State of New Jersey v. Jacob R. Gentry

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2481-11T4

STATE OF NEW JERSEY,
APPROVED FOR PUBLICATION

Plaintiff-Respondent, January 13, 2015

v. APPELLATE DIVISION

JACOB R. GENTRY,

Defendant-Appellant.

Argued October 21, 2014 - Decided January 13, 2015

Before Judges Reisner, Koblitz and Higbee.

On appeal from the Superior Court of New
Jersey, Law Division, Sussex County,
Indictment No. 09-02-0094.

Stephen W. Kirsch, Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender,
attorney; Mr. Kirsch, of counsel and on the
brief).

Gregory R. Mueller, First Assistant
Prosecutor, argued the cause for respondent
(Francis A. Koch, Sussex County Prosecutor,
attorney; Mr. Mueller and Daniel Bajger,
Assistant Prosecutor, of counsel and on the
brief).

Appellant filed a pro se supplemental brief.
 The opinion of the court was delivered by

REISNER, P.J.A.D.

Defendant Jacob R. Gentry appeals from his September 20,

2011 conviction for first-degree aggravated manslaughter,

N.J.S.A. 2C:11-4a, and third-degree endangering an injured

victim, N.J.S.A. 2C:12-1.2, and from the sentence of thirty

years in prison subject to the No Early Release Act (NERA),

N.J.S.A. 2C:43-7.2.

On this appeal, defendant raises the following points for

our consideration:

POINT I
THE STATE'S USE, OVER DEFENSE OBJECTION, OF
THE CO-DEFENDANT'S STATEMENT TO POLICE --
BOTH WHEN CROSS-EXAMINING THE DEFENDANT, AND
IN THE PROSECUTOR'S SUMMATION -- WAS A
BLATANT VIOLATION OF DEFENDANT'S RIGHTS TO
CONFRONT THE WITNESSES AGAINST HIM AND TO
DUE PROCESS.

POINT II
THE TRIAL JUDGE IMPROPERLY PRECLUDED DEFENSE
COUNSEL FROM OFFERING EVIDENCE ABOUT DAVID
HAULMARK REGARDING BOTH: (1) HIS REPUTATION
FOR AGGRESSIVENESS UNDER N.J.R.E. 404(A)(2)
AND (2) HIS PRIOR BAD ACT OF TRYING TO BITE
HIS WIFE DURING A FIGHT, PURSUANT TO
N.J.R.E. 404(B).

POINT III
THE JURY INSTRUCTION ON SELF-DEFENSE: (1)
IMPROPERLY LIMITED SELF-DEFENSE TO THE CRIME
OF MURDER; (2) FAILED TO EXPLAIN TO THE JURY
THAT, IF THE FIGHT WERE, INDEED, "MUTUAL
COMBAT," SELF-DEFENSE WOULD NEVERTHELESS BE
AVAILABLE TO DEFENDANT IF DAVID HAULMARK
ESCALATED THE MATTER BEYOND A NORMAL

2 A-2481-11T4
 FISTFIGHT; AND (3) FAILED TO EXPLAIN TO THE
JURY THE EFFECT THAT A "COURSE OF PHYSICAL
ABUSE" CAN HAVE ON THE DETERMINATION OF
WHETHER A DEFENDANT ACTED REASONABLY IN
SELF-DEFENSE. (Not Raised Below).

POINT IV
THE JURY INSTRUCTION ON PASSION/PROVOCATION
MANSLAUGHTER IMPROPERLY FAILED TO ADDRESS
THE ISSUES OF EITHER "MUTUAL COMBAT" AS A
SOURCE OF ADEQUATE PROVOCATION, OR THE
EFFECT THAT A "COURSE OF PHYSICAL ABUSE" CAN
HAVE ON THE JURY'S DETERMINATION OF WHETHER
THERE WAS ADEQUATE PROVOCATION. (Not Raised
Below).

POINT V
THE SENTENCE IMPOSED IS MANIFESTLY
EXCESSIVE.

Defendant presents the following argument in a pro se

supplemental brief:

POINT I
THE TRIAL COURT ERRED BY FAILING TO ACT SUA
SPONTE IN SUPPRESSING DEFENDANT'S CONFESSION
AS FRUIT OF A POISONOUS TREE WHERE [THE]
CONFESSION WAS NOT MADE IN A KNOWING AND
INTELLIGENT FASHION AND WHERE [THE]
CONFESSION WAS OBTAINED BY EXPLOITATION OF
ILLEGAL SEIZURE OR DETENTION, I.E., ARREST
WHERE DEFENDANT WAS NOT ADVISED OF HIS TRUE
TARGET STATUS AS A SUSPECT IN THE MURDER
INVESTIGATION OF DAVID HAULMARK IN ADDITION
TO RECEIVING MIRANDA WARNINGS CONSTITUTES
PLAIN ERROR AND DEFENDANT WAS DENIED OF
[SIC] A FAIR TRIAL AND DUE PROCESS OF LAW
(U.S. CONST. IV, V, XIV; N.J. CONST. ART[.]
I PARAS. 1, 10).

