                                NOT FOR PUBLICATION WITHOUT THE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-2501-17T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

KANEM WILLIAMSON,

          Defendant-Appellant.


                   Submitted October 3, 2019 – Decided January 9, 2020

                   Before Judges Alvarez and DeAlmeida.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Essex County, Indictment No. 15-08-1937.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Robert Carter Pierce, Designated Counsel,
                   on the brief).

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

PER CURIAM
       Tried to a jury, defendant Kanem Williamson was convicted of first-

degree aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1),1 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). On

December 1, 2017, the trial judge sentenced defendant on the aggravated

manslaughter to twenty-five years imprisonment, subject to the No Early

Release Act's eighty-five percent parole disqualifier, N.J.S.A. 2C:43-7.2, and

imposed a concurrent eight-year term subject to four years of parole ineligibility

under the Graves Act, N.J.S.A. 2C:43-6(c), on the unlawful possession of a

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

into the aggravated manslaughter count.

       Defendant appeals, making the central argument that admission of the

video of the victim A.B.'s dying declaration was prejudicial error mandating

reversal and a new trial. However, we conclude the circumstances surrounding

A.B.'s identification of defendant warranted the trial judge's decision to admit

it.   We further conclude that this dying declaration was an exception to




1
  The jury convicted defendant of a lesser-included offense—he was tried on a
charge of purposeful or knowing murder, N.J.S.A. 2C:11-3(a)(1), (2).


                                                                          A-2501-17T3
                                        2
Crawford's proscription against the use of testimonial statements in a criminal

case,2 and thus affirm.

                              The Pretrial Hearings

       The trial judge found A.B.'s identification of defendant, a dying

declaration, was admissible after conducting a pretrial N.J.R.E. 104 hearing.

See N.J.R.E. 804(b)(2). The following facts were developed at the hearing.

       A paramedic who arrived at the scene at approximately 1:04 p.m. on May

5, 2014 found A.B. "unconscious, unresponsive and not breathing[,]" having

been shot multiple times.      The paramedic measured A.B.'s responsiveness

utilizing the Glasgow Coma Scale,3 scoring her reactions three out of a possible


2
    Crawford v. Washington, 541 U.S. 36, 54 (2004).
3
    The Glasgow Coma Scale:

             takes into account three aspects: the ability to move, the
             ability to speak, and the ability to move one's eyes
             around. The worst score a person can have is one point
             in each of the three categories, a Glasgow Coma score
             of [three]. . . . [A] dead body would have a score of
             [three]. The best possible score, the score for a normal
             healthy person, is a score of [fifteen]. . . . A score of
             [eight] means the brain is severely injured and the
             person cannot protect his or her airway from aspirating
             vomit.

             [People v. Delgado, 153 Cal. Rptr. 3d 260, 263 (Cal.
             Ct. App. 2013).]
                                                                          A-2501-17T3
                                         3
fifteen points.    She initially had no pulse, but was revived after the

administration of epinephrine to restart her heart.

      A.B. arrived at the hospital unconscious, "extremely unstable[,]" and

experiencing "traumatic arrest" as a result of multiple gunshot wounds. Dr.

Anastasia Kunac, M.D., testified that A.B. had an entry wound near her spinal

cord and required an endotracheal tube to assist her with breathing.

Approximately two hours after her arrival, A.B. began to stir and tried to speak.

At that time, Kunac informed her that she had been shot multiple times, that her

heart had been restarted, and that she could not move her extremities or breathe

on her own due to the spinal injury. When told about her condition, A.B. became

upset and "visibly tearful." Based on her observations, Kunac believed A.B.

was aware of the gravity of her injury, knew she was still in critical condition,

and, as the doctor phrased it, "at imminent risk of death." Kunac informed A.B.

and her family that A.B. "could" die.

      Newark Police Department Detective Filiberto Padilla was assigned to

investigate. When Padilla met with A.B. at the hospital, he thought that "[s]he

was going to die." Using his cell phone, he video recorded his interview with




                                                                         A-2501-17T3
                                        4
A.B. in her hospital bed, during which he showed her defendant's mugshot. He

had earlier acquired information pointing to defendant as a suspect. 4

      Padilla asked A.B. a series of questions, requesting that she nod to answer

yes or no:

             DETECTIVE PADILLA: Listen, if I showed you a
             picture of who did this, would you know who it is?
             [A.B. nods her head up and down.]

                   ....

             DETECTIVE PADILLA: Do you know who shot you?
             [A.B. nods her head up and down.] Just nod your head.
             Do you know who -- where you're at, at this present
             time? Yes? [A.B. nods her head up and down.] The
             person that did this to you, have you known him for a
             while? [A.B. nods her head up and down.] Is he from
             the complex? [A.B. nods her head up and down.] . . .
             Just take a look at this picture, okay? And tell me if you
             recognize this person. [A.B. nods her head up and
             down.] You're saying, yes? – is . . . the person on this
             picture the person that shot you earlier today? [A.B.
             nods her head up and down.] Have any -- did you have
             any arguments with him earlier today in reference to
             anything? Yes, or no? No? [A.B. nods her head side to
             side.] And you -- you're sure that this is the person that
             shot you? Yes? [A.B. nods her head up and down.]

