SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NOS. A-0737-16T1

 A-0861-16T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MAURICE L. SKILLMAN,

Defendant-Appellant.

____________________________

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

HYKEEM E. TUCKER,

Defendant-Appellant.

_____________________________

Submitted (A-0737-16) and Argued (A-0861-16)

January 29, 2019 – Decided March 7, 2019

Before Judges Yannotti, Rothstadt and Gilson.

NOT FOR PUBLICATION WITHOUT THE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-0737-16T1

On appeal from Superior Court of New Jersey, Law 

Division, Mercer County, Indictment No. 13-09-1150.

Joseph E. Krakora, Public Defender, attorney for 

appellant in A-0737-16 (Michael J. Confusione, 

Designated Counsel, on the brief).

Gurbir S. Grewal, Attorney General, attorney for 

respondent in A-0737-16 (Evgeniya Sitnikova, Deputy 

Attorney General, of counsel and on the brief).

John W. Douard, Assistant Deputy Public Defender,

argued the cause for appellant in A-0861-16 (Joseph E. 

Krakora, Public Defender, attorney; Joshua D. Sanders, 

Assistant Deputy Public Defender, of counsel and on 

the brief).

Evgeniya Sitnikova, Deputy Attorney General, argued 

the cause for respondent in A-0861-16 (Gurbir S. 

Grewal, Attorney General, attorney; Evgeniya 

Sitnikova, of counsel and on the brief).

PER CURIAM

Defendants Maurice Skillman and Hykeem Tucker were tried before a 

jury and found guilty of purposeful or knowing murder and other offenses.

Skillman and Tucker appeal from judgments of conviction (JOC) dated August 

25, 2016. We address both appeals in this opinion. For the reasons that follow, 

we affirm defendants' convictions, but remand for resentencing because it is not 

clear from the record whether the judge intended to sentence defendants to terms 

of life imprisonment or seventy-five-year prison terms.
3

A-0737-16T1

I.

In September 2013, a Mercer County grand jury returned an indictment 

charging defendants with: the purposeful or knowing murder of Carl Batie, 

N.J.S.A. 2C:11-3(a)(1) or (2) (count one); second-degree possession of a 

weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a), N.J.S.A. 2C:2-6 (count 

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

N.J.S.A. 2C:2-6 (count three); and three counts of fourth-degree aggravated 

assault with a firearm, N.J.S.A. 2C:12-1(b)(4), N.J.S.A. 2C:2-6 (counts four, 

five, and six). 

Defendants filed various pre-trial motions, including a motion to suppress 

surveillance videos, and a motion to bar a detective from narrating the videos as

they were played for the jury. On June 25, 2015, the judge entered an order 

denying the motions. The motion judge found that the surveillance videos were 

sufficiently clear and could be admitted into evidence. The judge also found 

that the detective's narration of the videos was permissible as lay opinion under 

N.J.R.E. 701 because it was "rationally based upon [the detective's] own 

perceptions." 

It appears that at some point, count six was dismissed. Thereafter, on 

various dates in January and February 2016, defendants were tried together
4

A-0737-16T1

before a jury, with another judge presiding. After the State rested, the judge 

dismissed count four. The jury was unable to reach a verdict on the other counts, 

and the judge declared a mistrial. In May and June 2016, defendants were 

retried. 

At the trial, the State presented evidence which established that on the 

evening of November 10, 2012, an event celebrating the re-election of President 

Obama was held at the Baldassari Regency (Regency), a club located at the 

corner of Morris Avenue and Division Street in Trenton. The Regency hired 

two officers employed by the Trenton Police Department (TPD), to assist in 

providing security for the event. 

At around 12:30 a.m., a security guard denied an individual entry into the 

Regency because he was underage and provided someone else's identification. 

Thereafter, the officers on hand confiscated the identification and asked the 

individual to leave. The individual became agitated and told the officers, "Fuck 

you, I'll be back. I got something for you. I don't give a fuck if you're on-duty

or off-duty, that badge don't mean shit. That badge ain't gonna save you from a 

bullet." This individual was later identified as S.R.1

 

1

In this opinion, we refer to certain individuals by their first names to avoid 

confusion. We also refer to other individuals using initials to protect their 

privacy. 
5

A-0737-16T1

Marquis Skillman, defendant Skillman's brother, testified that on the 

evening of November 10, 2012, he drove his girlfriend's blue Chevrolet Impala 

to the Regency. Marquis went to the Regency with his brother and two other

persons. One was known as Tex, and the other as Dower. Marquis identified

Tucker in court as the person known as Tex. According to Marquis, that night, 

neither Tucker nor his brother were in possession of a gun. 

At around 11:30 p.m. or midnight, Karshawn Batie and his brother Carl

went to the Regency to attend the celebration. At some point, they went up to

the Regency's exterior balcony, which is on the second floor. Carl began talking 

to security guard Alexis Feliciano, with whom he was acquainted. While Carl 

was talking to Feliciano, gunshots were fired at the balcony from the Regency's 

parking lot. 

Feliciano stated that fifteen to twenty rounds were fired back-to-back.

Feliciano told everyone to get down. He observed Carl gasping for air and saw 

that he had been shot in the head. Feliciano testified that he observed a person

wearing a gray hoodie shooting at the balcony. He saw the suspect run into an 

alleyway. 