After thoroughly reviewing the voluminous record provided

to us, we are constrained to reverse defendant's conviction due

3 A-2481-11T4
to prejudicial trial errors. We remand this matter for retrial

on both counts. We summarize our reasons as follows.

Defendant was charged with murder, aggravated manslaughter

and reckless manslaughter in the death of David Haulmark. The

State's theory was that defendant, his girlfriend Emily Henry

(Emily or the girlfriend), and his brother Jarrod Gentry (Jarrod

or the brother) attacked Haulmark and beat him to death.

Defendant claimed self-defense and denied that the brother or

the girlfriend participated in the incident. We find that

defendant was denied a fair trial when the trial court

erroneously failed to charge the jury that self-defense was a

complete justification for aggravated manslaughter and

manslaughter, in addition to being a defense to murder. The

jury acquitted defendant of murder but convicted him of

aggravated manslaughter. Because the evidence, viewed favorably

to the defense, was sufficient to support a claim of self-

defense, that error had the clear capacity to produce an unjust

result. R. 2:10-2. Consequently, the aggravated manslaughter

conviction must be reversed.

Other serious trial errors, viewed either separately or in

combination with the charging error, also require reversal.

Defendant, the brother, and the girlfriend were each indicted in

4 A-2481-11T4
Haulmark's death, but defendant was tried separately.1 Neither

the brother nor the girlfriend testified at his trial. However,

during the trial, the prosecutor2 improperly cross-examined

defendant about a statement the brother made to the police. The

statement was hearsay and clearly inadmissible.

That error was compounded during summations when defense

counsel tried to ameliorate the prejudicial impact of the

prosecutor's improper tactic, and the trial court then

erroneously permitted the prosecutor to tell the jury that the

brother had made a statement that was kept from the jury due to

the court's evidentiary rulings. Thus, the prosecution was

first allowed to incriminate defendant with hearsay evidence

from a co-defendant whom defendant had no opportunity to cross-

examine. The State was then permitted to imply to the jurors

that defense counsel had misrepresented the evidence and that

the State had incriminating information which the jury had not

been allowed to hear. Those errors violated fundamental

constitutional principles designed to guarantee every defendant

the right to a fair trial and had a clear capacity to produce a

1
Defendant's procedural history advised us that the co-
defendants pled guilty to "much lesser offenses"; the State's
brief adopted defendant's procedural history.
2
The State's case was presented by two prosecutors, one male and
one female. When we refer to a specific prosecutor, we use the
gender-appropriate pronoun.

5 A-2481-11T4
miscarriage of justice. See R. 2:10-2. Because defendant

testified as to his defenses on all issues, and the errors

allowed the State to unfairly impugn his credibility, we are

constrained to reverse the conviction in its entirety and remand

for a retrial.

I

We summarize the evidence as it relates to the issues on

appeal. In particular, because self-defense must be charged if

the evidence, viewed most favorably to the defendant, would

support that justification, we focus on "the evidence that

provides a rational basis for a self-defense charge." State v.

Rodriguez, 195 N.J. 165, 170 (2008); see also State v. Kelly, 97

N.J. 178, 200 (1984).3

During the spring and summer of 2008, defendant and

Haulmark were among several hundred workers employed on a

pipeline project in upstate New York. Most of the workers,

known as "pipeliners," were housed at the Legends Resort

(Legends), a large hotel complex in Sussex County, New Jersey.

According to several witnesses, defendant suffered repeated

harassment and physical attacks at the hands of Haulmark,

3
Contrary to this principle, the State's brief presents the
evidence in the light most favorable to the prosecution.

6 A-2481-11T4
Haulmark's friend Sean ("Frog") Taxis4, and several other

pipeliners who were part of Haulmark's social group. Frog also

made inappropriate advances to Emily. Defendant testified that

complaints to the police about the harassment met with an

unsympathetic response.

