STATE OF NEW JERSEY VS. HARRY WILKINS (17-03-0111, SOMERSET COUNTY…

                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-5385-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

HARRY WILKINS, a/k/a
NALANI WILKINS,

     Defendant-Appellant.
_________________________

                   Submitted September 30, 2020 – Decided November 13, 2020

                   Before Judges Gilson and Moynihan.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Somerset County, Indictment No. 17-03-
                   0111.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Ruth E. Hunter, Designated Counsel, on the
                   brief).

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

PER CURIAM
        A jury convicted defendant of second-degree robbery, N.J.S.A. 2C:15-

1(a)(1), and defendant was sentenced to five years in prison subject to the No

Early Release Act, N.J.S.A. 2C:43-7.2. On appeal, defendant challenges the

conviction and sentence, arguing that the trial court erred in (1) not precluding

hearsay testimony; (2) giving improper instructions on flight as consciousness

of guilt; and (3) not instructing the jury on a lesser-included offense as an

accomplice. Defendant also argues that (4) the prosecutor engaged in

misconduct in closing arguments and (5) her sentence was improper. 1 Having

reviewed the record and applicable law, we reject these arguments and affirm.

                                         I.

        Defendant's conviction arose out of an altercation with a cab driver. On

November 5, 2016, defendant and co-defendant, Carlos "Royal" Martinez, were

staying at a hotel in New Jersey and arranged for a taxi to take them to the Bronx

in New York City. Defendant and Martinez identify as transgender. Their

counsel argued that the cab driver disparaged them because of this and their

ethnicities. By contrast, the cab driver testified that he requested payment up

front, defendant and Martinez refused, and they assaulted him with pepper spray,

threatened him with scissors, and robbed him.


1
    We use feminine pronouns out of respect for defendant's wishes and identity.
                                                                          A-5385-17T4
                                         2
      We take the facts from the trial, at which the jury heard testimony from

the cab driver, a hotel clerk, and several police officers. Defendant and Martinez

elected not to testify.

      The cab driver testified that on November 5, 2016, he was dispatched to

pick up customers from a hotel and take them to the Bronx. When he arrived at

the hotel, he met the two customers. He described one of the customers as

wearing a pink jacket and the other as wearing a gray sweater with a hood. Once

the customers were in the cab, he told them that the fare would be $160 plus

tolls and he requested payment upfront. An argument ensued and the customer

wearing the pink jacket pepper sprayed him. The customer in pink then ordered

him to give them money, pulled out scissors, and threatened to kill him.

According to the driver, the customer wearing pink sprayed him at the

instruction of the customer in gray. The customers then took money from him,

smashed his cell phone, and fled.

      The hotel clerk testified that sometime around 10 p.m. on November 5,

2016, two guests requested he call them a cab. He let them use the hotel's phone

to make the arrangements. Approximately fifteen to twenty minutes later, the

cab driver arrived, and the clerk saw the guests get into the taxi. Shortly

thereafter, the clerk heard someone scream for help and went outside. He saw


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                                        3
the driver, who yelled that he could not see. As the clerk assisted, the driver

told him the customers had sprayed his eyes and robbed him. Another person in

the vicinity then asked what happened and, according to the clerk, the driver

stated, "somebody robbed me," and "they sprayed my eyes."

        Following a call to 911, the police responded. Police Officer Leonard

Bird was the first officer to arrive at the hotel. The driver told Bird that two

"gay" customers had requested a ride to the Bronx, he had requested pre -

payment, and an argument ensued. The driver reported that one of the customers

pepper sprayed him, he was threatened with a pair of scissors, he gave them

money, and the customers fled.

        Other police officers located defendant and Martinez at the Fairfield Inn.

Two of those officers subsequently described defendant as wearing a gray shirt

and Martinez as wearing a pink shirt. The cab driver was brought to the Inn and

he identified defendant and Martinez as the individuals who had pepper sprayed

and robbed him. That identification was recorded on a police vehicle's mobile

video recorder. During the identification, the cab driver stated that the person

wearing gray had pepper sprayed him at the instruction of the person wearing

pink.




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                                         4
      Defendant and Martinez were arrested. The police found a pair of scissors

and a container of mace on Martinez. Defendant was searched and police found

two keys for rooms at the hotel where the cab driver had picked up the

customers. The police also found $155 in cash in defendant's property.

      After hearing the evidence at trial, the jury found defendant guilty of

robbery. Defendant now appeals.

                                      II.

