SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5289-17

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RHUMEIR D. MONEY,

a/k/a RHUMER MONEY, 

and RHUMEIR MONEY,

Defendant-Appellant.

_______________________

Argued May 25, 2021 – Decided July 21, 2021

Before Judges Fisher, Gilson and Moynihan.

On appeal from the Superior Court of New Jersey, Law 

Division, Camden County, Indictment No. 14-03-0691.

Timothy E. Burke, Designated Counsel, argued the 

cause for appellant (Joseph E. Krakora, Public 

Defender, attorney; Timothy E. Burke, on the brief; 

Tina DiFranco, on the briefs).

Linda A. Shashoua, Special Deputy Attorney 

General/Acting Assistant Prosecutor, argued the cause 

for respondent (Jill S. Mayer, Acting Camden County 

NOT FOR PUBLICATION WITHOUT THE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.
2 A-5289-17

Prosecutor, attorney; Linda A. Shashoua, of counsel 

and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

After a twelve-day jury trial, defendant Rhumeir D. Money was convicted 

of all indicted counts: first-degree murder of Brian Burnett, N.J.S.A. 2C:11-

3(a)(1), (2) (count one); first-degree attempted murder of Jeroboam Fisher, 

N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3(a)(1), (2) (count two); first-degree 

attempted murder of Carlos Perry, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3(a)(1), 

(2) (count three); second-degree possession of a weapon for an unlawful 

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

of a weapon, N.J.S.A. 2C:39-5(b) (count five); and first-degree conspiracy to 

commit murder, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3(a)(1), (2) (count six). He 

appeals from the judgment of conviction arguing: 

POINT I

[DEFENDANT'S] [JUNE 20, 2013] STATEMENT 

MUST BE SUPPRESSED BECAUSE THE 

DETECTIVES FAILED TO SCRUPULOUSLY 

HONOR HIS RIGHT TO REMAIN SILENT.

A. [Defendant] Invoked His Federal 

Constitutional and State Common-Law and 

Statutory Rights to Remain Silent by 
3 A-5289-17

Telling the Detective[s] Who Were 

Questioning Him, "[I'm] Not Saying 

Nothing."

B. [Defendant's] June 20, 2013 Statement 

Must Be Suppressed Because the 

Detectives Failed to Scrupulously Honor 

His Invocation of the Right to Remain 

Silent.

C. Assuming Arguendo, that [t]his Court 

Holds [t]hat [Defendant] Did Not Invoke 

His Right [t]o Remain Silent, [Defendant's]

June 20, 2013 Statement Must Be 

Suppressed Because He Did Not Waive His 

Miranda[1] Rights Knowingly, 

Intelligently[] [o]r Voluntarily.

POINT II

[DEFENDANT'S] JUNE 21, 2013 STATEMENT 

SHOULD HAVE BEEN SUPPRESSED AS THE 

"FRUIT OF THE POISONOUS TREE[."]

POINT III

THE TRIAL COURT COMMITTED PLAIN ERROR 

BY PERMITTING THE INTRODUCTION OF 

INADMISSIBLE HEARSAY STATEMENTS 

REGARDING THE IDENTITY OF THE SHOOTER 

IN THE STATEMENT AND TESTIMONY OF 

JEROBOAM FISHER.

POINT IV

1

 Miranda v. Arizona, 384 U.S. 436 (1966).
4 A-5289-17

DETECTIVE KING'S TESTIMONY NARRATING 

THE SURVEILLANCE VIDEO WITH HIS OWN 

OPINIONS AS TO WHAT THE VIDEO DEPICTED 

INVADED THE PROVINCE OF THE JURY AND 

USURPED THE JURY'S FACTFINDING ROLE IN 

VIOLATION OF [N.J.R.E.] 701 AND

[DEFENDANT'S] RIGHTS TO DUE PROCESS AND 

A FAIR TRIAL.

Defendant adds the following points in his pro se brief: 

POINT I

[DEFENDANT'S] WAIVER OF MIRANDA RIGHTS 

WAS NOT KNOWING OR VOLUNTARY AND HIS 

STATEMENT SHOULD BE SUPPRESSED FOR ALL 

PURPOSES PURSUANT TO MIRANDA V. 

ARIZONA.

POINT II

DEFENDANT WAS DEPRIVED OF HIS SIXTH AND 

FOURTEENTH AMENDMENT RIGHTS OF A FAIR 

TRIAL AND DUE PROCESS FOR THAT THE 

IDENTIFICATION OF DEFENDANT . . . AS THE 

SHOOTER BY SHOOTING VICTIM JEROBOAM 

FISHER WAS HIGHLY SUGGESTIVE AND AT 

BEST TAINTED. THE IDENTIFICATION BY 

JEROBOAM FISHER TO DETECTIVES DONL[O]N 

AND FISHER SHOULD HAVE BEEN SUPPRESSED 

FOR THAT THERE IS A STRONG INDICATION OF 

SUGGESTIVENESS. 

We previously granted the State's motion to settle the record, R. 2:5-5(a), 

because of a discrepancy in the transcript of defendant's video-recorded first 

statement to detectives from the Camden County Prosecutor's Office (CCPO) 
5 A-5289-17

and Camden Metro Police on June 20, 2013, and remanded for the trial court to 

accomplish that settlement. The trial court, without a hearing, "listened to and 

viewed the corresponding portion of [the] video and audio recording of . . . 

[d]efendant's statement"—during which defendant alleges he invoked his right 

to remain silent—and entered an order setting forth its determination of what 

defendant said in that contested portion of the interview. The court, however, 

did not set forth its findings of fact that led to that determination, as required by 

Rule 1:7-4(a), compelling us to, again, remand this matter.

The evening the three victims were shot, one fatally, CCPO Detective

Terry King obtained a description of one of the shooters from eyewitness J.V.,2

who also described the vehicle used in the shooting as a dark-colored Jeep. 

Another detective retrieved surveillance video showing a dark-colored Jeep 

leaving the area of the shootings. About six hours after the shootings, police 

canvassing the area discovered a Jeep similar to the one described and seen on 

the video footage. King learned defendant owned the Jeep and had reported it 

stolen on the day police discovered it.

2

 We use initials to protect the witness's identity. 
6 A-5289-17

Four days later, King informed defendant "a concern had surfaced with 

his vehicle" and that he needed to speak with him at the CCPO. King drove 

defendant to the CCPO because defendant lacked transportation.

King administered Miranda warnings to defendant at the CCPO before he 

and Camden Metro Police detective Shawn Donlon took defendant's first 

statement during which defendant eventually admitted shooting at the three 

victims after one had shot at him. He was arrested. The next day, defendant 

was transported back to the prosecutor's office at his request and gave a second 

statement. The majority of the second statement was not recorded due to a 

"technical difficulty" that caused the recording device to stop while King was 

Mirandizing defendant. Both statements were introduced at trial after the trial 

court denied defendant's bid to suppress them.

In his suppression argument to the trial court, defendant averred he did 

not validly waive his Miranda rights and that the statements were not voluntarily 

given. For the first time, on appeal, he argues his first statement should have 

been suppressed because he had invoked his right to remain silent. 

The pertinent portion of the first statement was the subject of our prior 

remand order. Defendant had repeatedly denied he was in the Jeep. He 

maintained he was at his girlfriend's house at the time of the shooting, an alibi 
7 A-5289-17

he maintained at trial through his girlfriend's testimony. Leading up to that 

pertinent portion, the detectives continued their attempt to have defendant tell 

them about the shooting:

[KING]: We're trying to give you an opportunity to tell 

us what happened, and what your role was. Okay? 

Because that does in fact make a difference. That 

makes a difference whether you know, you shot ten 

times, all that, that makes a difference. That's what 

we're—here's an opportunity for you to say, look, this 

is what happened. My man was in the—shot in the 

back—bang it all, I banged all, it's my bang up, 

whatever, it's my bang oh, I don't know. I wasn't out 

there in that regard. But I do know what took place. 

