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Date: 06-13-2016

Case Style: STATE OF NEW JERSEY VS. NAJEE KELSEY

Case Number: A-3891-13T3

Judge: Carmen Messano

Court: SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Plaintiff's Attorney: (Courtney M. Cittadini, Assistant Prosecutor

Defendant's Attorney: (Samuel Feder, Assistant Deputy Public Defender

Description: Tried by a jury, defendant Najee Kelsey was convicted of
first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2) (count one);
felony murder, N.J.S.A. 2C:11-3(a)(3) (count two); and burglary,
N.J.S.A. 2C:18-2 (count three). On count one, the judge
sentenced defendant to sixty years in prison with an 85% parole
disqualifier pursuant to the No Early Release Act (NERA),
N.J.S.A. 2C:43-7.2. He imposed the same sentence to run
concurrently on count two and merged count three into count two.
Defendant raises the following issues on appeal:
POINT I
THE JURY INSTRUCTION FAILED TO PROPERLY ASSIGN THE BURDEN OF DISPROVING PASSION/PROVOCATION TO THE STATE, AND THE PROSECUTOR'S COMMENTS IN OPENING AND SUMMATION INDICATED THAT THE BURDEN WAS ON THE DEFENDANT. (Not Raised Below)
POINT II
MULTIPLE INSTANCES OF PROSECUTORIAL MISCONDUCT DENIED DEFENDANT DUE PROCESS AND A FAIR TRIAL. (Not Raised Below)
A. By Stating That No Society With a "Sense of Social Justice" Would Return a Verdict of Passion/Provocation Manslaughter, the Prosecutor Made an Improper "Call To Arms" That Denied the Defendant His Right to a Fair Trial.
B. The Prosecutor's Repeated Efforts to Emphasize the Victim's Virtues and the Defendant's Moral Flaws, and To Elicit Sympathy for the Former and Enmity for the Latter, Also Denied the Defendant a Fair Trial.
POINT III
THE DEFENDANT WAS DENIED A FAIR TRIAL WHEN THE TRIAL COURT ERRONEOUSLY ADMITTED A "LINEUP" OF POLICE PHOTOGRAPHS THAT INCLUDED DFENDANT'S PHOTOGRAPH, AND THIS ERROR WAS COMPOUNDED WHEN THE COURT FAILED TO PROVIDE
A-3891-13T3 3
THE MODEL CHARGE ON POLICE PHOTOGRAPHS. (Not Raised Below)
POINT IV
THE TRIAL WAS SO INFECTED WITH ERROR THAT EVEN IF EACH INDIVIDUAL ERROR DOES NOT REQUIRE REVERSAL, THE AGGREGATE OF THE ERRORS DENIED DEFENDANT A FAIR TRIAL. (Not Raised Below)
POINT V
THE MURDER AND FELONY MURDER CONVICTIONS SHOULD HAVE MERGED, AND BECAUSE THE PRIMARY BASES FOR THE TRIAL COURT'S IMPOSITION OF A [SIXTY] YEAR NERA SENTENCE WERE A SOCIAL PHENOMENON OUTSIDE THE RECORD AND GENERAL DETERRENCE, THE CASE SHOULD BE REMANDED FOR RESENTENCING
A. The Murder and Felony Murder Convictions Should Have Merged
B. Because the Primary Bases for the Trial Court's Imposition of a [Sixty] Year NERA Sentence Were a Social Phenomenon Outside the Record and General Deterrence, the Case Should be Remanded for Resentencing
We have considered these arguments in light of the record and
applicable legal standards. We affirm but remand the matter to
correct the judgment of conviction (JOC) to reflect the merger
of counts one and two, and for resentencing on count three.
I.
The evidence adduced at trial revealed that on May 20,
2008, at approximately 2:00 p.m., a neighbor of Tanisha Tull was
coming home from school when her attention was drawn to a man,
A-3891-13T3 4
ultimately identified as defendant, banging loudly on Tull's
door. Through her window, the neighbor observed the door open
slightly and heard a verbal dispute between defendant and Tull,
before defendant pushed through the door and into the apartment.