      While on the stand, Kunac watched the video of the interview. She said

that not only could A.B. move her head to indicate yes or no, but that given the


4
  Among other things, at trial, references were made to a Facebook posting
about the shooting suggesting that defendant was the perpetrator.
                                                                          A-2501-17T3
                                         5
absence of any traumatic head injury or medications which would affect her

lucidity, she likely understood what was taking place.

      After A.B. identified defendant's picture, Padilla signed the back of the

photo since A.B. could not. She was hospitalized for three months and was later

transferred to a rehabilitation facility. She died as a result of her injuries in

April 2015.5

      The judge found the three state witnesses, the paramedic, Kunac, and

Padilla, to be credible. She further found that when A.B. identified defendant

as the shooter, she was aware of the extent of her injuries and the possibility of

imminent death, as A.B. was in "critical condition." Since A.B. "believed she

was in imminent threat of death[,] [h]er answers to Detective Padilla's questions

were voluntary and were made in good faith and, as such, should be admitted

into evidence under Evidence Rule 804(b)(2), commonly known as a dying

declaration."

      The trial judge also concluded admission of the statement did not violate

defendant's right to confront his accuser because the sole purpose of eliciting

the identification was to meet an "ongoing emergency." It was "imperative to



5
  The medical examiner opined A.B.'s cause of death was complications from
the gunshot wounds, and the manner of death was homicide.
                                                                          A-2501-17T3
                                        6
identify the shooter and neutralize the threat to the community." Therefore, no

confrontation clause violation occurred, and the exception to the hearsay rule

applied.

      Additionally, defendant argued that A.B.'s out-of-court identification

should be suppressed because Padilla failed to properly memorialize the

identification procedure, the identification process grossly violated the attorney

general guidelines, and defendant's confrontation clause rights would be

violated if the dying declaration were admitted.         The court denied this

application as well, observing that the arguments challenging the viability of the

statement as a dying declaration did not significantly differ from the arguments

made in opposition to its admission.

      Lastly, the judge denied defendant's Wade application. She found the

identification process was not impermissibly suggestive, and even if suggestive,

the process was nonetheless reliable because A.B. was acquainted with

defendant before the incident.

                                    The Trial

      Among others, the State called the paramedic, Padilla, and Kunac as

witnesses during the trial. The prosecutor asked the court to find A.B.'s video

recorded dying declaration was authentic, in reliance on the pretrial order. The


                                                                          A-2501-17T3
                                        7
purpose of the State's application was to avoid defendant making a chain of

custody argument before the jury.      Defense counsel argued that admission

should be made based on necessary protocols establishing chain of custody. The

court ruled as follows:

            it was very clear that this was a tape taken at that time,
            . . . I felt that there was no manipulation in the tape. I
            was satisfied with it and my understanding is that the
            main reason we were having the hearing was to
            determine if it was going to be admitted into evidence.
            When I stated that I was going to allow it into evidence,
            . . . I gave an extensive opinion that I had written and
            then just read into the record, when I gave my reasoning
            as to why I was going to allow these things into the
            record, and I believe that was on August 15th, 2016.

                  I would adopt all those same reasons in which we
            had arguments pertaining to the confrontation clause,
            the dying declaration, but I believed then and I believe
            now that it is fully admissible into the trial and I am
            going to allow it in.

The prosecutor played the video for the jury.

      The State also showed the jury a building security tape of the incident. It

depicts an African American male with short hair and red or orange pants, whom

the State submitted was defendant, sitting on the steps in front of an apartment

complex in conversation with three other men, at approximately 12:54 p.m. One

of the three men goes inside, while defendant and two others remain talking on

the stairs. At around 12:55 p.m., A.B. is seen approaching while on her cell

                                                                         A-2501-17T3
                                        8
phone. She initially ignores the men on the stairs, but turns to say something to

them at about 12:55:51 p.m. After A.B. turns to walk away, the male in the red

pants begins to respond, and the two appear to argue. The convers ation ends

around 12:56:20 p.m. At 12:56:27 p.m., A.B. begins to walk back towards the

stairs of the complex, seemingly yelling. Immediately, the man in red pants

jumps to his feet, brandishing a handgun, and shoots repeatedly at A.B. as she

approaches. The man flees at 12:56:35 p.m. In the security footage, A.B. is

seen lying on the stairs in a pool of blood, as a crowd gathers around her.

      Eleven nine-millimeter bullet shell casings, a cell phone, and a replica

handgun were recovered from the area. When Padilla learned a man known as

"June June," defendant, may have been involved, he went to "June June's"

address and spoke with Kanem Morris, defendant's father. Morris told police

his son admitted shooting A.B. during an argument, and had left the residence

moments before police arrived.

      That same evening, at around 8:50 p.m., Morris made a recorded statement

about the shooting at the police station.     In the statement, played in the

courtroom after the jury was dismissed, Morris said he learned that A.B. had

been shot while visiting a friend at University Hospital. A.B.'s sister, a family

friend, saw Morris in the hallway and told him that his son was the shooter.