And you were in that car. You were in your truck. 

Here's your opportunity, man.

[DONLON]: Rhumeir, were you defending yourself? 

Is—is—tell us what happened?

[KING]: Did somebody shoot at you first? Did 

somebody disrespect—what?

[DONLON]: Tell us what happened.

[KING]: Did they—did somebody provoke you? We 

know about this war that's going on. We know what 

side you're on. We know who your peoples are. And 

we know who their peoples are. Was there something 

you're trying—did they come at you? I don't know. Did 

they see you on the block—you said—what was it over, 

man? What happened? That's what we want to know, 

what was it over?
8 A-5289-17

According to the certified transcript of the suppression motion hearing, 

defendant responded: "I ain't saying nothing. —my shit. There ain't no way 

that the system gonna justify nothing. So it don't even matter —[.]" A listening 

aid prepared by the State—and provided to the court during the suppression 

hearing and to the jury during trial, but not entered into evidence—reports 

defendant's response as: "It was nothing. Just going my shit. And nobody ain't 

nobody got the system going justify nothing so it don't even matter." The trial 

court, pursuant to our remand order, "listened to and viewed the corresponding 

portion of that video and audio recording of . . . [d]efendant's statement," and 

determined defendant said: "[indiscernible] not saying nothing. Just doing my 

shit." 

Defendant argues he invoked his right to remain silent which the 

detectives ignored when they continued to question defendant and ultimately 

obtained his admission during the first statement that he participated in the 

shootings as "pay[]back" because Perry had killed one of defendant's "boys"; 

defendant also told the detectives Perry "shot at me, so I shot back." 

The State counters the listening-aid version went unchallenged at the trial 

level; defendant waived his claim that he asserted his right to remain silent by 

failing to raise that issue to the trial court; the certified version was "a fluke of 
9 A-5289-17

transcription"; defendant's "undeniably mumbled and garbled remark was, at 

best, unintelligible and far short of the objectively unequivocal invocation that 

officers must scrupulously honor"; and "the full context of the record clearly 

supports that defendant never, even ambiguously, invoked his right to remain 

silent." 

Defendant's averred invocation of his right to remain silent is "separate 

and apart" from the issue raised to and considered by the trial court: defendant's 

knowing, intelligent and voluntary waiver of his Miranda rights. State v. 

Hartley, 103 N.J. 252, 260-61 (1986). We typically consider arguments raised 

for the first time on appeal under the plain error standard, see R. 2:10-2, under 

which "[a]ny error or omission shall be disregarded by [this court] unless it is 

of such a nature as to have been clearly capable of producing an unjust result," 

ibid. In a jury trial, the possibility of such an unjust result must be "sufficient 

to raise a reasonable doubt as to whether the error led the jury to a result it 

otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971). 

If defendant invoked his right to remain silent, the admission of one or 

both statements at trial may have led to the possibility of an unjust result. That 

right "is guaranteed by the Fifth Amendment to the United States Constitution"

and further protected under New Jersey's "common law, now embodied in 
10 A-5289-17

statute, N.J.S.A. 2A:84A-19, and evidence rule, N.J.R.E. 503." State v. S.S., 

229 N.J. 360, 381-82 (2017) (citation omitted). "The requirement that an 

asserted right be scrupulously honored has been carefully guarded in this state 

in order to ensure that full opportunity to exercise the privilege is permitted." 

Hartley, 103 N.J. at 261. "[I]f after a suspect avails himself of the Constitution's 

protections the police violate a right that has been invoked, that violation, by 

definition, is of constitutional magnitude." Id. at 273. Any statement taken after 

a suspect invokes his right "cannot be other than the product of compulsion, 

subtle or otherwise." Ibid. (quoting Miranda, 384 U.S. at 474). 

During an interrogation, if a person makes "a request, 'however 

ambiguous,' to terminate questioning or to have counsel present[,] [it] must be 

diligently honored." Id. at 263 (quoting State v. Kennedy, 97 N.J. 278, 288 

(1984)). "Any words or conduct that reasonably appear to be inconsistent with 

defendant's willingness to discuss his case . . . are tantamount to an invocation 

of the privilege against self-incrimination." State v. Bey (Bey II), 112 N.J. 123, 

136 (1988). If the police are unsure if a suspect invoked the right, they must 

either "(1) terminate the interrogation or (2) ask only those questions necessary 

to clarify whether the defendant intended to invoke his [or her] right to silence." 

S.S., 229 N.J. at 383.
11 A-5289-17

Thus, a determination of the exact words used by defendant and an 

analysis of those words in context is crucial to determining if the admission of 

the statements engendered an unjust result. As we tell jurors: "The specific 

words used and the ability to remember them are important to the correct 

understanding of any oral communication because the presence, or absence, or 

change of a single word may substantially change the true meaning of even the 

shortest sentence." Model Jury Charges (Criminal), "Statements of Defendant" 

(rev. June 14, 2010).

It appears both parties submitted evidence to the trial court after our 

remand. In his merits brief, defendant related that the State submitted to the 

trial court "a letter brief and a boxful of materials to consider when settling the 

record." After defendant objected and requested an opportunity to respond, he 

contends the trial court's law clerk "responded that the [court] would advise the 

parties how to proceed." Defendant thereafter 

submitted a letter brief to the trial [court], reiterating 

his request to be heard and asking the [c]ourt to delay 

making a decision until he could move to supplement . 

. . the record. [T]he [l]aw [c]lerk again advised the 

parties that [the trial court] would instruct them on how 

to proceed on the merits. 

The parties never received any further direction from 

the [c]ourt. 
12 A-5289-17

Defendant further asserts he submitted a letter brief and certifications from the 

transcriber and her supervisor attesting to the accuracy of the transcript, to which 

the State filed a response brief. 

As we have noted, the trial court did not afford the parties an opportunity 

to argue why one version of defendant's statement was more accurate than 

another. And the trial court did not, as it had done throughout the course of this 

case, make findings of fact or conclusions of law. See R. 1:7-4(a). We do not 

know which, if any, of the parties' submissions it considered, or if it considered 

the testimony of King or Sergeant Patricia Taulane, whom the State avers 

testified as to the accuracy of the listening aid. Understanding the transcriber 

was listening to a recording of a recording played in court, and both parties' 

merits briefs point out transcription errors,3 we do not know why the trial court 

rejected the version defendant contends is correct. Understanding the listening 

aid was unilaterally prepared by the State, and tacitly or expressly approved for 

3

 Defendant submits his "statement, 'Then I didn't do nothing[,]' does not appear 

in the Miranda hearing transcript. However, [defendant] can be heard saying it 

on the DVD at a [specified] time-stamp. . . ." The State contends the transcript 

deviates from the listening aid in sections other than that where defendant 

contends he invoked his right to remain silent, highlighting the omission of 

defendant's statement: "I'm still getting locked up," and the mis-recording of 

his statement: "I did that shit off my—I was—got shot at so." 
13 A-5289-17

use during the trial,4 we do not know why the court rejected the version the State 

contends is correct.

Under the circumstances, we vacate the trial court's order settling the 

record and remand the matter for oral argument on the settlement of the record 

followed by a supplemental suppression hearing. The present record is 

insufficient to allow us to decide this critical issue. We categorically reject the 

State's argument that "[t]he very fact that the phrase has been the subject of so 

much armchair debate further diminishes any sense that it was an invocation." 

Our remand under Rule 2:5-5(a) was meant to settle a crucial aspect of the record 

involving constitutional rights; it was not an "armchair debate." 

