Opinion
DOCKET NO. A-6176-12T4
06-14-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. KEITH L. WILLIAMS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael J. Confusione, Designated Counsel, on the brief). Robert Lougy, Acting Attorney General, attorney for respondent (Deborah Bartolomey, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes and Gilson. On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 09-03-0234. Joseph E. Krakora, Public Defender, attorney for appellant (Michael J. Confusione, Designated Counsel, on the brief). Robert Lougy, Acting Attorney General, attorney for respondent (Deborah Bartolomey, Deputy Attorney General, of counsel and on the brief). PER CURIAM
On May 1, 2008, twenty-year-old Arrel Bell was found dead in a park in Trenton. Bell had been shot twice at close range in the back of his head. Following an investigation, defendant Keith Williams and three co-defendants were indicted for first-degree conspiracy to murder Bell. The State alleged that defendant was a senior member of the Bloods street gang and he authorized Bell's murder after Bell had implicated co-defendant Karim Sampson in two armed robberies. The State further alleged that Bell, Sampson, and defendant were Bloods gang members.
A jury convicted defendant of first-degree conspiracy to commit murder, N.J.S.A. 2C:11-3(a)(1) and N.J.S.A. 2C:5-2, and defendant was sentenced to twenty years in prison with eighty-five percent of that time ineligible for parole in accordance with the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant was also sentenced to a consecutive nine months in prison for a parole violation. Defendant appeals his conviction and sentence. We affirm.
I.
After Bell's body was found, law enforcement conducted a series of investigations. Police learned that Bell had been a high school friend of Sampson. In May 2007, Bell and Sampson had been arrested for two armed robberies. Bell had implicated Sampson in the robberies in statements he gave to the police. Through interviews of other witnesses, law enforcement also came to believe that Sampson and several other Bloods gang members were with Bell just before he was shot.
During the investigation, law enforcement personnel were shown a social network website called MySpace where several of those individuals had public pages. Those pages led the police to believe that defendant, together with at least three other Bloods gang members, had communicated about the conspiracy to murder Bell through MySpace. Based on that information, the police obtained a series of warrants. Among the warrants obtained by the police, was a warrant for the search of Sampson's residence. In the course of executing that warrant, the police seized a computer from Sampson's room.
Later, the police also obtained a warrant to search defendant's residence. During that search, police seized a computer, 9mm bullets, and several letters defendant had addressed to Sampson. After defendant's home was searched, defendant was taken into custody and interviewed. During that interview, defendant made certain statements which the State alleged implicated him in the conspiracy to murder Bell. Specifically, the State alleged that defendant admitted that for a gang member to discipline or murder another gang member, he had to first authorize it. The interview was video and audio recorded and substantial portions of defendant's statements were presented to the jury.
Police also obtained a warrant directing MySpace to turn over the contents of the MySpace pages of defendant and Sampson, as well as other persons. A number of MySpace messages (also referred to as emails) between defendant, Sampson and other co-conspirators were presented to the jury. The State also presented an expert witness who explained to the jury various gang slang and abbreviations used in the messages.
The police also obtained a separate warrant that allowed them to search the information contained on Sampson's and defendant's computers. That information included MySpace messages that had been exchanged between defendant and Sampson, as well as messages sent and received from other alleged conspirators.
Pre-trial, defendant moved to suppress certain evidence seized by police pursuant to the warrants. Specifically, defendant joined with co-defendant Sampson in a motion to suppress the seizure of the computer from Sampson's residence. Defendant also joined with Sampson in a motion to bar the admission of the MySpace messages.
The motion judge heard oral argument on the motion to suppress the seizure of Sampson's computer and denied that motion. The judge found that there was probable cause for the issuance of the warrant to search Sampson's residence and the computer fell within the scope of the items authorized to be seized by the warrant.