      On appeal, defendant challenges both her conviction and sentence and

makes five arguments, which she articulates as follows:

            POINT I – THE TRIAL COURT COMMITTED
            PLAIN ERROR IN ALLOWING THE STATE
            WITNESSES TO TESTIFY THAT THE CAB
            DRIVER TOLD THEM HE HAD BEEN ROBBED,
            WHICH WAS INADMISSIBLE HEARSAY AND
            IMPROPERLY BOLSTERED THE CREDIBILITY
            OF THE ALLEGED VICTIM.

            POINT II – THE PROSECUTOR'S COMMENTS
            DURING HIS CLOSING ACCUSING DEFENSE
            COUNSEL OF MAKING HOMOPHOBIC AND
            RACIAL SLURS DEPRIVED DEFENDANT OF A
            FAIR TRIAL, AND THE COURT'S GENERAL
            INSTRUCTION NOT TO CONSIDER POWERPOINT
            PRESENTATIONS AS EVIDENCE WITHOUT
            ADDRESSING    THE   STATE'S   OFFENSIVE
            REMARKS WAS WHOLLY INADEQUATE.

            POINT III – THE TRIAL COURT COMMITTED
            REVERSIBLE    ERROR   BY   ISSUING AN

                                                                         A-5385-17T4
                                      5
            UNCONSTITUTIONAL INSTRUCTION ON FLIGHT
            AS CONSCIOUSNESS OF GUILT.

            POINT IV – THE TRIAL COURT'S FAILURE TO
            INSTRUCT THE JURY THAT DEFENDANT
            COULD BE FOUND GUILTY OF A LESSER
            OFFENSE AS AN ACCOMPLICE DEPRIVED
            DEFENDANT OF THE RIGHT TO DUE PROCESS
            OF LAW AND A FAIR TRIAL.

            POINT V – THIS COURT SHOULD REMAND FOR
            RESENTENCING BECAUSE: THE TRIAL COURT
            ERRED IN DENYING DRUG COURT; IMPOSED
            AN EXCESSIVELY DISPARATE SENTENCE WITH
            RESPECT     TO     THE   CO-DEFENDANT;
            IMPROPERLY      FOUND   AND    WEIGHED
            AGGRAVATING AND MITIGATING FACTORS;
            AND FAILED TO CONSIDER THE DEFENDANT'S
            YOUTH.

      A. The Hearsay Testimony Regarding What the Cab Driver Told Others

      Defendant contends that the trial court committed reversible error by

allowing several witnesses to testify about what the cab driver told them

concerning the incident. In that regard, defendant argues that the testimony was

inadmissible hearsay and that it improperly bolstered the driver's credibility.

      Defendant acknowledges that no objection to the hearsay was made at trial

but argues that the admission of the testimony was plain error. In particular,

defendant objects to the hearsay testimony provided by two police officers.




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                                        6
      The State maintains that defense counsel strategically did not object to the

testimony because it revealed inconsistent statements by the cab driver

concerning which of the customers assaulted him. The State also argues that

defense counsel thereafter cross-examined the witnesses using the hearsay

statements to highlight their theme of inconsistency by the cab driver.

      Because no objection was made at trial, we review the admission of the

testimony for plain error. R. 2:10-2; see also State v. Scharf, 

225 N.J. 547

, 576-

78 (2016).     The trial record establishes that defense counsel used the

inconsistencies in what the cab driver reported to others as a means of attacking

his credibility. Accordingly, defendant's argument on appeal is also barred by

the doctrine of invited error. State v. A.R., 

213 N.J. 542

, 561 (2013). "Under

that settled principle of law, trial errors that 'were induced, encouraged or

acquiesced in or consented to by defense counsel ordinarily are not a basis for

reversal on appeal.'"

Ibid. (quoting State v.

Corsaro, 

107 N.J. 339

, 345 (1987)).

      Moreover, at trial defense counsel agreed that the cab driver's statements

to the hotel clerk were admissible as excited utterances and under the present-

sense impression exception to the hearsay rule. Thereafter, defense counsel did

not object when the State offered testimony from Officer Bird concerning what




                                                                          A-5385-17T4
                                        7
the cab driver reported to him. Both defendant and Martinez's counsel then used

those same hearsay statements in cross-examining Officer Bird.

      Defense counsel also cross-examined another officer, Detective Derek

Miller, concerning the cab driver's statements. Indeed, defense counsel agreed

to allow the recorded interview of the cab driver conducted by Miller to be

played to the jury.

      In short, we discern no plain error. Consequently, we reject defendant's

arguments that the admission of hearsay constituted reversible error.