Once the court determines the exact words uttered by defendant to the 

detectives, it must determine whether defendant, by words or conduct, invoked 

his right to remain silent. See S.S., 229 N.J. at 382. In determining that issue, 

4

 Neither party has directed us to any portion of the record showing the court 

conducted a hearing to determine the accuracy of the listening aid, although the 

State specified in its merits brief portions of King's testimony in which he stated 

he reviewed the listening aid "in conjunction with" the recorded statement and 

acknowledged the listening aid was "basically accurate." The State also averred 

"Sergeant Taulane testified that the listening aid was accurate," but did not cite 

to any portion of the record to support that claim. It is incumbent on the party 

to support the facts material to the issues with references to the record; it is not 

the court's duty to search the record to substantiate a party's contention. See R.

2:6-2(a)(5).
14 A-5289-17

the court must analyze "the totality of the circumstances, including 

consideration of the suspect's words and conduct. The . . . statement [must be] 

evaluated in the full context in which [it was] made." State v. Maltese, 222 N.J. 

525, 545 (2015).

Our Supreme Court has determined that words like those defendant alleges 

he used are sufficient to invoke the privilege against self-incrimination. See id.

at 386 (holding suspect invoked right to silence when he stated, "No, that's all I 

got to say. That's it"); State v. Johnson, 120 N.J. 263, 281 (1990) ("[A] suspect 

who has 'nothing else to say' . . . has asserted the right to remain silent . . . ." 

(citations omitted)); State v. Bey (Bey I), 112 N.J. 45, 64 (1988) (holding 

privilege invoked where suspect told police "he would have nothing to say"). 

But, as said, the context and defendant's conduct must also be considered.

The State claims defendant's "undeniably mumbled and garbled remark 

was, at best, unintelligible and far short of the objectively unequivocal 

invocation that officers must scrupulously honor." While we leave what 

defendant said to the remand proceedings, that claim ignores the proper analysis. 

It is axiomatic that "a request to terminate an interrogation must be 

honored 'however ambiguous.'" Bey I, 112 N.J. at 64-65 (listing a number of 

cases standing for that principle). "The suspect is not required to express a 
15 A-5289-17

desire to terminate interrogation with the 'utmost of legal precision.'" Johnson, 

120 N.J. at 281 (quoting Bey I, 112 N.J. at 65). Suspects "will often speak in 

plain language using simple words, not in the parlance of a constitutional 

scholar," and so as long as an officer "can reasonably understand the meaning 

of a suspect's words, the suspect's request must be honored." S.S., 229 N.J. at 

383. "[A]n equivocal indication of a desire to remain silent, like an unequivocal 

indication, suffices to invoke Miranda's requirement that the interrogation 

cease." Johnson, 120 N.J. at 281 (alteration in original) (quoting Christopher v. 

Florida, 824 F.2d 836, 841 (11th Cir. 1987)). The Johnson Court harkened to 

its prior decision describing

the standard for police conduct when faced with 

ambiguous assertions of Miranda rights:

[W]here a suspect makes a statement which 

arguably amounts to an assertion of his 

Miranda rights and the interrogating agent 

recognizes that the statement is susceptible 

of that construction, his questioning with 

regard to the crime he is investigating 

should immediately cease and he should 

then inquire of the suspect as to the correct 

interpretation of the statement. Only if the 

suspect makes clear that he is not invoking 

his Miranda rights should substantive 

questioning be resumed.
16 A-5289-17

[Id. at 283 (alteration in original) (quoting State v. 

Wright, 97 N.J. 113, 120 n.4 (1984)) (citation 

omitted).]

If there was a question as to what defendant said, it was incumbent upon 

the detectives to ascertain what it was, especially if defendant said the phrase, 

"ain't saying nothing," as set forth in the official transcript and the judge's 

remand determination; we, of course, leave the determination of what defendant 

said to the trial court after it conducts the record-settlement hearing. Suffice it 

to say, an unintelligible record does not mean defendant was unintelligible in 

real time.

After determining whether defendant invoked his right to remain silent, 

the trial court on remand must also determine if any of defendant's first statement 

made prior to or after defendant allegedly invoked his right to remain silent, and 

any of defendant's second statement, is admissible. If a defendant invokes his 

right to remain silent, but the police continue to question him without 

interruption as if nothing had happened, the Court has made clear that "the right 

is not scrupulously honored." S.S., 229 N.J. at 384 (quoting Johnson, 120 N.J. 

at 282). "The failure of the interrogating detectives to have scrupulously 

honored defendant's right to remain silent makes inescapable the conclusion that 
17 A-5289-17

defendant's subsequent oral confession had been unconstitutionally compelled." 

Johnson, 120 N.J. at 284. 

A statement's admissibility "obtained after the person in custody has 

decided to remain silent depends under Miranda on whether his right to cut off 

questioning was scrupulously honored." Maltese, 222 N.J. at 547 (quoting 

Michigan v. Mosley, 423 U.S. 96, 104 (1975)). Factors to consider when

determining whether the right has been scrupulously honored include: (1) how 

much time passed after the defendant first asserted his right to remain silent; (2) 

whether the defendant received new Miranda warnings before the police 

resumed interrogation; and (3) whether a different police officer questioned the 

defendant. See ibid. In Hartley, the Court announced a "'bright-line,' inflexible, 

minimum requirement" police must follow before resuming a custodial 

interrogation after a suspect invokes his right to remain silent: fresh Miranda

warnings must be administered or the defendant's statement "cannot be admitted 

into evidence as part of the prosecution's case-in-chief." 103 N.J. at 267. 

The trial court's determination of defendant's exact words may impact the 

court's prior determination that defendant knowingly, intelligently and 

voluntarily waived his Miranda rights. We neither state nor imply that the trial 

court's comprehensive oral opinion on the motion to suppress was erroneous. 
18 A-5289-17

Although a determination that defendant invoked his right to remain silent may 

render moot some issues to be analyzed, the admissibility of any statement made 

prior to any invocation still has to be determined, and defendant's exact words 

may impact the analysis of defendant's waiver with regard to that—or any—

portion of his statement. See id. at 260 ("[T]he question of waiver is an inquiry 

separate and apart from the . . . question [of] . . . whether the defendant's right 

to remain silent has been properly respected in the first instance."). The words 

used by defendant may or may not indicate his understanding of the rights 

previously administered by King. The court should thus revisit that 

determination after the record is settled. 

The trial court must also determine on remand if the second statement is 

inadmissible. Courts exclude "a second confession as the 'fruit of the poisonous 

tree' when law-enforcement authorities obtained an initial confession in 

violation of the defendant's common-law privilege against self-incrimination." 

State v. Johnson, 118 N.J. 639, 652 (1990). If police violated defendant's right 

against self-incrimination—rendering the first statement "unconstitutionally 

compelled and, under state law, illegally obtained and hence inadmissible[—

]any 'separately-obtained' second statement must be approached with an eye to 

determining whether it was the product of a constitutional violation, sometimes 
19 A-5289-17

known as the 'fruit of the poisonous tree' doctrine." Hartley, 103 N.J. at 281-82. 

A key concern is whether defendant made the statement because he felt "the cat 

[was] already out of the bag" as a result of the first statement. Id. at 282.

Under the "fruit of the poisonous tree" doctrine, the admissibility of a 

second incriminating statement depends on whether the State established that 

the later statement was "not the product of the first" statement "or that the 'taint' 

of the first statement was attenuated." Id. at 283. Put another way, "the critical 

determination is whether the authorities have obtained the evidence by means 

that are sufficiently independent to dissipate the taint of their illegal conduct." 

Johnson, 118 N.J. at 653.

When determining whether a second confession is tainted by the first 

confession, courts consider the following factors: "the time between 

confessions, any intervening circumstances, whether there was a change in 

place, whether [the] defendant received an adequate warning of his rights, 

whether the defendant initiated the second confession, the effect of his having 

previously made a confession, and the 'purpose and flagrancy of police 

misconduct.'" Maltese, 222 N.J. at 548 (quoting Hartley, 103 N.J. at 283). 