Karshawn testified that when the shooting began, a woman grabbed him 

and pulled him to the ground. After the shooting stopped, Karshawn looked for 
6

A-0737-16T1

his brother. He saw Carl lying face up. Carl had been shot in the head. Carl 

was taken to a hospital, where he was pronounced dead. An autopsy was 

performed and it was determined that the cause of death was a gunshot wound 

to the head. 

Detective Timothy Long of the TPD testified that he arrived at the 

Regency shortly after the shooting, and he observed about 200 people out in the 

street. Long described the atmosphere as panicked, with some people engaged 

in street fights and arguments. Long observed a black man wearing a blackhooded sweatshirt and gray pants, who was starting an argument with another 

black man. 

Long saw the man with the hooded sweatshirt throw several punches at 

the other man. Long ordered the man to stop fighting, but he ignored him. The 

man started to walk off and tried to hop a fence at a residence on Division Street.

Long eventually arrested the man, who was later identified as defendant 

Skillman. 

Detective Scott Peterson of the TPD investigated the incident. He testified

that on the night of the shooting, the Regency had at least five surveillance 

cameras. One camera was inside by the entrance, and other cameras were 

outside. The detectives downloaded videos from these surveillance cameras. 
7

A-0737-16T1

The jury was shown excerpts of the videotapes, along with screen shots 

taken from the videotapes. Peterson identified the videotapes and the screen

shots. He described the locations of surveillance cameras that recorded the 

videos. He also identified the areas depicted on the videos and screen shots. 

Peterson explained that a school is located across from the Regency on

Morris Avenue, and on the evening of November 10, 2012, cars parked in the 

school's lot for the event. The Regency also has a parking lot where cars parked 

for the event. Peterson pointed out that there are several alleys near the 

Regency's parking lot, including Winton Alley and Saco Alley. 

Peterson began his review of the surveillance footage with the video of 

the shooting, which he said occurred around 1:15 a.m. Peterson noted that the 

timestamp on the videos was fifty minutes ahead of the time recorded. He stated 

that the police recovered twenty-two shell casings from the center of the 

Regency's parking lot. 

The footage recorded by one of the cameras depicted a portion of the

Regency's parking lot near Saco Alley. It showed two individuals walking 

between two cars. Peterson testified that one of the individuals was a black male 

wearing a varsity-style jacket, and the other individual was a taller, thin male. 
8

A-0737-16T1

He noted that at one point, the men are seen entering and exiting a white van in 

the parking lot. 

Peterson testified that the video showed that at around 1:13 a.m., the two 

men were standing near the van. According to Peterson, it appeared that the tall 

man had something in his hand. Peterson said the video showed the men 

entering the alley. At around 1:14 a.m., the taller man walked towards the 

middle of the parking lot, and the man in the varsity jacket followed. 

Peterson stated that the video showed the tall man walk back to the van 

and then proceed towards Saco Alley. The tall man then ran back from the alley, 

heading in the direction of Morris Avenue. Peterson testified that the video 

showed what appeared to be a flash of light, extending out from the tall man's

arm. At that point, the man in the varsity jacket was in the middle of the parking 

lot. 

Peterson testified that the investigation focused on identifying the two 

suspects. He reviewed the surveillance video of S.R.'s altercation with the 

police at the entrance to the Regency, but S.R. did not match the persons shown 

in the video recorded at the time of the shooting. Therefore, the police 

determined that S.R. was not a suspect. Peterson reviewed other surveillance 

videos, and in the videos, the varsity jacket stood out. 
9

A-0737-16T1

Another video was played for the jury, and Peterson testified it showed 

that around 11:54 p.m., a dark blue or black Chevrolet Impala enter the Regency

parking lot and park near a work van. The investigators determined that the 

Impala was owned by Marquis's girlfriend, A.B. Peterson also noted that in the

video, the man in the varsity jacket is seen getting out of the Impala. 

Peterson interviewed Marquis and showed him a screen shot taken from 

footage recorded by the Regency's front-door surveillance camera at around 

12:15 a.m. The screen shot showed Marquis and the person known as Tex.

Marquis identified Tucker as the person called Tex. Peterson noted that during 

the investigation, he interacted several times with both defendants and he was 

familiar with them. 

Peterson further testified that based on his investigation and his own 

observations of both defendants, Tucker is the person shown in the surveillance 

video wearing the varsity jacket, and Skillman is the taller man. Peterson also 

said other surveillance videos showed that around midnight, Skillman and 

Tucker walked towards the front entrance of the Regency, and several minutes 

after midnight, they entered with Marquis. Peterson said a surveillance video 

shows defendants leaving the Regency about forty minutes later. 
10 A-0737-16T1

Peterson also testified that another video recorded around 1:15 a.m., 

shows Skillman jogging through the parking lot at a fast pace. He stated that

the video shows Skillman's arm down at his side, and there is a black object at 

the end of his arm. The video shows Skillman lift his arm and a flash of light 

comes from it. Defendants are then seen fleeing in the direction of the

alleyways. 

