SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5546-15T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CARL L. DIXON, a/k/a

SHAWN HARTWELL,

CARLE JR L. DIXON,

CARLE DIXON, SHAWN

HARTWELL JR, SHAWN NJ,

MARCUS KING, CARL

DIXON, LAXIR DIXON,

and JOSHUA DURHAM,

Defendant-Appellant.

_____________________________

Submitted September 13, 2018 – Decided

Before Judges Koblitz, Ostrer and Mayer.

On appeal from Superior Court of New Jersey, Law 

Division, Union County, Indictment No. 14-10-0915.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Susan Brody, Deputy Public Defender II, of 

counsel and on the brief).

NOT FOR PUBLICATION WITHOUT THE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.

March 7, 2019
2

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Gurbir S. Grewal, Attorney General, attorney for 

respondent (Arielle E. Katz, Deputy Attorney General, 

of counsel and on the brief).

PER CURIAM

A jury convicted defendant Carl L. Dixon of second-degree robbery, as a 

lesser-included offense of first-degree robbery, and simple assault, as a lesserincluded offense of aggravated assault, and acquitted him of related weapons 

offenses. After merger, the court imposed a nine-year term of imprisonment, 

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

conviction, defendant contends, as plain error: the court failed to bar questioning 

about his pre-arrest silence; the court allowed the State to introduce into 

evidence defendant's prior recorded statement which contained prejudicial 

information; and the court delivered a confusing and prejudicial jury charge. He 

also contends his sentence was excessive. Having considered these arguments 

in light of the record and applicable principles of law, we affirm.

I.

At around 6:30 p.m. on a Friday in late July, Joseph Tawiah was robbed 

as he returned to his post as a security guard of an auto-part shipping business 

in Elizabeth. Several minutes before, Tawiah had cashed his paycheck at a 

check casher. A man named Billie Jett had driven him and other coworkers 
3

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there. Upon returning, Tawiah walked to a corner store and bought some food 

and groceries. As he walked back to his workplace, a man behind him called 

out and ran to catch up with him. Tawiah said he thought the man needed help. 

He led the man into his booth at the entrance to the auto yard. Once inside, the 

man brandished a knife and demanded money; he punched Tawiah in the face, 

splitting open his cheek, as he grabbed him around the neck. He then took 

Tawiah's money and fled. Tawiah later identified defendant without reservation 

from a photo array and in court. Tawiah said he got a good look at defendant 

when he approached him that night and while in the booth.

Jett testified that he and a friend sat outside the auto yard entrance in his 

car after shuttling the workers to the check casher. He saw a person matching 

defendant's physical description – tall, light-skinned African American, with 

dreadlocks – standing near the auto yard, laughing with a second, shorter man 

with a darker complexion. The two then fled the scene. Fifteen to twenty 

minutes later, Tawiah emerged from the booth with a bloody face.

A female friend of defendant from the neighborhood testified that she 

provided a false alibi for defendant at his behest. In her statement to police, she 

falsely claimed she spent most of the day and night with defendant and was with 

him at the time the robbery took place.
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Defendant testified in his own defense. He said he saw Tawiah in the 

corner store, where defendant had gone with his female friend after spending 

time with her at a local park. Defendant noticed that Tawiah had a lot of cash 

when he paid for his items. Defendant claimed Tawiah asked him for drugs, and 

that Tawiah had purchased drugs in the past from a male friend whom defendant 

had often accompanied. Defendant told Tawiah he had none, and suggested he 

talk to a group of young men standing outside the store, a short distance away. 

As defendant left the store, he saw Tawiah and two young men – one of whom 

was tall, light-skinned, and had dreadlocks, much like defendant – walk up the

hill toward Tawiah's workplace; the other man was shorter and darker. Alone, 

defendant walked to two liquor stores, then returned to his female friend's house 

to chat on her porch.

