                                NOT FOR PUBLICATION WITHOUT THE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.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-2446-16T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

EDDIE ROBERSON,

     Defendant-Appellant.
____________________________

                    Submitted December 10, 2018 – Decided December 26, 2018

                    Before Judges Messano, Fasciale and Rose.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Essex County, Indictment No. 13-10-2585.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Molly O'Donnell Meng, Assistant Deputy
                    Public Defender, of counsel and on the brief).

                    Theodore N. Stephens, II, Acting Essex County
                    Prosecutor, attorney for respondent (Tiffany M. Russo,
                    Special Deputy Attorney General/Acting Assistant
                    Prosecutor, of counsel and on the brief).

                    Appellant filed a pro se supplemental brief.
PER CURIAM

       Defendant appeals from his convictions for first-degree murder, N.J.S.A.

2C:11-3(a)(1), (2); second-degree unlawful possession of a weapon, N.J.S.A.

2C:39-5(b); and second-degree possession of a weapon for an unlawful purpose,

N.J.S.A. 2C:39-4(a). The State produced evidence at the jury trial that defendant

shot an individual (the victim), who died shortly thereafter. The State's theory

was that defendant shot the victim because defendant did not want to honor a

Super Bowl bet that he and the victim made at a party shortly before the murder.

The State produced a witness who identified defendant as the victim's shooter

and claimed to have overheard a conversation about a football bet between

defendant and the victim at the party.

       Defendant raises the following points on appeal:

             POINT I
             THE TRIAL [JUDGE]'S COERCIVE INSTRUCTION
             TO CONTINUE DELIBERATIONS AFTER THE
             JURY INDICATED THAT IT WAS AT AN IMPASSE
             DEPRIVED DEFENDANT OF HIS RIGHTS TO DUE
             PROCESS AND A FAIR TRIAL.

             POINT II
             THE TRIAL [JUDGE] ERRED BY DENYING
             DEFENDANT'S MOTION FOR A WADE[1]
             HEARING TO TEST THE RELIABILITY OF A
             CONCEDEDLY SUGGESTIVE SINGLE-PHOTO

1
    United States v. Wade, 388 U.S. 218 (1967).
                                                                         A-2446-16T1
                                         2
             SHOWUP CONDUCTED THREE DAYS AFTER
             THE    INCIDENT,   WITHOUT   PROPER
             INSTRUCTIONS   AND    WITH IMPROPER
             FEEDBACK FROM THE OFFICER.

             POINT III
             THE TRIAL [JUDGE] FURTHER ERRED BY
             EXCLUDING THE VICTIM'S CELL PHONE
             RECORDS AS INADMISSIBLE HEARSAY.

             POINT IV
             IF THE DEFENDANT'S CONVICTIONS ARE NOT
             REVERSED,      THIS MATTER   MUST   BE
             REMANDED FOR RESENTENCING BECAUSE
             THE TRIAL [JUDGE] EFFECTIVELY DENIED
             DEFENDANT HIS [RIGHT] TO ALLOCUTE. (Not
             raised below).

We affirm.
                                     I.

     Shortly after it began deliberating on a second day, the jury sent the judge

a note explaining – not that it was deadlocked – but rather that it was at an

impasse. The judge brought the jury out and said:

                    Now, it took us seven to eight day[s'] worth of
             testimony to present the evidence in this case. We
             entered into evidence approximately 250 exhibits.
             Yesterday, to the best of my recollection, you
             deliberated for approximately [thirty-five], [forty]
             minutes after my final charge. This morning you went
             into the jury room at approximately 9:35 [a.m.]. Within
             [fifteen] minutes thereafter, I received a note that you
             wanted to review a number of the disks. We came back
             out, reviewed that testimony. It took approximately an


                                                                         A-2446-16T1
                                          3
             hour or so. You went back. About [11:50 a.m.] or so I
             received a note you were at an impasse.

                    Ladies and gentlemen, we expect a much better
             effort in attempting to arrive at a conclusion of this case
             than the effort you've given us so far with the indication
             you're at an impasse. Okay?

                   So please return to the jury room, review all of
             the evidence fairly and impartially, resume your
             deliberations and give us a real effort to arrive at a just
             and fair conclusion of this case. Okay?

Defense counsel objected properly to this charge and pointed out that,

"[g]enerally, when a jury indicates they are at an impasse the [c]ourt generally

instructs them to go back, reevaluate and see if they can continue to deliberate." 2

In response, the judge said that he would have given such a charge "[h]ad [the

jury] given an effort, a substantial effort . . . ." He continued, "[i]f they come

back again, and in my determination at that point they've given it a sufficient

effort and realistic effort, in light of the time it took to put on this case, I will

give that charge." At this point, the jury returned to deliberate and returned a

verdict in two hours.