The jury found defendants guilty of the purposeful or knowing murder of 

Carl Batie, possession of a weapon for an unlawful purpose, unlawful possession 

of a handgun, and aggravated assault with a firearm upon Alexis Feliciano. The 

trial judge sentenced defendants on August 19, 2016. 

The judge merged count two (possession of a weapon for an unlawful 

purpose) with count one (murder). The judge stated that he was sentencing both

defendants on count one to life imprisonment, with an eighty-five percent period 

of parole ineligibility and five years of parole supervision, pursuant to the No 

Early Release Act (NERA), N.J.S.A. 2C:43-7.2. However, when he sentenced 

Skillman, the judge stated, "That means a [seventy-five]-year period of time, 

[eighty-five] percent of which must be served without parole." The JOCs for 

both defendants state that they were sentenced to seventy-five year prison terms, 

with a period of parole ineligibility as prescribed by NERA.
11 A-0737-16T1

On count three (unlawful possession of a handgun), the judge sentenced 

defendants to concurrent terms of ten years in prison, each with a five-year 

period of parole ineligibility. On count five (aggravated assault with a firearm 

upon Feliciano), the judge sentenced defendants to consecutive terms of 

eighteen months. In addition, the judge imposed appropriate monetary fines and 

penalties, and ordered defendants to pay restitution of $7373.83. 

Defendants appeal from the JOCs dated August 25, 2016. In his appeal, 

Skillman raises the following arguments:

[POINT I

THE TRIAL COURT ERRED IN DENYING 

DEFENDANT'S MOTION TO SUPPRESS THE 

SURVEILLANCE VIDEO FROM GOING BEFORE 

THE JURY AND PERMITTING DETECTIVE 

PETERSON TO "NARRATE" THE VIDEO FOR THE 

JURY.

POINT II

DEFENDANT'S RIGHT TO A FAIR JURY TRIAL 

WAS INFRINGED.

POINT III

THE PROSECUTION INFECTED THE FAIRNESS 

OF THE TRIAL BY TELLING THE JURY THAT 

DEFENDANT REFUSED TO SPEAK WITH THE 

POLICE ON ARREST. (NOT RAISED BELOW).

POINT IV

THE PROSECUTION SKEWED THE REASONABLE 

DOUBT BURDEN. (NOT RAISED BELOW). 
12 A-0737-16T1

POINT V

DEFENDANT'S SENTENCE IS IMPROPER AND 

EXCESSIVE.]

In his appeal, Tucker raises the following arguments:

POINT I

PETERSON'S TESTIMONY NARRATING THE 

SURVEILLANCE WITH HIS OWN OPINIONS AS 

TO WHAT OCCURRED ON THE VIDEO 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. 

POINT II

THE JURY CHARGE RELATIVE TO 

[DEFENDANT]'S STATEMENT WAS 

INSUFFICIENT TO ADVISE THE JURY OF THE 

NEED TO CRITICALLY AND EFFECTIVELY 

EVALUATE THAT STATEMENT IN LIGHT OF 

THE REALITY THAT JURORS HAVE GREAT 

DIFFICULTY DISTINGUISHING BETWEEN 

FALSE CONFESSIONS AND TRUE CONFESSIONS. 

U.S. CONST. AMEND VI; N. J. CONST. ART I, PAR. 

10. (NOT RAISED BELOW).

POINT III

THE PROSECUTION SKEWED THE STATE'S 

BURDEN TO PROVE ITS CASE BEYOND A 

REASONABLE DOUBT. (NOT RAISED BELOW)

POINT IV

THE TRIAL WAS SO INFECTED WITH ERROR 

THAT EVEN IF EACH INDIVIDUAL ERROR DOES 

NOT REQUIRE REVERSAL, THE AGGREGATE OF 

THE ERRORS DENIED [DEFENDANT] A FAIR 

TRIAL. (NOT RAISED BELOW).
13 A-0737-16T1

POINT V

THE SENTENCING COURT ERRED IN 

DETERMINING THE WEIGHT AFFORDED TO 

AGGRAVATING FACTOR SIX, N.J.S.A. 2C:44-

1a(6), GIVEN THAT AGGRVATING FACTOR SIX 

STATISTICALLY HAS A NEGATIVE, 

DISPROPORTIONATE IMPACT UPON 

MINORITIES.

POINT VI

[DEFENDANT]'S SENTENCE IS EXCESSIVE, 

UNDULY PUNITIVE, AND MUST BE REDUCED. 

II.

On appeal, Skillman and Tucker both argue that the trial judge erred by 

allowing Peterson to testify as to what was depicted on the surveillance videos 

shown to the jury. Defendants argue Peterson's testimony was not admissible 

lay opinion testimony under Rule 701, and improperly usurped the jury's factfinding role. See N.J.R.E. 701. 