Defendant's credibility was challenged on several grounds. He had an 

extensive criminal record that was elicited on direct examination in sanitized 

form. During post-arrest questioning eight days after the robbery, defendant 

admitted that he heard about the robbery shortly after it occurred from his drugdealer-friend, and that Tawiah had identified him. The State elicited on crossexamination that defendant did not voluntarily go to the police to exonerate 

himself and point the blame at the other two young men. Defendant claimed he 
5

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was afraid to inculpate another; so, during his custodial interview, he asked to 

speak to the officers outside the view of the interrogation room's video cameras. 

However, an officer testified that during the break, defendant did not address 

the robbery at all. Only after they reconvened before the video camera did 

defendant point the finger at the two men. The State played the video-recording 

of the interrogation at trial.

Defendant also admitted that a year after his arrest, he drafted a letter for 

his female friend to submit to the State, falsely claiming that she left the corner 

store with defendant, accompanied him to a single liquor store, then returned 

with him to her house, where he stayed the rest of the night. The friend agreed 

and composed a letter following his draft with minor stylistic changes. 

However, after she sent it, she regretted doing so, and admitted that defendant 

had left her company for as much as a half-hour after saying he was going to the 

liquor store. That period coincided with the time of the robbery. Defendant said 

he asked the young woman to lie for him because he was afraid no one would 

believe his story.

On the other hand, the young woman insisted she truthfully reported that 

she observed a man approach defendant in the store and ask for drugs, and 

defendant directed him to the young men standing outside. The defense also 
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highlighted that defendant's story was consistent with Jett's testimony, as he also 

saw two men, not one, outside the auto yard gate, who matched the defendant's 

description of the two men. Notably, Tawiah mentioned only one assailant.

The defense also highlighted an inconsistency between Jett's and Tawiah's 

testimony. While Jett testified that Tawiah approached him with a bloody face

and said he fell down the stairs, Tawiah insisted that he told Jett and others that 

he was robbed. The defense also stressed that Tawiah delayed reporting the 

robbery because, he claimed, he was afraid of being fired. The day after the 

robbery, Tawiah told his supervisor what happened, and the supervisor told him 

to report it, which he did.

II.

Defendant raises the following points for our consideration:

POINT I

THE PROSECUTOR'S REPEATED QUESTIONING 

OF DIXON ABOUT HIS FAILURE TO COME 

FORWARD TO THE POLICE WITH 

EXCULPATORY INFORMATION DEPRIVED HIM 

OF A FAIR TRIAL. (Not Raised Below).

POINT II

THE COURT ERRED IN PERMITTING THE STATE 

TO INTRODUCE DIXON'S ENTIRE UNREDACTED 

TWO-PART STATEMENT ON REBUTTAL. (Not 

Raised Below).
7

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POINT III

THE COURT'S JURY CHARGE REGARDING 

DIXON'S TWO LETTERS TO [HIS FEMALE 

FRIEND] WAS BOTH CONFUSING AND 

PREJUDICIAL, AND WOULD NECESSARILY 

HAVE TAINTED THE JURY'S DELIBERATIONS. 

(Not Raised Below).

POINT IV

THE NINE-YEAR TERM IMPOSED PURSUANT TO 

THE NO EARLY RELEASE ACT WAS 

MANIFESTLY EXCESSIVE.

III.

Defendant did not object to the State's questioning about his silence; its 

introduction of defendant's entire recorded custodial statement; or the court's 

jury instruction. Therefore, we consider all three issues as asserted plain error, 

that is, whether the error was "of such a nature as to have been clearly capable 

of producing an unjust result." R. 2:10-2. In the context of jury instructions,

plain error is a "legal impropriety . . . prejudicially affecting the substantial 

rights of the defendant and sufficiently grievous to . . . convince the court that 

of itself the error possessed a clear capacity to bring about an unjust result." 

State v. Hock, 54 N.J. 526, 538 (1969); accord State v. Montalvo, 229 N.J. 300, 

320-21 (2017). Not any possibility of an unjust result will suffice as plain error, 

only one "sufficient to raise a reasonable doubt as to whether the error led the 
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jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 

325, 336 (1971).