From the evidence, it can be inferred that Haulmark and his

friends resented defendant because he was not from the local

area, he was "scrawny" and dressed oddly, but he nonetheless had

a beautiful and flirtatious girlfriend living with him in the

hotel. According to witnesses, Frog, a small, loudmouthed,

aggressive individual, tended to start fights, and Haulmark, a

235-pound former football linebacker, supplied the "muscle" to

back him up.

In his statement to the police, and his trial testimony,

defendant described several incidents in which Haulmark, Frog,

and their companions attacked him without provocation. In one

incident, they assaulted him in an elevator. On another

occasion, they emerged from the hotel's bar and attacked him.

Since defendant had to pass by the bar in order to reach his

hotel room, he once asked a security guard for an escort.

Patricia Prince, a former Legends security guard, corroborated

4
We refer to Taxis by his nickname, because all of the witnesses
did so.

7 A-2481-11T4
defendant's statement that in June 2008, defendant asked Prince

to escort him and Emily to their hotel room, because they were

afraid "[t]hat somebody would jump them."

In July 2008, defendant and Emily moved out of the hotel,

and into a house an hour away from the job site, in order to

avoid further harassment from Haulmark and his friends. In the

early morning hours of August 17, 2008, defendant, Emily, and

Jarrod stopped by the hotel to drop off a friend who lived

there. According to defendant, they went into the hotel bar to

have a drink and say hello to the bartenders, with whom they

were friendly. At some point, they unexpectedly encountered

Haulmark in the bar. The evidence would support a conclusion

that both defendant and Haulmark had been drinking heavily that

night. According to defendant, Haulmark challenged him to a

fight. Believing that he would wind up having to fight Haulmark

whether he accepted the challenge or not, defendant accepted.

The two men, accompanied by Jarrod and later joined by Emily,

walked out of the hotel. A few minutes later, a bar employee

found Haulmark lying on the ground, severely injured.

Defendant, Emily, and Jarrod were no longer at the scene.

According to defendant's trial testimony, Haulmark had been

the aggressor in the fight. Haulmark advanced toward defendant,

tackled him into a raised flower bed, clamped his teeth down on

8 A-2481-11T4
defendant's right nipple, and started choking him. Defendant

testified that he was "fighting for [his] life" because Haulmark

outweighed him by eighty pounds and had him in a "strangle

hold." Defendant testified that he was lying on his back and

fought desperately to escape Haulmark's grip. When he finally

got Haulmark off him, defendant kicked him once in the head to

keep him from renewing the attack. Defendant stated:

[H]e tackled me into that flower bed. He
bit me. He was choking me. And I started
to fight for my life. And . . . I fought
with everything that I had. I punched him.
I elbowed him. I kneed him. And when he
was coming back up, . . . I didn't want him
to get back up because he was obviously
going to be very angry. And, I -- I was
afraid. And I -- I kicked him.

Defendant further explained that he kicked Haulmark, as

Haulmark was getting back up, because "he was a very large man

and I was scared of him and I was afraid of what he would do to

me. So, yes, I did not want him to get back up."5 There was

evidence that Haulmark had been sprayed with pepper spray; the

defense version was that Emily sprayed him at the end of the

altercation, after which she, defendant and Jarrod left the

scene in her car.

5
Haulmark eventually died at the scene, as the result of brain
trauma. The State's expert witnesses could not state for certain
that Haulmark was kicked in the head more than once and could
not identify any one blow as the fatal one.

9 A-2481-11T4
 An examinati18on of defendant's body the day after the

fight revealed a human bite mark over his nipple, severe enough

to break the skin, and strangulation marks on his neck. There

were also signs of disturbance in the mulch of the flower bed,

consistent with someone having been pushed into it.

According to defendant, when he accepted Haulmark's

challenge he thought they would have an ordinary fistfight, and

both men would walk away with no major injuries. Previous

fights between them had not resulted in serious injuries. He

did not anticipate that Haulmark would try to kill him.

Defendant testified that when he left the scene of this fight,

he did not realize that Haulmark was seriously injured; he

expected Haulmark to be at work the next day. Defendant's

statement to the police a day later, made before the police

revealed Haulmark's death, reflected that defendant did not know

Haulmark was either severely injured or dead.

In addition to the evidence of the prior fights with

defendant, and the fight that occurred on August 17, 2008, there

was more general testimony that Haulmark had been aggressive and

threatening to others at Legends. The Legends bar manager,

Vicki Driemel, testified to an incident about a month before the

killing, in which Haulmark and a companion told her they

belonged to "the pipeline mafia" and threatened to kill her,

10 A-2481-11T4
harm her children, and burn her house down. Haulmark was banned

from the bar for a month as a result of that incident. On the

evening of the killing, at about 2:20 a.m., the security camera

in the bar recorded an incident in which Haulmark appeared to be

physically aggressive toward another man at the bar. Defense

witness Gene Cobb testified that Haulmark was hitting the man in

the back of the head and trying to get the man to go outside and

fight him.