We note initially that a trial court's evidentiary rulings are reviewed under 

a "deferential standard" and will not be reversed unless shown to be a mistaken 

exercise of discretion. State v. Perry, 225 N.J. 222, 233 (2016) (quoting State 

v. Brown, 170 N.J. 138, 147 (2001)). An appellate court should not set aside a 

trial court's evidentiary ruling unless it "was so wide of the mark" as to result in 

"a manifest denial of justice." State v. Marrero, 148 N.J. 469, 484 (1997) 

(quoting State v. Kelly, 97 N.J. 178, 216 (1984)). 
14 A-0737-16T1

Here, the motion judge found that Peterson's testimony regarding the 

videos was admissible under Rule 701. The Rule states that: "If a witness is not 

testifying as an expert, the witness' testimony in the form of opinions or 

inferences may be admitted if it (a) is rationally based on the perception of the 

witness and (b) will assist in understanding the witness' testimony or in 

determining a fact in issue." Ibid. To be admissible lay opinion under Rule 701, 

the witness' perception must rest on knowledge acquired "through use of [his or 

her] sense of touch, taste, sight, smell or hearing." State v. McLean, 205 N.J. 

438, 457 (2011) (citing State v. LaBrutto, 114 N.J. 187, 199-200 (1989); Estate 

of Nicolas v. Ocean Plaza Condo Ass'n, 388 N.J. Super. 571, 582 (App. Div. 

2006)).

The witness' testimony also must "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 458. However, lay opinion testimony is not 

admissible under Rule 701 if it pertains to "a matter 'not within [the witness's] 

direct ken . . . and as to which the jury is as competent as he to form a 

conclusion[.]" Id. at 459 (alterations in original) (quoting Brindley v. Firemen's 

Ins. Co., 35 N.J. Super. 1, 8 (App. Div. 1955)).
15 A-0737-16T1

The Court's decision in State v. Lazo, 209 N.J. 9 (2012) is instructive. 

There, the Court held that the trial judge erred by allowing a police officer to 

testify that he believed defendant closely resembled a composite sketch of the 

suspect, and for this reason, included defendant's photo in an array. Id. at 12. 

The Court determined that the officer's testimony improperly bolstered the 

victim's account and usurped the jury's responsibility to weigh the victim's 

credibility. Id. at 13. 

In Lazo, the Court observed that other jurisdictions have permitted law 

enforcement officers to offer a lay opinion identifying a defendant from a 

photograph. Id. at 22. The Court noted that the Ninth Circuit had held that in a 

bank robbery prosecution, a probation officer could testify that he believed 

defendant was the person depicted in a surveillance photo in light of the many 

prior contacts between the two individuals. Ibid. (citing United States v. Beck, 

418 F.3d 1008, 1011, 1015 (9th Cir. 2005)). 

The Lazo Court pointed out that in Beck, the Ninth Circuit stated that

whether such evidence "is 'helpful' . . . depends on various factors[.]" Ibid.

(quoting Beck, 418 F.3d at 1015). Those factors could include "whether the 

witness knew the defendant over time and in a variety of circumstances." Ibid.

(quoting Beck, 418 F.3d at 1015). 
16 A-0737-16T1

The Court in Lazo noted, however, that in another case, the Ninth Circuit 

had determined that it was error for the trial court to allow a police officer to 

identify a defendant from a bank surveillance photo because in that case, the 

officer did not know the defendant and "had never . . . seen him in person." Id.

at 23 (quoting United States v. LaPierre, 998 F.2d 1460, 1465 (9th Cir. 1993)). 

"[T]he officer's knowledge of the defendant's 'appearance was based entirely on 

his review of photographs of [defendant] and witnesses' descriptions of him.'"

Ibid. (second alteration in original) (quoting LaPierre, 998 F.2d at 1465). 

The Lazo Court stated that when evaluating whether a law enforcement 

officer should be permitted to present lay opinion on the issue of identification, 

the trial court should "consider, among other factors, whether there are 

additional witnesses available to identify the defendant at trial." Ibid. (citing

United States v. Butcher, 557 F.2d 666, 670 (9th Cir. 1977); State v. Carbone, 

180 N.J. Super. 95, 97-100 (Law Div. 1981)).

In Butcher, the Ninth Circuit noted that while lay opinion testimony by 

law enforcement officers should not be encouraged, it can be admissible where

there is no other available adequate identification testimony. Butcher, 557 F.2d 

at 670. In Carbone, the trial court admitted lay testimony where there was a lack 

of available eyewitness identification testimony, defendant's appearance had 
17 A-0737-16T1

changed, and the witness was familiar with the defendant's appearance when the 

offense was committed. Carbone, 180 N.J. at 100.

In this case, the motion judge did not err by permitting Peterson to narrate 

the surveillance videos and testify that defendants were the persons depicted in 

the videos. The videos are of varying quality, and Peterson stated that he had to 

watch them several times in order to determine what was occurring. 

Furthermore, the State only presented excerpts of the videos, which were 

recorded at various times, by different surveillance cameras. Peterson informed 

the jury of the locations of the cameras, the locations depicted, and the times the 

videos were recorded. 

Peterson noted that during his investigation, he had several interactions 

with defendants and he was familiar with them. Moreover, during the 

investigation Peterson interviewed Marquis, who identified Tucker as the man 

in the varsity jacket and his brother as the tall man seen with him. 

Furthermore, Peterson's testimony did not usurp the jury's fact-finding 

role. The jury was not bound by Peterson's opinions. The jurors were 

specifically instructed that they had to decide whether defendants were the 

persons depicted in the videos. Peterson's testimony assisted the jury in 

understanding the evidence and determining the facts at issue.
18 A-0737-16T1

We also conclude that even if the judge erred by allowing Peterson's 

testimony, the error was harmless. As noted, during the investigation, Marquis

identified defendants from a screen shot made from the surveillance video. At 

trial, Marquis admitted that during the interview, he identified defendants as the 

persons depicted in the screen shot. 