Our Supreme Court has "insisted that, in opposing the admission of 

evidence a litigant must 'make known his position to the end that the trial court 

may consciously rule upon it.'" State v. Robinson, 200 N.J. 1, 19 (2009) 

(quoting State v. Abbott, 36 N.J. 63, 76 (1961)). The time to object to a jury 

instruction is before the jury deliberates. State v. Funderburg, 225 N.J. 66, 79 

(2016). While we retain the "authority to 'notice plain error not brought to the 

attention of the trial court[,]' provided it is 'in the interests of justice' to do so," 

that authority is "not intended to supplant the obvious need to create a complete 

record and to preserve issues for appeal." Robinson, 200 N.J. at 20 (quoting R.

2:10-2). Otherwise, the standard of Rule 2:10-2 would "render as mere 

surplusage the overarching requirement that matters be explored first and fully 

before a trial court." Ibid.

Applying these principles, we conclude that none of the alleged errors 

were clearly capable of producing an unjust result.

A.

We turn first to the prosecutor's questioning of defendant. As noted, on 

cross-examination, the prosecutor elicited that defendant did not speak to the 
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police about the robbery until he was arrested, although he learned about it the 

day after it occurred. After eliciting that defendant was "out and about" each 

day between the robbery and his arrest eight days later, the prosecutor asked, 

"And all along you knew who had committed this robbery, right?"

At that point defense counsel stated, "I'm going to object," but before the 

court ruled, defendant answered the question, "Not exactly. I know that I was 

--" Defense counsel then withdrew his objection, apparently satisfied with his 

client's answer. The prosecutor then confirmed that defendant could describe, 

even if he could not name, two men he believed committed the robbery, but he 

did not disclose that to police until his questioning. The prosecutor also elicited 

that although defendant asked his female friend to submit a written statement, 

he never voluntarily provided one of his own.

We reject defendant's contention that the prosecution improperly elicited 

defendant's pre-arrest silence to impeach him. Although a limiting instruction 

was warranted, we discern no plain error in the court's failure to deliver one.

"[A] defendant has no right not to speak . . . [and] no duty to speak prior 

to arrest." State v. Brown, 118 N.J. 595, 613 (1990). It does not violate the 

right against self-incrimination to admit evidence of pre-arrest silence "if, when 

viewed objectively and neutrally in light of all circumstances, it generates an 
10 A-5546-15T3

inference of consciousness of guilt that bears on the credibility of the defendant 

when measured against the defendant's apparent exculpatory testimony." Id. at

615. The court must consider "the probative worth of pre-arrest silence as 

bearing on credibility . . . in light of all the surrounding circumstances." Id. at 

613.

The court may admit evidence of pre-arrest silence if "a reasonable person 

situated as the defendant, prior to arrest, would naturally have come forward and 

mentioned his or her involvement in the criminal episode, particularly when this 

is assessed against the defendant's apparent exculpatory testimony." Ibid.; see 

also State v. Taffaro, 195 N.J. 442, 455 (2008) (holding that the State may 

impeach a defendant with his pre-arrest silence if it "'significantly' preceded the 

arrest" outside "a custodial or interrogation setting" and "a jury could infer that 

a reasonable person in the defendant's position would have come forward and 

spoken") (quoting State v. Muhammad, 182 N.J. 551, 571-72 (2005)).

The State may not use pre-arrest silence in its case-in-chief; the State must 

wait until a defendant testifies and has the chance to explain his silence. State 

v. Brown, 190 N.J. 144, 159-60 (2007); State v. Marshall, 260 N.J. Super. 591, 

597 (App. Div. 1992). Also, the State may not use pre-arrest silence "as 
11 A-5546-15T3

substantive evidence of a defendant's guilt." State v. Stas, 212 N.J. 37, 58 

(2012).

Applying these principles, we discern no error, let alone plain error, in the 

State's questioning to elicit defendant's pre-arrest silence. The silence

significantly preceded defendant's arrest. A fact-finder could infer that a 

reasonable person in defendant's position, after learning that an acquaintance 

mistakenly accused him of assault and robbery, would attempt to exonerate 

himself rather than sit idly by until the police found him. While defendant's 

silence may have had other reasonable explanations, that was a matter for the 

jury to determine. See Brown, 118 N.J. at 615 (noting that whether defendant's 

pre-arrest silence "entailed a consciousness of guilt, a desire not to become 

involved, a feeling that it was simply unnecessary, or a belief that he had already 

fulfilled whatever duty he had – was a matter, ultimately, for the jury in 

assessing [the defendant]'s credibility").