The defense also presented testimony from Jason Ford, a

pipeline worker, that at some point prior to the August 17, 2008

incident, Haulmark told Ford and another employee that he was

going to "break [defendant's] neck" and "f***" his girlfriend.

Ford, who was a friend of defendant, testified that he "relayed

that information to [defendant]." Defendant responded that

Haulmark and his friends were "a bunch of punks" who called

themselves the "pipeline mafia." Defendant also told Ford that

Haulmark and his friends "don't ever leave him alone."

Ford testified that as of August 2008, defendant was

slightly over six feet tall and weighed about 155 pounds. That

was consistent with a police report, prepared shortly after

defendant's arrest, which described him as weighing 160 pounds.

There was testimony that Haulmark referred to defendant as a

11 A-2481-11T4
"scrawny little bastard." As previously noted, Haulmark was six

feet tall, weighed 235 pounds, and was a former linebacker.

II

In State v. Rodriguez, 195 N.J. 165 (2008), our Supreme

Court "held that a person who acts in self-defense and 'kills in

the honest and reasonable belief that the protection of his own

life requires the use of deadly force' cannot be convicted of

murder, aggravated manslaughter, or manslaughter." State v.

O'Neil, 219 N.J. 598, 601 (2014) (quoting Rodriguez, supra, 195

N.J. at 172). As recently emphasized in O'Neil, the Court has

"put to rest the 'mistaken assertion' in State v. Moore, 158

N.J. 292, 303 (1999), that a defendant charged with aggravated

manslaughter and manslaughter could not assert self-defense."

Id. at 602.

Where the evidence could support self-defense as the

justification for a homicide, the trial court must tell the jury

that self-defense is a complete defense to aggravated and

reckless manslaughter as well as to murder. Rodriguez, supra,

195 N.J. at 174-75. And, the trial court must tell the jury

that the State has the burden to disprove the self-defense

justification. Id. at 175.

In considering whether to charge the
jury on self-defense, a court should
consider the circumstances that might give
rise to that defense, including the

12 A-2481-11T4
 defendant's and alleged aggressor's conduct,
rather than the charges chosen by the
prosecutor. The reality of the situation
facing the defendant governs whether he had
a right to engage in self-defense. As long
as a self-defense charge is requested and
supported by some evidence in the record, it
must be given.

[Id. at 174.]

Where there is sufficient evidence to warrant a self-

defense charge, failure to instruct the jury that self-defense

is a complete justification for manslaughter offenses as well as

for murder constitutes plain error. See O'Neil, supra, 219 N.J.

at 617. In O'Neil, the Court found that the defendant's

appellate counsel rendered ineffective assistance in failing to

bring Rodriguez to our attention, in a case where "the trial

court instructed the jury that self-defense was a valid

justification for murder but not for aggravated manslaughter or

manslaughter." Id. at 602. The Court concluded:

If the jury found that defendant had an
honest and reasonable belief that the use of
deadly force was necessary to save his own
life, that he was not the aggressor, and
that he could not have safely retreated,
then self-defense applied not only to the
murder charge, but also to the aggravated-
manslaughter and manslaughter charges. The
jury was instructed that self-defense
applied to the murder charge and acquitted
defendant of that offense. The jury was
instructed that self-defense did not
apply to the aggravated-manslaughter and
manslaughter charges and convicted him of
those offenses.

13 A-2481-11T4
 Of course, we cannot know the precise
reason for the jury's verdict of not guilty
to murder. Nevertheless, the trial court's
failure to charge self-defense on aggravated
manslaughter and manslaughter leaves open a
reasonable probability that, if properly
instructed, the outcome would have been
different. The erroneous jury instruction
necessarily undermines confidence in the
verdict.

[Id. at 617.]

In this case, defendant's primary defense to the killing of

the victim was self-defense. The judge instructed the jury that

self-defense was a justification for murder, but did not

instruct the jury that self-defense was a defense to aggravated

manslaughter or manslaughter. The jury acquitted defendant of

murder but convicted him of aggravated manslaughter. The State

contends that if the charge was erroneous, the error was

harmless because the evidence did not support a claim of self-

defense. We disagree.