An N.J.R.E. 104 hearing was conducted on the admissibility of the MySpace messages. After hearing four days of testimony from three witnesses, and after reviewing the MySpace messages, the motion judge found that those messages were authentic and admissible. Specifically, the judge found that there were sufficient indicia of reliability that defendant and his co-conspirators sent and received the messages. In making that reliability determination, the motion judge relied on the testimony provided by a MySpace records custodian and a Verizon consultant.
Defendant also moved pre-trial to preclude the State from admitting evidence of defendant's gang affiliation and expert testimony regarding gang terminology used in the MySpace messages. The trial judge conducted an N.J.R.E. 104 hearing to address the admissibility of the State's proposed gang expert and he heard oral argument concerning the admissibility of the evidence of defendant's alleged gang affiliation. The judge then issued a written opinion finding that (1) the State's expert was qualified to provide testimony concerning "gang intelligence and gang language"; and (2) the evidence of defendant's alleged gang affiliation was admissible under N.J.R.E. 404(b) as evidence to prove the motive for the conspiracy to commit Bell's murder.
Relying on our opinion in State v. Goodman, 415 N.J. Super. 210 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011), the trial judge ruled that the State's gang expert could testify about unfamiliar gang terminology and abbreviations. The trial judge went on to rule, however, that such testimony would be limited. Specifically, the trial judge prohibited the expert from (1) providing any interpretation of terminology that an average juror could understand; (2) opining that the messages are "gang-related"; or (3) providing an opinion of what he was interpreting; that is, prohibiting the expert from testifying about the ultimate meaning of the MySpace messages. The trial judge also ruled that certain MySpace messages were not admissible under N.J.R.E. 4 03.
In making the ruling concerning N.J.R.E. 404(b) and evidence of defendant's gang affiliation, the trial judge analyzed the factors identified in State v. Cofield, 127 N.J. 328 (1992), and as analyzed in Goodman, supra, 415 N.J. Super. at 229-30. Specifically, the trial court found that the gang-affiliated evidence was relevant, reliable and more probative than prejudicial. The court then sanitized the proposed evidence and limited the evidence of defendant's gang affiliation to the evidence necessary to prove the alleged motive.
After the motions were denied, Sampson pled guilty to first-degree conspiracy to commit murder. The trial court also granted motions to sever the trials of the other co-defendants and defendant then was tried by himself.
At defendant's trial, the State called a number of witnesses to introduce and present to the jury certain messages exchanged by defendant and Sampson through MySpace. The State also introduced approximately five hours of statements defendant gave to the police and argued to the jury that defendant's statements implicated him in the conspiracy to murder Bell.
The defense disputed much of the State's evidence, including challenging through cross-examination, interpretations offered by the State's expert witness on gangs. The defense also argued that defendant had "backed out" of the conspiracy to murder Bell.
After hearing all of the evidence and summations of counsel, the jury found defendant guilty of first-degree conspiracy to commit murder. Defendant now appeals.
II.
On appeal, defendant argues:
Point 1: The trial court erred in denying defendant's motion to suppress evidence seized by police.
Point 2: The trial court erred in denying defendant's motion to suppress MySpace emails.
Point 3: The trial court erred in permitting the State to admit improper other wrongs evidence and expert testimony regarding defendant's alleged gang affiliation.
Point 4: The trial court skewed the jury's consideration of the renunciation element during deliberations (plain error).
Point 5: Defendant's sentence is improper and excessive.
A.
Defendant first argues that the trial court erred when it held that the police's seizure of Sampson's computer during the execution of a warrant was within the scope of the warrant. We disagree.
Once issued by a judicial officer, "[a] search warrant is presumed to be valid, and [the] defendant bears the burden of demonstrating that the warrant was issued without probable cause or that the search was otherwise unreasonable." State v. Chippero, 201 N.J. 14, 26 (2009) (first alteration in original) (quoting State v. Evers, 175 N.J. 355, 381 (2003)). To determine whether a search was conducted within the scope of its authorizing warrant, we begin "with an examination of the terms of the search warrant, which must be strictly respected." State v. Bivins, 435 N.J. Super. 519, 524 (App. Div.), aff'd, ___ N.J. ___ (2016). We then focus on the conduct of the police in accomplishing the object of the search. Ibid.
