NOT FOR PUBLICATION WITHOUT THE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