We recognize that when evidence of pre-arrest silence is properly 

admitted, "the trial court should instruct the jury that the evidence of defendant's 

pre-arrest conduct or silence is admitted for the limited purpose of impeaching 

defendant's credibility and that it cannot be used as evidence of defendant's 

guilt." Brown, 190 N.J. at 159; see also Brown, 118 N.J. at 616 & n.3 (noting 
12 A-5546-15T3

that the court carefully instructed the jury that the pre-arrest silence was relevant 

only to credibility and not probative of the defendant's guilt).

However, the failure to give a limiting instruction does not invariably 

constitute plain error. The Court in the 2007 Brown case rejected a plain error 

claim, concluding that "[t]he prosecutor's questions concerning defendant's prearrest conduct or silence were intended to impeach defendant's story and assist 

the jury in evaluating the credibility of defendant's . . . testimony." 190 N.J. at 

160-61.

We reach the same conclusion here. The prosecutor's line of questioning 

was evidently designed to cast doubt about the veracity of defendant's claims

that Tawiah mistook him for the robber because he knew defendant from prior 

drug deals, and that defendant only learned about the robbery the following day 

from a friend. Notably, the prosecutor did not highlight defendant's pre-arrest 

silence in her summation, focusing instead on more powerful evidence that 

challenged defendant's credibility and established guilt. The prosecutor noted 

that defendant gave inconsistent statements; he admittedly asked his female 

friend to lie for him; Tawiah unqualifiedly identified him; Jett saw a man 

resembling defendant leave the scene; and defendant had an opportunity to 

commit the crime, having left his female friend for as much as a half-hour after 
13 A-5546-15T3

seeing Tawiah display a large amount of cash in the store. In sum, the absence 

of a limiting instruction was not plain error.

B.

We also discern no merit to defendant's argument that the court sua sponte 

should have barred the prosecution from playing defendant's custodial 

interview. Defendant contends the material exceeded the scope of rebuttal 

evidence and contained prejudicial admissions about his prior criminal 

activities. We are unpersuaded.

Consistent with its "control over the mode and order of interrogating 

witnesses," N.J.R.E. 611(a), the trial court exercises "a wide range of discretion 

regarding the admissibility of proffered rebuttal evidence." Weiss v. Goldfarb, 

295 N.J. Super. 212, 225 (App. Div. 1996), rev'd in part on other grounds, 154 

N.J. 468 (1998). Although rebuttal evidence "[o]rdinarily . . . is confined to the 

contradiction of specific subjects introduced on direct or cross-examination of 

defense witnesses," the court retains broad discretion to permit any "evidence 

[that] would properly have been admissible in chief." State v. Provoid, 110 N.J. 

Super. 547, 557 (App. Div. 1970). An appellate court shall intervene only in 

the case of a gross abuse of discretion. Ibid.
14 A-5546-15T3

No abuse of discretion occurred here. On direct and cross-examination, 

defendant presented his version of his whereabouts the day of the robbery. He 

introduced his connection to a drug-dealer friend as the reason Tawiah 

approached him for drugs. He addressed his attempt to procure a false alibi from 

his female friend, and he disclosed his significant prior criminal record.1 

Defendant contended that he wanted to tell the truth but was reluctant to accuse 

others while on video, so he asked for a break and told the officers off camera 

about the young men he suspected may have committed the robbery. He also 

admitted that he did not disclose to the police some of the details he discussed

on the witness stand.