In reviewing a motion to suppress, we defer to the trial court's fact and credibility findings, so long as those findings are "supported by sufficient credible evidence in the record." State v. Handy, 206 N.J. 39, 44 (2011) (quoting State v. Elders, 192 N.J. 224, 243 (2007)). Deference is afforded because the "findings of the trial judge . . . are substantially influenced by his [or her] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Reece, 222 N.J. 154, 166 (2015) (quoting State v. Locurto, 157 N.J. 463, 471 (1999)). "An appellate court should disregard those findings only when a trial court's findings of fact are clearly mistaken." State v. Hubbard, 222 N.J. 249, 262 (2015). The legal conclusions of a trial court are reviewed de novo. Id. at 263.
We have previously addressed the motion to suppress Sampson's computer in an appeal filed by Sampson. State v. Sampson, No. A-1161-13 (App. Div. July 20, 2015), certif. denied, 223 N.J. 406 (2015). In that appeal, we affirmed the motion judge's ruling that the computer was within the scope of the warrant. Id. at 5-6. Specifically we held that the language of the warrant permitted the seizure of Sampson's computer and that the police conduct "was objectively reasonable [and] did not violate [Sampson's] Fourth Amendment or State constitutional right to privacy in his personal belongings." Ibid.
Though our decision in Sampson's appeal is not binding, we can consider it for its persuasive value. State v. K.P.S., 221 N.J. 266, 279, 279 n.7 (2015). We find the decision in Sampson persuasive and we adopt its reasoning.
As the panel in Sampson identified, the search warrant did not have specific language authorizing the seizure of a "computer." The warrant did, however, authorize the police to seize "other devices capable of storing images of video, photographs, video tapes, digital media storage devices" as well as "any other items evidential in nature." Read in the context of the investigation, Sampson's computer was within the scope of the search warrant. See State v. Reldan, 100 N.J. 187, 196, 196 n.2 (1985). Further, the police conduct in executing the warrant was reasonable given that the police later demonstrated sufficient probable cause to obtain another warrant to access the data in the computer.
B.
Defendant also contends that the MySpace messages should not have been admitted at trial because the State failed to prove their authenticity.
We review the trial court's evidentiary findings for abuse of discretion. State v. Nantambu, 221 N.J. 390, 402 (2015). Consequently, a trial court's evidentiary rulings will not be overturned unless a manifest injustice has occurred. State v. J.D., 211 N.J. 344, 354 (2012). "To the extent [a] defendant's argument . . . raises a question of law, . . . our review is de novo and plenary." Ibid.
Authenticity of evidence is governed by N.J.R.E. 901, which states that "[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter is what its proponent claims." The proponent must make "only 'a prima facie showing of authenticity'" for the evidence to be admitted. State v. Tormasi, 44 3 N.J. Super. 146, 155 (App. Div. 2015) (quoting State v. Mays, 321 N.J. Super. 619, 628 (App. Div.), certif. denied, 162 N.J. 132 (1999)). A prima facie showing is made if there are sufficient indicia of reliability. Mays, supra, 321 N.J. Super. at 629. "The fundamental idea of authentication is to connect [a] writing with the person alleged to be its author." Tormasi, supra, 443 N.J. Super. at 156 (quoting In re Blau, 4 N.J. Super. 343, 351 (App. Div. 1949)). The authenticity of written materials can be proved circumstantially. N.J. Div. of Youth & Family Servs. v. J.T., 354 N.J. Super. 407, 413 (App. Div. 2002), certif. denied, 175 N.J. 432 (2003). After the prima facie showing, "the ultimate question of authenticity of the evidence is left to the jury." Konop v. Rosen, 425 N.J. Super. 391, 412 (App. Div. 2012) (quoting Mays, supra, 321 N.J. Super. at 628).