                                                                         A-2501-17T3
                                        9
Morris explained that "they all know each other," referring to defendant and

A.B., because they lived in the same apartment complex.

      As Morris and A.B.'s sister were talking in the hospital hallway, other

acquaintances began to surround him asking questions about the shooting.

When Morris encountered defendant shortly thereafter, he asked him about the

incident, and defendant told him he had been arguing with A.B. about money.

Defendant said he shot A.B. after she pulled a gun on him. Morris asked

defendant to remain and cooperate, but defendant fled when Morris told him the

police were on their way.

      A redacted version of Morris's statement regarding defendant's admission

was played to the jury.     At trial, when confronted with his description of

defendant's admissions, Morris claimed he only agreed to talk to police because

he thought there was a "shoot on sight" order against his son, which Padilla

denied existed. Morris ultimately alleged his statement "got messed up" and

that he must have misunderstood defendant. Morris signed an affidavit claiming

his recorded statement to police was "mendacious."

      Police interviewed Kareem Brown, one of the individuals in front of the

building when A.B. was shot. He had been talking to Manuel De Los Reyes on

the stairs when A.B. walked by acting "chaotic[.]" When defendant approached


                                                                       A-2501-17T3
                                     10
the group, he began to argue with A.B. Brown recalled defendant wearing red

North Face pants that day. According to Brown, defendant suddenly "blew up"

and shot A.B. Brown said A.B. was known to carry a gun, but that at that

moment, despite acting chaotic earlier, he did not view her as a threat. Brown

believed, however, that defendant did feel threatened as a gun was visible on

A.B.'s waistband. At the close of the interview, Brown signed the back of a

photograph of defendant, and confirmed he was the person who shot A.B. He

also agreed that he participated in the interview "totally on [his own] free will."

Brown's statement was played to the jury.

      At trial, Brown claimed that the man in red pants depicted on the security

tape was a person who had since passed away. He said A.B. acted "hostile" that

day and that her "attitude was chaotic." Brown also said she paced back and

forth and had a gun. He recanted his earlier statements to police, alleging he

was coerced into saying something to Padilla that "he didn't want to say." After

leaving the police station, Brown consulted with a friend who was "sharp with

the law," and he submitted a sworn affidavit stating that his prior statement to

police was untruthful because he had been high on drugs and uncomfortable.




                                                                           A-2501-17T3
                                       11
      After defendant's arrest, police seized a nine-millimeter handgun during a

traffic stop. According to the ballistics expert, the shell casings found at the

scene matched the recovered handgun.

      During the State's summation, the prosecutor said the following:

            For the defense to argue that the other facilities left
            [A.B.] to die is disingenuous and it’s disgusting. These
            medical facilities had her for [eleven] months while she
            continued to deteriorate. And we heard Detective
            Padilla went to go visit her and her condition continued
            to worsen. Medical personnel were able to keep her
            alive for 11 months. It took less than 11 seconds for the
            defendant to put her in that situation.

                  ....

            The State submits when you first heard the openings,
            the defense told you there’s a cloak of innocence over
            the defendant. That cloak is gone. You’ve now heard
            all the proofs in the case and they point to one person,
            the defendant. You now have the identifications, you
            now have the videos, you have the statement from
            [A.B.], you have the photographs, you have the
            physical items and the testimony and all those items
            show that on May 5th, 2014 this defendant butchered
            [A.B.] by shooting at her 11 times, and I ask you to
            return the only verdict that’s consistent with the facts
            in this case and that is that this defendant is guilty,
            guilty, guilty. Thank you.

            [(Emphasis added).]

Defendant objected to the prosecutor's use of the term "butcher" but nothing

else. The court overruled the objection.

                                                                         A-2501-17T3
                                      12
Defendant raises seven points on appeal:

      POINT I
      THE PROSECUTION'S EVIDENCE ESTABLISHED
      THAT THE VICTIM DID NOT BELIEVE DEATH
      WAS IMMINENT WHEN SHE ALLEGEDLY MADE
      THE PHOTO IDENTIFICATION; BECAUSE THERE
      IS NO PROOF THE VICTIM UNDERSTOOD OR
      BELIEVED HER DEATH TO BE IMMINENT, THE
      IDENTIFICATION CANNOT BE ADMITTED
      UNDER THE DYING-DECLARATION HEARSAY
      EXCEPTION.

      POINT II
      THE     TRIAL   COURT   DEPRIVED   MR.
      WILLIAMSON OF HIS SIXTH AMENDMENT
      RIGHT TO CONFRONTATION BY ADMITTING IN
      EVIDENCE THE ORDER GRANTING THE STATE'S
      MOTION TO INTRODUCE IN EVIDENCE THE
      VICTIM'S    DYING  DECLARATION   PHOTO
      IDENTIFICATION.

      POINT III
      THE TRIAL COURT ERRED BY DENYING MR.
      WILLIAMSON'S MOTION TO SUPPRESS THE
      SHOW-UP IDENTIFICATION BECAUSE THERE
      WAS AN INADEQUATE RECORD OF THE
      IDENTIFICATION PROCEDURE IN VIOLATION
      OF [Rule] 3:11.