In rebuttal, the State called one of the interrogating officers, who disputed 

defendant's testimony. The officer said that during the break, defendant offered 

information about unrelated crimes. The officers were not interested, and the 

recorded interrogation resumed. The State also introduced into evidence the full 

DVD of the two recorded segments, with certain redactions. Before doing so, 

the court asked defense counsel if he objected; he said he did not. The State 

then played the DVD for the jury, assisted by a transcript. The recording

 

1

 He did so without identifying the nature of the crimes. The State had agreed 

that defendant's convictions would be "sanitized" before defendant took the 

stand.
15 A-5546-15T3

revealed that during the interrogation, defendant provided a version of the day 

of the robbery that differed, in some respects, from his trial testimony. When 

the interrogation resumed after the requested break, defendant acknowledged on 

the record that the hallway conversation did not pertain to the robbery. The 

recorded interrogation also referenced, in passing, defendant's prior criminal 

record, including identifying it as drug-related.

The admission of the recorded statement involved no error, let alone plain 

error. The discussion of defendant's criminal record caused defendant no 

significant prejudice, as he was not charged with a drug-related crime, and he 

had already admitted that he had a criminal record and associated with a drug 

dealer. See N.J.R.E. 609(a)(2) (permitting admission of unsanitized conviction 

record to impeach a testifying criminal defendant, when the convictions are 

dissimilar to the charged offense if the unsanitized record does not pose a risk 

of undue prejudice, or the defendant waives objection to the unsanitized record). 

The court also delivered the model charge on the proper use of prior convictions, 

warning the jury against using defendant's prior convictions as evidence of guilt

in this case.

Furthermore, defense counsel referenced the recorded interview in 

summation, demonstrating that the defense decision not to object was strategic. 
16 A-5546-15T3

In particular, defense counsel highlighted that defendant's description, in his 

recorded interview, of the two young men who walked off with Tawiah matched 

Jett's account, although defendant had no idea of Jett's statement. See State v. 

Marshall, 123 N.J. 1, 93 (1991) (stating that "except in the most extreme cases, 

strategic decisions made by defense counsel will not present grounds for reversal 

on appeal").2

C.

Defendant also contends the court delivered an erroneous jury instruction 

regarding evidence of defendant's effort to procure a false alibi through his 

female friend. In particular, defendant contends the court erred by instructing 

the jury that it could use that evidence to assess defendant's credibility. 

Defendant argues this ran afoul of N.J.R.E. 608(a), which prohibits proof of "a 

trait of character . . . by specific instances of conduct." He also contends the 

court mischaracterized the draft letter as a prior inconsistent statement.

 

2

 Defendant also contends that his attorney was ineffective in failing to object 

to the introduction of the recorded interrogation. We shall not reach the issue, 

which defendant did not raise under a separate point heading, as Rule 2:6-2(a)(6) 

requires. See Mid-Atlantic Solar Energy Indus. Ass'n v. Christie, 418 N.J. 

Super. 499, 508 (App. Div. 2011). In any event, as defendant challenges his 

counsel's strategy, he should raise his claim in a petition for post-conviction 

relief that would enable consideration of facts outside the trial record. See State 

v. Castagna, 187 N.J. 293, 374 (2006).
17 A-5546-15T3

We reject defendant's arguments for two reasons. First, defense counsel 

expressly invited the court to instruct the jury that the false alibi evidence related 

to credibility. Second, defendant misplaces reliance on N.J.R.E. 608. The false 

alibi letters were not introduced to demonstrate defendant's "character for . . . 

untruthfulness." N.J.R.E. 608(a). Rather, they constitute prior inconsistent 

statements that demonstrated his lack of credibility about this case.

The prosecutor stated in summation:

So why would an innocent person ask somebody 

else to lie for them. [Defense counsel] says there is 

plenty of reason. He was desperate. And you know 

what, guilty people are desperate. Guilty people are 

desperate. That's why he asked her to lie for him and 

that's why he asked her to write that letter and say they 

were together every single moment after 6:30.

. . . .

Ladies and gentlemen, the defendant committed 

this crime. He asked her to lie because he is guilty.

In response, defense counsel asked for a curative instruction.

I'm also going to object to the . . . I wrote it down 

so I could quote it. "Guilty people are desperate and 

that's why he asked her to write that letter." That letter 

is being used for credibility purposes only, not as 

substantive . . . evidence in the case. That statement I 

think clearly runs contrary to that instruction that you're 

going to give.
18 A-5546-15T3

The court then stated it would instruct the jury that "the letter was being 

offered for credibility." Defense counsel expressed his satisfaction with the 

court's ruling. The judge then stated, in advance of the full final instruction:

Now there is a letter that keeps coming back and 

forth and being discussed here. That letter and 

reference to desperate people are – are – are making 

comments or guilty people are desperate, that should be 

disregarded by you in terms of guilt or innocence in this 

case. That letter is only being offered to credibility 

purposes and I'm going to give you a charge on that 

also. So you're not to consider it for substantive 

purposes, but you're to consider it and I'll be more 

specific when I give you the charge as to credibility.

In the course of the final instructions, the judge returned to the subject of 

defendant's effort to procure a false alibi. The court reiterated that defendant's 

letters affected his credibility and were not substantive evidence of guilt.

We have in this case written statements, S-18 and 

S-20[3]in evidence, alleged to have been made by the 

defendant. These statements have been introduced by 

the prosecution not as evidence of defendant's guilt or 

[sic] the crimes charged but to affect his credibility on 

the condition that the jury first determine that the 

statements were made.

 

3 S-20 was the letter defendant sent his female friend, asking her to submit a 

statement in her name on his behalf; S-18 was the outline he provided to guide 

her in drafting the statement.
19 A-5546-15T3

The judge then instructed that it was for the jury to determine, as a question of 

fact, whether defendant wrote the letters and "whether he intended them to be 

an effort to enlist someone to provide a statement on his behalf."

In the final paragraphs of this section of the jury charge, the judge 

reiterated that the letters pertained to credibility; also, for the first time, he 

introduced the concept of consciousness of guilt:

If you find the defendant wrote the letters and 

intended them to be an effort to enlist someone to 

provide a statement of his whereabouts then you may 

consider them in connection with all the other evidence 

in the case as an indication or proof of consciousness of 

guilt on the part of the defendant.

If you find the statements were not made then you 

must not consider them for any purpose. If you find 

that only part of the statement was made then you may 

only consider that part as it may affect defendant's 

credibility. If you find the statements were made they 

may be considered solely to determine the defendant's 

credibility if you believe they do in fact affect such 

credibility and not as evidence of his guilt.

In this regard in all fairness you will want to 

consider all of the circumstances under which the 

claimed prior inconsistent statements occurred, the 

extent and importance or a lack of importance of the 

inconsistency on the overall testimony of defendant as 

bearing on his credibility including such factors as 

where and when the prior statements occurred, and the 

reasons if any therefor[ ].
20 A-5546-15T3

The extent to which defendant's credibility is 

affected by such inconsistencies if any is for you to 

determine. Consider the materiality and relationship of 

such contradictions to the entire testimony and all the 

evidence in the case.

[(Emphasis added).]

Defendant does not challenge the use of the letters as evidence of 

consciousness of guilt.4 See State v. Carter, 91 N.J. 86, 119 (1982) (stating that 

"consciousness of guilt was suggested by [the defendant's] solicitation of false 

alibi testimony"). Nor does defendant complain that the judge, by stating the

letters could not be used as "evidence of guilt," undercut his instruction that the 

letters could be used to find consciousness of guilt. Evidence of consciousness 

of guilt is evidence of guilt, because "consciousness of guilt . . . [can] support 

an inference that [is] inconsistent with innocence or could tend to establish the 

defendant's intent." State v. Williams, 190 N.J. 114, 125 (2007).

"Our jurisprudence regarding consciousness-of-guilt evidence derives 

from the principle that certain conduct may be 'intrinsically indicative of a 

consciousness of guilt,' and may therefore be admitted as substantive proof of 

the defendant's guilt." State v. Cole, 229 N.J. 430, 454 (2017) (quoting State v. 

 

4 He contends, "If [the letters] were admissible at all, it was only as potential 

evidence of his consciousness of guilt."
21 A-5546-15T3

Phillips, 166 N.J. Super. 153, 160 (App. Div. 1979)); see also Williams, 190 

N.J. at 125 ("It is universally conceded today that the fact of an accused's flight, 

escape from custody, resistance to arrest, concealment, assumption of a false 

name, and related conduct, are admissible as evidence of consciousness of guilt, 

and thus of guilt itself . . . .") (quoting 2 Wigmore on Evidence § 276 (Chadbourn 

rev. 1979)). Thus, the judge's erroneous charge to disregard the letters as 

substantive proof of guilt only favored defendant.