"Ultimately, the determination whether the evidence is the 'fruit' of the illegal 

conduct is a factual matter for the court." Johnson, 118 N.J. at 653; see also
20 A-5289-17

Hartley, 103 at 283-84 ("[The factors to be considered] are ordinarily viewed as 

questions of fact, to be determined by a trial court after a hearing. And 

ordinarily a remand for the purpose of conducting such a hearing and making 

findings of fact and conclusions of law would be in order.").

The record is sufficient for us to address the balance of defendant's claims, 

to which there is no merit.5

For the first time on appeal, defendant contends Fisher's trial testimony 

and his hospital-bed, recorded statement to King6 three days after the shooting, 

which was played by the State at trial, contained impermissible hearsay that the 

trial court should have excluded or cured with instructions. Even a cursory 

review of the record scotches defendant's argument.

5 We review defendant's arguments involving trial testimony to which no 

objection was made for plain error, but in so doing, we do not apprise the weight 

of the evidence against defendant because that evidence—particularly 

defendant's statements—is not settled. See State v. Singh, 245 N.J. 1, 13-14 

(2021) ("To determine whether an alleged error rises to the level of plain error, 

it 'must be evaluated "in light of the overall strength of the State's case."'" 

(quoting State v. Sanchez-Medina, 231 N.J. 452, 468 (2018) (citation omitted))); 

see also State v. W.B., 205 N.J. 588, 614 (2011) (A guilty verdict following "a 

fair trial, based on strong evidence proving guilt beyond a reasonable doubt, 

should not be reversed because of a technical or evidentiary error that cannot 

have truly prejudiced the defendant or affected the end result.").

6

 Donlon was also present. 
21 A-5289-17

When the assistant prosecutor asked Fisher on direct examination "who 

was doing the shooting," Fisher began to cry and responded: "I can't do this, 

man." When the question was repeated, Fisher said he had a child on the way 

and couldn't "go through this right now, man." When the court directed Fisher 

to answer the question, he said: "I don't know. I didn't look him in his eye." 

The assistant prosecutor continued direct examination by asking Fisher if 

he told King in the hospital-bed statement who shot him. The following 

colloquy ensued: 

[FISHER]: I mean, at the end of the day, I did tell him 

a name, but—

[PROSECUTOR]: What was the name that you told 

him?

[FISHER]: The name I told him, I'm just going off of 

what somebody said. I didn't see the person.

[PROSECUTOR]: What was the name that you told 

Detective [King] ?

[FISHER]: What was the name I said?

[PROSECUTOR]: That's the question, sir.

[FISHER]: I said somebody named Reck.7

7

 "Reck" or "Wreck" was a name by which Fisher said he knew defendant. 
22 A-5289-17

The assistant prosecutor then showed Fisher the photograph of defendant that 

had been used during an identification procedure, leading to this discourse:

[FISHER]: That's the person I said. That's my name, 

right? That's what you asked me.

[PROSECUTOR]: Is that your signature on the bottom 

of that piece of paper?

[FISHER]: I'm not sure if that's my signature.

[PROSECUTOR]: Well, it's a signature and it's your 

name, is that correct? 

[FISHER]: Correct.

[PROSECUTOR]: And did you write your name on 

that picture?

[FISHER]: Yes I did.

[PROSECUTOR]: On June 18th of 2013, there's a date 

there as well?

[FISHER]: Yes.

[PROSECUTOR]: And what does it say at the top of 

that photograph?

[FISHER]: The name that I told you, when you just 

asked me. 

[PROSECUTOR]: Does it say Reck?

[FISHER]: Yeah.
23 A-5289-17

[PROSECUTOR]: And you signed that—did you sign 

that photograph because that is the man that you know 

as Reck?

[FISHER]: I signed the paper.

[PROSECUTOR]: Did you sign that—the paper 

indicating that that is who you know as Reck? 

[FISHER]: I personally don't know him, so I can't say 

I know him.

[PROSECUTOR]: That you recognize—

[FISHER]: This is what I . . . was just seeing. This is 

what I was told, so yes that's him.

[PROSECUTOR]: Is this the person that you recognize 

as Reck? Not that you know him personally. I'm not 

asking if you know him personally. 

[FISHER]: I'm telling you just the name, this is the 

name that I got, this is the name that I told [King]. This 

is my signature, and this is the date I put.

[PROSECUTOR]: And are you signing that saying that 

is the name that you know as Reck?

[FISHER]: I can't—

[PROSECUTOR]: Wasn't that your reason for signing 

and dating that picture?

[FISHER]: No. This was—like I said, it came to me 

already. 

[PROSECUTOR]: That's not what I'm asking you, sir.
24 A-5289-17

[FISHER]: I'm telling you. I'm trying to give you my 

answer. This is—when they came to me already, I just 

signed my name here.

[PROSECUTOR]: But you gave the name Reck to 

Detective [King]?

[FISHER]: Yeah. I said that's what I heard, yeah. 

That's what I gave him. All he did was Reck. 

[PROSECUTOR]: And did Detective [King] then show 

you the photograph?

[FISHER]: Already, yeah, from Reck before he started 

asking me questions he had this photo up. Yes.

[PROSECUTOR]: And did he ask you is this the man 

that you know as Reck? Is this who you know as Reck, 

the person in this picture?

[FISHER]: I told him that I don't know. That's why I 

told him check these names out. 

When Fisher's direct examination resumed two weeks later, the assistant 

prosecutor again questioned defendant about the statement he gave to King:

[PROSECUTOR]: During your statement to Detective 

[King], did you tell him—

[FISHER]: Yes.

[PROSECUTOR]: —what you did on June 15th—

[FISHER]: Yes.

[PROSECUTOR]: —2013?
25 A-5289-17

[FISHER]: Yes.

[PROSECUTOR]: And about what you and Brian and 

Carlos did that day?

[FISHER]: Yes.

[PROSECUTOR]: And did you give a description of 

what happened out there with regard to seeing the Jeep?

[FISHER]: Yes.

[PROSECUTOR]: More than once?

[FISHER]: Yes.

[PROSECUTOR]: And did you give a description of 

the shooting and how it went down?

[FISHER]: Yes.

[PROSECUTOR]: And did anyone promise you 

anything in exchange for your statement that day? Did 

anyone threaten you or coerce you?

[FISHER]: Nobody threatened me. I just was told the 

name of who shot me.

[PROSECUTOR]: Say that last part again.

[FISHER]: I said nobody threatened me or forced me. 

I was just told the name of who shot me while I was in 

the hospital and I told [King].

[PROSECUTOR]: And what was the name that you 

told [King]?

[FISHER]: The name?
26 A-5289-17

[PROSECUTOR]: The name—

[FISHER]: That I told [King]?

[PROSECUTOR]: Yes.

[FISHER]: It was Reck.

[PROSECUTOR]: Reck?

[FISHER]: Yes.

[PROSECUTOR]: Do you know how to spell that?

[FISHER]: I had spelled it W-R-E-C-K.

[PROSECUTOR]: Okay. And prior to June 15th of 

2013, did you know a person who is called Reck?

[FISHER]: No, I didn't. But Carlos did. 

Defense counsel objected and the trial court instructed the jury to "disregard the 

indication from the witness that Carlos Perry knew or advised him of the identity 

of the shooter as Reck." Fisher then confirmed his stance that prior to the 

shooting he did not know of anyone called Reck. 

The assistant prosecutor then questioned Fisher about his identification of 

defendant's photograph. Defendant confirmed he signed the bottom of the photo 

and wrote "Wreck" and another name he had previously identified as the name 
27 A-5289-17

defendant used when he was Fisher's Facebook friend, "Shootin Shxt."8 When 

asked why he wrote the names, Fisher replied, "Because that's . . . what was told 

to me. Like—this is how I knew his name and everything." When asked why 

he wrote "shooting, S-H-X-T," this exchange followed:

[FISHER]: To—like when I told [King] the name and 

he asked me did I know him, and I told him no, but you 

can look him up through this. That's his Facebook 

name. That's what I wrote that for. And he said can 

you write it down. I wrote it down for him.