      POINT IV
      THE TRIAL COURT ERRED BY ALLOWING THE
      OUT-OF-COURT PHOTO IDENTIFICATION TO BE
      USED AT TRIAL, WITHOUT FIRST CONDUCTING
      A WADE HEARING, BECAUSE THE PROCEDURE
      DID NOT SATISFY THE CONSTITUTIONAL
      STANDARDS OF RELIABILITY.


                                                A-2501-17T3
                               13
            POINT V
            THE    TRIAL   COURT     DEPRIVED   MR.
            WILLIAMSON OF A FAIR TRIAL BY REFUSING
            TO ALLOW TESTIMONY OF THIRD-PARTY
            GUILT IN THAT THE VICTIM WAS THE STATE'S
            STAR WITNESS IN A MURDER PROSECUTION
            AGAINST A KNOWN "BLOOD" GANG MEMBER
            AT THE TIME WHEN SHE WAS MURDERED.

            POINT VI
            THE PROSECUTOR COMMITTED MISCONDUCT
            DURING SUMMATION BY STATING THAT (A)
            "THE CLOAK OF INNOCENCE" OVER MR.
            WILLIAMSON IS NOW "GONE" (Not Raised Below);
            (B) MR. WILLIAMSON "BUTCHERED" THE
            VICTIM; AND (C) MR. WILLIAMSON'S DEFENSE
            IS "DISINGENUOUS AND IT'S DISGUSTING" (Not
            Raised   Below), WHICH    DEPRIVED      MR.
            WILLIAMSON OF A FAIR TRIAL.

            POINT VII
            THE SENTENCE IMPOSED WAS MANIFESTLY
            EXCESSIVE AND THE TRIAL COURT ERRED BY
            NOT GIVING MR. WILLIAMSON 1301 DAYS OF
            GAP TIME CREDIT.

      Appellate review of a trial court's evidentiary determinations is limited to

examining the decision for abuse of discretion. Hisenaj v. Kuehner, 194 N.J. 6,

12 (2008). In doing so, the reviewing court may not "create anew the record on

which the trial court's admissibility determination was based." Ibid. Generally,

evidentiary determinations are given considerable latitude and will not be

disturbed unless the decision was so "wide of the mark that a manifest denial of


                                                                          A-2501-17T3
                                      14
justice resulted." State v. Kuropchak, 221 N.J. 368, 385-86 (2015) (quoting

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

                                         I.

                                        A.

      We first address defendant's contention that the admission of A.B.'s dying

declaration was error because when she made it she did not believe her death

was imminent. As a general matter, "statement[s], other than [those] made by

the declarant while testifying at the trial or hearing, offered in evidence to prove

the truth of the matter asserted[,]" are hearsay and inadmissible as evidence.

N.J.R.E. 801(c); N.J.R.E. 802. Certain exceptions to the hearsay rule apply,

however, if a declarant is "unavailable."      N.J.R.E. 804.     Those exceptions

include an unavailable declarant's statement made "under belief of imminent

death"—commonly referred to as a "dying declaration." N.J.R.E. 804(b)(2).

Under this particular hearsay exception, "a statement made by a victim

unavailable as a witness is admissible if it was made voluntarily and in good

faith and while the declarant believed in the imminence of declarant's impending

death." Ibid. "Although there is no controlling New Jersey authority explaining

'belief of imminent death,' the United States Supreme Court has held that

'[d]espair of recovery may indeed be gathered from the circumstances if the facts


                                                                            A-2501-17T3
                                        15
support the inference.'"   State v. Prall, 231 N.J. 567, 585 (2018) (quoting

Shepard v. United States, 290 U.S. 96, 100 (1933)).

      In assessing admission, the courts will look to:

            all the attendant circumstances . . . including [1] the
            weapon which wounded him, [2] the nature and extent
            of his injuries, [3] his physical condition, [4] his
            conduct, and [5] what was said to and by him. [Citations
            omitted] Whether the attendant facts and circumstances
            of the case warrant the admission of a statement as a
            dying declaration is in the first instance for the court,
            but, when admitted, the declarant's state of mind and
            the credibility, interpretation and weight to be given his
            statement are for the jury under proper instructions.

            [State v. Hegel, 113 N.J. Super. 193, 201 (App. Div.
            1971) (sixth alteration in original) (citation omitted)
            (quoting Commonwealth v. Knable, 85 A.2d 114, 117
            (Pa. 1982)).]

      A.B. was never informed at the hospital that she was going to die,

however, Kunac told her she was in critical condition and "could" die. Police

interviewed A.B. shortly after she regained consciousness. She knew she had

been shot multiple times, her heart had stopped and been restarted, and that she

was in critical condition. Kunac confirmed that A.B. was lucid, understood the

gravity of her injures, and responded to the information about her medical status

with visible sadness and tears.




                                                                         A-2501-17T3
                                       16
      Defendant nonetheless argues there was insufficient evidence for the court

to conclude that A.B. believed, or was conscious of, the possibility of imminent

death. In support of the argument, he relies on a Third Circuit case in which the

victim was shot three times and paralyzed. United States v. Lawrence, 349 F.3d

109, 111-12 (3d Cir. 2003). That court held the victim's statement to police was

not a dying declaration because neither the victim, nor medical staff, thought he

faced death at the time the statement was made, and he was able to actually name

the person who shot him. Id. at 116-17. The facts in Lawrence, however,

significantly differ from what occurred here. The victim in Lawrence was able

to speak to police at the crime scene and never lost consciousness. Id. at 112.