At the charge conference on June 16, 2011, the State argued

that the evidence did not support a self-defense charge. In

rejecting the State's application to exclude the self-defense

issue, the trial judge cogently explained why the evidence could

support a claim of self-defense. We agree with his analysis.

We add the following discussion.

Pursuant to N.J.S.A. 2C:3-4a, "the use of force upon or

toward another person is justifiable when the actor reasonably

14 A-2481-11T4
believes that such force is immediately necessary for the

purpose of protecting himself against the use of unlawful force

by such other person on the present occasion." However, deadly

force may not be used "unless the actor reasonably believes that

such force is necessary to protect himself against death or

serious bodily harm." N.J.S.A. 2C:3-4b(2). In addition, deadly

force is not "justifiable" in a situation where "[t]he actor,

with the purpose of causing death or serious bodily harm,

provoked the use of force against himself in the same

encounter." N.J.S.A. 2C:3-4b(2)(a) (emphasis added). Nor is

the use of deadly force justifiable where "[t]he actor knows

that he can avoid the necessity of using such force with

complete safety by retreating." N.J.S.A. 2C:3-4b(2)(b).

There is little case law in this State construing the

statute as it applies to the situation presented here. Both

parties cite State v. Scaduto, 74 N.J.L. 289, 294 (Sup. Ct.

1907), as standing for the proposition that if two individuals

engage in mutual combat, neither of them can claim self-defense.

Defendant also invokes Scaduto as standing for the proposition

that if one party escalates the fight by using deadly force, the

other party may respond defensively with deadly force. We do

not find Scaduto particularly helpful with respect to either

proposition.

15 A-2481-11T4
 Scaduto did not involve mutual combat that escalated. The

defendant there claimed that the victim attacked him first by

drawing a gun and shooting at him. Id. at 290. The issue the

court addressed on the self-defense charge was the admissibility

of evidence that the victim made previous threats against the

defendant. Ibid. The court held that, even if the defendant

did not know about those threats, they were admissible if there

was an issue as to whether the victim was in fact the aggressor

in the incident. Id. at 291.

The language in Scaduto concerning mutual combat precluding

a self-defense claim was dicta and was not directed at self-

defense to a homicide charge. It was part of the court's

explanation as to why the trial judge erred, albeit harmlessly,

in charging the jury that if the defendant was acquitted of

manslaughter, he could still be convicted of fighting by mutual

agreement. Id. at 294. At the time, the statute required that

both combatants be found "jointly" guilty of that offense. See

L. 1898, c. 235, § 40; State v. Jordon, 86 N.J. Super. 585, 590

(App. Div. 1965). The court reasoned that if either party acted

in self-defense and was acquitted of manslaughter on that basis,

that party could not then be convicted of combat by agreement.

Scaduto, supra, 74 N.J.L. at 294. In that context, the court

also stated that if the parties agreed to mutual combat, neither

16 A-2481-11T4
of them could claim self-defense as a defense to the crime of

fighting by mutual combat. Ibid.; see Jordon, supra, 86 N.J.

Super. at 590-93 (discussing and applying the dicta in Scaduto

to a charge of fighting under N.J.S.A. 2A:170-27). Nor is State

v. Pasterick, 285 N.J. Super. 607, 616-17 (App. Div. 1995),

applicable to this issue, because it addressed mutual combat in

the context of passion-provocation manslaughter, not self-

defense, and the defendant there admitted to being the aggressor

in a fight with his father.

Defendant cites cases from other jurisdictions, e.g.,

People v. Quach, 116 Cal. App. 4th 294, 301-02 (2004);

Commonwealth v. Barber, 477 N.E.2d 587, 588-89 (Mass. 1985);

United States v. Lewis, 65 M.J. 85, 88-89 (C.A.A.F. 2007).

Those cases are of somewhat limited utility, because they

construe self-defense statutes that are different from New

Jersey's statute. For example, the California statute

specifically addresses "mutual combat" and sets forth a

defendant's four-part proof burden to demonstrate self-defense

in that context. Quach, supra, 116 Cal. App. 4th at 301 n.2.

However, all of the cases generally discuss the concept that,

during mutual combat, a defendant may use deadly force in self-

defense when he has not previously used or threatened deadly

force against his opponent but the opponent suddenly begins

17 A-2481-11T4
using deadly force. See also United States v. Stanley, 71 M.J.

60, 68-69 (C.A.A.F.) (Baker, C.J., concurring), cert. denied,

___ U.S. ___, 133 S. Ct. 210, 184 L. Ed. 2d 41 (2012). That

approach is consistent with New Jersey's statute.6

Viewing the evidence in the light most favorable to the

defense, defendant did not provoke the fight and certainly did

not provoke the fight "with the purpose of causing death or

serious bodily harm" to Haulmark. N.J.S.A. 2C:3-4b(2)(a).