[PROSECUTOR]: If you didn't know him, how did you 

know what his Facebook name was?

[FISHER]: Because when I was in the hospital—Carlos 

got shot in his leg, so he got released early. He came 

to visit me and explained to me everything, the 

situation, why it happened. 

Defense counsel again voiced a hearsay objection. After a sidebar conference, 

the judge instructed the jury:

All right, members of the jury, I'm . . . allowing for the 

objection, the statement from this witness where he said 

Carlos explained what happened. But then after that the 

witness said something to the effect of, and he 

explained why it happened. And I'm going to ask you 

not to consider that at all in your deliberations. That . . 

. is hearsay which would be offered for its truth. It's 

8

 The transcript of Fisher's statement provided in defendant's appendix spells 

the name written by Fisher as "Shootin shit." We do not see the photograph 

listed in the index to defendant's appendix, so we do not know the reason for the 

discrepancy. 
28 A-5289-17

barred and you're not to consider it at all in your . . . 

deliberations. The witness—this witness saying, 

Carlos explained why it happened. 

The assistant prosecutor was not eliciting hearsay testimony from Fisher. 

She was trying to elicit what Fisher had previously told King: during the 

shooting, he saw defendant's face; he had seen defendant numerous times during 

the year prior to the shooting and knew defendant as a Facebook friend and from 

parties at which defendant was known for his dancing. Fisher also identified 

"Reck" as the shooter, detailing defendant's movements prior to the shooting and

verified his statement by signing a photograph of defendant. When asked how 

sure he was that the photograph was that of Reck, Fisher told King, "That's him."

Fisher had told King, "I'll remember that face though, that's him." 

At trial, Fisher recanted his prior statements and identification of 

defendant as the shooter. And defendant made great use of that recantation by

the only State's witness who identified defendant at trial. Defendant did not 

object. See Macon, 57 N.J. at 341 ("[F]ailure to object may suggest the error 

was of no moment in the actual setting of the trial."). Indeed, his counsel elicited 

from Fisher during cross-examination he was "given a name" and that name was 

Reck; Fisher did not say who gave him the name. 
29 A-5289-17

Fisher's recantation caused the State to move to have his hospital-bed 

statement admitted as substantive evidence under N.J.R.E. 803(a)(1). In a ruling 

not challenged by defendant, the trial court, in a comprehensive oral opinion, 

analyzed the State's proffer under the pertinent factors set forth in State v. Gross9

and admitted the statement. Although defendant agreed that gang references 

should be redacted, he did not object to the portions of the statement he now 

claims were inadmissible hearsay:

In his recorded statement, Fisher told detectives that, 

seconds before the shooting began . . . Burnett looked 

at the Jeep and said, "yeah . . . that Reck[]"; and that he 

had heard that Reck and . . . Perry may been (sic) 

involved in "a beef in Parkside," but that he and . . . 

Burnett "didn't have anything to do with it." 

The full context of those statements must be analyzed. King asked Fisher if 

Perry or Burnett10 said anything as the Jeep approached them. The following 

ensued:

[FISHER]: Well B said, he said yeah um, that's Reck. 

[KING]: Ok.

[FISHER]: (inaudible)

9

 121 N.J. 1 (1990).

10 In the statement, Perry is referred to as Sadik, Taneek or Deek and Burnett as 

B or B-Noise. 
30 A-5289-17

[KING]: So, I'm asking, I'm asking what so does B, and 

Taneek know, know um Reck also?

[FISHER]: No, B know him.

[KING]: Ok, but

[FISHER]: No.

[KING]: but Deek cause he,

[FISHER]: but just like we don't know him, know him, 

like

[KING]: But,

[FISHER]: go (inaudible)

[KING]: But he know him, ok.

The entire colloquy about the "beef in Parkside" was:

[KING]: I know. Did you have a problem with him 

before this?

[FISHER]: Huh?

[KING]: Did any, did you have a problem with him 

before this?

[FISHER]: I don't know, I don't know if it's they got 

something going on but I know that me and the other 

boy.

[KING]: didn't have anything to do with it.

[FISHER]: No.
31 A-5289-17

[KING]: Or,

[FISHER]: (inaudible) won't do anything.

[KING]: Or do, do you know about if like if it's a beef 

or something going on between? Anywhere?

[FISHER]: I heard like a beef in Parkside and 

(inaudible) but I don't know.

Defendant did not object during or after the tape was played for the jury. 

During summation, defense counsel argued by the time Fisher gave his 

hospital-bed statement, "the streets were talking," and Fisher obtained "a lot 

more information [about the shooting] tha[n] he had on the day of the incident." 

Counsel pointedly told the jury "[s]omebody gave him the name Reck" and that 

Fisher testified in court he did not know defendant, "that he just, he made that—

the stuff in the statement was untrue. He didn't know [defendant]." 

Defendant not only acquiesced to the now-claimed error, he invited it. 

Generally, under the invited-error doctrine, such choices cannot be appealed. 

State v. A.R., 213 N.J. 542, 561 (2013). "[I]f a party has 'invited' the error, he 

[or she] is barred from raising an objection for the first time on appeal." Ibid.

The doctrine bars trial errors that defendant "induced, encouraged or acquiesced 

in or consented to" as grounds for reversal. State v. Harper, 128 N.J. Super. 

270, 277 (App. Div. 1974); see also State v. Munafo, 222 N.J. 480, 487 (2015). 
32 A-5289-17

"The invited-error doctrine is intended to 'prevent defendants from manipulating 

the system' and will apply 'when a defendant in some way has led the court into 

error' while pursuing a tactical advantage that does not work as planned." State 

v. Williams, 219 N.J. 89, 100 (2014) (quoting A.R., 213 N.J. at 561-62).

Moreover, we do not discern that the admission of the hearsay statements, 

individually or cumulatively, was plain error "clearly capable of producing an 

unjust result," R. 2:10-2; see also State v. Whitaker, 200 N.J. 444, 465 (2009),

particularly when that hearsay played a central role in the defense. "Trial errors 

which were induced, encouraged or acquiesced in or consented to by defense 

counsel ordinarily are not a basis for reversal on appeal." Harper, 128 N.J. 

Super. at 277; see also A.R., 213 N.J. at 561. The Court recently "cautioned that 

'rerun[ning] a trial when the error could easily have been cured on request[] 

would reward the litigant who suffers an error for tactical advantage either in 

the trial or on appeal.'" Singh, 245 N.J. at 13 (alterations in original) (quoting

State v. Santamaria, 236 N.J. 309, 404 (2019)). Again, the State did not seek to 

elicit what others told Fisher; that evidence undermined its case, specifically 

Fisher's identification of defendant from his hospital bed. We also note the court 

twice struck Fisher's testimony about what Perry said. Further, although in his 

statement Fisher said Burnett identified Reck in the Jeep and that Burnett knew 
33 A-5289-17

him, he qualified the identification by saying "but just like we don't know him, 

know him, like"; and Fisher never implicated defendant in the "Parkside beef."

The jury was given an opportunity to assess Fisher's hospital-bed 

statement and his trial testimony and determine which version was credible. The 

trial court cogently instructed the jury, mentioning Fisher by name, on prior 

inconsistent statements, recanting witness statements including those giving 

statements under police interrogation, and pending criminal charges. The jury 

was fully apprised on how to assess Fisher's credibility. The court also 

instructed the jury on Fisher's identification of defendant. 