      Unlike the victim in Lawrence, A.B. arrived at the hospital as a "traumatic

arrest" patient, both comatose and unresponsive, with a Glasgow score of three.

When she awoke after intense resuscitation efforts, the doctor informed her of

her injuries and the possibility of death. The medical staff believed A.B. could

die—and conveyed that notion to her. A.B. had every reason to believe death

was imminent.

      A.B. was found lifeless at the crime scene with no detectible pulse.

Although resuscitated, she arrived at the hospital extremely unstable, in a

comatose and unresponsive state. Kunac could not remember, verbatim, her


                                                                         A-2501-17T3
                                      17
exact words to A.B. when she regained consciousness. But even if Kunac had

only conveyed a basic summary of her medical status, a similarly situated person

would have feared death was imminent.

      A.B. died before the pretrial hearing took place. Without knowing how

she felt when interviewed, the court could only weigh and assess the testimony

of others—the paramedics, Padilla, Kunac—at the time she made the

identification. In looking to the Hegel factors, we conclude the judge did not

err in finding A.B.'s statement to police, under all the attendant circumstances,

was made under belief of imminent death and was therefore a dying declaration.

                                       B.

      Defendant asserts that by taking judicial notice of its August 1, 2017 order

admitting A.B.'s statements as a dying declaration, the judge deprived the jury

of the opportunity to decide on its own whether A.B.'s identification of

defendant was accurate. This point lacks merit. A jury can always reject or

accept evidence presented to them. In this case, as in every case, they were

instructed to independently weigh the evidence in determining whether the State

had proven its case beyond a reasonable doubt.

      The right of a criminal defendant to confront witnesses against him is well

grounded in Constitutional and New Jersey Law. U.S. Const. amend. VI; N.J.


                                                                          A-2501-17T3
                                      18
Const. art. I, ¶ 10. "The Confrontation Clause generally prohibits the use of out-

of-court testimonial statements by an absent witness who has not been subject

to cross-examination."    State v. Roach, 219 N.J. 58, 85 (2014) (Albin, J.

dissenting) (citing Crawford, 541 U.S. at 51). Critical to this rule, however, is

the difference between testimonial and nontestimonial statements. See Davis v.

Washington, 547 U.S. 813, 821-22 (2006).

      Testimonial statements are those made in the course of an interrogation,

with the "primary purpose . . . to establish or prove past events potentially

relevant to later criminal prosecution." Id. at 822. Conversely, "[s]tatements

are nontestimonial when made in the course of police interrogation under

circumstances objectively indicating that the primary purpose of the

interrogation is to enable police assistance to meet an ongoing emergency."

Ibid. Only testimonial statements trigger a defendant's right to confrontation.

Id. at 821.

      A defendant's right to confrontation is not violated, however, if evidence

is admitted where a "'firmly rooted' hearsay exception or 'particularized

guarantees of trustworthiness' assure its reliability." State v. Miller, 170 N.J.

417, 425-26 (2002) (quoting Ohio v. Roberts, 448 U.S. 56, 66 (1980)). The

Confrontation Clause may also serve to ensure "reliability of the evidence


                                                                          A-2501-17T3
                                       19
[admitted] against a criminal defendant by subjecting it to rigorous testing . . . ."

Id. at 425 (quoting Maryland v. Craig, 497 U.S. 836, 845 (1990)).

      After the earlier finding that A.B.'s statement was a dying declaration, the

court found the interrogation was nontestimonial because Padilla testified that

the primary purpose of speaking with A.B. was to address an ongoing

emergency, since the shooter was still at large. Given that the armed suspect

fled the scene, the police were obliged to address the ongoing emergency and

question the victim, who after being shot at close range several times, had just

regained consciousness.

      The United States Supreme Court has not directly addressed the dying

declaration exception after Crawford. However, the Court has held in a similar

scenario that a victim's dying declaration to police identifying an assailant was

non-testimonial because it was obtained to enable police to meet an ongoing

emergency. Michigan v. Bryant, 562 U.S. 344, 378 (2011).

      The New Jersey Supreme Court has not ruled on this issue. A number of

other state courts have, prior to Bryant, and admitted such statements, although

on a different theory. For example, the Supreme Court of California has said:

             Dying declarations were admissible at common law in
             felony cases, even when the defendant was not present
             at the time the statement was taken. In particular, the
             common law allowed the declaration of the deceased,

                                                                             A-2501-17T3
                                        20
           after the mortal blow, as to the fact itself, and the party
           by whom it was committed, provided that the deceased
           at the time of making such declarations was conscious
           of his danger. To exclude such evidence as violative of
           the right to confrontation would not only be contrary to
           all the precedents in England and here, acquiesced in
           long since the adoption of these constitutional
           provisions, but it would be abhorrent to that sense of
           justice and regard for individual security and public
           safety which its exclusion in some cases would
           inevitably set at naught. But dying declarations, made
           under certain circumstances, were admissible at
           common law, and that common law was not repudiated
           by our constitution in the clause referred to, but adopted
           and cherished. Thus, if, as Crawford teaches, the
           confrontation clause is most naturally read as a
           reference to the right of confrontation at common law,
           admitting only those exceptions established at the time
           of the founding it follows that the common law
           pedigree of the exception for dying declarations poses
           no conflict with the Sixth Amendment. We therefore
           conclude the admission of Patel's dying declaration was
           not error.

