STATE OF NEW JERSEY VS. GABRIEL C. BARNES (13-01-0178, ESSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-0210-15T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GABRIEL C. BARNES,

Defendant-Appellant.

_____________________________

Submitted September 27, 2017 – Decided November 1, 2017

Before Judges Alvarez and Currier.

On appeal from the Superior Court of New
Jersey, Law Division, Essex County, Indictment
No. 13-01-0178.

Ferro and Ferro, attorneys for appellant
(Nancy C. Ferro, on the briefs).

Robert D. Laurino, Acting Essex County
Prosecutor, attorney for respondent (Kayla E.
Rowe, Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the
brief).

PER CURIAM

Defendant Gabriel C. Barnes appeals from his conviction

following a jury trial and the subsequent denial of his motion for
new trial, arguing that the prosecutor made improper comments in

both his opening statement and closing argument. Defendant also

contests a pre-trial ruling and the sentence. After a review of

these contentions in light of the record and applicable legal

principles, we affirm.

Defendant was charged in the indictment with second-degree

conspiracy to commit robbery, N.J.S.A. 2C:5-2, N.J.S.A. 2C:15-

1(b); four counts of first-degree armed robbery, N.J.S.A. 2C:15-

1; second-degree unlicensed possession of a firearm, N.J.S.A.

2C:39-5(b); second-degree unlicensed possession of a firearm with

purpose to use it unlawfully against the person or property of

another, N.J.S.A. 2C:39-4(a); fourth-degree conspiracy to commit

false swearing, N.J.S.A. 2C:5-2, N.J.S.A. 2C:28-2; and fourth-

degree making a false statement under oath or equivalent

affirmation, N.J.S.A. 2C:28-2.

Prior to trial, defendant filed a motion challenging the photo

array procedure and seeking a Wade hearing.1 After hearing oral

argument and listening to the audiotape of the identification

procedure, the judge denied the motion. A jury convicted defendant

on all counts except the fourth-degree making a false statement

1
U.S. v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149
(1967).

2 A-0210-15T1
under oath. A motion for new trial was denied on June 8, 2015,

and defendant was sentenced to an aggregate prison term of eighteen

years, with the requisite period of parole ineligibility.

At trial, the State presented several witnesses who testified

that defendant and another man robbed them at gunpoint. Defendant

also struck one of the witnesses several times in the head with

the gun, which caused the magazine clip to fall out of the gun

onto the ground. Defendant and the other man ran from the scene.

They returned later in a pickup truck, lost control of the truck,

hit a house, and again ran away.

The police found the magazine clip at the scene, and located

the gun on the floor of the truck. Their investigation further

revealed that defendant had reported the pickup truck had been

carjacked and that the owner of the vehicle was defendant's uncle.

After learning that a carjacking had not occurred, and because of

the truck's connection to the robbery, the police placed

defendant's photo into the array presented to the victims of the

robbery. Several victims identified defendant's photo as the man

who had robbed them at gunpoint.

In his opening statement to the jury, in referring to defendant

returning to the scene of the robbery, the prosecutor made the

following remarks:

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 Now, as the judge instructed, the
defendant is under no obligation to testify
in this case. He's under no obligation to
provide any evidence. So we might never know
why he came back. But the State submits that
it will offer adequate evidence for you to
make the reasonable inference that he came
back for that magazine.

He wanted to clear any link to his
culpability. He knew what he had done and
knew what he had left, so he came back to get
it.

Defense counsel did not immediately object but instead posited

an objection at the close of the opening statements, stating that

the prosecutor impermissibly commented on defendant's right not

to testify. The judge agreed and advised that he would instruct

the jury that defendant had the right to remain silent throughout

the trial, and they should not draw any adverse inferences from

the assertion of that right.

In closing arguments, the prosecutor commented:

For some reason, [on] August 26, 2012
[the police officers] woke up and they said
we're nailing Gabriel Barnes and . . .
Detective James[2] . . . decided to go along
and he said I'm going to manipulate this photo
array for all my years[,] 12, 13[,] years as
a detective in the Major Crimes Bureau.

2
Detective Lydell James testified as one of the investigating
police officers on this case.

4 A-0210-15T1
 Defense counsel objected to this testimony, asserting that it

was an impermissible argument to vouch for a police officer's

credibility. The trial judge overruled the objection, stating

that the prosecutor was commenting on the credibility of the

witnesses in response to defense counsel's comments in summation

that the testimony of James and the other officers was not

believable. The prosecutor continued,

Detective James is going to wake up and frame
this guy right here, Gabriel Barnes, never
seen him before. That's what he did. August
26 [James] got some imaginary phone call
[that] said hey guys, it's time to frame
Gabriel Barnes and that's what he did. . . .
That's what defense counsel told you.

Following the jury's verdict, defendant moved for a new trial,

arguing that the verdict was against the weight of the evidence,

that the prosecutor had improperly vouched for the credibility of

a witness, and violated defendant's Fifth Amendment right to remain

silent by discussing his failure to testify. In a June 8, 2015

written decision, the trial judge denied the motion.