Under the circumstances, absent defendant's objection and tactical use of 

the hearsay to aid his defense, the admission of the hearsay statements was not 

"sufficient to raise a reasonable doubt as to whether the error led the jury to a 

result it otherwise might not have reached." Macon, 57 N.J. at 335-36 ("No 

matter how a test may be stated, the question whether an error is reason for 

reversal depends finally upon some degree of possibility that it led to an unjust 

verdict."); see also State v. Melvin, 65 N.J. 1, 18-19 (1974). Likewise, 

defendant's failure to request a curative instruction regarding Fisher's testimony 

about what Perry told him—other than those given by the trial court—supports 

that he planned to use the evidence to his advantage or he viewed any error "was 
34 A-5289-17

actually of no moment." State v. Yough, 208 N.J. 385, 400-01 (2011) (quoting 

Macon, 57 N.J. at 333).

We also apply the plain error standard to defendant's argument, raised for 

the first time on appeal, that King violated N.J.R.E. 701 and invaded the jury's 

province by narrating "grainy [video] footage culled from the surveillance 

camera located across the street from the incident," twice depicting a Jeep, and 

opining it was the same Jeep, registered to defendant, police later recovered near 

the crime scene, depriving him of his rights to due process and a fair trial. 

Defendant avers King's "opinion testimony was on an ultimate issue to be 

determined by the jury, to wit, whether [defendant] was involved in the 

homicide," and "was improper because the narration was not based on . . . King's 

contemporaneous perception of the actual event; it was based on his subjective, 

post-hoc review of the surveillance video." 

Defendant did not object to King's trial testimony. We thus will reverse 

only if the testimony was "clearly capable of producing an unjust result." R.

2:10-2. "An evidentiary error will not be found 'harmless' if there is a reasonable 

doubt as to whether the error contributed to the verdict." State v. J.R., 227 N.J.

393, 417 (2017). Moreover, the "prospect that the error gave rise to an unjust 

result 'must be real [and] sufficient to raise a reasonable doubt as to whether [it] 
35 A-5289-17

led the jury to a verdict it otherwise might not have reached.'" Ibid. (alterations 

in original) (quoting State v. Lazo, 209 N.J. 9, 26 (2012)).

We first note defendant argues that King narrated the surveillance video. 

The video, however, was not played during his testimony. In the only portion 

of the record cited by defendant in support of this argument, the assistant 

prosecutor asked King his purpose in having the recovered Jeep police towed; 

King responded: "Once we looked at the surveillance videos and matched 

them—compared them to the actual vehicle competent [sic] that this was the 

actual vehicle used in the shooting, I applied for a search warrant." 

The admissible testimony leading up to that statement offers context. 

King had testified that he viewed the surveillance video and obtained a 

description from an eyewitness of the vehicle used in the shooting. Referencing 

a map of the crime-scene area, King described police efforts to canvass the area 

that resulted in finding "the vehicle fitting the description parked near [the crime 

scene], that matched the description of the vehicle that was seen in the video." 

King described the recovered vehicle as a "dark-colored box, older-model Jeep 

Cherokee," he found was registered to defendant. He explained he had crimescene detectives photograph the Jeep "[j]ust for identification purposes, in terms 
36 A-5289-17

of comparing it to the video surveillance . . . ." He then testified why he had the 

Jeep towed. He also testified defendant had reported the Jeep stolen. 

The Court's recent review of the applicable law explained the difference 

between lay opinion and "fact testimony." Singh, 245 N.J. at 14-16. Lay 

opinion under N.J.R.E. 701 "can be admitted only 'if it falls within the narrow 

bounds of testimony that is based on the perception of the witness and that will 

assist the jury in performing its function.'" Id. at 14 (quoting State v. McLean, 

205 N.J. 438, 456 (2011)). The first of the rule's prongs "requires the witness's 

opinion testimony to be based on the witness's 'perception,' which [']rests on the 

acquisition of knowledge through use of one's sense of touch, taste, sight, smell 

or hearing.'" Ibid. (quoting McLean, 205 N.J. at 457). "The second requirement 

of N.J.R.E. 701 is that lay-witness opinion testimony be 'limited to testimony 

that will assist the trier of fact either by helping to explain the witness's 

testimony or by shedding light on the determination of a disputed factual issue.'" 

Id. at 15 (quoting McLean, 205 N.J. at 458). The Court reiterated "'[f]act 

testimony has always consisted of a description of what the officer did and saw,'" 

and that "'an officer is permitted to set forth what he or she perceived through 

one or more of the senses.'" Ibid. (quoting McLean, 245 N.J. at 460). 
37 A-5289-17

Applying those tenets, the Court ruled a detective's testimony that the 

sneakers worn by the perpetrator of a robbery depicted in surveillance footage 

were similar to sneakers worn by the defendant when he was arrested, see id. at 

8, "was proper lay opinion testimony under N.J.R.E. 701," id. at 17-18. Like 

defendant, the defendant in Singh argued the detective's "statement as to the 

similarity between the two was improper because the sneakers were admitted 

into evidence, and the jury was capable, having seen the surveillance video, of 

comparing the sneakers in evidence to those on the video" and "admitting [the 

detective's] testimony as lay opinion testimony was therefore improper because 

the detective was in no better position to evaluate the similarity between the 

sneakers than the jury." Id. at 19. The Court disagreed, holding N.J.R.E. 701

does not require the lay witness to offer something that 

the jury does not possess. Nor does it prohibit 

testimony when the evidence in question has been 

admitted, as it was here. . . . We decline to write such 

an additional requirement into that rule of evidence.

[Ibid.]

The Court noted the detective had seen the sneakers the defendant was 

wearing when he was arrested. Id. at 20. Because the detective had also seen 

on the video surveillance footage what defendant was wearing, "his lay witness 

opinion as to the similarities between the sneakers from the surveillance footage 
38 A-5289-17

and the sneakers he saw that night was rationally based on his perception." Id.

at 19-20. The Court also recognized the detective's testimony was helpful to the 

jury; based on his "first-hand knowledge of what the sneakers looked like" when 

the defendant was arrested, he "permissibly testified" the sneakers looked alike. 

Id. at 20.

The Court rejected the same arguments defendant now makes:

Simply because the jury may have been able to evaluate 

whether the sneakers were similar to those in the video 

does not mean that [the detective's] testimony was 

unhelpful. Nor does it mean that [the detective's] 

testimony usurped the jury's role in comparing the 

sneakers. Indeed, the jury was free to discredit [the 

detective's] testimony and find that the sneakers in 

evidence were dissimilar to those on the surveillance 

video. 

[Ibid.]

Notably, King first testified the recovered vehicle "fit" or "matched" the 

description of the Jeep—an older, dark-colored model with a box shape—not 

that the recovered Jeep was that seen in the video. He had the vehicle 

photographed so that it could be compared to the surveillance video; he did not 

summarily conclude it was the same vehicle. 

Nevertheless, like the detective in Singh who saw both the surveillance 

footage and the defendant's sneakers, King viewed the surveillance footage and 
39 A-5289-17

the recovered Jeep. His testimony was based on his perceptions and aided the 

jury—particularly since, as defendant contends, the video was "grainy"—thus 

satisfying both of N.J.R.E. 701's prongs. 

As in Singh, the jury had the surveillance video and stills taken from that 

footage and could compare them with the recovered Jeep. It was left to the jury 

to decide if they were the same or similar. Again, the surveillance video was 

not played when King described what he had seen; he was not narrating what 

was depicted in the footage. Moreover, King did not testify as to the ultimate 

issue: that defendant had shot the victims. See ibid. In fact, King never testified

defendant was in the Jeep when the shooting occurred or that defendant fired the 

shots. It was left to the jury to link the Jeep to the shooting, defendant to the 

Jeep at the time of the shooting and defendant to the actual shooting. The jury 

also considered that the recovered Jeep was found in close proximity to the crime 

scene—a fact used by defendant in arguing in summation that if defendant had 

shot the victims, he would not have parked the Jeep so close to the crime scene, 

suggesting "whoever brought that Jeep back to that area didn't care whether or 

not it was located by the police because they didn't have a tie-in to that Jeep"—

and that defendant had reported the Jeep stolen. The ultimate issue was left to 

the jury. 
40 A-5289-17

As such, we do not conclude King's brief testimony: "Once we looked at 

the surveillance videos and matched them—compared them to the actual vehicle 

competent [sic] that this was the actual vehicle used in the shooting, I applied 

for a search warrant," resulted in plain error. To be sure, his jumbled statement 

"competent that this was the actual vehicle used in the shooting" can be taken as 

suggestive of defendant's guilt. But viewed in the context of his entire testimony 

it was not "clearly capable of producing an unjust result." R. 2:10-2.