           [People v. Monterroso, 101 P.3d 956, 972 (Cal. 2004)
           (citations omitted) (quotations omitted).]

     Other courts have engaged in the same analysis. See Commonwealth v.

Nesbitt, 892 N.E.2d 299, 310 (Mass. 2008) (“The confrontation clause ‘is most

naturally read as a reference to the right of confrontation at common law,’”

which recognized dying declarations as an exception to the right of

confrontation); State v. Jones, 197 P.3d 815, 822 (Kan. 2008) (“[W]e are

confident that, when given the opportunity to do so, the Supreme Court would

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confirm that a dying declaration may be admitted into evidence, even when it is

testimonial and unconfronted.”); Harkins v. State, 143 P.3d 706, 711 (Nev.

2006) (“[B]ecause dying declarations were recognized at common law as an

exception to the right of confrontation, they should continue to be recognized as

an exception.”); People v. Taylor, 737 N.W.2d 790, 794 (Mich. Ct. App. 2007)

("For the reasons stated by the Supreme Court of California, we hold that, under

Crawford, dying declarations are admissible as an historical exception to the

Confrontation Clause."); State v. Bodden, 661 S.E.2d 23, 29 (N.C. Ct. App.

2008) ("Monterroso and cases from other jurisdictions mirror our conclusion

that the confrontation clause allows an exception for testimonial dying

declarations.").

      Thus, pursuant to the United States Supreme Court's "ongoing emergency"

doctrine, and historic precedent regarding exceptions to the confrontation

clause, A.B.'s dying declaration is admissible. This exception to the hearsay

rule, as embodied in N.J.R.E. 804(b)(2), continues to be viable even post -

Crawford. The judge did not abuse her discretion in admitting the evidence.

                                       II.

      Defendant contends admission of the dying declaration was prejudicial

error both because there were inadequate procedural safeguards when the record


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was created and because a Wade hearing was required, and none was conducted.

He further argues that a Wade hearing was necessary because the identification

procedure involving A.B. was impermissibly suggestive, and the police

recordkeeping violated Rule 3:11.

      A.B., while in her hospital bed, could not easily communicate. The police

conducted and recorded the interview as best they could.              A.B. knew

defendant—which Padilla knew before going to the hospital. Showing A.B. a

photograph of the suspect identified by other means, and recording the interview

on the officer's cell phone was therefore not violative of New Jersey's witness

identification procedures or impermissibly suggestive.

      The Court said in State v. Anthony, 237 N.J. 213, 233-34 (2019), that a

defendant is entitled to a pretrial hearing on the admissibility of identification

evidence only where "no electronic or contemporaneous, verbatim written

recording of the identification procedure is prepared." Certainly, as defendant

suggests, the officer could have more closely adhered to the letter of the attorney

general guidelines, for example, by stating to A.B. that the photograph she was

being shown was of a person who "may or may not be the culprit." Under the

circumstances, however, what took place followed the spirit of the guidelines

and complied with the rule.


                                                                           A-2501-17T3
                                       23
      In speaking to A.B., Padilla first asked if she knew the person that shot

her. All A.B. could do was nod her head to indicate assent—a gesture captured

on the video. Padilla asked A.B. if she had known the perpetrator "for a while,"

to which she also assented. Padilla asked A.B. if she recognized the person in

the photo she was shown, a statement with which A.B. agreed—as she did the

latter question—whether the person depicted in the photo "shot you earlier

today?" A.B. denied arguing with the person before the shooting. T he officer

then asked if she was "sure" that the person in the picture was the shooter —and

she again nodded.

      To suggest the officer should have mechanically adhered to the procedures

given this death bed identification is not realistic. A.B.'s energy was limited.

The interview could not be conducted elsewhere or more slowly. Knowing A.B.

might die, the officer did the best he could, and did not suggest to A.B. that she

was being shown a photo of the shooter.

      The trial court enjoys the discretion to determine whether an identification

is reliable. State v. Henderson, 208 N.J. 208, 289 (2011). The requirements of

the rule were satisfied in light of the unusual circumstances of the taking of the

statement. See Anthony, 237 N.J. at 233-34. The identification process was not




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                                       24
impermissibly suggestive when the officer's actual words are considered. Thus,

the trial court's decision was not error.

                                        III.

      Defendant contends that the court should have permitted testimony

regarding third-party guilt because A.B. was a principal witness in a case

involving a Bloods gang member. The argument that third-party guilt should

have been presented to the jury has no basis in the record and thus lacks merit.