In addition, the trial judge instructed the jury that it was their duty to 

determine whether the surveillance videos were reliable and whether they

showed defendants committing the crimes for which they were charged. We 

must presume the jury followed the judge's instructions. See State v. Burns, 192 

N.J. 312, 335 (2007) (citing State v. Nelson, 155 N.J. 487, 526 (1998)). 

Therefore, even if erroneous, the judge's decision to allow Peterson to 

narrate the videos and identify defendants as the person depicted therein, was 

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

III.

Next, Skillman and Tucker argue that during his summation, the assistant 

prosecutor made a statement that skewed the State's burden of proof. 

Defendants did not object to the comment. Therefore, we consider whether the 

comment constituted plain error under Rule 2:10-2. 
19 A-0737-16T1

It is well-established that "[p]rosecutors are afforded considerable leeway 

in closing arguments as long as their comments are reasonably related to the 

scope of the evidence presented." State v. Frost, 158 N.J. 76, 82 (1999) (citing 

State v. Harris, 141 N.J. 525, 559 (1995); State v. Williams, 113 N.J. 393, 447 

(1988)). "[P]rosecutorial misconduct can be a ground for reversal" if it is "so 

egregious that it deprived the defendant of a fair trial." Id. at 83 (citing State v. 

Ramseur, 106 N.J. 123, 322 (1987); State v. Siciliano, 21 N.J. 249, 262 (1956)).

In determining whether a prosecutor's statement deprived the defendant of 

a fair trial, we "consider (1) whether defense counsel made timely and proper 

objections to the improper remarks; (2) whether the remarks were withdrawn 

promptly; and (3) whether the court ordered the remarks stricken from the record 

and instructed the jury to disregard them." Ibid. (citing State v. Marshall, 123 

N.J. 1, 153 (1991); Ramseur, 106 N.J. at 322-23; State v. G.S., 278 N.J. Super. 

151, 173 (App. Div. 1994), rev'd on other grounds, 145 N.J. 460 (1996); State 

v. Ribalta, 277 N.J. Super. 277, 294 (App. Div. 1994)). "Prosecutors should not 

make inaccurate legal or factual assertions during a trial." Id. at 85 (citing State 

v. Engel, 249 N.J. Super. 336, 381 (App. Div. 1991)). 

On appeal, defendants argue that the assistant prosecutor improperly 

stated that the State did not have to prove every fact beyond a reasonable doubt. 
20 A-0737-16T1

However, in a criminal prosecution, the State is only required to prove "every 

fact necessary to constitute the crime for which he is charged" beyond a 

reasonable doubt. In re Winship, 397 U.S. 358, 364 (1970). 

Thus, the State only has to prove the facts that constitute the elements of 

an offense beyond a reasonable doubt. See State v. Martinez, 97 N.J. 567, 572 

(1984) (quoting State v. Brown, 80 N.J. 587, 592 (1979)). Therefore, the 

assistant prosecutor's comment was a correct statement of the law, and the 

prosecutor did not improperly skew the State's burden of proof. 

Moreover, even if the prosecutor's statement was erroneous because the 

prosecutor failed to distinguish between facts that are an element of an offense 

and other facts, the error was not "clearly capable of producing an unjust result." 

R. 2:10-2. In his final instructions to the jury, the judge addressed the State's 

burden of proof. The judge stated:

A defendant on trial is presumed to be innocent and 

unless each and every essential element of an offense 

charged in a count of the indictment is proved against 

the defendant beyond a reasonable doubt, the defendant 

must be found not guilty of that particular count. The 

burden is on the State. It doesn't shift. There's no 

burden or obligation on a defendant to enter or give any 

offer of proof whatsoever during the trial.

We must presume the jurors followed the court's instructions. Burns, 192 N.J. 

at 335 (citing Nelson, 155 N.J. at 526).
21 A-0737-16T1

IV.

We next consider Skillman's other contentions. He argues: (1) the motion 

judge erred by denying his motion to suppress the surveillance videos; (2) the 

trial judge erred by denying the motion to dismiss the panel of prospective 

jurors; (3) the State improperly informed the jury that he failed to provide a 

statement after he was arrested; and (4) his sentence is excessive. 

A. Admission of the Video Surveillance Tapes

Skillman argues the motion judge erred by denying his motion to suppress 

the surveillance videos because they are "so 'grainy' as to render [them] 

untrustworthy[.]" Skillman asserts that the images are too poor to identify 

anyone, particularly when the flash from the weapon occurs. He also asserts 

that the timestamp on the videos is inaccurate. 

As we stated previously, a trial court's evidentiary ruling should not be 

reversed unless shown to be a mistaken exercise of discretion. Perry, 225 N.J. 

at 233 (citing Brown, 170 N.J. at 147). We will not reverse unless the ruling 

was "so wide of the mark" that it resulted in "a manifest denial of justice." 

Marrero, 148 N.J. at 484 (1997) (quoting Kelly, 97 N.J. at 216). 