In a pro se supplemental brief, defendant argues, again for the first time 

on appeal, that his identification by Fisher from a single photograph shown by 

King was unduly suggestive, particularly when Fisher did not identify defendant 

three days prior when shown eight photographs at a separate identification 

procedure. 

Defendant's argument ignores the fact that prior to being shown the single 

photograph of defendant, Fisher told King he knew "Reck" and explained to 

King how he knew him from his in-person and Facebook encounters during the 

year prior to the shootings. Defendant concedes in his merits brief that Fisher 

told the detectives "that he knew Wreck/Reck for about a year or so, and had 

seen him several times during that period. He also informed these investigators 
41 A-5289-17

that shortly after he was shot, and while still in the hospital, he had noticed that 

Wreck/Reck[']s [F]acebook profile had changed to 'Shootin Shxt.'" 

Identification was not an issue in the case until Fisher recanted his 

statement to King at trial. To that point, Fisher's identification was 

confirmatory. As the Court explained, 

[a] confirmatory identification occurs when a witness 

identifies someone he or she knows from before but 

cannot identify by name. See, e.g., National Research 

Council, Identifying the Culprit: Assessing Eyewitness 

Identification 28 (2014) ("Confirmatory Photograph: 

Police will, on occasion, display a single photograph to 

a witness in an effort to confirm the identity of a 

perpetrator. Police typically limit this method to 

situations in which the perpetrator is previously known 

to or acquainted with the witness."); Sides v. 

Senkowski, 281 F. Supp. 2d 649, 654 (W.D.N.Y. 2003) 

("parties knew each other previously"). For example, 

the person may be a neighbor or someone known only 

by a street name. See Identifying the Culprit, at 22. 

[State v. Pressley, 232 N.J. 587, 592-93 (2018).]

Such identifications are "not considered suggestive." Id. at 592.

Defendant did not request a pretrial hearing to challenge Fisher's 

identification and did not object to its admission at trial. The admission of 

Fisher's identification was not plain error under the standard we have here oftrepeated. The jury was apprised of both Fisher's identification and his 

recantation, and it was instructed on how to assess that identification.
42 A-5289-17

Although defendant claims Fisher did not select his photograph from the 

eight he was shown, the record does not support that averment. The CCPO 

supplemental report prepared by the detective who conducted that procedure, 

appended to defendant's pro se brief, does not identify whose photographs were 

shown to Fisher. Indeed, in his brief, defendant states "the record does not 

reflect . . . King showing the photographic display. Please extract from the 

record." And the State asserts defendant's photograph was not among those 

shown to Fisher. It points to King's trial testimony that two fingerprint matches 

other than defendant's were lifted from the Jeep, prompting King to order two 

photo arrays generated that included those two persons. Those displays were

shown to Fisher; he was unable to identify anyone in either array as being 

involved in the shooting. Nothing in the record, however, shows that defendant's 

photograph was included in any array shown to Fisher. 

Because the issue was not raised to the trial court, the record is not 

sufficiently developed to allow review of defendant's argument. As such we 

decline to consider it. State v. Robinson, 200 N.J. 1, 20 (2009). The same holds 

true for defendant's cryptic argument "that there was never an orgin [sic] as to 

where these detectives had produced photograph from . . . ." 
43 A-5289-17

In his amended pro se letter brief, defendant argues the trial court "failed 

to adhere to the procedure for imposing a discretionary consecutive term,"

improperly weighed the aggravating and mitigating factors and imposed an 

excessive sentence. 

After mergers, the trial court sentenced defendant to forty-five years, 

subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, for the firstdegree murder of Burnett (count one), concurrent to a seven-year sentence with 

forty-two months of parole ineligibility under the Graves Act, N.J.S.A. 2C:43-

6(c), for second-degree unlawful possession of a firearm (count five), and a 

fifteen-year sentence, subject to NERA, for first-degree conspiracy to commit 

murder (count six), but imposed a consecutive fifteen-year sentence, subject to 

NERA, for the first-degree attempted murder of Fisher (count two).

We "review sentencing determinations in accordance with a deferential 

standard. [In our review, we] must not substitute [our] judgment for that of the 

sentencing court." State v. Fuentes, 217 N.J. 57, 70 (2014). Our duty is to 

assure that the aggravating and mitigating factors found by the court are 

supported by "competent credible evidence in the record." State v. Roth, 95 N.J. 

334, 364 (1984). As directed by the Court, we must (1) "require that an exercise 

of discretion be based upon findings of fact that are grounded in competent, 
44 A-5289-17

reasonably credible evidence"; (2) "require that the factfinder apply correct legal 

principles in exercising its discretion"; and (3) modify sentences only "when the 

application of the facts to the law is such a clear error of judgment that it shocks 

the judicial conscience." Id. at 363-64. Applying a deferential standard of 

review to the court's sentencing determination, we find no error in the court's 

identification and balance of the "aggravating and mitigating factors that are 

supported by competent credible evidence in the record." State v. O'Donnell, 

117 N.J. 210, 215 (1989); see also State v. Grate, 220 N.J. 317, 337 (2015).

The court found aggravating factors one, N.J.S.A. 2C:44-1(a)(1) (the 

"nature and circumstances of the offense" and defendant's role therein, including 

whether the crime was "committed in an especially heinous, cruel or depraved 

manner"); three, N.J.S.A. 2C:44-1(a)(3) (the risk that defendant will reoffend); 

and nine, N.J.S.A. 2C:44-1(a)(9) (the need for deterrence), and determined, "on 

a qualitative as well as quantitative basis," they "clearly, convincingly and 

substantially outweigh[ed]" mitigating factors three, N.J.S.A. 2C:44-1(b)(3) 

("defendant acted under strong provocation"); five, N.J.S.A. 2C:44-1(b)(5) (the 

victim induced or facilitated the commission of the crime); and seven, N.J.S.A. 

2C:44-1(b)(7) ("defendant has no history of prior delinquency or criminal 

activity or has led a law-abiding life for a substantial period of time" leading up 
45 A-5289-17

to the present crime). The trial court fully complied with Rule 3:21-4(g) 

pointing to specific facts supporting its determination of the aggravating and 

mitigating factors. 

The court based aggravating factor one on the evidence that this was "a 

planned and premeditated attack on three defenseless victims carried out by the 

defendant and accomplices" with a specific target—Perry—and that "at least 

[seventeen] shots were fired . . . on a busy street in Camden at approximately 

6:38 p.m." on a mid-June day. The court also considered that Burnett—who was 

not the intended target—was struck three times and killed, and Fisher and Perry 

were each struck once. 

In finding aggravating factor three, the trial court followed our Supreme 

Court's guidance that "[a] court's findings assessing . . . the predictive 

assessment of chances of recidivism . . . involve determinations that go beyond 

the simple finding of a criminal history and include an evaluation and judgment 

about the individual in light of his or her history." State v. Thomas, 188 N.J. 

137, 153 (2006). The trial court noted defendant's statement that his actions 

were impelled by his belief that Perry had killed his friend and had shot at 

defendant. The court also considered that defendant had "implied that he was 

justified in taking this action as a payback, and he was not concerned about the 
46 A-5289-17

fact that the two people standing near . . . Perry, the target, were also struck by 

bullets and that one died," and that defendant was "not remorseful." The court 

further explained "[t]he extremely violent nature of the defendant's actions here, 

including the callous involvement of bystanders in the shooting attack, support 

the proposition that there is a high risk that the defendant will re-offend in a 

similar way." 

