denied the motion for acquittal for the stated reasons.

In support of his JNOV motion, defendant argued the verdicts were

inconsistent, because although the jury found defendant guilty of murder, it

acquitted him of the weapons offenses. Defendant also contended the verdict

meant the jury considered defendant was an accomplice, not a principal, but the

judge failed to give any instructions on accomplice liability. After considering

oral argument and allowing the parties to brief the issue, the judge denied the

motion.

"Inconsistent verdicts are accepted in our criminal justice system ," and

courts should not "speculate" whether the inconsistency resulted from jury

lenity, compromise, or mistake. State v. Banko, 182 N.J. 44, 53, 55 (2004)

(citing State v. Grey, 147 N.J. 4, 11 (1996)). "Rather, 'we [only] determine

whether the evidence in the record was sufficient to support a conviction on any

count on which the jury found the defendant guilty.'" State v. Goodwin, 224

N.J. 102, 116 (2016) (quoting State v. Muhammad, 182 N.J. 551, 578 (2005)).

Applying that standard of review, the evidence was clearly sufficient to find

defendant guilty of murder beyond a reasonable doubt.

A-0514-18
25
 Any alleged inconsistency does not mean the judge should have provided

instructions on accomplice liability. As already noted, we refuse to speculate

and attach specific reasons for an inconsistency in the verdict, but more

important, the evidence did not support providing the charge. The State's entire

case rested on Emanuel's testimony that defendant shot Beckett. 4

Defendant alternatively moved before the judge for a new trial, again

asserting the evidence viewed in its entirety was insufficient to support the

murder conviction. See State v. Lodzinski, 246 N.J. 331, 358 (2021) (requiring

the court consider not only the evidence presented by the State, but "the entirety

of the evidence" (quoting State v. Williams, 218 N.J. 576, 594 (2014))). The

judge denied the motion concluding "the key issue for the jury was what weight

to assign to the credibility of . . . Emanuel," and the jury found him credible.

Rule 3:20-1 provides:

The trial judge on defendant's motion may grant
the defendant a new trial if required in the interest of
justice. . . . The trial judge shall not, however, set aside
the verdict of the jury as against the weight of the
evidence unless, having given due regard to the
opportunity of the jury to pass upon the credibility of
the witnesses, it clearly and convincingly appears that
there was a manifest denial of justice under the law.

4
For this reason, the point defendant raises in his pro se supplemental brief
regarding accomplice liability lacks any merit. R. 2:11-3(e)(2).
A-0514-18
26
In reviewing a trial court's decision to grant a new trial following a jury verdict,

an appellate court must be "'guided by essentially the same standard as that

controlling the trial judge's review of a jury verdict' and must 'weigh heavily'

the trial court's views on 'credibility of witnesses, their demeanor, and [the trial

court's] general "feel of the case."'" State v. Brown, 118 N.J. 595, 604 (1990)

(alteration in original) (quoting State v. Sims, 65 N.J. 359, 373 (1974)).

Applying these standards, the judge properly denied defendant's motion for a

new trial.

B.

Defendant argues the prosecutor's summation comments improperly

shifted the burden of proof. Here are the objected-to portions of the summation:

It's the State's burden. [Defense counsel] was
100 [%] correct about that. The State has the burden of
proof. And the State's burden is to prove to you the
elements of the offenses charged in the indictment.
That means the State has to present facts, has to present
testimony and evidence and exhibits to you to prove to
you the elements of the charged counts in this
indictment have been established.

The State has to do no less than that. But it
certainly has to do no more than that. And another thing
that is true, the defendant does not have to produce any
evidence at all because it is the State's burden.

But if the [d]efense is going to argue to you that
something else happened out in that wooded area off

A-0514-18
27
 East Stuyvesant Avenue, that somebody else, not the
defendant, was the one who killed Lance Beckett, then
the [d]efense damn well better be able to point to some
evidence in the record to support that claim. They don't
have to produce it, but they better be able to show it to
you.

Shortly thereafter, the prosecutor reiterated, "[a]gain, the [d]efense doesn't have

to produce evidence, but they better be able to point you to something that

supports what they're saying. They can't do it."

Defense counsel objected after completion of the summation and

requested a mistrial. The judge denied the motion finding the comments did not

shift the burden of proof and almost immediately reminded the jury , "[t]he

burden of proving each element of a charge beyond a reasonable doubt rests

upon the State and that burden never shifts to a defendant."

"Whether testimony or a comment by counsel is prejudicial and whether

a prejudicial remark can be neutralized through a curative instruction or

undermines the fairness of a trial are matters 'peculiarly within the competence

of the trial judge.'" State v. Yough, 208 N.J. 385, 397 (2011) (quoting State v.

Winter, 96 N.J. 640, 646–47 (1984)). Defense counsel's summation pointed an

accusatory finger toward Emanuel or some other person as the shooter. The

prosecutor's comments were a response. See State v. Mahoney, 188 N.J. 359,

A-0514-18
28
376 (2006) (finding although prosecutor's comments placed an "unforgiving and

harsh glare" on the asserted defense, they were not impermissible).

Here, the prosecutor tread dangerously close to suggesting defendant had

a burden to produce evidence supporting any claim that another person shot

Beckett. Such comments should not be repeated if the case is retried. But, the

judge exercised his discretion by quickly addressing the issue with a strong

curative instruction, and his decision to deny a mistrial does not merit reversal.

Reversed. We vacate defendant's conviction and remand for a new trial.

A-0514-18
29