Here, two experts testified at the N.J.R.E. 104 hearing and at trial as to the nature of the MySpace messages. The expert from Verizon testified that if provided its customer's Internet Protocol (IP) address and the time, Verizon can determine the physical location of the computer accessing the internet.
The MySpace expert testified that MySpace is a social networking website where upon signing up the user is asked to provide identifying information such as name, gender and date of birth, although MySpace does not verify the user's identity. The user then receives a username, password, and unique user identifier. After logging in with their username and password, users can send direct private messages to other users. MySpace records the details of every transaction on its server, including the contents of each message, the user identifiers of the sender and recipient, and the IP address of the sender.
Defendant argues that the State did not authenticate the MySpace messages because the MySpace expert testified during cross-examination that a computer can store a user's username and password, which would allow anybody on that computer to access and write messages from the user's MySpace page. Here, there was evidence that the messages had a user identifier that corresponded to defendant and were sent from an IP address that corresponded to defendant's address. This evidence demonstrated sufficient indicia of reliability to authenticate the MySpace messages for admissibility purposes. See Tormasi, supra, 443 N.J. Super. at 155 (explaining that N.J.R.E. 901 "does not require absolute certainty or conclusive proof" of authorship (quoting Mays, supra, 321 N.J. Super. at 628)).
Defendant also argues that the State did not adequately prove the chain of custody of the compact disc (CD) containing the MySpace messages. A proponent of evidence must show an uninterrupted chain of custody. State v. Mosner, 407 N.J. Super. 40, 62 (App. Div. 2009). Nonetheless, "the State is not obligated to negate every possibility of substitution or change in condition of the evidence." State v. Brunson, 132 N.J. 377, 393 (1993). Evidence should generally be admitted if there is a "reasonable probability that the evidence has not been changed in important respects or is in substantially the same condition as when the crime was committed." Mosner, supra, 407 N.J. Super. at 62 (quoting State v. Brown, 99 N.J. Super. 22, 28 (App. Div.), certif. denied, 51 N.J. 468 (1968)). "[A] defect in the chain of custody goes to the weight, not the admissibility, of the evidence introduced." Ibid. (alteration in original) (quoting State v. Morton, 155 N.J. 383, 446 (1998)).
Here, there was evidence from both the MySpace expert and the police detective who reviewed the messages during the investigation that the messages did not appear to have been altered. Specifically, the MySpace expert testified that he checked that the data contained on the CD matched the data that was originally produced. The detective testified that he could not change the contents of the CD and that the messages were exactly as he recalled them. Importantly, defendant was able to cross-examine both experts to elicit any limitations in their verification processes. We see no abuse of discretion in the trial judge's decision to admit the MySpace messages.
C.
Defendant next argues that the trial judge abused his discretion under N.J.R.E. 404(b) in admitting evidence of defendant's gang membership and expert testimony on gang-related language. It has been recognized that "the average juror would likely conclude that a gang member has engaged in criminal activity[, and that] [s]uch evidence has the potential to 'taint' a defendant . . . ." Goodman, supra, 415 N.J. Super. at 228. Consequently, gang-related evidence should only be admitted if the State satisfies the "demanding provisions of N.J.R.E. 404(b), as interpreted in [State v. Cofield, 127 N.J. 328 (1992)]." Goodman, supra, 415 N.J. Super. at 228.
N.J.R.E. 404(b) provides that evidence of other crimes or bad acts is generally not admissible, unless used for "proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute." In Cofield, our Supreme Court set forth a four-pronged test to govern the admission of such evidence:
1. The evidence of the other crime must be admissible as relevant to a material issue;
2. It must be similar in kind and reasonably close in time to the offense charged;
3. The evidence of the other crime must be clear and convincing; and
4. The probative value of the evidence must not be outweighed by its apparent prejudice.
[Cofield, supra, 127 N.J. at 338 (quoting Abraham P. Ordover, Balancing the
Presumptions of Guilt and Innocence: Rules 404(b), 608(b) and 609(a), 38 Emory L.J. 135, 160 ( 1989)); see also State v. Carlucci, 217 N.J. 129, 140-41 (2014) (reaffirming the Cofield test).]Our Supreme Court has also explained that the second Cofield prong "need not receive universal application in [N.J.R.E.] 404(b) disputes." State v. Williams, 190 N.J. 114, 131 (2007).