We are convinced that the motion judge's decision to deny the motion to 

suppress the surveillance videos is supported by the record. In his written 
22 A-0737-16T1

opinion, the judge noted that "while not perfectly clear," the videos are 

"sufficiently intelligible and contain[] probative value as to the identity of the 

shooter and possible accomplices." The judge found that the recordings are "not 

so grainy as to render [them] untrustworthy." Furthermore, although the record 

shows that the timestamp on the recordings was incorrect, Peterson testified that 

the timestamp was actually fifty minutes ahead of the actual time. Accordingly,

we conclude the judge did not abuse his discretion by allowing the State to 

introduce the videotapes. 

B. Alleged Denial of Right to Fair Trial 

Skillman asserts that during voir dire, the jury was informed that the 

Public Defender was representing him at trial. He also contends that the jury 

was tainted because during jury selection, certain persons distributed pamphlets

outside the courthouse that discussed a juror's "rights" and "jury nullification." 

He contends because some prospective jurors received copies of the pamphlets, 

the judge should have declared a mistrial and discharged the panel. 

"Our State and Federal Constitutions guarantee the right to trial by an 

impartial jury." State v. Fortin, 178 N.J. 540, 575 (2004) (citing U.S. Const.

amends. VI, XIV; N.J. Const. art. I, ¶ 10). However, the trial judge has broad 

discretion in jury selection and "its exercise of [that] discretion will ordinarily 
23 A-0737-16T1

not be disturbed on appeal." State v. Papasavvas, 163 N.J. 565, 595 (quoting 

State v. Jackson, 43 N.J. 148, 160 (1964)). 

Here, the record does not support Skillman's assertion that the jury was 

informed the Public Defender was representing him at trial. The record shows 

that the court clerk referred to an "intern" but the clerk did not mention the 

Public Defender. Assuming, however, that the clerk made the alleged statement, 

the judge did not abuse his discretion by denying Skillman's motion to discharge 

the panel. 

The alleged reference to the Public Defendant was not capable of denying 

defendant a fair trial. See State v. Martini, 131 N.J. 176, 265-67 (1993) (finding 

that a witness's "inadvertent remark" about the Public Defender's office did not 

constitute reversible error), overruled on other grounds by Fortin, 178 N.J. at 

646. We conclude that the judge did not err by denying the motion to discharge 

the panel.

Skillman also argues that the trial judge erred by denying his request to 

discharge the panel because some jurors were given copies of the 

aforementioned pamphlets. The record shows that on the second day of voir 

dire, the prosecutor questioned a juror about a bookmark she was using. The 
24 A-0737-16T1

juror stated that on the previous day, several individuals were outside the 

courthouse handing out pamphlets. 

The pamphlets, which have not been included in the record on appeal,

apparently discussed a juror's "rights" and "jury nullification." The judge 

indicated that he would question the prospective jurors about the pamphlets at 

sidebar.

Thereafter, Skillman moved to discharge the entire panel, arguing that 

jury pool had been tainted because the pamphlets contained incorrect 

information and instructed the jurors to be untruthful when questioned during 

jury selection. The judge denied the motion. 

We are convinced the judge's ruling was not a mistaken exercise of 

discretion. The judge instructed the jurors that some of the information in the 

pamphlets was incorrect, and that they had to follow their oath to be fair and 

impartial. The judge apparently was satisfied that the jurors could be fair and 

impartial. The record supports that determination. 

C. Alleged Improper Comment

Skillman asserts that the State impermissibly "told the jury that [he] 

refused to speak with the police on arrest." He argues that this alleged statement 

"infected the fairness of the jury trial and warrants a new trial." 
25 A-0737-16T1

A defendant's right against self-incrimination is protected under the 

Federal Constitution and New Jersey common law. U.S. Const. amend. V; State 

v. Elkwisni, 190 N.J. 169, 176, 180 (2007) (citing State v. Muhammad, 182 N.J. 

551, 567 (2005)). Both the United States Supreme Court and our Supreme Court 

have "held that the use of a defendant's silence at the time of his arrest and after 

receiving Miranda warnings" is impermissible. Elkwisni, 190 N.J. at 177 (citing 

Doyle v. Ohio, 426 U.S. 610, 619 (1976)). 

Here, the record shows that the assistant prosecutor questioned Peterson 

about Skillman's interview with the police:

Q Detective, we'll revisit the surveillance video 

from inside the police station. The early morning hours 

of November 11th of 2012, did there come a time when 

you tried to speak with, is it Maurice Skillman?

A Yes.

Q And was that interview video-recorded?

A Yes.

In responding to the prosecutor's question, Peterson did not state that 

Skillman had refused to speak to the police. However, on cross-examination, 

Skillman's attorney asked Peterson, "Now, you said that my client refused to 

talk to you?" Peterson responded, "Yes." 
26 A-0737-16T1

Thus, the statement was elicited by the defense, not the State. There is, 

however, no indication that Skillman was prejudiced by Peterson's brief remark. 

We conclude Peterson's comment was not "clearly capable of producing an 

unjust result." R. 2:10-2. 

D. Sentence

Skillman argues that his sentence is improper and excessive. He contends 

the judge did not adequately explain the basis for his findings of the aggravating 

factors or the weight he assigned to them. He also contends the judge did not 

explain why the sentence imposed was warranted. He argues that the matter 

should be remanded for resentencing. 