Rather, the 235-pound Haulmark escalated a proposed garden-

variety fistfight into a deadly assault on the much smaller

defendant, and defendant justifiably resorted to extreme force

to save himself from death or serious bodily injury.

Essentially, defendant testified that Haulmark came at

him, tackled him, and was then on top of him, biting his nipple

and choking him. Defendant described his desperate attempts to

get Haulmark to stop choking him. Defendant's efforts included

repeatedly elbowing and punching Haulmark in the head as

Haulmark was clamping his teeth down on defendant's nipple and

strangling him. We agree with the trial judge's conclusion

6
The State's reliance on Commonwealth v. Toon, 773 N.E.2d 993
(Mass. App. Ct. 2002), is misplaced. In that case, the
defendant threatened to stab the victim with a knife before the
fight began, and there was insufficient evidence that the victim
used deadly force or that the defendant believed he was in
imminent danger of death or serious bodily harm. Id. at 1001-
02.

18 A-2481-11T4
that, if the jury accepted defendant's version of the incident,

defendant reasonably believed that he needed to employ the force

he used "to protect himself against death or serious bodily

injury," and defendant neither provoked the incident nor

provoked it "for the purpose of causing death or serious bodily

injury" to Haulmark. N.J.S.A. 2C:3-4b(2)(a).

Next, we turn to the requirement that the actor retreat,

provided it can be done "with complete safety," N.J.S.A. 2C:3-

4b(2)(b). If defendant was being bitten and choked, with

Haulmark on top of him, he certainly had no ability to retreat

from that situation. See Lewis, supra, 65 M.J. at 89. Once

defendant succeeded in getting Haulmark off him, reasonable

jurors could conclude defendant was also justified in kicking

the large, aggressive Haulmark once as he was getting up, so

that defendant and his companions could safely withdraw from the

area.

The trial evidence by no means compelled a conclusion that

defendant acted in self-defense, but if defendant and the

several witnesses who testified favorably to him were deemed

credible, a jury could find that he acted in self-defense.

Because the evidence could support self-defense, we are

19 A-2481-11T4
constrained to reverse defendant's conviction for aggravated

manslaughter.7

Moreover, bearing in mind that the trial judge in this case

did not tailor the charge with reference to the evidence

presented by either side, we remind the trial court on remand

that it is often important to mold jury instructions so that the

jury clearly understands how the evidence in this particular

case relates to the legal concepts addressed in the charge. See

State v. Gartland, 149 N.J. 456, 476 (1997).

Model jury charges are often helpful to
trial courts performing this important
function. However, it is not always enough
simply to read the applicable provision of
the Criminal Code, define the terminology,
and set forth the elements of the crime. An
instruction that is appropriate in one case
may not be sufficient for another case.
Ordinarily, the better practice is to mold
the instruction in a manner that explains
the law to the jury in the context of the
material facts of the case.

In this regard, it is "well settled in
our State that the trial judge has the
right, and oftentimes the duty, to review
the testimony and comment upon it, so long
as he clearly leaves to the jury * * * the
ultimate determination of the facts and the
rendering of a just and true verdict on the

7
In arguing for reversal on this point, defendant has raised
several additional contentions that were not presented to the
trial court. We decline to address them for the first time on
appeal. If they are relevant at the retrial they may be raised
on remand.

20 A-2481-11T4
 facts as it finds them." Incorporating
specific evidentiary facts into a jury
charge is especially helpful in a protracted
trial with conflicting testimony.

[State v. Concepcion, 111 N.J. 373, 379-80
(1988) (citations omitted).]

In particular, in this case, it would be helpful to mold the

instructions to explain how the self-defense statute applies to

the participants in a fight.

III

We next address the prosecutor's use of the brother's

incriminating statement to the police. It is well-established

that the prosecution cannot introduce the confession of a non-

testifying co-defendant as evidence against a defendant. Bruton

v. United States, 391 U.S. 123, 126, 88 S. Ct. 1620, 1622, 20 L.

Ed. 2d 476, 479 (1968); State v. Haskell, 100 N.J. 469, 478-79

(1985); State v. Laboy, 270 N.J. Super. 296, 303 (App. Div.

1994). "[T]he out-of-court statement of a co-defendant is

inadmissible against another defendant because admission of the

statement violates the rule prohibiting hearsay and the

defendant's fundamental right to confront witnesses." Haskell,

supra, 100 N.J. at 478.