      "A defendant is entitled to prove his innocence by showing that someone

else committed the crime with which he or she is charged." State v. Jimenez,

175 N.J. 475, 486 (2003). "There must, however, be some evidence of third -

party guilt to permit the defense to argue the point." Ibid. At a minimum, this

requires evidence "capable of raising a reasonable doubt of defendant's guilt."

Ibid. (quoting State v. Koedatich, 112 N.J. 225, 299 (1988)). In other words,

the proof offered must have "a rational tendency to engender a reasonable doubt

with respect to an essential feature of the State's case." State v. Cotto, 182 N.J.

316, 332 (2005) (quoting State v. Fortin, 178 N.J. 540, 591 (2004)). The third-

party cannot be linked to the crime by mere speculation, Koedatich, 112 N.J. at

299-300, or otherwise inadmissible evidence. Cotto, 182 N.J. at 334 (citing

Fortin, 178 N.J. 591). Because this determination requires a fact-sensitive


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                                        25
inquiry, "trial courts retain broad discretion to admit or preclude evidence of

third-party guilt." Id. at 333.

      Nothing about the security video, the video of A.B.'s statement,

defendant's statement to his father, or statements made by others who witnessed

the shooting, suggested third-party involvement. Even if the male depicted in

the security video could not be identified other than by the color of his pants, it

does not support the claim. The shooter did not walk up to A.B. and shoot her

execution-style, as defendant suggests. The video depicts defendant standing

and talking in a group on the steps of an apartment building, A.B. passing by,

and the two beginning to argue. The escalation depicted on the video supports

the version of the event the State presented—to have allowed a third-party guilt

claim would have been highly prejudicial and would not have been grounded on

any available facts.

                                       IV.

      Defendant draws our attention to three specific comments made by the

prosecutor he alleges prejudiced his due process right to a fair trial. We do not

agree that the arguments were prejudicial or clearly capable of producing an

unjust result. The comments, while improper, were ultimately harmless error in

light of the proofs.


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                                       26
      A prosecutor's summation is examined for misconduct "in the context of

the entire trial . . . ." State v. Morton, 155 N.J. 383, 419 (1998). This necessarily

includes statements made by the defense counsel, such as their "opening salvo"

or prosecutorial comments attempting to "right the scale" in response. State v.

Engel, 249 N.J. Super. 336, 379 (App. Div. 1991) (citing United States v.

Young, 470 U.S. 1, 12-13 (1985)). In order to justify reversal, the prosecutor's

summation must have been "clearly and unmistakably improper," and must have

"substantially prejudiced defendant's fundamental right to have a jury fairly

evaluate the merits of his defense." State v. Wakefield, 190 N.J. 397, 438 (2007)

(quoting State v. Papasavvas, 163 N.J. 565, 625 (2000)).

      Challenges to statements which were not objected to below, are addressed

under the "plain error" standard.       R. 2:10-2; R. 1:7-2.      Moreover, when

overwhelming proof exists in the matter, certain errors by the trial court may be

considered "harmless beyond a reasonable doubt." See State v. Tillery, 238 N.J.

293, 319 (2019); State v. Weaver, 219 N.J. 131, 154-55 (2014).

      "It is well-established that prosecuting attorneys, within reasonable

limitations, are afforded considerable leeway in making opening statements and

summations." State v. Williams, 113 N.J. 393, 447 (1988). As such, "not every

deviation from the legal prescriptions governing prosecutorial conduct" requires


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                                        27
reversal. Id. at 452 (citing State v. Bucanis, 26 N.J. 45, 56 (1958)). Nonetheless,

"[a]lthough prosecutors may make vigorous and forceful closing arguments,

their primary duty is not to convict but to see that justice is done." State v. Neal,

361 N.J. Super. 522, 535 (App. Div. 2003) (citing State v. Timmendequas, 161

N.J. 515, 587 (1999)).      "Prosecutorial misconduct constitutes grounds for

reversal when it is so egregious as to deprive the defendant of a fair trial." Ibid.

If, however, the trial court directly addresses the issue with "a timely and

effective limiting instruction," the potential prejudice may be cured. State v.

Jackson, 211 N.J. 394, 413 (2012).

      Defendant contends the prosecutor's statement, in his closing that "when

you first heard the openings, the defense told you there’s a cloak of innocence

over the defendant[,] [t]hat cloak is gone[,]" constitutes reversible error . He

argues it impermissibly shifted the burden of proof away from the State, and

deprived him of the presumption of innocence. No objection was made at trial.

      A criminal defendant is presumed innocent until each element of a crime

is proved beyond a reasonable doubt. A summation which has the effect of

shifting this burden of proof, or otherwise tampering with a defendant's

presumption of innocence, ordinarily warrants a remand. State v. Jones, 364

N.J. Super. 376, 382 (App. Div. 2003) (holding a prosecutor's remark which


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                                        28
seemed to place the burden on defendant to submit to fingerprint testin g, was

"clearly erroneous and so capable of affecting the jury's deliberations").

      In stating defendant's cloak of innocence was now gone, the State came

dangerously close to implying that it had sufficiently proved its case before the

jury deliberated.    This statement, in the absence of immediate corrective

instruction, was improper.