2
  Defense counsel did not object before the judge gave the charge. The judge
advised counsel that he was going to instruct the jurors to resume deliberations
because they were only deliberating for a few hours, and defense counsel
responded "[n]o comment."
                                                                             A-2446-16T1
                                         4
      Our Supreme Court has not allowed "even subtle intrusions into the

neutral area of jury deliberations." State v. Czachor, 82 N.J. 392, 400 (1980).

Instead, the relevant model jury charge (the model jury charge) states:

                   It is your duty, as jurors, to consult with one
            another and to deliberate with a view to reaching an
            agreement, if you can do so without violence to
            individual judgment. Each of you must decide the case
            for yourself, but do so only after an impartial
            consideration of the evidence with your fellow jurors.
            In the course of your deliberations, do not hesitate to
            re-examine your own views and change your opinion if
            convinced it is erroneous but do not surrender your
            honest conviction as to the weight or effect of evidence
            solely because of the opinion of your fellow jurors, or
            for the mere purpose of returning a verdict. You are not
            partisans. You are judges – judges of the facts.

            [Model Jury Charges (Criminal), "Judge's Instructions
            on Further Jury Deliberations" (2013).]

      In Allen v. United States, the trial judge gave a jury instruction that

"emphasized to the deadlocked jury that each juror 'should examine the question

. . . with a proper regard and deference to the opinions of each other . . . [and]

that they should listen, with a disposition to be convinced, to each other's

arguments.'" Czachor, 82 N.J. at 395 (alterations in original) (quoting Allen v.

United States, 164 U.S. 492, 501 (1896)). The judge also told the jury that "if

much the larger number were for conviction [or for acquittal], a dissenting juror

should consider whether his doubt was a reasonable one . . . [and] whether [the

                                                                          A-2446-16T1
                                        5
juror] might not reasonably doubt the correctness of a judgment which was not

concurred in by the majority." Id. at 395-96 (alterations in original) (quoting

Allen, 164 U.S. at 501).

      But in the years since, our Supreme Court recognized that the Allen charge

has come under "severe criticism" and that,

            [f]ault with the charge rests primarily on the grounds
            that it is potentially coercive and inaccurate, that
            appellate courts are ill-equipped to detect the existence
            or gauge the extent of jury coercion or confusion, and
            that the interest in avoiding the expense of mistrial is
            outweighed by the substantial risk that the right to a fair
            trial at the hands of an impartial jury is jeopardized by
            its use.

            [Id. at 397-98.]

The Court also explained:

                  It is fair to say that the typical Allen charge does
            not simply remind jurors of their duty to cooperate in
            collective deliberations. It has a rather different thrust.
            The charge is intended to undo a jury deadlock. It tends
            therefore to focus upon possibly the weakest links in
            the chain locking the jury in disagreement, namely, the
            minority holdouts on the jury. Hence, the charge
            usually admonishes specifically and pointedly only
            those in the minority to reconsider their beliefs in light
            of the adverse position held by the majority. It also
            exerts pressures upon jurors by casting indirectly upon
            them a personal responsibility and sense of guilt for the
            impasse. . . . The charge further intimates that the
            dissenting jurors may not be acting properly or
            conscientiously since another similar jury will be called

                                                                          A-2446-16T1
                                        6
             upon in a new trial to perform the identical task and
             presumably will achieve it, i.e., reach a unanimous
             verdict on the same evidence.

             [Id. at 398 (emphasis added).]

The Court held that "the Allen charge conveys both blunt and subtle pressure

upon the jury, pressure which is inconsistent with jury freedom and

responsibility. Such a charge does not permit jurors to deliberate objectively,

freely, and with an untrammeled mind." Id. at 402. Thus, the Court found that

"such a charge containing coercive features should not be given to a jury in the

trial of a criminal case." Ibid.

      We consider two concerns when evaluating a judge's response to a jury's

inability to reach a unanimous verdict: "(1) whether the supplemental instruction

has the capacity to improperly influence the dissenting jurors to change their

votes; and (2) whether 'the weighty role that the judge plays in the dynamics of

the courtroom' improperly coerced the jury into returning a verdict." State v.

Dorsainvil, 435 N.J. Super. 449, 481 (App. Div. 2014) (quoting State v.