Rather, defendant challenges the use of the letters as evidence of 

credibility. However, defendant may not complain about the instruction that 

defense counsel expressly invited. The invited error doctrine disqualifies trial 

errors that defense counsel "induced, encouraged or acquiesced in or consented 

to" as grounds for reversal on appeal. State v. Munafo, 222 N.J. 480, 487 (2015) 

(quoting State v. A.R., 213 N.J. 542, 561 (2013)). As the Supreme Court stated 

in A.R., "This case is not one . . . in which defense counsel merely failed to 

object to the course selected by the trial judge," as he, in fact, "actively 

encouraged" that course. 213 N.J. at 561. The Court has applied the invited 

error doctrine to a defendant's request for specific jury instructions, stating that 

"[t]o justify reversal on the grounds of an invited error, a defendant must show 

that the error was so egregious as to 'cut mortally into his substantive rights.'" 
22 A-5546-15T3

State v. Ramseur, 106 N.J. 123, 282 (1987) (quoting State v. Harper, 128 N.J. 

Super. 270, 277 (App. Div. 1974)). No such error was committed here.

Defendant also misplaces reliance on N.J.R.E. 608(a), which bars proof 

of a trait of character, such as untruthfulness, by specific instances of conduct. 

The judge did not instruct the jury that it could use the letters by which defendant

sought to procure a false alibi to find a general character trait of untruthfulness. 

Nor did the State attempt to introduce evidence of prior false statements 

pertaining to other cases, or efforts to procure false alibis in response to other 

charges.

The false statement that defendant attempted to procure pertained to the 

same subject about which he testified. The judge simply stated that the evidence 

could affect defendant's credibility. This statement was correct, as the draft 

letter defendant provided to his female friend was not only false, it was 

inconsistent with defendant's statement to the police and his trial testimony. For 

example, in the draft letter, defendant – through his friend – asserted he and his 

friend went to one liquor store, and then returned to her house. In his custodial 

statement, defendant made no mention of a liquor store at all. At trial, defendant 
23 A-5546-15T3

stated he went to two stores. N.J.R.E. 608(a) does not bar the introduction of 

prior inconsistent statements to challenge a witness's credibility. 5

In sum, the court's instruction does not constitute plain error.

D.

Finally, we shall not disturb the trial court's sentence. The court 

appropriately identified and weighed the aggravating and mitigating factors, 

imposed a sentence within the allowable range, and did not abuse its discretion. 

See State v. Case, 220 N.J. 49, 64-65 (2014); State v. Roth, 95 N.J. 334, 364-66 

(1984). In imposing an aggregate nine-year NERA sentence, the court found 

aggravating factor three, a risk of reoffending; factor six, the extent of 

defendant's prior record; and factor nine, the need to deter. See N.J.S.A. 2C:44-

1(a)(3), (6), (9). The court's findings were appropriately grounded in the record. 

Although only twenty-seven years old, defendant already had two prior criminal 

convictions. After he violated probation, he was resentenced to a four-year 

prison term. He robbed Tawiah less than a month after his release.

 

5

 The trial court's instruction that the false alibi evidence was relevant both to 

consciousness of guilt and credibility also comported with the Supreme Court's 

holding in the 1990 Brown case that pre-arrest silence may be used for the same 

two purposes.
24 A-5546-15T3

Defendant contends that the court should have found and given weight to 

mitigating factor eleven, N.J.S.A. 2C:44-1(b)(11), which requires a finding that 

incarceration would impose an "excessive hardship" upon the defendant or his 

dependents. The court acknowledged that defendant had attempted to develop 

a relationship with his son, but noted that he was not his son's primary caretaker. 

The court concluded that while prison inevitably imposes a hardship, it did not 

warrant application of factor eleven. We discern no basis to disturb that finding. 

See State v. Dalziel, 182 N.J. 494, 505 (2005).

Affirmed.