The neighbor heard Tull repeatedly scream, "get off me, get out
of my house, leave me alone." The screaming continued for a few
minutes before the apartment fell silent. Another neighbor
witnessed the same exchange and also heard Tull's screams.
Later that day, defendant went to the property manager's
office claiming he was locked out of Tull's apartment and needed
a key. Because he was not on the lease, the manager refused to
issue him a key and defendant left. Later, after being told of
the earlier incident, the manager went to Tull's apartment and
knocked on the door. When no one answered, he called the
police.
Somers Point Police Officer Michael Price arrived on scene
and entered the apartment with the manager. Although the rooms
were neat and orderly, Price noted there was a dent on the
outside door and the chain lock had been ripped from the door
frame. He examined Tull's cellphone and found repeated calls
from defendant that were made the night before and earlier that
morning. In the bedroom, Price found Tull's lifeless body
A-3891-13T3 5
"tucked in" under the bedcovers. Her neck and chin area bore
marks consistent with strangulation.
Meanwhile, Atlantic City Police Sergeant Andre Corbin
received a call from defendant's father, who expressed concern
that something had occurred and agreed to allow police to
monitor a phone call between him and his son. During the call,
defendant stated there had been an incident between him and
Tull, and that Tull had been injured. Corbin arranged to meet
defendant. Defendant told Corbin that when he arrived at Tull's
apartment, it appeared as though someone had broken into the
residence. He found Tull unconscious on the bedroom floor.
Corbin transported defendant to the prosecutor's office to
provide a statement.
In a videotaped statement that was played for the jury,
defendant initially repeated the story of discovering Tull's
lifeless body in her apartment after an apparent break-in.
However, defendant recanted that version of events and told
police that Tull was alive when he arrived at her apartment.
Tull opened the door slightly, leaving the door chain in place,
and refused to let him into the apartment. The couple argued,
and eventually defendant "barged in[to the apartment,]" breaking
the door chain and angering Tull. He alleged that Tull punched
him in the face and attempted to choke him with his hooded
A-3891-13T3 6
sweatshirt. Defendant said that he tried to restrain Tull, but
when she swung at him again, he choked her.
Defendant explained that Tull regained consciousness but
was having difficulty breathing and did not have a "full pulse."
Defendant claimed she was speaking and moving around the
apartment. When defendant left, Tull had slipped into
unconsciousness but still had a heartbeat and pulse. Defendant
intended to return to the apartment to check on her, but
accidentally let the door close and lock behind him.
The medical examiner explained Tull's injuries observed at
the autopsy and opined that the cause of death was
strangulation. Defendant elected not to testify and called no
witnesses.
II.
Defendant contends that the jury instructions failed to
properly convey that the State bore the burden of proving the
homicide was not committed in the heat of passion following a
reasonable provocation. Since there was no objection to the
charge at trial, we review the argument under the plain error
standard and must consider whether the alleged error was
"clearly capable of producing an unjust result." R. 2:10-2.
The Court has said that
[i]n the context of a jury charge, plain error requires demonstration of "[l]egal
A-3891-13T3 7
impropriety in the charge prejudicially affecting the substantial rights of the defendant 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. Burns, 192 N.J. 312, 341 (2007) (second alteration in original) (emphasis added) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)).] The allegation of error must be assessed in light of "the
totality of the entire charge, not in isolation." State v.
Chapland, 187 N.J. 275, 289 (2006). While an erroneous jury
charge may be a "'poor candidate[] for rehabilitation' under the
plain error theory," Jordan, supra, 147 N.J. at 422 (quoting
State v. Simon, 79 N.J. 191, 206 (1979)), we nonetheless
consider the effect of any error in light "of the overall
strength of the State's case." Chapland, supra, 187 N.J. at
289. Moreover, the failure to object signifies that "'in the
context of the trial[,] the [alleged] error was actually of no
moment.'" State v. Ingram, 196 N.J. 23, 42 (2008) (quoting
State v. Nelson, 173 N.J. 417, 471 (2002)).