      In defense of the language, the State argues it was entitled to make

"vigorous and forceful closing arguments," State v. Mahoney, 188 N.J. 359, 376

(2006) (quoting State v. Frost, 158 N.J. 76, 82 (1999)), and that the words were

a mere comment on the evidence. Indeed, the State was not prohibited from

commenting on defendant's metaphor regarding the "cloak of innocence" during

his opening and summation, nor was it prevented from commenting on the

defense's opening and closing statements. See Engel, 249 N.J. Super. at 379.

Notwithstanding, the State was not entitled to modify the metaphor, telling the

jury its review of the case was complete because defendant was no longer

presumed innocent.

      "Generally, if no objection was made to the improper remarks, the remarks

will not be deemed prejudicial." Timmendequas, 161 N.J. at 576. This is

because "[f]ailure to make a timely objection indicates that defense counsel did


                                                                             A-2501-17T3
                                       29
not believe the remarks were prejudicial at the time they were made." Ibid.

(citing State v. Irving, 114 N.J. 427, 444 (1989)).

      The jury was told in the judge's opening and closing instructions, however,

that defendant had to be found guilty beyond a reasonable doubt. The cloak of

innocence continued to protect defendant only if and until the jury itself found

the State sufficiently proved each element of his crimes beyond a reasonable

doubt. Furthermore, the State presented powerful proofs against defendant,

including the victim's identification, statements by defendant's father and a

friend, and the video of the incident. In context, therefore, the prosecutor's ill-

advised comment, made in response to defendant's rhetorical flourish, was

harmless error.    This comment alone, which preceded the judge's repeated

instruction regarding the State's burden of proof, could not have prejudiced

defendant's right to a fair trial.

      Defendant also argues that the prosecutor's characterization of him as a

"butcher," to which counsel did object, was reversible error. The prosecutor

made the reference twice during openings, and twice during summation. It is

clear the language was intended to inflame the jury.             In light of the

overwhelming evidence against defendant in this case, however, the

characterization does not warrant reversal. A.B. was shot at close range multiple


                                                                           A-2501-17T3
                                       30
times. More than anything the comment was unnecessary—the proofs spoke for

themselves.

      Defendant had argued that he did not kill A.B., but that she died as a result

of poor hospital care.       Without objection, the prosecutor characterized

defendant's position as "disingenuous and . . . disgusting[.]" The State is entitled

to make vigorous and forceful comments. State v. Mahoney, 188 N.J. 359, 376

(2006). This characterization moved beyond that boundary. However, it did not

deprive defendant of a fair trial in light of the entire record.

      When reviewing a prosecutor's summation, we examine questionable

comments "in the context of the entire trial" and taken as a whole. Morton, 155

N.J. at 419. Here, the three comments challenged by defendant, individually or

in the aggregate, did not "substantially prejudic[e] defendant's fundamental right

to have a jury fairly evaluate the merits of his defense." Wakefield, 190 N.J. at

438 (quoting Papasavvas, 163 N.J. at 625). Although improper, they were not

so egregious as to deprive defendant of a fair trial. See ibid.

                                         V.

      Defendant in his final point contends that the sentence the court imposed

was excessive, and that he should have been credited for 1301 days of gap time.

We note first that no argument in support of gap time credit is included in the


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                                        31
brief. Accordingly, we will consider the issue to have been abandoned. See

Zavodnick v. Leven, 340 N.J. Super. 94, 103 (App. Div. 2001).

      Our review of a criminal sentence is limited to determining whether there

was a "clear showing of abuse of discretion." State v. Bolvito, 217 N.J. 221,

228 (2014) (quoting State v. Whitaker, 79 N.J. 503, 512 (1979)). In accordance

with this deferential standard, we do not substitute our judgment for that of the

sentencing court. State v. Fuentes, 217 N.J. 57, 70 (2014). Indeed, we affirm

the 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."

            [Ibid. (quoting State v. Roth, 95 N.J. 334, 364-65
            (1984)).]

      "Whether a sentence should gravitate toward the upper or lower end of the

range depends on a balancing of the relevant factors." State v. Case, 220 N.J.

49, 64 (2014). "[W]hen the mitigating factors preponderate, sentences will tend

toward the lower end of the range, and when the aggravating factors

preponderate, sentences will tend toward the higher end of the range." Id. at 64-

65 (quoting State v. Natale, 184 N.J. 458, 488 (2005)). Rather than merely

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                                      32
counting the factors, "the court must qualitatively assess the relevant

aggravating and mitigating factors, assigning each factor its appropriate

weight." Id. at 65.

      The trial judge sentenced defendant in the high mid-range. Contrary to

defendant's argument on appeal, the judge did consider defendant's youth. But

she noted he had been in custody most of the time since he became an adult.

Her finding that aggravating factors three, six, and nine applied had support in

the record. See N.J.S.A. 2C:44-1(a)(3), (6), (9). The judge found no mitigating

factors—this conclusion is also supported by the record.

      The judge explained her decision to impose a term of imprisonment of

twenty-five years as necessary because of defendant's progressively wrongful

conduct, culminating in a homicide. Thus, she did not abuse her sentencing

discretion. The sentence does not shock the judicial conscience. See Roth, 95

N.J. at 364-65.

      Affirmed.




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