Here, the judge found aggravating factors three, six, and nine. N.J.S.A. 

2C:44-1(a)(3), (6), and (9). The judge also found mitigating factor eleven, 

N.J.S.A. 2C:44-1(b)(11) (defendant's imprisonment will cause excessive 

hardship to himself or his dependents). The judge noted that Skillman is not 

married, but has a child for whom he pays support. The judge gave the 

mitigating factor little weight. 

The judge also noted that Skillman has a history of arrests and convictions. 

As a juvenile, Skillman had four arrests, with two adjudications. As an adult, 

Skillman had nine arrests, and two Superior Court convictions. In addition, he 
27 A-0737-16T1

had seven municipal court convictions. The judge observed that Skillman has 

"a pattern of constantly not following society's rules and regulations in 

accumulating this kind of a record." 

In addition, the judge stated that aggravating factor three was "a very 

serious factor in this case." The judge reasoned that the risk of further offense 

was serious based on the nature of the offense. The judge stated, "It strikes me 

that a person who is capable of committing an act such as this of extreme 

violence is capable of other acts." 

The judge also noted that there was a strong need to deter someone like 

Skillman. The judge stated that considering the offense that Skillman

committed, the only way to deter him was incarceration. The judge also stated

that he hoped the sentence would deter others from committing this type of 

crime. 

We review a sentence under an abuse of discretion standard. State v. 

Jones, 232 N.J. 308, 318 (2018) (citing State v. Robinson, 217 N.J. 594, 603 

(2014)). In doing so, we must determine whether: "(1) the sentencing guidelines 

were violated; (2) the findings of aggravating and mitigating factors were . . . 

'based upon competent credible evidence in the record;' [and] (3) 'the application 

of the guidelines to the facts' of the case 'shock[s] the judicial conscience.'" 
28 A-0737-16T1

State v. Bolvito, 217 N.J. 221, 228 (2014) (third alteration in original) (quoting 

State v. Roth, 95 N.J. 334, 364-65 (1984)). We will not set aside a sentence 

unless "there is a 'clear showing of abuse of discretion.'" Ibid. (quoting State v. 

Whitaker, 79 N.J. 503, 512 (1979)). 

We are convinced the judge followed the sentencing guidelines, and there

was sufficient evidence in the record to support the judge's findings of the 

aggravating and mitigating factors. We are constrained, however, to remand the 

matter for resentencing because it is not clear whether the judge intended to 

sentence Skillman to life imprisonment or to a base term of seventy-five years.

As we noted previously, when he sentenced Skillman, the judge stated that 

he was sentencing him to a term of life imprisonment. The judge then stated 

that, "That means a [seventy-five]-year period of time, [eighty-five] percent of 

which time must be served without parole." Skillman's JOC states that he was 

sentenced to a seventy-five year term, and must serve eighty-five percent of that 

term before being eligible for parole.

We note that NERA provides in pertinent part that a person convicted of 

a murder under N.J.S.A. 2:11-3 must serve a minimum term of eighty-five 

percent of the sentence imposed, before becoming eligible for parole. N.J.S.A. 

2C:43-7.2(a) and (d). NERA also provides that, "Solely for the purpose of 
29 A-0737-16T1

calculating the minimum term of parole ineligibility pursuant to subsection a. of 

this section, a sentence of life imprisonment shall be deemed to be [seventyfive] years." N.J.S.A. 2C:43-7.2(b).

Thus, a life sentence is not the equivalent of a seventy-five-year sentence. 

Under NERA, a life sentence is deemed to be a seventy-five-year sentence solely 

for purposes of calculating the period of parole ineligibility.

Thus, it is not clear from this record whether the judge intended to impose 

a life term, as he stated at sentencing, or a seventy-five-year term, as indicated 

in the JOC. Accordingly, we remand the matter for resentencing.

V.

We turn to Tucker's other arguments. He argues that: (1) the jury charge 

regarding the statement he provided to the police was insufficient; (2) the 

cumulative error doctrine requires reversal of his conviction, and (3) his 

sentence is excessive. 

A. Jury Instruction

Tucker argues that the jury charge regarding his statement to the police 

was flawed because it failed to provide the jury with sufficient guidance 

regarding "the dangers of false confessions." He contends this error requires 

reversal of his conviction and a remand for a new trial. 
30 A-0737-16T1

Here, the trial judge instructed the jury in accordance with the model jury 

charge on statements by defendants. See Model Jury Charges (Criminal), 

"Statements of Defendant" (rev. June 14, 2010). The judge told the jury that it 

had the duty to determine if Tucker's statement to the police was "reliable." The 

judge stated:

In considering whether or not the statement is credible, 

you should take into consideration the circumstances 

and facts as to how the statement was made, as well as 

all other evidence in this case relating to this issue.

As you heard from the testimony of Detective 

Scott Peterson, the defendant, Hykeem Tucker, was 

advised of the charges against him and his Miranda

rights before he provided any statement to the police. 

You further heard testimony that the defendant, 

Hykeem Tucker, understood his rights and agreed to 

waive his rights and speak to Detective Peterson.