Once N.J.R.E. 404(b) evidence is found to be admissible, "the court must instruct the jury on the limited use of the evidence." Cofield, supra, 127 N.J. at 340-41. "[T]he court's instruction 'should be formulated carefully to explain precisely the permitted and prohibited purposes of the evidence, with sufficient reference to the factual context of the case to enable the jury to comprehend and appreciate the fine distinction to which it is required to adhere.'" Id. at 341 (quoting State v. Stevens, 115 N.J. 289, 304 (1989)).
An appellate court gives "great deference" to a trial judge's determination on the admissibility of "other bad conduct" evidence. Goodman, supra, 415 N.J. Super. at 228 (citing State v. Foglia, 415 N.J. Super. 106, 122 (App. Div.), certif. denied, 205 N.J. 15 (2010)). We apply an abuse of discretion standard; there must be a "clear error of judgment" to overturn the trial court's determination. State v. Castagna, 400 N.J. Super. 164, 182-83 (App. Div. 2008).
Here, the trial court held an N.J.R.E. 104 hearing and analyzed the Cofield factors in a written opinion, finding that the gang-related evidence satisfied all four prongs. The State sought to satisfy the first prong by introducing the gang-related evidence as proof of defendant's motive. Specifically, the State alleged that defendant's rank in the gang, which authorized him to enforce the rule against police cooperation, motivated him to conspire against Bell. When evidence "'tend[s] to shed light' on a defendant's motive and intent or which 'tend[s] fairly to explain his [or her] actions,'" we admit a "wider range of evidence." State v. Covell, 157 N.J. 554, 565 (1999) (quoting State v. Rogers, 19 N.J. 218, 228 (1955)). Because evidence of defendant's gang affiliation tends to shed light on his motive, the first prong was satisfied.
The second and third prongs were satisfied as well when defendant admitted in his statement to the police that he was a member of a certain sect of the Bloods gang and that he had supervisory authority within that sect. Defendant made that statement one month after the murder.
Under the fourth prong, the motion judge closely weighed the probative value of the evidence against the apparent prejudice. Defendant argued that Bell, Sampson, and defendant were close friends and that defendant's plan to murder Bell was the result of a betrayal of friendship. The trial court found that according to defendant's own statement defendant was only an acquaintance of Bell's, negating any theory of personal animus, and that as a result of defendant's gang rank he could authorize the order for Bell's murder. Accordingly, the trial court concluded that the gang-related evidence was the most probative and least prejudicial method of "explaining why the events unfolded as they did." We see no abuse of discretion in that finding.
Moreover, the trial judge limited the evidence and instructed the jury. As a result of the court's ruling, the prosecutor removed several, more prejudicial references to gang affiliation that occurred during defendant's statement to the police. Further, the trial judge informed the jury of the proper use of the gang-related evidence at the beginning of trial, before playing defendant's statement to the jury, and when giving the jury the final charges.
The trial judge also limited the testimony of the State's expert, who translated slang and provided context for some of the terms in the MySpace messages. The trial judge limited which words and phrases could be translated and precluded the expert's testimony on one particular MySpace conversation because of its potential for prejudice. Moreover, the expert did not translate language that was readily apparent to an average juror, nor give an opinion on the meaning of the message as a whole. See State v. Sowell, 213 N.J. 89, 100-01 (2013) (stating that an expert is not permitted to opine about "clear-cut matters that average jurors could understand" or "to present expert testimony about straightforward but disputed facts").
Accordingly, we see no error in the trial court admitting gang-related evidence and the State's expert testimony.