Early in his instructions, the judge told the jury that
"[i]f, however, you find that the defendant purposefully or
knowingly caused death or serious bodily injury that then
resulted in death, but that he did act in the heat of passion
resulting from a reasonable provocation, then the defendant
A-3891-13T3 8
would be guilty of passion/provocation manslaughter."
Specifically addressing the State's burden of proof, the judge
said:
Now, the third element that the State must prove beyond a reasonable doubt to find the defendant guilty of murder is that the defendant did not act in the heat of passion resulting from a reasonable provocation. Passion/provocation manslaughter is a death caused purposely or knowingly that is committed in the heat of passion resulting from a reasonable provocation.
Immediately thereafter, the judge defined the four elements of
passion/provocation manslaughter. See, e.g., State v. Josephs,
174 N.J. 44, 103 (2002) (defining elements). He again explained
the State's burden of proof and the consequences of the State's
failure to disprove at least one of the four elements.
Defendant focuses upon a final paragraph of the judge's
instructions that attempted to summarize, somewhat obliquely,
that passion/provocation manslaughter required the presence of
all four elements. He claims this single paragraph flipped the
burden of proof. We disagree. Because the charge as a whole
properly explained the State's burden of proof, and was neither
misleading nor ambiguous, we find no error. State v. Baum, 224
N.J. 147, 167 (2016).
Defendant also contends that the charge, when taken in
conjunction with the prosecutor's summation comments, denied him
A-3891-13T3 9
a fair trial. Again, we find no basis to reverse the
conviction. The prosecutor's comments challenged the defense
version of the facts, i.e., that defendant strangled Tull after
a reasonable provocation. Although he referred to
passion/provocation manslaughter as defendant's "claim" upon
which he should not "prevail," at other points the prosecutor
clearly stated that the State bore the burden of disproving a
homicide committed in the heat of passion after a reasonable
provocation. In any event, we believe the judge's instructions
clearly stated the law and we presume the jury followed them.
State v. Ross, 218 N.J. 130, 152 (2014).
III.
Defendant contends that the prosecutor's comments in his
opening statement and summation were so egregious as to deny
defendant a fair trial. We review the claim as plain error,
since there were no objections lodged at trial to any of these
statements.
In his opening, citing her college attendance and plans to
become a nurse, the prosecutor described the victim as someone
"moving on in her life." The prosecutor described the victim's
apartment as her "sanctuary," a place where she had "every
right" to tell defendant to "get out," and noted the sparse
A-3891-13T3 10
furnishings, including some children's furniture.1 He asked the
jury to imagine the effect upon Tull's sister when hearing the
news that her sister had been killed.
In his closing, the prosecutor began by rhetorically asking
Has this society lost its sense of social justice to the point where a young woman who's moving forward in her life, keeping her own apartment, proving her personal goal being a nurse while attending college is killed by a man who she has an absolute right to exclude from her home and her life who then is allowed to minimize her murder by arguing that he acted in the heat of passion? The answer is an unequivocal and resounding no. No, members of the jury. Society has not lost its sense of social justice because, under the criminal law of the State of New Jersey and the evidence of this case, defendant . . . should not prevail on a theory of passion/provocation manslaughter.
The prosecutor later added:
You know we've become a society pretty much where people almost no longer accept responsibility. It's a problem. You know, as you sit there, in this jury box, you're probably saying boy, I'm in an uncomfortable position. I have to assess responsibility on to someone else. You know what? That's what you're sworn to do when you took the oath.
The prosecutor concluded:
The defendant . . . in his opening statement argued to you that this is a tragic
1 The nineteen-year old Tull did not have children but apparently babysat for other family members.
A-3891-13T3 11
situation for both families, and I know [defense counsel] hit upon that, and I know he was sincere in saying that he extended his sympathies to the Tull family for the loss. The Tull family, this tragedy is almost unfathomable. Forever gone is their daughter, their granddaughter, their sister, niece, cousin and their friend.