If you determine that the statement is not 

credible, then you must disregard the statement 

completely. If you find the statement in part or all is 

credible, you may give what weight you think 

appropriate to the portion or the entirety of the 

statement you find to be truthful and credible. 

We note that Tucker did not object to the instruction during the trial court 

proceedings. For the first time on appeal, he argues that the model jury charge 

should be modified. He contends jurors should be instructed that, "Although 

nothing may appear more convincing than a defendant's statement, you must 
31 A-0737-16T1

critically analyze such evidence. Such statements may be false. Therefore, 

when analyzing such evidence, be advised that the fact of making a statement, 

alone, is not an indication of the reliability of the statement." 

In support of his argument, Tucker relies upon certain articles, which set 

forth results of social-science research pertaining to "confessions" by defendants 

in criminal matters. Tucker did not, however, present those articles to the trial 

court. Therefore, the State did not have an opportunity to dispute the findings 

in the articles.

Moreover, in his statement to the police, Tucker did not admit that he 

committed the charged offenses. He acknowledged he was at the Regency on 

the night of the shooting, but he repeatedly denied he was the shooter. Tucker's 

statement was not a confession. Thus, the social-science research that Tucker 

relies upon does not apply in this case.

In any event, the judge's instruction was a correct statement of the law. It 

is well-established that after the trial court determines a defendant's statement is

voluntary and admissible, the jury should consider "whether in view of all the 

same circumstances the defendant's confession is true. If [the jurors] find that

[the confession] is not true, then they must treat it as inadmissible and disregard 
32 A-0737-16T1

it . . . ." State v. Hampton, 61 N.J. 250, 271-72 (1972). The instruction provided 

in this case is consistent with this principle. 

B. Cumulative Error

Tucker argues that even if the errors he cites did not individually 

constitute reversible error, in the aggregate, they denied him of his constitutional 

right to a fair trial. We disagree. 

Our Supreme Court has held that "even when an individual error or series 

of errors does not rise to reversible error, when considered in combination, their 

cumulative effect can cast sufficient doubt on a verdict to require reversal."

State v. Jenewicz, 193 N.J. 440, 473 (2008) (citing State v. Koskovich, 168 N.J. 

448, 540 (2001)). The cumulative error principle does not apply in this case. 

As we have explained, there was no error in the trial of this matter or any series 

of errors that, when considered in combination, cast sufficient doubt on the jury's 

verdict to require a new trial.

C. Sentence

On appeal, Tucker argues that the judge erred when he weighed the 

aggravating factors. He contends that the judge erred by giving weight to 

aggravating factor six, because that factor allegedly has a statistically disparate 

impact on minorities. Tucker further argues that his sentence is excessive and 
33 A-0737-16T1

unduly punitive. He contends his offense can be "adequately punished" with a 

lesser sentence. He argues that he should be resentenced. 

When sentencing Tucker, the judge found aggravating factor three.

N.J.S.A. 2C:44-1(a)(3) (risk that defendant will commit another offense). The 

judge noted that Tucker was with Skillman "right down the line in everything 

that occurred that night." The judge stated the risk that Tucker will commit 

further offenses "is extreme." The judge observed that "given the enormity of 

the devastating effects of the criminal behavior that he was engaged in, the 

further risks are beyond reasonable comprehension." 

The judge also found aggravating factor six. N.J.S.A. 2C:44-1(a)(6) 

(extent of defendant's prior criminal record and the seriousness of the offenses 

of which he has been convicted). The record shows that as a juvenile, Tucker 

had eight juvenile arrests and four adjudications. As an adult, Tucker had

sixteen arrests, several municipal court convictions, and two prior Superior 

Court convictions for drug-related offenses. 

In addition, the judge found aggravating factor nine. N.J.S.A. 2C:44-

1(a)(9) (need to deter defendant and others from violating the law). The judge 

stated that "[t]he only way to deter [Tucker was] to incarcerate him[.]" The 
34 A-0737-16T1

judge observed that he hoped the message would go forth and "some lives would 

be saved[.]" 

The judge found no mitigating factors and stated that the "aggravating 

factors . . . substantially outweigh[ed] the non-existent mitigating factors." On 

the JOC, the judge wrote, "The aggravating factors are overwhelming in 

significance by any standard." 

We reject Tucker's contention that the judge erred by giving weight to 

aggravating factor six. The judge's finding was based on defendant's prior 

criminal record, and there is no evidence in the record to support Tucker's 

contention that aggravating factor six has a disparate racial impact. 

Tucker's claim of racial disparity is based on articles and research that the 

defense did not present to the trial court. The articles and research are not part 

of the record on appeal. Moreover, the State did not have the opportunity to 

dispute the findings and conclusions set forth therein. 

We are constrained, however, to remand for resentencing. As we stated 

with regard to Skillman's sentence, it is unclear whether the judge intended to 

sentence Tucker to a life term, as he stated on the record, or a base term of 

seventy-five years as stated in the JOC. 
35 A-0737-16T1

Accordingly, defendant's convictions are affirmed, but the matters are 

remanded to the trial court for resentencing in conformance with this opinion.

In A-0737-16 and A-0861-16, affirmed in part, and remanded for 

resentencing in conformance with this opinion. We do not retain jurisdiction.