Figueroa, 190 N.J. 219, 238 (2007)). If the "difference of opinion between

members of the jury is clearly intractable, . . . then the jury is deadlocked and a

mistrial should be declared." State v. Ross, 218 N.J. 130, 145 (2014) (alterations




                                                                           A-2446-16T1
                                        7
in original) (quoting Figueroa, 190 N.J. at 237). Here, the jury indicated that it

was "at an impasse," but not that its different opinions were "intractable." Ibid.

      "A judge has discretion to require further deliberations after a jury has

announced its inability to agree, but exercise of that discretion is not appropriate

'if the jury has reported a definite deadlock after a reasonable period of

deliberations.'" State v. Adim, 410 N.J. Super. 410, 423-24 (App. Div. 2009)

(citation omitted) (quoting Czachor, 82 N.J. at 407). Here, the judge gave the

instruction after the jurors deliberated for approximately two-and-a-half hours

following the eight-day trial. We conclude that the jury did not report a "definite

deadlock" after a "reasonable period." Thus, the judge had the discretion to

require further jury deliberations.

      In doing so, the judge should have given the model jury charge. We

conclude, however, that the charge as given was harmless because it was not

coercive. Instead, it merely reminded the jury to take its responsibility seriously.

The judge did not tell any dissenting jurors to question their opinions or that

they should consider shifting their views to adhere to the majority. He did not

"admonish[] specifically and pointedly only those in the minority to reconsider

their beliefs in light of the adverse position held by the majority." Czachor, 82

N.J. at 398. As it was not akin to an Allen charge, the charge as given was not


                                                                            A-2446-16T1
                                         8
unduly coercive and did not place pressure upon the jury. Thus, it was not a

violation of defendant's constitutional rights.

                                      II.

      We review the denial of a Wade hearing under the abuse of discretion

standard. State v. Ortiz, 203 N.J. Super. 518, 522 (App. Div. 1985). A "trial

[judge]'s findings that photographic identification procedures were reliable

should not be disturbed if there is sufficient credible evidence in the record to

support the findings." State v. Adams, 194 N.J. 186, 203 (2008). If we find that

the judge should not have denied the motion for a Wade hearing, but the

identification procedure did not result in a "very substantial likelihood of

irreparable misidentification," the ruling will still be affirmed. State v. Cherry,

289 N.J. Super. 503, 517 (App. Div. 1995).

      A bodega owner (the owner) told police that he made a Super Bowl bet

with defendant, whom he described as "a black guy" with short hair from the

area. He claimed that defendant did not pay him his winnings from the bet.

Police showed the owner a single-photo to confirm if defendant was the man

that the owner had referenced.       Defendant moved for a Wade hearing to

determine the reliability of that identification, which the judge denied.




                                                                            A-2446-16T1
                                            9
      To be entitled to a Wade hearing, a defendant must proffer "some evidence

of impermissible suggestiveness." State v. Henderson, 208 N.J. 208, 238 (2011).

A defendant has the initial burden of showing that this could have led to a

mistaken identification. Id. at 288. If the judge finds that the procedure was

impermissibly suggestive, then he considers the reliability of the identification,

and the State has the burden of proving by clear and convincing evidence that

the identification "had a source independent of the police-conducted

identification procedures." Id. at 238 (quoting State v. Madison, 109 N.J. 223,

245 (1988)). "[T]he ultimate burden remains on the defendant to prove a very

substantial likelihood of irreparable misidentification." Id. at 289.

      Defendant claims that the owner's identification was suggestive. He also

argues that the officer's "confirmatory feedback" after the owner had identified

defendant was suggestive. After the officer asked the owner if defendant was

"the guy" he made a Super Bowl bet with, he responded with "[y]es." The officer

then said, "[o]kay. One hundred percent this is the person."

      The State argues that this is not a Wade issue as the photo presented to the

owner was intended to confirm the identity of the person that the owner was

referring to, and not to identify a stranger "based on his observations as involved

in any particular incident." The State further claims that this procedure was not


                                                                           A-2446-16T1
                                       10
a "show-up," as show-ups "are essentially single-person lineups: a single suspect

is presented to a witness to make an identification." Id. at 259.

      Here, the evidence from the owner was reliable. He testified that he was

familiar with defendant and saw him on a regular basis in his bodega. He was

able to identify defendant from his photograph, irrespective of defendant's

different hairstyle in the picture, which he pointed out to the officer. The judge

also questioned whether this was even a Wade issue, as the owner was not an

eyewitness to the shooting or any interaction between defendant and the victim.

He also agreed that the photo was not shown to the owner as a witness to a

fleeting event.   Thus, the judge did not abuse his discretion by den ying

defendant's motion for a Wade hearing, and the identification procedure did not

result in a "very substantial likelihood of irreparable misidentification." Cherry,

289 N.J. Super. at 517.

                                      III.

      A judge's evidentiary rulings are entitled to deference "unless there has

been an abuse of that discretion, i.e., there has been a clear error of judgment."

State v. Marrero, 148 N.J. 469, 484 (1997) (quoting State v. Koedatich, 112 N.J.

225, 313 (1988)). At the conclusion of the State's case, defense counsel moved

to admit text messages the victim received the day before his murder, as


                                                                           A-2446-16T1
                                       11
evidence of the police's purported failure to adequately investigate the case, and

potentially as evidence of third-party guilt. One text that the victim received

read: "Yo, do you think they would've shot us if we got out of the car or if they

had a better shot?" Another message from the same number read: "Or you just

think they had the piece to scare me?" An outgoing message sent a few minutes

later read: "Nah, you good." The judge denied the admission of the messages,

stating that the result, "intended or unintended," in admitting the messages

would be hearsay.

      Hearsay is an out-of-court statement "offered in evidence to prove the

truth of the matter asserted." N.J.R.E. 801(c). Defendant argues that the text

messages were not offered to prove whether the individuals referenced in the

message had a gun to scare the declarant or whether they intended to shoot the

victim. Instead, he argues that they were offered to show that police had

information about a threat to the victim that was made less than twenty-four

hours before his death, and that police failed to take investigatory action.

      Regarding the relevance of the statements, the judge said,

                   [t]he issue before the jury is not whether the State
            did everything they could have or should have . . . in
            their investigation in this case. The sole issue before
            this jury is whether or not . . . [the State] . . . provided
            the jury with sufficient credible evidence upon which a
            rational jury could arrive at a decision of whether or not

                                                                           A-2446-16T1
                                       12
            [defendant] has been proven guilty of this charge
            beyond a reasonable doubt.

The relevancy of the messages was to prove that another individual, not

defendant, attempted to shoot the victim. The texts would be out-of-court

statements offered to prove the truth of the matter asserted, and thus

inadmissible hearsay. Based on our deferential standard of review, there has not

been an abuse of discretion or a "clear error of judgment" on the part of the judge

that would warrant the messages being admitted into evidence under one of the

hearsay exceptions.

                                      IV.

      The judge merged the possession of a weapon for an unlawful purpose

into the murder conviction and sentenced defendant to life in prison subject to

the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, concurrent to five years

in prison for the unlawful possession of a weapon. We review an imposition of

sentence under an abuse of discretion standard. State v. Jones, 232 N.J. 308,

318 (2018). Pursuant to Rule 3:21-4(b), "[b]efore imposing sentence the [judge]

shall address the defendant personally and ask the defendant if he . . . wishes to

make a statement in his . . . own behalf and to present any information in

mitigation of punishment." In doing so, he may answer personally or by his

attorney. Ibid.

                                                                           A-2446-16T1
                                       13
      Defendant argues that the judge sentenced him without asking defendant

if he wanted to speak on his own behalf. The judge began to find aggravating

factors when the State asked if the judge was moving into the sentencing phase,

at which time the judge apologized and asked defense counsel if there was

"anything [he would] like to say" before the judge "[got] to sentencing."

Defense counsel stated that the judge "has already indicated a desire to sentence

[defendant] . . . not[]withstanding whatever [defense counsel's] arguments are."

The judge then inquired as to whether defendant wanted to add anything before

the judge imposed sentencing. The defendant said,

            I would like to tell the family that I'm sorry for y'all
            loss. But at the same time, I know that I'm still not the
            one. You know, I'm the man that has been accused of
            this conviction. But I do feel for y'all loss. I'm sorry
            for y'all loss.

Regardless, the judge gave him the right to allocute, which defendant exercised.

Defendant was not silent. We therefore see no abuse of discretion.

      In his pro se brief, defendant makes five new points, with conclusory

statements that lack any basis or support. He disputes the existence of a Super

Bowl bet with the victim that would have provided a motive for the murder, and

instead claims that the State fabricated this story with its witness. But an

independent witness – the owner – also testified to placing a Super Bowl bet


                                                                         A-2446-16T1
                                      14
with defendant, and seeing defendant angry about the results of the game shortly

before the shooting. The arguments in defendant's pro se brief lack sufficient

merit for any further discussion in a written opinion. R. 2:11-3(e)(2).

      Affirmed.




                                                                          A-2446-16T1
                                      15