      B.    The Assistant Prosecutor's Closing Argument

      In closing arguments, the assistant prosecutor used a PowerPoint

presentation. One of the slides stated: "The only homophobic or racial slurs

used in this courtroom came from the mouths of the defense attorneys." Defense

counsel immediately objected.     At a sidebar conference, defense counsel

contended that the slide was inaccurate and derogatory and should not be used.

Counsel also agreed with the court that making further reference to the specific

slide would be more harmful than a limiting instruction.

      Thereafter, the assistant prosecutor continued his closing without making

further reference to the slide or language used by defense counsel. In a follow-




                                                                        A-5385-17T4
                                       8
up instruction to the jury, the court cautioned that PowerPoint presentations and

arguments of counsel were not evidence.

      On appeal, defendant argues that the use of the PowerPoint slide was

disparaging to his counsel and deprived him of a fair trial. The State's response

is that the defense attempted to paint the cab driver as a homophobic bigot. The

State points to arguments made in opening and questions asked on cross-

examination, where both defense counsel asked if the cab driver had used

homophobic or racial slurs when talking about defendant or Martinez.

Accordingly, the State argues that the remark in closing was made in response

to defense counsel's questions and arguments and, therefore, was a fair

comment.

      Prosecutors are afforded reasonable latitude when making openings and

closings. State v. R.B., 

183 N.J. 308

, 330 (2005) (quoting State v. Mayberry,

52 N.J. 413

, 437 (1968)); State v. Williams, 

113 N.J. 393

, 447 (1988).

Nevertheless, prosecutors must "confine their comments to evidence revealed

during the trial and reasonable inferences to be drawn from that evidence." State

v. Smith, 

167 N.J. 158

, 178 (2001) (citations omitted). When considering claims

of prosecutorial misconduct, we first determine whether misconduct occurred

and, if so, whether it deprived the defendant of a fair trial. State v. Wakefield,


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                                        9

190 N.J. 397

, 446 (2007) (quoting 

Smith, 167 N.J. at 181

). Accordingly, even

when a prosecutor's comments constitute misconduct, reversal of a defendant's

conviction is not justified unless the comments were "so egregious that [they]

deprived [the] defendant of a fair trial." State v. McGuire, 

419 N.J. Super. 88

,

139 (App. Div. 2011) (quoting State v. Ramseur, 

106 N.J. 123

, 322 (1987)).

       We discern no reversible error in the assistant prosecutor's closing

argument. The comment was contained in a PowerPoint slide and as soon as the

assistant prosecutor began to read the slide to the jury, defense counsel objected.

Thereafter, there was no further reference to the slide. Just as importantly,

during the sidebar discussion, defense counsel agreed with the court that any

further reference to the comment would only draw more attention to it. Defense

counsel and the court concluded it was better not to further address the slide.

Accordingly, in a follow-up instruction to the jury, the judge instructed that the

PowerPoint presentation and arguments by counsel were not evidence. Under

these circumstances, the comment was not so egregious as to deprive defendant

of a fair trial.

       C.     The Jury Charge on Flight

       Next, defendant contends that the trial court gave an improper charge on

the issue of flight. At the charge conference, the State argued that the record


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                                       10
indicated defendant and Martinez ran from the scene, and a flight charge was

appropriate. After the court ruled that it would give such a charge, defense

counsel suggested language to be added to the model flight charge. Ultimately,

the court agreed and gave the charge with the modification suggested by defense

counsel.

      Defendant now contends that the charge given was unconstitutional

because it shifted the burden of proof to defendant to establish that she did not

engage in flight as consciousness of guilt. We disagree.

      Appropriate jury charges are "essential to a fair trial." State v. Savage,

172 N.J. 374

, 387 (2002) (citing State v. Collier, 

90 N.J. 117

, 122 (1982)). When

defendant fails to object to a jury charge, we review for plain error, and

"disregard any alleged error 'unless it is of such a 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 the context of 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)).


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                                       11
      In reviewing a jury charge, "[t]he charge must be read as a whole in

determining whether there was any error." State v. Torres, 

183 N.J. 554

, 564

(2005) (citing State v. Jordan, 

147 N.J. 409

, 422 (1997)). In addition, "[t]he

error must be considered in light of the entire charge and must be evaluated 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)). Furthermore,

defense counsel's failure to object to a jury instruction "is considered a waiver

to object to the instruction on appeal." State v. Maloney, 

216 N.J. 91

, 104 (2013)

(first citing R. 1:7-2; and then citing 

Torres, 183 N.J. at 564

).

      An instruction on flight is appropriate if the underlying circumstances

"'reasonably justify an inference that [a defendant's flight] was done with a

consciousness of guilt' to avoid apprehension on the charged offense." State v.

Randolph, 

228 N.J. 566

, 594-95 (2017) (quoting State v. Ingram, 

196 N.J. 23

,

46 (2008)). Read in its entirety, the charge properly instructed the jury that they

first had to find that defendant "took refuge in flight for the purpose of evading

the accusation or arrest" to consider the flight as proof of consciousness of guilt.

Accordingly, we discern no improper shifting of the burden and find no

reversible error in the flight instruction.




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                                        12
      D.     The Lack of Jury Instruction on Accomplice Liability

      Defendant contends that she was deprived of a fair trial because the court

did not give an instruction on accomplice liability. In that regard, the trial court

instructed the jury on the lesser-included offenses of theft and simple assault

concerning both defendant and Martinez but did not give an accomplice liability

instruction on the lesser offenses.

      At trial, the State sought an accomplice liability charge, arguing that both

defendants acted together and were equally responsible.           Defense counsel

objected and contended that there was no agreement or common plan between

the defendants.    Ultimately, the trial court did not give an instruction on

accomplice liability.

      Jury charges are critical in guiding deliberations in criminal trials. State

v. Jenkins, 

178 N.J. 347

, 361 (2004) (citing 

Jordan, 147 N.J. at 421-22

).

"[I]mproper instructions on material issues are presumed to constitute reversible

error," even where a defendant fails to object at trial.

Ibid. Moreover, “a defendant

is entitled to a charge on all lesser included offenses supported by the

evidence." State v. Short, 

131 N.J. 47

, 53 (1993). Consequently, the trial court

"has an independent obligation to instruct on lesser-included charges when the

facts adduced at trial clearly indicate that a jury could convict on the lesser while


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                                        13
acquitting on the greater offense."     

Jenkins, 178 N.J. at 361

.     The key

consideration is whether the evidence clearly indicates the need for the

instruction. See

ibid. The jury was

properly instructed on simple assault and theft as lesser-

included offenses. At defense counsel's request, no accomplice liability charge

was given. We discern no reversible error. See 

Ingram, 196 N.J. at 40

(finding

no reversible error where a jury was instructed on the elements of lesser-

included offenses without a specific accomplice liability charge on the lesser-

included offenses).

      E.    The Sentence

      Finally, defendant challenges her sentence, contending (1) she should

have been sentenced to drug court; (2) the sentence was excessive when

compared to Martinez's sentence to drug court probation; (3) the trial court

improperly found and weighed aggravating and mitigating factors; and (4) the

court failed to consider defendant's young age.

      We review sentencing decisions using an abuse of discretion standard.

State v. Bolvito, 

217 N.J. 221

, 228 (2014) (quoting State v. Whitaker, 

79 N.J. 503

, 512 (1979)).     We will affirm a trial court's sentence unless "(1) the

sentencing guidelines were violated; (2) the findings of aggravating and


                                                                       A-5385-17T4
                                      14
mitigating factors were not 'based upon competent credible evidence in the

record;' or (3) 'the application of the guidelines to the facts' of the case 'shock[s]

the judicial conscience.'"

Ibid. (alteration in original)

(quoting State v. Roth, 

95 N.J. 334

, 364-65 (1984)).

      The sentencing judge carefully considered defendant's request to be

admitted into special drug court probation and found, after analyzing her

specific circumstances, that she was ineligible due to the risk of danger she

posed to the community.         The judge then reviewed the aggravating and

mitigating factors argued for by the State and defendant and found that

aggravating factors three and nine applied. N.J.S.A. 2C:44-1(a)(3), (a)(9). In

that regard, the court found that defendant had committed other offenses and

there was a need to deter defendant and others from violating the law. Those

findings were supported by credible evidence. The court also found mitigating

factor four, that there "were substantial grounds tending to excuse or justify"

defendant's conduct, albeit failing to establish a defense. N.J.S.A. 2C:44-1

(b)(4).

      The court then sentenced defendant to five years of imprisonment, the

minimum sentence for a second-degree crime. In making its evaluations, the

court expressly acknowledged that defendant was twenty-two years old when


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                                        15
she was convicted and considered both her age and personal history. Finally,

defendant has presented nothing to support her arguments that her sentence was

excessive as compared to Martinez, given that Martinez had no prior criminal

record.

      Affirmed.




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