Defendant contends that the prosecutor's comments were
designed to curry sympathy for the victim and "enmity" for
defendant. He also contends that the prosecutor's summation
comments amounted to an improper "call to arms." While some of
the comments would have been better left unsaid, we cannot
conclude that they deprived defendant of a fair trial.
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, ___ U.S. ___, 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 about a just conviction.'" Ibid. (quoting State
v. Smith, 167 N.J. 158, 177 (2001)). 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 defendant of a
A-3891-13T3 12
fair trial.'" Smith, supra, 167 N.J. at 181 (quoting State v.
Frost, 158 N.J. 76, 83 (1999)).
One factor to consider is whether there was a proper and
timely objection to the comment, State v. Jackson, 211 N.J. 394,
409 (2012), because the lack of any objection indicates defense
counsel "perceived no prejudice." Smith, supra, 212 N.J. at
407. Consideration of whether the prosecutor committed plain
error necessarily requires us to weigh the conduct against the
strengths of the State's case. State v. Negron, 355 N.J. Super.
556, 578-79 (App. Div. 2002). See also State v. Roman, 382 N.J.
Super. 44, 61 (App. Div. 2005) ("When all of the offending
conduct is considered against the strength of the State's
evidence, we cannot conclude that the prosecutor's tactics
deprived defendant of a verdict that fairly reflected the
evidence.").
We have not hesitated to criticize rhetorical excesses by
prosecutors that invite juror sympathy for the victim. See,
e.g., Roman, supra, 382 N.J. Super. at 58 (criticizing
prosecutor's remarks that it was the duty of adults, including
the jurors, to protect the child victim); State v. Buscham, 360
N.J. Super. 346, 364-65 (App. Div. 2003) (same). Suggesting to
jurors that it was their duty to convict so as to provide
justice to the victims is even more egregious. See, e.g., State
A-3891-13T3 13
v. Pennington, 119 N.J. 547, 576 (1990) (improper to imply
"jurors will violate their oaths if they fail to convict");
State v. Hawk, 327 N.J. Super. 276, 282 (App. Div. 2000)
(suggestions that the jury should "send a message" through its
verdict, or "'hold [defendant] . . . accountable' . . . were
inappropriate, inflammatory and constitute[d] misconduct");
State v. Acker, 265 N.J. Super. 351, 356-57 (App. Div.)
(implying jurors would violate their oaths unless they convicted
defendant), certif. denied, 134 N.J. 485 (1993).
In this case, taking the prosecutor's comments,
particularly in summation, as a whole, and considering the
overwhelming proof of the State's evidence, we cannot conclude
that they compel reversal.
IV.
The State presented, and later introduced into evidence, a
series of photographs assembled by police that were used to
identify defendant. One of the eyewitnesses at the scene
identified defendant's photograph as the person he saw arguing
with Tull, and this witness also identified defendant in court.2
2 A detective also testified about the out-of-court identification procedure. It is unclear from her brief testimony whether the witness viewed all six photos at once or whether they were shown to him individually. Defense counsel posed no questions to the detective.
A-3891-13T3 14
Although there was no objection at trial, defendant now
argues that photographs should have been excluded "[b]ecause the
array was a police 'photo lineup' featuring multiple men in the
same bright orange garb, [that] was almost certainly recognized
by the jury as a collection of mug shots and thus had the effect
of indicating that the defendant had a criminal history." He
argues the judge had an independent obligation under N.J.R.E.
403 to exclude the evidence, and "[t]his error was compounded
because the court also failed to give the required charge on
Identity-Police Photos, which might have ameliorated the
prejudice caused by the photos' admission into evidence." See
Model Jury Charge (Criminal), "Identity – Police Photos,"
(Revised Jan. 6, 1992).
Defendant bears the burden of demonstrating that the
admission of the photographs into evidence was plain error, that
is, error "clearly capable of producing an unjust result." R.