In his determination, the judge noted that in light of the

"ample" physical evidence and testimony from witnesses, it was

"reasonable for the jury to reach the verdict that it did and to

convict the defendant." The trial judge found that the verdict

was not against the weight of the evidence.

5 A-0210-15T1
 The trial judge also concluded that the prosecutor's comments

in opening and closing were not improper. Regarding the

prosecutor's statements on defendant's silence, the judge found

that

[t]he prosecutor was not inviting the jury to
draw an adverse inference from the defendant's
failure to testify; rather, he was
hypothesizing as to why the defendant returned
to the scene of the crime. . . . Therefore,
the prosecutor's comments only went to support
his theory that the defendant returned to the
scene of the crime to retrieve the magazine
that was left during the commission of the
crime.

Furthermore, because he had instructed the jury on defendant's

right to remain silent, the judge determined that defendant was

not deprived of his Fifth Amendment privilege.

The judge also found that the prosecutor's statements

regarding Detective James's credibility were not improper. He

stated that the prosecutor "was merely trying to boost Detective

James's credibility to counter the defense's argument of

suggestiveness in the photo array[,]" and was not vouching for the

detective's credibility.

On appeal, defendant raises the following arguments:

POINT ONE: THE TRIAL COURT ERRED IN DENYING
THE MOTION FOR A NEW TRIAL.

A. The court erred in finding that
the prosecutor did not
impermissibly infringe on

6 A-0210-15T1
 defendant's Fifth Amendment
privilege against self-
incrimination in the opening
statement

B. The court erred in finding that
the State did not commit misconduct
by improperly vouching for the
credibility of Detective Lydell
James

C. The court erred in ruling that
the verdict was not against the
weight of the evidence

POINT TWO: THE COURT ERRED IN FINDING THAT
THE PHOTO ARRAY WAS PROPERLY CONDUCTED AND MET
THE WADE STANDARDS AND DENIED THE REQUEST FOR
A WADE HEARING.

POINT THREE: THE IMPOSITION OF THE AGGREGATE
CUSTODIAL TERM OF EIGHTEEN YEARS SUBJECT TO
THE NERA PAROLE INELIGIBILITY PERIOD WAS
MANIFESTLY EXCESSIVE AND A MISAPPLICATION OF
JUDICIAL SENTENCING DISCRETION.

We review a trial court's decision to deny a motion for a new

trial for an abuse of discretion, State v. Russo, 333 N.J. Super.

119, 137 (App. Div. 2000), and will not reverse the decision

"unless it clearly appears that there was a miscarriage of justice

under the law." State v. Afanador, 134 N.J. 162, 178 (1993)

(quoting R. 2:10-1).

Defendant asserts that the prosecutor improperly made

statements in both his opening and closing remarks that constitute

prosecutorial misconduct. When reviewing a prosecutor's

statements, an appellate court must evaluate "'the severity of the

7 A-0210-15T1
misconduct and its prejudicial effect on the defendant's right to

a fair trial' and conclude that 'prosecutorial misconduct is not

grounds for reversal of a criminal conviction unless the conduct

was so egregious as to deprive defendant of a fair trial.'" State

v. Wakefield, 190 N.J. 397, 437 (2007) (citation omitted) (quoting

State v. Papasavvas, 163 N.J. 565, 625 (2000)), cert. denied, 552

U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008).

It is a fundamental principle of our criminal justice system

that "[a]n accused has the right to remain silent and no negative

inference can be drawn against him or her for maintaining that

silence." State v. Scherzer, 301 N.J. Super. 363, 435-36 (App.

Div.), certif. denied, 151 N.J. 466 (1997). The State may not

comment to the jury about defendant's silence. Id. at 436. We

are satisfied that the prosecutor did not violate that principle.

In his opening statement, the prosecutor outlined the

evidence the State expected to present to support the charges.

After describing the events surrounding the robbery and

defendant's departure from the scene, the prosecutor told the jury

that defendant returned to the area five to ten minutes later.

The prosecutor reiterated the instruction already issued by the

judge that the defendant was under no obligation to either provide

any evidence or testify. He continued, "[s]o we might never know

why [defendant] came back."

8 A-0210-15T1
 The prosecutor's next sentence informed the jury that the State

would provide sufficient evidence for them to infer that defendant

came back for the magazine that had fallen onto the ground.

Although the comments, standing on their own, could be construed

as defendant argues, when read in the context of the preceding and

succeeding sentences, they are harmless. The State was merely

outlining its version of the events and defendant's actions, and

advising that it would be presenting the necessary evidence from

which the jury could draw inferences.

Defendant argues that these comments are similar to those found

to be egregious enough to require a new trial in State v. Pickles,

46 N.J. 542, 566-68 (1966), and State v. Black, 380 N.J. Super.

581, 594-95 (App. Div. 2005), certif. denied, 186 N.J. 244 (2006).

We disagree. Here, the prosecutor neither implied that defendant

was withholding crucial information about the case, nor put

defendant in a position where he would have to testify to

counteract an adverse inference about his silence. When the

comments are viewed in the context of the prosecutor's argument,

the trial judge did not abuse his discretion in denying a new

trial on those grounds.

Prosecutors are generally afforded "considerable leeway" in

their closing arguments. State v. Smith, 167 N.J. 158, 177 (2001).

However, a prosecutor cannot offer his or her personal opinion as

9 A-0210-15T1
to the veracity of any testimony. State v. Michaels, 264 N.J.

Super. 579, 640 (App. Div. 1993), aff'd, 136 N.J. 299 (1994).

Opinions regarding the credibility of law enforcement officers are

assessed "very carefully." State v. Hawk, 327 N.J. Super. 276,

285 (App. Div. 2000) (citing State v. Staples, 263 N.J. Super.

602, 605 (App. Div. 1993)). A prosecutor may not "imply that

police testimony should be accepted, 'not because of its

believability but because the witnesses were policemen.'"

Staples, supra, 263 N.J. Super. at 606 (quoting State v. Jones,

104 N.J. Super. 57, 65 (App. Div. 1968), certif. denied, 53 N.J.

354 (1969)).

Defendant asserts that the prosecutor violated this tenet in

stating: "[Detective James] said I'm going to manipulate this

photo array for all my years[,] 12, 13[,] years as a detective in

the Major Crimes Bureau." After defendant's objection and a

sidebar conference, the prosecutor clarified his statement,

stating, on "August 26th [James] got some imaginary phone call

[that] said hey guys, it's time to frame Gabriel Barnes and that's

what he did. . . . We want to talk about facts. What fact is

there about that?"

The prosecutor did not state to the jury that the detective

would be risking his career or face serious charges if he conducted

himself as defense counsel intimated in his summation. See State

10 A-0210-15T1
v. Frost, 158 N.J. 76, 85-86 (1999) (stating that it was

"egregious" to suggest that police officers would not lie because

of the "magnitude" of charges that could be brought against them).

We are satisfied that the prosecutor was reacting to and countering

defense counsel's closing comments on the detective's credibility,

and asserting that the evidence did not support defendant's

argument. Therefore, the prosecutor's comments were not "so

egregious that [they] deprived defendant of the right to a fair

trial." State v. Gorthy, 226 N.J. 516, 540 (2016) (quoting State

v. Josephs, 174 N.J. 44, 124 (2002)).

We are also satisfied that the verdict was not against the

weight of the evidence. We must respect the jury's verdict unless

no reasonable jury could have reached it. Afanador, supra, 134

N.J. at 178. "Where the jury's verdict was grounded on its

assessment of witness credibility, a reviewing court may not

intercede, absent clear evidence on the face of the record that

the jury was mistaken or prejudiced." State v. Smith, 262 N.J.

Super. 487, 512 (App. Div.) (citing State v. Haines, 20 N.J. 438,

446-47 (1956)), certif. denied, 134 N.J. 476 (1993).

Here, four witnesses testified that two men robbed them and

that one of the men carried a handgun. Three of these witnesses

signed sworn statements that they identified defendant in a photo

array as the man who was carrying the gun when they were robbed.

11 A-0210-15T1
As the determination of a witness credibility is entirely at the

discretion of the jury, ibid., there was more than sufficient

evidence for a jury to reasonably find defendant guilty of these

crimes. Therefore, the verdict is not against the weight of the

evidence. Afanador, supra, 134 N.J. at 178.

We turn to defendant's argument that the court erred in denying

its motion for a Wade hearing to determine the admissibility of a

witness's identification of defendant. In making that deter-

mination, a court must first "decide whether the procedure in

question was in fact impermissibly suggestive." State v. Madison,

109 N.J. 223, 232 (1988). The court then must "focus on the

reliability of the identification." Ibid. If the identification

is "reliable despite the impermissibly suggestive nature of the

procedure, the identification may be admitted into evidence."

Ibid. The totality of the circumstances should be considered in

determining the reliability. Id. at 233.

A court only needs to conduct a Wade hearing if "defendant

offers some evidence of suggestiveness." State v. Henderson, 208

N.J. 208, 290 (2011). The court has discretion not to conduct the

hearing if it concludes that "defendant's initial claim of

suggestiveness is baseless." Id. at 290-91.

Defendant claims that a "tapping sound" heard on the recording

of the photo array procedure indicated that police were telling

12 A-0210-15T1
the witnesses which photo to choose. The trial judge listened to

the recording and found that, based on the timing of the tapping

sound, it was apparent that the sound came from the witnesses

tapping the photo array, not the police. According to the judge,

the tapping occurred almost simultaneously with the witnesses

claiming "that's him, that's him." The court found that there was

nothing to indicate that the photo array procedure was

"impermissibly suggestive." Therefore, the trial judge did not

err in exercising his discretion not to hold a Wade hearing.

In his final point, defendant contends, without elaboration,

that the imposed sentence was excessive. We disagree. The judge's

findings and balancing of the aggravating and mitigating factors

are supported by adequate evidence in the record, and the sentence

is neither inconsistent with sentencing provisions of the Code of

Criminal Justice nor shocking to the judicial conscience. See

State v. Bieniek, 200 N.J. 601, 608 (2010); State v. Cassidy, 198

N.J. 165, 180-81 (2009).

Affirmed.

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