The evidence supporting the high risk found by the court prompted it to 

also find there was a "correspondingly great" need to deter him and "other 

people inclined to engage in the same manner of street violence." Thus the trial 

court followed the Court's directive that a determination of factor nine involves 

not only "a 'qualitative assessment' of the risk of recidivism, but 'also involve[s] 

determinations that go beyond the simple finding of a criminal history and 

include an evaluation and judgment about the individual in light of his or her 

history.'" Fuentes, 217 N.J. at 78 (alteration in original) (quoting Thomas, 188 

N.J. at 153). The trial court pointed to specific facts supporting its conclusion 

that there was a need to deter both defendant and the general public from 

engaging in future criminal behavior. See id. at 78-79; see also State in the 

Interest of C.A.H. & B.A.R., 89 N.J. 326, 337 (1982) (determining that 

"demands for deterrence are strengthened in direct proportion to the gravity and
47 A-5289-17

harmfulness of the offense and the deliberateness of the offender"); State v. 

Rivers, 252 N.J. Super. 142, 153-54 (App. Div. 1991) (recognizing a defendant's 

lack of remorse as one of the many reasons supporting aggravating factor nine).

The court admeasured "heavy weight" to aggravating factor one and "high 

weight" to three and nine "together." The court declined to find aggravating 

factor six, N.J.S.A. 2C:44-1(a)(6) (the extent of "defendant's prior criminal 

record and the seriousness" of his convicted offenses). 

In finding mitigating factors three and five, the trial court gave "defendant 

the benefit of the doubt that he received some credible information" that Perry 

had killed his friend and shot at him. The court accorded "low weight" to those 

factors in that those "incidents apparently had occurred months in the past" and 

"could not reasonably be expected to have had a significant effect on the 

defendant at the time of the defendant's offense in the present case." The court 

also found mitigating factor seven but gave it "low weight" noting defendant's 

single 2012 juvenile adjudication and defendant's age—eighteen years old—at 

the time of the crimes. The court also considered defendant's age but gave it 

"low weight, considering in the end he was an adult" when he shot at and killed 

or injured the victims. 
48 A-5289-17

We discern no abuse in the court's finding of the applicable sentencing 

factors and its weighing of those factors; the court well explained its reasoning 

and based its findings on competent record evidence. 

We likewise find no abuse in the trial court's decision to impose a 

consecutive sentence for the attempted murder of Fisher. 

In State v. Yarbough, 100 N.J. 627, 643-44 (1985), superseded by statute 

in part, N.J.S.A. 2C:44-5(a), as recognized in State v. Cuff, 239 N.J. 321 (2019), 

our Supreme Court established factors that a sentencing court must consider 

when deciding whether to impose consecutive sentences:

(1) there can be no free crimes in a system for which 

the punishment shall fit the crime;

(2) the reasons for imposing either a consecutive or 

concurrent sentence should be separately stated in the 

sentencing decision;

(3) some reasons to be considered by the sentencing 

court should include facts relating to the crimes, 

including whether or not:

(a) the crimes and their objectives were 

predominantly independent of each other;

(b) the crimes involved separate acts of 

violence or threats of violence;

(c) the crimes were committed at different 

times or separate places, rather than being 

committed so closely in time and place as 
49 A-5289-17

to indicate a single period of aberrant 

behavior;

(d) any of the crimes involved multiple 

victims;

(e) the convictions for which the sentences 

are to be imposed are numerous

(4) there should be no double counting of aggravating 

factors;

(5) successive terms for the same offense should not 

ordinarily be equal to the punishment for the first 

offense[.]

See also State v. Torres, __ N.J. __, __ (2021) (slip op. at 32, 34) (instructing 

trial courts "performing the Yarbough fairness assessment must be mindful that 

aggravating and mitigating factors and Yarbough factors, as well as the stated 

purposes of sentencing in N.J.S.A. 2C:1-2(b), in their totality, inform the 

sentence's fairness" which "cannot be divorced from consideration of the person 

on whom it is imposed. . . . Assessing the overall fairness of a sentence requires 

a real-time assessment of the consequences of the aggregate sentences 

imposed").

The court carefully reviewed each of the Yarbough factors and recognized 

they, particularly factor three's subparts, should be applied qualitatively, not just 

quantitatively, and consecutive sentences may be imposed even though a 
50 A-5289-17

majority of the subparts support concurrent sentences. State v. Carey, 168 N.J. 

413, 427-28 (2001).

The court found the crimes "were not predominantly independent of one 

another because all of the offenses relate to a single shooting episode lasting 

less than one minute, approximately" and they were not "committed at different 

times or separate places"; confirmed it was "taking care" to avoid doublecounting the aggravating factors; and was "mindful" to "avoid double[-]counting 

where the basis for convictions is the existence of multiple victims." It also 

considered the murder and two attempted murders involved separate acts of 

violence resulting in three victims being shot, and defendant faced sentencing 

on six convictions with sentences imposed on four counts after mergers that 

included the attempted murder of the third victim, Perry. The court also set forth 

the weight it gave to each of the factors.

The trial court acted within its discretion in imposing the consecutive 

sentence. Notably, the court was "mindful of the real time consequences of the 

aggregate sentence," imposing just one consecutive sentence notwithstanding 

that there were three victims and multiple counts, and imposed midrange 

sentences for each of the consecutive sentences. See State v. Abdullah, 184 N.J. 

497, 515 (2005) (instructing trial courts to consider the fairness of the overall 
51 A-5289-17

sentence). We see no reason to disturb the trial court's sentence which properly 

evaluated the Yarbough factors. See State v. Miller, 205 N.J. 109, 129 (2011). 

The court's thoughtful sentencing analysis, based on competent, credible 

evidence, resulted in an aggregate sixty-year sentence for a murder and two 

attempted murders. 

In the final analysis, we will not second-guess or intervene in a trial 

judge's sentencing decision if the sentence was imposed in accordance with the 

sentencing laws and guidelines. State v. Jabbour, 118 N.J. 1, 5-6 (1990). The 

judge imposed an entirely appropriate sentence well within the bounds of 

accepted legal principles. The sentence does not shock the judicial conscience. 

See O'Donnell, 117 N.J. at 215-16. 

Lastly, we are unpersuaded by defendant's Rule 2:6-11(d) argument that 

the enactment of N.J.S.A. 2C:44-1(b)(14) requires reversal because "[t]he trial 

[court's] concession that he would give 'low–low' consideration, if any, to 

[defendant's] age was inconsistent with the statute." 

When defendant was sentenced in May 2018, a defendant's age was not 

an independent mitigating factor. The additional mitigating factor implemented 

by the Legislature provides a trial court may consider that a "defendant was 

under [twenty-six] years of age at the time of the commission of the offense."
52 A-5289-17

N.J.S.A. 2C:44-1(b)(14). The Legislature did not address whether the 

amendment adding mitigating factor fourteen should be given retroactive 

application, but it provided an effective date of October 19, 2020. The effective 

date evidences the Legislature's intent that the law should be applied 

prospectively. See State v. J.V., 242 N.J. 432, 435 (2020); Pisack v. B & C 

Towing, Inc., 240 N.J. 360, 370-71 (2020). 

We further note the trial court found defendant's youth as a mitigating 

factor. Thus, we reject defendant's contention that the Legislature's enactment 

of the new statute, N.J.S.A. 2C:44-1(b)(14), requires reversal. 

To the extent not here addressed, we determine defendant's remaining 

sentencing arguments to be without sufficient merit to warrant discussion. R.

2:11-3(e)(2).

Affirmed in part; the trial court's order settling the record is vacated and 

the matter is remanded for a hearing to address that issue and for the trial court's 

reconsideration, based on the results of that hearing, of its decision with regard 

to defendant's motion to suppress his statements. We do not retain jurisdiction.