More generally, absent exceptions not present here, a

witness's statement resulting from a police interrogation

constitutes testimonial hearsay. Crawford v. Washington, 541

21 A-2481-11T4
U.S. 36, 52, 124 S. Ct. 1354, 1364, 158 L. Ed. 2d 177, 193

(2004); see Michigan v. Bryant, 562 U.S. 344, ___, 131 S.Ct.

1143, 1150, 179 L. Ed. 2d 93, 101-02 (2011); Davis v.

Washington, 547 U.S. 813, 822, 126 S. Ct. 2266, 2273, 165 L. Ed.

2d 224, 237 (2006). Unless the witness is unavailable and the

defendant had a prior opportunity to cross-examine him, the

statement cannot be admitted as evidence against the defendant

without violating his Sixth Amendment confrontation right.

Crawford, supra, 541 U.S. at 59, 124 S. Ct. at 1369, 158 L. Ed.

2d at 197; State v. Weaver, 219 N.J. 131, 151 (2014).8 It is

also improper for the prosecution to imply to the jury, through

argument or witness testimony, that the State has additional

incriminating evidence that the jury has not heard. Weaver,

supra, 219 N.J. at 152-53; State v. Branch, 182 N.J. 338, 351-52

(2005); State v. Johnson, 421 N.J. Super. 511, 519 (App. Div.

2011).

In cross-examining defendant, the prosecutor clearly

transgressed those fundamental constitutional principles. This

impropriety was compounded when the judge later allowed the

prosecutor to tell the jury that the brother's statement was

8
We agree with defendant that Jarrod's statement to the police
was not the statement of a co-conspirator made during the course
of and in furtherance of a conspiracy. See N.J.R.E. 803(b)(5).
Nor, in a criminal trial, was it admissible against defendant as
a statement against interest. N.J.R.E. 803(c)(25).

22 A-2481-11T4
kept from them by the court's evidentiary rulings. Johnson,

supra, 421 N.J. Super. at 518-20.

To put the errors in context, defendant's cross-examination

was not the first time the prosecutor made improper use of the

statement of an absent witness. During the prosecutor's opening

statement, he informed the jury that Emily Henry told the police

that she had told defendant that Haulmark made crude gestures

and comments to her on the night Haulmark was killed. Thus, the

prosecutor argued, defendant was motivated to kill Haulmark due

to his rage over the way he believed Haulmark treated the

girlfriend. The prosecutor then told the jury that Emily's

statement to the police was untrue.

Out of the jury's presence, defense counsel vociferously

objected and requested a mistrial, because Emily was not going

to be a witness at the trial and her out-of-court statement,

that she allegedly told defendant certain information, was

inadmissible hearsay. The judge denied the mistrial motion;

however, he ruled that the State was to make no further comment

to the jury about Emily's alleged statement. That ruling should

have enlightened the prosecutor as to the inadmissibility of

hearsay statements by absent co-defendants. But it did not.

In response to the prosecutor's opening statement, defense

counsel's opening statement reminded the jury that neither his

23 A-2481-11T4
comments nor those of the prosecutor were evidence, and that

"[t]he only evidence you will hear is going to come from this

[witness] box, and from exhibits that come from witnesses who

are in that box." Defense counsel would repeat that theme in

his summation.

During defendant's cross-examination, the prosecutor asked

defendant about Emily's "statement." Defense counsel objected

and the judge sustained the objection. Soon thereafter, the

prosecutor asked defendant a series of questions about whether

his brother participated in the fight. Defendant denied that

his brother participated. The prosecutor then asked: "Is what

you're telling us here today consistent with your brother's

statement?" Defense counsel objected and told the judge that

this question might be grounds for a mistrial. The judge

sustained the objection. However, on the next trial day, the

prosecutor renewed his request to use the brother's statement to

cross-examine defendant, over defense counsel's objection. The

judge ruled that "the State can pursue this line of inquiry."

During the subsequent cross-examination of defendant, one

of the prosecutors asked defendant another series of questions

about whether his brother participated in the fight with

Haulmark, allegedly by elbowing, hitting, and kicking him.

Defendant denied it. She then asked, "isn't it true that Jarrod

24 A-2481-11T4
said that he did?" Defense counsel objected and, at sidebar,

the judge asked the prosecutor to withdraw the question. She

agreed, but clearly, the information was presented to the jury

through her questions, and no curative instruction was given.