D.
For the first time on appeal, defendant argues that the trial judge improperly instructed the jury regarding renunciation in response to a question the jury posed during deliberation. Specifically the jury asked:
Judge, if there was a second conspiracy set up by others after the defendant pulled out of the first conspiracy, would the defendant still be guilty of [the] first conspiracy if a murder took place that had to do with the second conspiracy?The judge responded to the jury by restating the elements of conspiracy as it related to the facts and referred the jury to the renunciation charge he had given them during jury instructions.
Defendant did not object to that response. Accordingly, we review this challenge under a plain error standard of review. See R. 1:7-2; State v. Singleton, 211 N.J. 157, 182 (2012). Under that standard, "we must determine whether the [trial] court's . . . charge was plain error possessing the clear capacity to bring about an unjust result." State v. Koskovich, 168 N.J. 448, 529 (2001) (second alteration in original) (quoting State v. Feaster, 156 N.J. 1, 40 (1998), cert. denied, 532 U.S. 932, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001)); see R. 2:10-2. In the context of an alleged error in a jury instruction, "plain error requires demonstration of 'legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.'" Singleton, supra, 211 N.J. at 182-83 (quoting State v. Chapland, 187 N.J. 275, 289 (2006)).
Under the facts of this case, we do not discern any plain error. The judge initially charged the jury with the model jury instructions for conspiracy and renunciation. See Model Jury Charge (Criminal), "Conspiracy" (2010); Model Jury Charge (Criminal), "Conspiracy - Renunciation" (2006). There was no error in that initial instruction and the judge's response to the jury's question does not demonstrate a clear capacity to bring about an unjust result.
E.
Lastly, defendant contends that his sentence on the conspiracy to murder conviction was excessive. Defendant was sentenced to twenty years with an eighty-five percent period of parole ineligibility.
Appellate review of sentencing decisions is deferential and governed by an abuse of discretion standard. State v. Blackmon, 202 N.J. 283, 297 (2010). "The reviewing court must not substitute its judgment for that of the sentencing court." State v. Fuentes, 217 N.J. 57, 70 (2014). "At the time of sentencing, the court must 'state reasons for imposing such sentence including . . . the factual basis supporting a finding of particular aggravating or mitigating factors affecting sentence.'" Id. at 73 (quoting R. 3:21-4(g)); see also State v. Case, 220 N.J. 49, 54 (2014); State v. Lawless, 214 N.J. 594, 608 (2013). An appellate court must affirm a sentence unless:
(1) the sentencing guidelines were violated; (2) the aggravating and mitigating factors found by the sentencing court were not based upon competent and credible evidence in the record; or (3) "the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience."Whether a sentence violates sentencing guidelines is a question of law that we review de novo. State v. Robinson, 217 N.J. 594, 603-04 (2014).
[Fuentes, supra, 217 N.J. at 70 (alteration in original) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).]
Here, the trial judge found aggravating factor three, the risk that defendant would "commit another offense," N.J.S.A. 2C:44-1(a)(3); factor five, a substantial likelihood that defendant was "involved in organized criminal activity," N.J.S.A. 2C:44-1(a)(5); factor six, defendant's prior criminal record, N.J.S.A. 2C:44-1(a)(6); and factor nine, the need to deter such criminal activity, N.J.S.A. 2C:44-1(a)(9). The judge found no mitigating factors, N.J.S.A. 2C:44-1(b). The judge articulated the factual basis for the aggravating factors, noting that defendant's criminal history suggested an escalation of criminality indicating a risk that defendant would commit other crimes; that Bell's death was the result of gang activity; that defendant had one prior conviction and a juvenile record; and that gang violence and its collateral effects on innocent victims should be deterred. The trial judge then found that the aggravating factors substantially outweighed the lack of any mitigating factor and imposed a twenty year sentence, the maximum for a first-degree crime, see N.J.S.A. 2C:43-6. We find no abuse of discretion in that sentence.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION