NOT FOR PUBLICATION WITHOUT THE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-2626-15T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ANDY R. TORRES, a/k/a
ANDREW R. TORRES, and
ANDREW RUBIN TORRES,
Defendant-Appellant.
______________________________
Argued January 30, 2019 – Decided March 4, 2019
Before Judges Koblitz, Ostrer and Currier.
On appeal from Superior Court of New Jersey, Law
Division, Warren County, Indictment No. 13-02-0051.
Lauren S. Michaels, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Lauren S. Michaels, of
counsel and on the brief).
Jennifer E. Kmieciak, Deputy Attorney General, argued
the cause for respondent (Gurbir S. Grewal, Attorney
General, attorney; Jennifer E. Kmieciak, of counsel and
on the brief).
PER CURIAM
Defendant Andy R. Torres appeals from his convictions after trial of
second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A.
2C:15-1(a)(1); first-degree armed robbery, N.J.S.A. 2C:15-1(a)(1); first-degree
felony murder, N.J.S.A. 2C:11-3(a)(3); second-degree possession of a weapon
for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1); and third-degree unlawful
possession of a weapon, N.J.S.A. 2C:39-5(c). During the jury trial, the court
dismissed a charge of third-degree tampering with a witness, his girlfriend
Alexis,1 N.J.S.A. 2C:28-5(a)(1), and defendant was acquitted of first-degree
murder, N.J.S.A. 2C:11-3(a)(1)(2). After the jury trial, he was convicted by the
court of second-degree certain persons not to have weapons, N.J.S.A. 2C:39-
7(b)(1). Defendant was sentenced to an aggregate term of forty-years
imprisonment, with eighty-five percent parole ineligibility under the No Early
Release Act (NERA), N.J.S.A. 2C:43-7.2. We reject defendant's claims of
reversible trial errors and affirm the convictions, but remand for resentencing.
Testimony at trial revealed the following. Several people heard a gunshot
at a BP gas station in Phillipsburg around midnight on January 5, 2012. Two
1
We use first names when referring to Alexis and her brother, Zach, to avoid
confusion and preserve their anonymity.
A-2626-15T2
2
witnesses described "two white guys" running from the gas station wearing
similar jackets.
Lieutenant Ralph Reppert of the Phillipsburg Police Department arrived
at the gas station, where he saw the attendant, lying in a pool of blood, shot once
through the thigh. He noticed a shotgun-style ammunition "wad" laying on the
ground near the attendant's booth. The attendant had a significant injury to his
right thigh, suffering damage to major blood vessels. He died on January 7,
2012.
On January 11, 2012, the police located defendant and Alexis in a friend's
home in Pennsylvania. The friend testified that defendant and Alexis were
staying with her before the incident occurred. When the police arrived, she told
them about defendant's shotgun and led them to the kitchen closet where it was
located. She said that when she saw defendant put it there, she told "him to get
that out of my house, I didn't want that in my house." It was loaded with two
shells. Later testing revealed that it was functional. Defendant did not have a
firearms purchaser identification card. Co-defendant David Beagell was taken
into custody on January 25, 2012.
After receiving information from the victim's family, an officer went to
pawn shops in Allentown looking for a twenty-two-carat gold wedding ring that
A-2626-15T2
3
belonged to the victim. The police found the victim's ring at a pawn shop a five-
minute walk from the home where defendant was staying. The pawn shop owner
testified that defendant pawned a ring on January 9, 2012. The transaction
required defendant to show a photo identification and provide a signature, which
defendant did in his own name.
After defendant was arrested, he waived his Miranda2 rights and gave a
statement regarding his involvement in the robbery and shooting. Defendant's
statement was recorded, and the DVD of his statement was admitted into
evidence and played for the jury.
In his statement, defendant said he gave his shotgun to Beagell. When
they got into New Jersey, Beagell and Alexis's brother Zach stole a New Jersey
license plate and put it on the car so that no one would know that they were from
Pennsylvania. Defendant gave Beagell the shotgun and three shells; the shotgun
was not loaded when defendant gave it to Beagell. The two men went behind
the BP gas station while defendant and Alexis sat in the car.
Alexis later drove up to the gas station and asked the gas attendant for
directions. Beagell and Zach came up from behind the attendant and Beagell
2
Miranda v. Arizona, 384 U.S. 436 (1966).
A-2626-15T2
4
put the shotgun up to his head and demanded money. The shotgun "literally
touched the freaking guy's head." Defendant was scared it was going to go off,
so he told Alexis to "get the fuck outta here." Alexis looked scared, but she
drove off.
Defendant and Alexis drove around and saw Beagell and Zach in the
parking lot of another station and picked them up. Then they drove back to
Pennsylvania, where they divided the money from the robbery.
Defendant denied that he shot the gas station attendant. He claimed that
he did not even know that the attendant had been shot until the next day when
Beagell's girlfriend showed him a news article on her cell phone. He did not
know where his shotgun was, but thought Beagell still had it, and he denied that
the shotgun found was his. He also claimed he did not know anything about the
attendant's missing ring.
The State then called Alexis, who took the stand and testified that
defendant was her boyfriend. They were living together in January of 2012. She
started testifying about being at her mother's house with defendant on January
4, 2012, but then refused to testify further stating: "Listen, I can't do this. I
can't. I don't want to. Take it back."
A-2626-15T2
5
At sidebar, the court and counsel had an extensive discussion on how to
proceed. Ultimately, the court decided to adjourn Alexis's testimony to allow
her an opportunity to consult with counsel.
The next day, the court advised Alexis of the consequences of her
continued refusal to testify. When she was subsequently questioned by counsel,
Alexis stated: "I don't want to testify," and "I don't want my plea." When asked
by the court what she meant, Alexis stated, "I don't want to cooperate with the
State." Alexis also stated that she made the decision not to testify on her own
after speaking with counsel, and that her decision was not "influenced in any
way by any threat or promise or inducement by any person, [defendant], or
anybody else."
The court advised the prosecution to call the State's next witness "without
further comment or without any comment to the jury as to what we've been doing
this morning other than resolving legal issues." Defense counsel did not object
or request any curative instruction.
Beagell testified for the State as part of a plea deal; the murder and felony
murder charges against him were dismissed in exchange for his testimony
against defendant. He had jumped out of a third-floor window of the house
A-2626-15T2
6
when the police came and arrested defendant and Alexis on January 11, 2012.
Beagell was not arrested until January 25, 2012.
Beagell testified to the following. On the evening of January 4, 2012,
Beagell was in his room drinking alcohol and smoking marijuana when Zach
said that defendant and Alexis wanted to rob a house or a gas station. Defendant
said he needed to pick up his shotgun and some clothes.
They then drove to the BP gas station in Phillipsburg and parked across
the street. Alexis drove over to the gas station and asked the attendant for
directions. While she was talking to the attendant, defendant and Zach "came
up on the guy" from behind. Defendant pointed the shotgun at the attendant's
head. Beagell "bugged out" and told Alexis "to hit the gas and go." Alexis
drove off.
Defendant had the shotgun when he returned to the car. He took the shell
out of the shotgun and said: "I shot the mother fucker." Defendant said
something like: "I just shot him in his leg. It's going to be all right." Beagell
also noticed that "[defendant] had a ring on his hand," which defendant said he
took from the gas station attendant.
After the State rested, defendant moved for a judgment of acquittal on the
witness tampering charge, as well as a mistrial. The State did not object to the
A-2626-15T2
7
dismissal of the witness tampering charge and the court entered a judgment of
acquittal, but denied the motion for a mistrial.
Defendant testified in his defense that he was not involved in the planning
of the robbery, and did not travel to the BP gas station with Beagell, Zach and
Alexis. He claimed that he first learned of the robbery later that afternoon when
he went looking for Alexis. Zach and Beagell "were both arguing amongst
themselves, really loud, violently, about blaming each other for shooting the
man."
The following Sunday, Alexis and Zach's mother:
pulled me into another room with Alexis and starting
[sic] speaking to me, asking me for my assistance,
because she felt that if things were to arise to a point
with the police involvement that [Beagell] would blame
her son, [Zach,] so she asked me to help . . . . And she
told me pretty much what I was to say in order to make
sure that Zach wouldn't be in trouble.
She told defendant to tell the police that he was present during the robbery and
had witnessed Beagell with the shotgun.
Defendant testified that he had lied to the police. The statement he gave
implicating himself in the crimes was false. He said he could not remember "a
lot of things" because he was "extremely high at the time." He admitted that the
A-2626-15T2
8
shotgun in evidence was his, but claimed that it belonged to both him and Zach,
and he did not know if it was used in the robbery.
He said he did not actually know who shot the victim, but he believed at
the time that Beagell "was the type of guy" who would have done so. "He came
across as that type of person." He admitted pawning a ring for $81, but claimed
he did not know whether the ring in evidence was the ring he had pawned.
Alexis had given him "a bunch of jewelry that week" to pawn.
Defendant raises the following issues on appeal:
POINT I: THE COURT ABUSED ITS DISCRETION
IN DENYING TORRES' MOTION TO SEVER THE
WITNESS-TAMPERING CHARGE, EMPLOYING
THE WRONG TEST AND FAILING TO APPLY AN
N.J.R.E. 404(B) ANALYSIS. THEN, ONCE HIS CO-
DEFENDANT/GIRLFRIEND REFUSED TO
TESTIFY, AND THE TAMPERING CHARGE WAS
DISMISSED, THE COURT WAS REQUIRED TO
DECLARE THE REQUESTED MISTRIAL.
ALTERNATIVELY, THE JUDGE'S FAILURE TO
INSTRUCT THE JURY REGARDING HOW, IF AT
ALL, IT COULD CONSIDER ALEXIS'S
TESTIMONY AND BREAKDOWN, AND THE
DISMISSED CHARGE, IN ITS CONSIDERATION
OF THE REMAINING CHARGES WAS PLAIN
ERROR.
A. THE DENIAL OF THE TAMPERING CHARGE
DEPRIVED TORRES OF A FAIR TRIAL.
B. ONCE THE TAMPERING CHARGE WAS
DISMISSED, THE COURT WAS OBLIGATED TO
A-2626-15T2
9
DECLARE A MISTRIAL; THE FAILURE TO DO SO
DENIED TORRES A FAIR TRIAL.
C. THE FAILURE TO PROVIDE THE JURY ANY
GUIDANCE ABOUT ALEXIS' EMOTIONAL
BREAKDOWN AND HER TESTIMONY WAS
PLAIN ERROR THAT DENIED TORRES A FAIR
TRIAL.
POINT II: TORRES' TRIAL WAS INFECTED WITH
IMPROPER OTHER-CRIMES EVIDENCE
INCLUDING THAT DEFENDANT: WAS ON
PROBATION AT THE TIME OF THE OFFENSE;
HAD PREVIOUSLY COMMITTED A BAD ACT
INVOLVING SOMEONE'S DAUGHTER WHO HAD
BEEN LEFT AT HOME; AND HAD CHOKED HIS
CO-DEFENDANT GIRLFRIEND, WHO WAS A
STATE WITNESS.
POINT III: THE COURT'S REFUSAL TO HAVE
THE CO-DEFENDANT/GIRLFRIEND, WITH
WHOM THE STATE ALLEGED DEFENDANT HAD
TAMPERED AS A WITNESS, TESTIFY IN
CIVILIAN CLOTHES VIOLATED THE SUPREME
COURT'S MANDATE IN STATE v. KUCHERA.
POINT IV: THE PROSECUTOR COMMITTED
PROSECUTORIAL MISCONDUCT AND
VIOLATED TORRES' RIGHT TO
CONFRONTATION BY REFERRING IN HIS
OPENING STATEMENT TO THE EXISTENCE OF A
NON-TESTIFYING ANONYMOUS INFORMANT
WHO ALLEGEDLY IMPLICATED TORRES.
POINT V: THE CUMULATIVE EFFECT OF THE
AFOREMENTIONED ERRORS DENIED TORRES A
FAIR TRIAL.
A-2626-15T2
10
POINT VI: A REMAND FOR RESENTENCING IS
REQUIRED BECAUSE THE JUDGE ERRED IN
FINDING AND WEIGHING AGGRAVATING AND
MITIGATING FACTORS, AND IMPOSED
DUPLICATE MONETARY PENALTIES.
I.
In point I of his brief, defendant contends that the trial court erred in its
handling of the witness tampering charge by denying his motion to sever the
witness tampering charge, denying his request for a mistrial after the tampering
charge was dismissed, and failing "to provide the jury any guidance about
Alexis' emotional breakdown and her testimony."
A. Motion to Sever
Defendant argues that the trial court did not conduct the proper analysis
under N.J.R.E. 404(b) before denying his severance motion. According to
defendant, "[t]he tampering charge fails both the third and fourth prongs" of the
test established in State v. Cofield, 127 N.J. 328, 338 (1992).
Any error in failing to sever was harmless because no evidence of witness
tampering was presented to the jury, and the claim was ultimately dismissed.
While defendant argues that he was prejudiced by the prosecutor's reference to
Alexis's anticipated testimony in his opening statement, the prosecutor's remarks
are not evidence to be considered by the jury, and the jury was so instructed .
A-2626-15T2
11
The jury is presumed to have understood and followed that instruction. State v.
Feaster, 156 N.J. 1, 65 (1998); see also State v. T.J.M., 220 N.J. 220, 237 (2015)
(appellate courts "act on the belief and expectation that jurors will follow the
instructions given them by the court").
B. Motion for Mistrial
Next, defendant contends that the court erred by failing to grant a mistrial
after Alexis refused to testify and the witness tampering charge was dismissed .
He argues that "[t]he allegation that [he] tampered with Alexis as a witness
infected the entire trial." First, he claims he was prejudiced by the prosecutor's
reference to Alexis's anticipated testimony in his opening statement. Second,
"Alexis's display in front of the jury, and the tampering accusations that hung
over the entire trial, dismissal notwithstanding, denied him the opportunity to
have the jury fairly evaluate [his] viable defense." According to him, "if [he]
could have presented his defense without the implication that he had threatened
or otherwise tampered with Alexis, there is a reasonable probability that they
would have believed this testimony, or concluded that a reasonable doubt
existed."
"A mistrial is an extraordinary remedy" that should be employed "[o]nly
when there has been an obvious failure of justice . . . ." State v. Mance, 300 N.J.
A-2626-15T2
12
Super. 37, 57 (App. Div. 1997). "Whether manifest necessity mandates the grant
of a mistrial depends on the specific facts of the case and the sound discretion
of the court." State v. Allah, 170 N.J. 269, 280 (2002). When "the court has an
appropriate alternative course of action" it should deny the request. Id. at 281.
The decision to grant or deny a mistrial is within the trial court 's "sound
discretion" and "will not be reversed absent a clear showing of prejudice to
defendant." State v. Provoid, 110 N.J. Super. 547, 558 (App. Div. 1970).
During his opening statement, the prosecutor said: "Now the charges, as
you heard, also include witness tampering, and you're going to he ar testimony
from Alexis . . . that after this [the robbery and shooting] happened [defendant]
went reaching out to her, asking her to change her testimony and change her
statement, and that ladies and gentlemen, establishes witness tampering."
A prosecutor may state in his opening facts he intends in good faith to
prove by competent evidence, and the "[f]ailure of proof to meet expectations is
not cause for reversal 'unless allegations . . . are completely unsupported by the
evidence and there is a showing of prejudice to the defendant and bad faith by
the prosecutor.'" State v. McAllister, 41 N.J. 342, 351 (1964) (quoting State v.
Hipplewith, 33 N.J. 300, 309 (1960)); see also State v. Burns, 192 N.J. 312, 333-
34 (2006) (in determining whether a witness's refusal to testify at trial unduly
A-2626-15T2
13
prejudiced a criminal defendant, a reviewing court should consider whether
there was any misconduct or improper motive in prosecutor's decision to call
witness).
Here, the court correctly pointed out that the prosecutor acted in good faith
by commenting on the expected testimony of Alexis in his opening statement
and by calling her to the stand. Alexis's failure to testify as expected was
through no fault of the State, and the prosecutor reasonably expected Alexis to
honor the terms of her plea agreement. Additionally, the court properly
determined that any alleged prejudice from the prosecutor's opening remarks
would be sufficiently remedied by a curative instruction reminding the jury that
the prosecutor's remarks are not evidence to be considered by them in their
deliberations.
C. Failure to Provide, Sua Sponte, an Additional Instruction
Finally, defendant argues for the first time on appeal that the court's failure
to provide the jury any guidance about Alexis's "emotional breakdown and her
testimony" was plain error.
During the charge conference, defense counsel requested that the court
instruct the jury that the witness tampering charge "is no longer available for
A-2626-15T2
14
their consideration" and that "defendant has, in fact, been acquitted of witness
tampering." In doing so, he argued:
I think in the context of this case, with the appearance
of [Alexis] and her partial testimony and the State's
opening to the effect that the defendant, at least by the
State's theory, had done something to dissuade [Alexis]
from testifying, the only way to undo -- I'm not sure it
does undo it totally -- but the only way to begin to undo
that prejudice is to tell the jury that the [c]ourt has
acquitted [defendant] of [witness tampering].
The court agreed and told the jury: "Now, the fact that I have entered a
judgment of acquittal, in other words, found Mr. Torres not guilty of that charge
as a matter of law, should not influence you or become a part of your discussion
or decision making on the balance of the charges."
Because defendant did not object below, this issue is reviewed for plain
error, and reversal is unwarranted unless the error was "of such a nature as to
have been clearly capable of producing an unjust result." R. 2:10-2. Plain error
in the context of a jury charge is "[l]egal impropriety in the charge prejudicially
affecting the substantial rights of the defendant sufficiently grievous to justify
notice by the reviewing court and to convince the court that of itself the error
possessed a clear capacity to bring about an unjust result." State v. Jordan, 147
N.J. 409, 422 (1997) (quoting State v. Hock, 54 N.J. 526, 538 (1969)). No
further instruction was needed here.
A-2626-15T2
15
II.
In point II of his brief, defendant contends that the court erred by denying
his mistrial requests related to the improper admission of other bad-acts
evidence. He argues that evidence "had no legitimate purpose and served only
to suggest that [he] had a propensity for criminality and violence."
A. Reference to Defendant's Probation
Detective Cruz testified about his involvement in the investigation. Cruz
volunteered: "Well, Mr. Torres had an outstanding probation[.]"
Defense counsel immediately requested a mistrial. The prosecutor
represented to the court that he had advised Cruz that he should not mention any
outstanding warrants. The court found Cruz's mention of probation was an
"innocent error." The court ruled that a mistrial was not necessary and that a
curative instruction was sufficient to alleviate the alleged prejudice. Defense
counsel "strongly" objected to any such instruction, arguing that it would only
"enhance the testimony."
"[A] trial is not a perfectly scripted and choreographed theatrical
presentation; rather, it is an extemporaneous production whose course is often
unpredictable given the vagaries of the human condition." State v. Yough, 208
N.J. 385, 397 (2011). "Attorneys will sometimes pose inartfully crafted
A-2626-15T2
16
questions, and even the most precise question may bring an unexpected response
from a witness." Ibid. A mistrial should only be granted "to prevent an obvious
failure of justice," and the decision to grant a mistrial is entrusted to the "sound
discretion of the trial court." State v. Smith, 224 N.J. 36, 47 (2016) (quoting
State v. Harvey, 151 N.J. 117, 205 (1997)). "[A]n appellate court will not
disturb a trial court's ruling on a motion for a mistrial, absent an abuse of
discretion that results in a manifest injustice." Harvey, 151 N.J. at 205.
We do not find reversible error regarding the comment made by Detective
Cruz. The trial court had the "feel of the case" and was in the best position "to
gauge the effect of a prejudicial comment on the jury in the overall setting ."
State v. Winter, 96 N.J. 640, 646-47 (1984).
B. Redaction Mistake
In part of his statement to police, defendant said:
I give the fucking gun to Dave, cause he's showed me
guns that he's had before. He had a fucking .357 snub
nose, the only reason I know that is because he fucking
gave me every detail about it, it was chrome or black
(INAUDIBLE) . . . he had a .45, like I don't fuck with
guns, I don't like guns. I like to fight. I gave him the
gun. We left. We went back to Michelle's house for a
little bit, hung out. Everyone smoked, calmed down or
whatever. I didn't wanna go at first, I really didn't. I
don't like breaking into people's houses, because I used
to do that when I was young and I was living in Las
Vegas.
A-2626-15T2
17
[Detective]: M-hm.
[Defendant]: And when I did that, the people left their
daughter home and ever since then I refused to do that
shit. We go to fucking Jersey. Me and my fucking
girlfriend are sitting in this fucking car. I'm telling her,
yo, let's just fucking leave. If they wanna fucking sit
here, let 'em sit here. The gun's not under my name.
It's fucking illegal. If they get caught they get caught.
She's like no, that's my little brother. And I understand
that.
[(emphasis added).]
The court ruled that the two emphasized sections would be redacted.
When defendant's statement was played for the jury, however, only the first
emphasized portion was redacted. The second portion, "and when I did that, the
people left their daughter home and ever since then I refused to do that shit,"
was inadvertently left in and heard by the jury. Defense counsel immediately
moved for a mistrial. In denying defendant's application, the court explained
that the second statement standing alone "makes no sense" and thus, although
mistakenly left in by the State, is not a mistake "of sufficient magnitude" to
result in a mistrial. The court did not abuse its discretion by failing to declare a
mistrial under these circumstances.
C. The Prosecutor's Cross-Examination of Defendant
A-2626-15T2
18
During his direct testimony, defendant said that he lied to police about his
involvement in the armed robbery because he "loved Alexis." On cross-
examination, the prosecutor asked, "You loved Alexis so much you tried to
choke her, right, right after this happened?" and defendant answered, "No ."
Defense counsel immediately objected, stating "that's false," and that "it should
never have been introduced into this case." At sidebar, defendant requested a
mistrial, arguing that the question was "totally improper."
The prosecutor responded that, during his statement to the police,
defendant said, "I just fought with my girlfriend. Okay. I literally just put my
hands on her. I didn't punch her or anything, but I did grip her up." The court
sustained the objection, but denied a mistrial, advising counsel that it would tell
the jury that defendant's objection was sustained. It then instructed the jury that
the objection was sustained.
The court then told the prosecutor that he could proceed with the cross -
examination, but requested that he "rephrase the question." Defendant explained
that he did put his hands on Alexis, but "[n]ot in the manner you're speaking."
He said he put his hands "on her shoulders" and "gripped them . . . [h]ard enough
to grab her attention."
A-2626-15T2
19
"If [a criminal defendant] takes the stand and testifies in his own defense
his credibility may be impeached and his testimony assailed like that of any
other witness . . . ." Brown v. United States, 356 U.S. 148, 154–56 (1958)
(quoting Fitzpatrick v. United States, 178 U.S. 304, 315 (1900)).
Defendant had the opportunity to explain fully what happened and was
not unduly prejudiced by the question on cross-examination. Defendant denied
that he choked Alexis, and the court sustained defense counsel's objection to the
prosecutor's original question. The trial court did not err in denying defendant's
motion for mistrial. See State v. LaBrutto, 114 N.J. 187, 207 (1989) ("motions
for mistrial based on misconduct should be granted only where manifest
injustice would otherwise result"); see also State v. Ribalta, 277 N.J. Super. 277,
291 (App. Div. 1994) ("A mistrial is an extraordinary remedy and should be
resorted to only to prevent an obvious failure of justice.").
III.
In point III of his brief, defendant contends the court erred by permitting
Alexis, a State witness, to testify in prison garb. Prior to Alexis taking the stand,
the court informed counsel that she was wearing prison garb. Defense counsel
objected and requested that she be permitted to testify in civilian clothes,
arguing "her appearance in prison garb might engender sympathy for her."
A-2626-15T2
20
The court did commit error by permitting Alexis to testify in prison garb ,
but not reversible error. Our Supreme Court has held that to preserve a criminal
defendant's constitutionally protected right to a fair trial, "a trial court may not
require a defendant's witness to appear at trial in prison garb." State v. Artwell,
177 N.J. 526, 533, 539 (2003) (referring to U.S. Const. amends. V, VI, and XIV;
N.J. Const. art. I, ¶ 10)).
In State v. Kuchera, 198 N.J. 482, 485-86 (2009) our Supreme Court
determined that witnesses for both parties should not testify in prison garb . The
Kuchera Court, however, acknowledged that there may be exceptions to that
general rule:
Finally, whether a witness testifies wearing prison garb
will be subject to review under the abuse of discretion
standard and will be gauged as whether it constitutes
harmless error, that is, whether the error "'is of such a
nature as to have been clearly capable of producing an
unjust result.'" State v. Castagna, 187 N.J. 293, 312
(2006) (quoting R. 2:10-2; editing marks omitted).
[Id. at 501.]
Here, the court misapplied its discretion by, without explanation, denying
defense counsel's request that Alexis appear wearing civilian clothes, deviating
from the general rule that such witnesses appear in civilian clothes. See id. at
500-01; see also Artwell, 177 N.J. at 539. The court also erred by failing to
A-2626-15T2
21
instruct the jury that Alexis's appearing in prison garb should play no role in
weighing the evidence and determining defendant's guilt. See Kuchera, 198 N.J.
at 501.
However, both errors were harmless beyond a reasonable doubt. See R.
2:10-2; see also Kuchera, 198 N.J. at 501; Castagna, 187 N.J. at 312. Defendant
was not prejudiced because the witness tampering charge was dismissed and
Alexis did not provide any inculpatory testimony against defendant.
IV.
In point IV of his brief, defendant contends he was entitled to a mistrial
because the prosecutor's opening statement improperly stated that law
enforcement received an anonymous tip that implicated him in the robbery and
homicide. He argues the prosecutor committed prosecutorial misconduct and
violated his Sixth Amendment right to confrontation by referring to the
existence of a non-testifying anonymous informant who allegedly implicated
him in the crimes.
During his opening statement, the prosecutor said:
So now an investigation begins, right? I mean you have
a body, they know that the individual, you can tell by
the wound that the individual was shot with a shotgun,
and we put out a flyer, we start asking around, and it
was some time, a few days, before we got a break in the
case, when an anonymous tip came in about some
A-2626-15T2
22
individuals who they believed were involved in this
crime. And law enforcement followed up on that
anonymous tip, and it led us to Zach, Alexis . . . , Dave
Beagell[.]
The court denied defense counsel's application for a mistrial, determining
that "extreme remedy" was "not necessary or appropriate under these
circumstances."
Defense counsel requested that the court not advise the jury of his
objection "because that's only going to ring the bell a bit harder." As a result,
the court instructed the jury as follows: "Ladies and gentlemen you are
reminded that what the attorneys say in their opening statements is not evidence.
The evidence will come from the witnesses and the documents and other
physical items which may be introduced for your consideration."
In considering the issue of prosecutorial misconduct, we must first
determine whether misconduct occurred. State v. Frost, 158 N.J. 76, 83 (1999).
Where such misconduct is identified, reversal is not warranted unless the
misconduct is so egregious that it deprived the defendant of a fair trial. State v.
Timmendequas, 161 N.J. 515, 575 (1999).
During an opening statement, the prosecutor is permitted to refer to the
facts he or she intends in good faith to prove by competent evidence. State v.
Wakefield, 190 N.J. 397, 442 (2007). A prosecutor is given great leeway and is
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allowed to be forceful. State v. Pindale, 249 N.J. Super. 266, 285 (App. Div.
1991).
Defendant argues that the prosecutor's opening statement violated his
Sixth Amendment right to confrontation. "A defendant's right to confront and
effectively cross-examine the State's witnesses is essential to the due process
right to a 'fair opportunity to defend against the State's accusations,' and is one
of 'the minimum essentials of a fair trial.'" State v. Gilchrist, 381 N.J. Super.
138, 144 (App. Div. 2005) (quoting Chambers v. Mississippi, 410 U.S. 284, 294
(1973)).
It is well settled that the hearsay rule is not violated
when a police officer explains the reason he approached
a suspect or went to the scene of the crime by stating
that he did so "upon information received."
[McCormick on Evidence (2d ed. 1972), § 248, p. 587].
Such testimony has been held to be admissible to show
that the officer was not acting in an arbitrary manner or
to explain his subsequent conduct. However, when the
officer becomes more specific by repeating what some
other person told him concerning a crime by the
accused the testimony violates the hearsay rule.
Moreover, the admission of such testimony violates the
accused's Sixth Amendment right to be confronted by
witnesses against him.
[State v. Bankston, 63 N.J. 263, 268 (1973) (citations
omitted).]
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A specific hearsay statement is not required in order to create an
impermissible inference of guilt. State v. Irving, 114 N.J. 427, 446 (1989); State
v. Torres, 313 N.J. Super. 129, 157 (App. Div. 1998). "When the logical
implication to be drawn from [a witness's] testimony leads the jury to believe
that a non-testifying witness has given the police evidence of the accused's guilt,
the testimony should be disallowed as hearsay." Bankston, 63 N.J. at 271; see
also Branch, 182 N.J. at 352 (phrase "based on information received" may be
used by police officers to explain their actions, but only if necessary to rebut a
suggestion that they acted arbitrarily and where use of that phrase does not create
an inference that defendant was implicated in a crime by some unknown person);
State v. Dehart, 430 N.J. Super. 108, 110-11 (2013) (holding it was plain error
for a police officer to provide hearsay testimony explaining why he included
defendant's photograph in a photo array and for the prosecutor to highlight that
testimony in summation). It is the creation of the inference, not the specificity
of the statements made, that determines whether the hearsay rule was violat ed.
Irving, 114 N.J. at 447. Nevertheless, the erroneous admission of such
testimony is not automatic grounds for reversal, and it may be assessed under
the harmless error standard. Bankston, 63 N.J. at 272-73.
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"The principle distilled from Bankston and its progeny is that testimony
relating inculpatory information supplied by a co-defendant or other non-
testifying witness identifying the defendant as the perpetrator of a crime
deprives the accused of his or her constitutional rights." State v. Farthing, 331
N.J. Super. 58, 75 (App. Div. 2000); see also Bankston, 63 N.J. at 265, 268
(holding detective violated hearsay rule by testifying that he received
information from an informant that an individual had narcotics in his possession,
and then went to a tavern where he saw and arrested the defendant who fit the
informant's description); State v. Taylor, 350 N.J. Super. 20, 34-35 (App. Div.
2002) (holding that the police officer's statements about what various
unidentified eyewitnesses told the police about the suspect were inadmissible
hearsay because they were offered to elicit accusations against the defendant by
non-testifying witnesses); State v. Thomas, 168 N.J. Super. 10, 13-15 (App. Div.
1979) (reversing defendant's conviction where prosecutor elicited testimony
from detective which led to "inescapable inference" that informant had given
him the defendant's name, leading the jury to believe that the unidentified
informant told the detective that the defendant committed a crime).
Defendant's reliance on Bankston, Branch, and Dehart is misplaced as all
three are distinguishable on their facts. Unlike in Bankston, Branch, and Dehart,
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26
defendant is not challenging the admission of hearsay testimony, but rather, is
complaining about the prosecutor's opening statement. At trial, an officer
testified only that law enforcement received additional information that led to
Pennsylvania, where they sought to speak with defendant, Alexis, and Zach.
The jury was repeatedly told that the prosecutor's opening statement is not
evidence. The jury is presumed to have understood and followed that
instruction. Feaster, 156 N.J. at 65; T.J.M., 220 N.J. at 237.
The decision to grant a mistrial rests within the sound discretion of the
trial court. State v. Harris, 181 N.J. 391, 518 (2004). We defer "unless there
[was] a clear showing of mistaken use of discretion by the trial court,"
Greenberg v. Stanley, 30 N.J. 485, 503 (1959), or unless "manifest injustice
would . . . result." LaBrutto, 114 N.J. at 207. The prosecutor's remarks were
not evidentiary, and the jury was so instructed. See T.J.M., 220 N.J. at 237;
Feaster, 156 N.J. at 65. A mistrial was not required after the prosecutor's
opening statement.
V.
In point V of his brief, defendant argues that even if none of the individual
errors cited in points I through IV above warrant reversal standing alone, the
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27
cumulative effect of the cited errors warrants reversal and the granting of a new
trial.
"[A] defendant is entitled to a fair trial but not a perfect one." State v.
Marshall, 123 N.J. 1, 169-70 (1991). It is well recognized that "incidental legal
errors, which creep into the trial but do not prejudice the rights of the accused
or make the proceedings unfair, may [not] be invoked to upset an otherwise
valid" verdict. State v. Orecchio, 16 N.J. 125, 129 (1954). The cumulative error
doctrine requires the granting of a new trial before an impartial jury when legal
errors are either of such a magnitude that defendant has been prejudiced or have
in the aggregate rendered the trial unfair. Ibid.; see also State v. Reddish, 181
N.J. 553, 615 (2004) ("[A]lthough an error or series of errors might not
individually amount to plain error, in combination they can cast sufficient doubt
upon the verdict to warrant reversal.").
When a defendant raises a claim of cumulative error, the court must assess
whether the defendant received a fair trial by considering "the impact of the trial
errors on defendant's ability fairly to present a defense, and not just excuse error
because of the strength of the State's case." State v. Jenewicz, 193 N.J. 440, 473
(2008).
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The officer's reference to the fact that defendant was on probation was
improper and could have prejudiced his defense. However, the reference to
probation was fleeting and unprovoked by the prosecutor. The prosecutor's
opening statement reference to an anonymous tip was also not proper. These
errors were not significant to the outcome of the trial.
Additionally, allowing Alexis to testify in prison garb and failing to
provide a curative jury instruction regarding her appearance was error, but that
error did not prejudice defendant because the witness tampering charge was
dismissed and Alexis did not provide any inculpatory evidence against him on
the other charges. These errors in combination did not deprive defendant of a
fair trial.
VI.
In point VI of his brief, defendant contends the court erred by imposing
an excessive sentence. He argues that because the court erred "in finding and
weighing aggravating and mitigating factors, particularly in finding aggravating
factor one, a remand for resentencing is required." Additionally, the State
concedes, a "remand is also required because despite only three offenses
remaining after merger, the court mistakenly imposed four sets of monetary
penalties."
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The court sentenced defendant to a forty-year term of imprisonment under
NERA on the felony murder conviction, after merging the conspiracy,
possession of a weapon for an unlawful purpose and robbery into the felony
murder conviction; a concurrent four-year term on the unlawful possession of a
weapon; and a concurrent seven-year term on the certain persons not to have a
weapon charge.3
The court found aggravating factors one, N.J.S.A. 2C:44-1(a)(1), "[t]he
nature and circumstances of the offense, and the role of the actor therein,
including whether or not it was committed in an especially heinous, cruel, or
depraved manner"; three, N.J.S.A. 2C:44-1(a)(3), "[t]he risk that the defendant
will commit another offense"; six, N.J.S.A. 2C:44-1(a)(6), "[t]he extent of the
defendant's prior criminal record and the seriousness of the offenses of which
he has been convicted"; and nine, N.J.S.A. 2C:44-1(a)(9), "[t]he need for
deterring the defendant and others from violating the law." The court did not
find any mitigating factors and, as a result, determined the aggravating factors
"clearly and convincingly predominate."
The court explained why it found aggravating factor one:
The language of [a]ggravating [f]actor [one] says
including whether or not committed in an especially
3
Defendant, born in 1989, will become eligible for parole at age fifty-six.
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heinous, cruel or depraved manner. I don't get that far
because I do not have to. The circumstances of this
offense are such that the phrase "senseless murder"
applies here in spades. . . . There was no reason for [the
victim] to die alone in a pool of his own blood on the
floor of this convenience store [sic]. The robbery was
completed. His shooting was an act of braggadocio. In
point of fact one of the witnesses said this defendant
entered the car and said "I shot the motherfucker." . . .
But whoever shot [the victim] did so senselessly, just
to be able to get in the car and tell his cohorts "I shot
the motherfucker. But don't worry, he's not going to
die, I only shot him in the leg." . . .
The guy's done, the money's in the pockets. At least
one of the actual armed robbers has already exited the
store [sic], when he is shot and dies three days later, as
a consequence.
"An appellate court should disturb the sentence imposed by the trial court
only in situations where the sentencing guidelines were not followed, the
aggravating and mitigating factors applied by the trial court are not supported
by the evidence, or applying the guidelines renders a particular sentence clearly
unreasonable." State v. Roach, 146 N.J. 208, 230 (1996).
"[A]ggravating factor one must be premised upon factors independent of
the elements of the crime and firmly grounded in the record." State v. Fuentes,
217 N.J. 57, 63 (2014); see also State v. O'Donnell, 117 N.J. 210, 215 (1989).
(factor one applied in a manslaughter case because the defendant intentionally
inflicted pain and suffering in addition to causing death); State v. Soto, 340 N.J.
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31
Super. 47, 71-72 (App. Div. 2001) (factor one applied in an aggravated
manslaughter and felony murder case where the defendant brutally and viciously
attacked the victim).
Here, the sentencing court improperly considered the "murder" of the
victim in finding aggravating factor one. The court described the murder as
"senseless" and "an act of braggadocio." Defendant, however, was acquitted of
purposeful and knowing murder, and the court therefore admittedly did not know
who fired the fatal shot. Thus, the lack of a reason for the killing should not
have been considered as an aggravating factor. See State v. Rogers, 236 N.J.
Super. 378, 387 (App. Div. 1989) ("Although a defendant may be vicariously
accountable for the crimes his accomplice commits, he is not vicariously
accountable for aggravating factors that are not personal to him.").
The court also engaged in prohibited "double counting" by considering
the death of the victim as an aggravating factor. A court may not consider one
of the required elements of the offense charged as an aggravating factor. See
State v. Yarbough, 100 N.J. 627, 633 (1985) (facts that the legislature has
incorporated into the Code as part of the original grading of the offense are not
to be weighed as aggravating and mitigating factors to arrive at the appropriate
sentence); see also State v. Link, 197 N.J. Super. 615, 620 (App. Div. 1984)
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32
(where a specific fact is an essential element of a crime, "that element may not
be used as an aggravating factor to impose a custodial sentence that is longer
than the presumptive term or to impose a period of parole ineligibility").
"It is well-settled that where the death of any individual is an element of
the offense, that fact cannot be used as an aggravating factor for sentencing
purposes." State v. Carey, 168 N.J. 413, 425 (2001). Because defendant was
convicted of felony murder, the fact that the victim died should not have been
considered as an aggravating factor.
We affirm the convictions, but remand for another sentencing hearing
without consideration of aggravating factor one at which the court should set
appropriate monetary penalties. We do not retain jurisdiction.
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