On June 16, 2011, defense counsel moved for a mistrial

based on the prosecutor's conduct. Defense counsel pointed out

that during her cross-examination of defendant, the prosecutor

had been reading from a transcript of the brother's statement,

and the jury would have received the impression that the brother

had made a statement which contained the information on which

the prosecutor's questions were based. The judge denied the

motion, stating his belief that the jury had not seen the

transcript.

During his summation, defense counsel attempted to address

and defuse the potential prejudice posed by the prosecutor's

improper effort to place Jarrod's statement before the jury. He

began by arguing to the jury that the minimal bloodstains on

Jarrod's pants did not establish that Jarrod participated in the

fight with Haulmark. Defense counsel then pointed out that

there was no testimony that Jarrod participated in the incident:

Now, that's the bloodstains that Jarrod
had on him. You saw how much blood there
was on Jacob Gentry's knee, you saw how much
blood there was on Jacob Gentry's boot. Do
you think for a minute that Jarrod Gentry
was involved in the fight – and remember,

25 A-2481-11T4
 ladies and gentlemen, when we started this
case, the judge has already told you, and
he's probably going to instruct you as to
this again, instructed you at the beginning
of the case, . . . what the lawyers say
isn't evidence. The only evidence actually
comes from this box and from that screen or
from the mouth of a witness as they tell you
what happened. And did you hear anyone from
that witness stand say Jarrod Gentry was
involved in this fight, that this was a two
on one? You didn't. The State has an
obligation to prove their case beyond a
reasonable doubt, and you heard nothing
about that, not once. Not from a witness,
that's for sure.

Before beginning her summation, the prosecutor objected to

that statement and argued that "[defense counsel] commented on

the State not presenting evidence of Jarrod's testimony and

basically said we failed . . . [w]hen, in reality, your Honor

precluded us from using it." (Emphasis added). Defense counsel

responded "that what I said was they heard no competent evidence

from a witness who testified about Jarrod's involvement. And

they didn't." Apparently misconstruing, or misremembering

defense counsel's summation argument as telling the jury that

the State failed to introduce Jarrod's statement in evidence,

the judge admonished defense counsel that "this should not have

been brought up" because the court had ruled that Jarrod's

statement was inadmissible. He granted the prosecutor's request

that she be allowed to tell the jury that Jarrod's statement had

been excluded by the court.

26 A-2481-11T4
 The prosecutor took full advantage of this ruling, not only

telling the jury repeatedly that Jarrod had made a statement,

but clearly implying to the jury that the State possessed

incriminating evidence that the jury had not been allowed to

hear:

[Defense counsel] made a reference to you,
he said the State failed to prove their case
. . . because we didn't bring in Jarrod's
statement. Well, we did not fail to bring
in Jarrod's statement. That was a judicial
ruling, the judge made the decision. You
heard throughout this whole trial there's
stuff that's admissible, there's stuff
that's inadmissible. . . . [I]t's up to the
judge and all those books that sit up there
to decide what is relevant for you to hear
and what is not relevant. The State did not
fail to do anything and you may not . . .
infer, that we neglected to prove our case
from failure to give you Jarrod's statement.

We conclude that the prosecutor's questions and summation

comments, and the trial court's ruling permitting the comments,

were clearly improper, violated bedrock constitutional

principles, and constituted prejudicial error. Defendant did

not open the door to this evidence, and its admission was

plainly erroneous. See State v. Vandeweaghe, 177 N.J. 229, 237-

38 (2003); Johnson, supra, 421 N.J. Super. at 519-20; State v.

Rucki, 367 N.J. Super. 200, 207-09 (App. Div. 2004).

The State argues that Jarrod's statement was admissible

because it only incriminated him. Putting aside the obvious

27 A-2481-11T4
Crawford issue, which the State does not address, we find the

State's argument unpersuasive. Given the issues in this case,

if Jarrod admitted participating in the fight, that evidence

clearly incriminated defendant. The evidence was admitted in

error, and the error went to the heart of the dispute between

the defense and the State – whether Haulmark's death occurred as

the result of a one-on-one fight or a three-against-one attack.

See State v. Smith, 167 N.J. 158, 188 (2001).

The trial errors not only unfairly undercut defendant's

credibility but the prosecutor's summation undermined the

credibility of defendant's attorney in implying that he

misrepresented the evidence. Further, because defendant

testified as to all issues, errors that impugned his credibility

require that his conviction be reversed as to both counts. See

Rucki, supra, 367 N.J. Super. at 208-09.

[At the direction of the court, Part IV,
which is not deemed to warrant publication,
see R. 1:36-2(d), is omitted from the
published version.]

Reversed and remanded.

28 A-2481-11T4