2:10-2. The error must be "'sufficient to raise a reasonable
doubt as to whether [it] led the jury to a result it otherwise
might not have reached.'" State v. Taffaro, 195 N.J. 442, 454
(2008) (quoting State v. Macon, 57 N.J. 325, 336 (1971)).
When identification is relevant, "mug shots may be
admissible. But they must be presented in 'as neutral a form as
possible.'" State v. Cribb, 281 N.J. Super. 156, 161 (App. Div.
A-3891-13T3 15
1995) (quoting State v. Taplin, 230 N.J. Super. 95, 99 (App.
Div. 1988)). The term "mug shot" may impermissibly infer that a
defendant has a prior criminal record. Id. at 161-62. However,
"[a]lthough references to mug shots have been found to be error,
solitary, fleeting references will generally not constitute
reversible error." State v. Harris, 156 N.J. 122, 173 (1998),
cert. denied, 532 U.S. 1057, 121 S. Ct. 2204, 149 L. Ed. 2d 1034
(2001).
The identification of defendant as Tull's killer was not in
issue, since defendant admitted killing Tull. However,
admission of the out-of-court identification was necessary to
prove that the State's eyewitness saw defendant confront Tull at
her door and force his way in. It was necessary to prove with
whom Tull argued inside her apartment before she screamed and
then fell silent. The eyewitnesses' versions of the events were
relevant if for no other reason than to rebut defendant's claim
that he killed Tull in the heat of passion after a reasonable
provocation.
Copies of the photographs are in the appellate record and,
while all six men appear in orange tops, each photo is closely
cropped so as to show essentially only the subject's head. We
fail to see how they could have been presented in a more neutral
fashion, other than being presented in black and white. In any
A-3891-13T3 16
event, no witness ever referred to the photographs as being "mug
shots" during testimony.
Succinctly stated, the "probative value" of the
photographic array used to identify defendant was not
"substantially outweighed by the risk of [] undue prejudice."
N.J.R.E. 403(a). We conclude admitting the photographs was not
plain error.
Lastly, it would have been preferable for the judge to have
given the model charge, but, again, defendant did not request
it. Under the particular facts of this case, the failure to
give the charge was not error that "'of itself [] possessed a
clear capacity to bring about an unjust result.'" Burns, supra,
192 N.J. at 341 (quoting Jardan, supra, 147 N.J. at 422).
In point IV, defendant raises a claim of cumulative error.
See State v. Jenewicz, 193 N.J. 440, 473 (2008) (citing State v.
Koskovich, 168 N.J. 448, 540 (2001). ("[E]ven when an
individual error or series of errors does not rise to reversible
errors, when considered in combination, their cumulative effect
can cast sufficient doubt on a verdict to require reversal.")).
In light of our reasoning, this contention lacks sufficient
merit to warrant discussion. R. 2:11-3(e)(2).
A-3891-13T3 17
V.
We turn to defendant's sentencing arguments. Defendant
contends that his sixty-year term of imprisonment is excessive
because the judge's assessment of applicable aggravating factors
and the weight he attached to them was tainted by his "personal
feelings on domestic violence, based on anecdotal observations."
We disagree.
The judge found that the aggravating sentencing factors
substantially outweighed any non-existent mitigating factors.
He found aggravating factor three, "[t]he risk that the
defendant will commit another offense," N.J.S.A. 2C:44-1(a)(3),
"[p]rimarily because of the level of rage which apparently
[defendant] is capable of reaching with little or no provocation
other than being told that his relationship has ended." While
acknowledging that defendant had no prior convictions for
violent crime, the judge emphasized "[defendant's] use of
marijuana since [the] age of [sixteen] and . . . [his] two prior
indictable convictions for drug cases" indicated a borderline
aggravating factor six, "[t]he extent of the defendant's prior
criminal record and the seriousness of the offenses of which he
has been convicted." N.J.S.A. 2C:44-1(a)(6). As to aggravating
factor nine, "[t]he need for deterring the defendant and others
from violating the law," N.J.S.A. 2C:44-1(a)(9), the judge found
A-3891-13T3 18
it was "as high as it can be." He explained, "[y]ou have a
death. You have a senseless death. You need to deter this
[d]efendant from committing such acts and you have a need to
deter and stop the national epidemic of domestic violence."
"Appellate review of sentencing is deferential, and
appellate courts are cautioned not to substitute their judgment
for those of our sentencing courts." State v. Case, 220 N.J.
49, 65 (2014) (citing State v. Lawless, 214 N.J. 594, 606
(2013)). We assess whether the aggravating and mitigating
factors "'"were based upon competent credible evidence in the
record."'" State v. Miller, 205 N.J. 109, 127 (2011) (quoting
State v. Bieniek, 200 N.J. 601, 608 (2010)). We do not
"'substitute [our] assessment of aggravating and mitigating
factors' for the trial court's judgment." Ibid. (quoting
Bieniek, supra, 200 N.J. at 608). When the judge has followed
the sentencing guidelines, and his findings of aggravating and
mitigating factors are supported by the record, we will only
reverse if the sentence "shocks the judicial conscience" in
light of the particular facts of the case. State v. Roth, 95
N.J. 334, 364 (1984); accord State v. Cassady, 198 N.J. 165,
183-84 (2009).
Defendant cites Case, in support of his contention that
"the clear focus of the court's sentencing decision was the need
A-3891-13T3 19
to combat the 'national epidemic' of domestic violence, which
was clearly tied to general, rather than specific, deterrence."
In Case, the Court vacated defendant's sentence finding that the
judge failed to "explain [his] reason for placing particular
emphasis on aggravating factor nine — the need for both specific
and general deterrence." Case, supra, 220 N.J. at 68. The
Court "share[d] the trial court's view that 'adult predators of
young girls must be deterred,'" but noted "'that general
deterrence unrelated to specific deterrence has relatively
insignificant penal value.'" Ibid. (citing State v. Jarbath,
114 N.J. 394, 405 (1989)). The Court concluded that while
aggravating factor nine was entitled to credit, the trial court
erred in failing to explain why it was entitled to "'particular
emphasis.'" Ibid.
Here, defendant argues the judge's emphasis on general
deterrence was based upon evidence outside of the record, i.e.,
anecdotal references to the pervasive and pernicious effects of
domestic violence. He urges us to remand for re-sentencing.
However, the judge clearly linked his comments to the
specifics of this case, recognizing that defendant caused the
"senseless death" of a young woman in a jealous rage after being
rejected. Any reference to the general goal of deterring others
from committing domestic violence was secondary. As we see it,
A-3891-13T3 20
the judge was doing nothing more than restating what our
Legislature has already recognized as a "serious crime against
society." See N.J.S.A. 2C:25-18 (stating the legislative
findings that led to passage of the Prevention of Domestic
Violence Act).
We do agree with defendant, however, that the judge
mistakenly addressed the merger issues. As a result, we remand
to correct the JOC and resentence defendant on count three.
"Once [a] defendant ha[s] been convicted of purposeful and
knowing murder . . . , his conviction for felony murder
bec[omes] 'surplusage' because that offense imposes criminal
liability for the homicide committed in the course of a felony
in the event that intent for the homicide cannot be proved."
State v. Brown, 138 N.J. 481, 561 (1994) (citing State v.
Stenson, 174 N.J. Super. 402, 406-07 (Law Div. 1980), aff'd
o.b., 188 N.J. Super. 361 (App. Div. 1982), certif. denied, 93
N.J. 268 (1983)), overruled on other grounds by State v. Cooper,
151 N.J. 326 (1997). The underlying "felony," however, does not
merge into the knowing and purposeful murder.

Outcome: Accordingly, the matter is remanded to the Law Division.
Defendant's judgment of conviction shall be amended to reflect
the merger of counts one and two. Additionally, because the
trial judge mistakenly believed he was required to merge
defendant's conviction on count three, burglary, we remand the
matter for re-sentencing on count three.
Affirmed; remanded for resentencing and correction of the
JOC.

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