NOT FOR PUBLICATION WITHOUT THE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-3700-15T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
IRVING FRYAR, a/k/a IRVING D.
FRYAR, SMURF FRYAR,
Defendant-Appellant.
_________________________________________
Argued May 22, 2018 – Decided June 27, 2018
Before Judges Yannotti, Mawla and DeAlmeida.
On appeal from Superior Court of New Jersey,
Law Division, Burlington County, Indictment
No. 13-10-0197.
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
briefs).
Sarah Lichter, Deputy Attorney General, argued
the cause for respondent (Gurbir S. Grewal,
Attorney General, attorney; Sarah Lichter, of
counsel and on the brief).
PER CURIAM
Defendant Irving Fryar and his mother Allene McGhee were
charged with second-degree conspiracy to commit theft by
deception, N.J.S.A. 2C:5-2, N.J.S.A. 2C:20-4(a); and second-degree
theft by deception, N.J.S.A. 2C:20-4(a). Defendant and McGhee were
tried before a jury and found guilty on both counts. After denying
defendant's motion for a new trial, the trial judge sentenced him
to a five-year term of imprisonment and ordered him to pay
restitution of $616,617.27. Defendant appeals from the judgment
of conviction dated December 9, 2015. We affirm.
I.
We briefly summarize the testimony presented at trial.
William Barksdale was the owner of several businesses, including
Barksdale Business Group (BBG), Barksdale Loan Consultants (BLC),
and Barksdale Investment Properties (BIP). Barksdale explained
that BBG processed mortgage loans, and BLC was a mortgage company.
BIP owned rental properties and also purchased, rehabilitated and
sold properties.
While he was visiting Florida, Barksdale learned about
mortgage schemes involving multiple home equity lines of credit
(HELOCs). Barksdale explained how such schemes work:
If you have a property, let's say it's worth
$300,000, and you have a first mortgage of
[$]100,000, you have approximately $200,000
difference between the price of the house,
[the] current value and [the] first mortgage.
2 A-3700-15T4
And you can borrow up to [eighty] percent of
the actual equity of the house. If you have
$200,000 equity, at [eighty] percent you can
take loans out for $160,000. But with the
multiple lines of credit, it takes usually
[sixty] to [ninety] days for the liens to be
recorded at the courthouse. If you apply for
more than one loan at the same time, it won't
hit the courthouse and be recorded so you can
retain multiple lines of credits [and] instead
of having one loan for 160,000, you can get
five loans for like 800,000. It [gives] [you]
more buying power[] to buy or flip properties
or use at your discretion.
Barksdale stated that the same property is used as security
for all of the loans. He said a person carrying out this scheme
has to close on the transactions "in a short amount of time before
one bank finds out about another bank" because, otherwise, the
banks will not approve the loans.
Barksdale further testified that he first met defendant at a
closing when Barksdale purchased a home in Burlington from
defendant's corporation. McGhee had been living in the home and
she needed a place to reside. At the time, Barksdale was in the
process of rehabilitating a home on Glenview Lane in Willingboro.
Barksdale sold the Glenview Lane property to McGhee, and BBG
retained a lien on the property in the amount of $144,000.
In 2009, Barksdale and defendant began operating a fitness
camp in Willingboro and Burlington. Barksdale ran the camp, and
defendant would visit several times each week to work out and meet
3 A-3700-15T4
persons at the camp. At some point, defendant approached Barksdale
and asked him if he could get him about $500,000. They had a
conversation about participating together in a HELOC scheme.
Barksdale explained to defendant how a HELOC scheme works.
He said multiple lines of credit had to be acquired within a short
time, so that the banks would not be aware that there were other
loans secured by the same property. Barksdale also said "the money
had to be paid back quickly."
Barksdale and defendant spoke about defendant's primary
residence, which was in Springfield. Defendant told Barksdale a
loan payment had not been processed, and the home had gone into
foreclosure. Barksdale helped defendant in having McGhee purchase
the Springfield property, and he assisted McGhee in applying for
the loan to make the purchase. Barksdale said defendant needed
money to pay back several investors and make the down payment on
the Springfield home. Defendant told Barksdale he was interested
in pursuing the HELOC scheme.
Barksdale and defendant discussed the property that would be
used in the HELOC scheme, and they decided to use McGhee's property
on Glenview Lane in Willingboro. Barksdale testified that McGhee
"had good credit and could qualify for the loans." McGhee's
involvement was important because she owned the home, had good
credit, and needed to sign the documents.
4 A-3700-15T4
Barksdale selected the six banks for the HELOC scheme and he
discussed his selections with defendant. Barksdale chose banks
that made loans to him in the past. Barksdale and defendant
explained the HELOC scheme to McGhee. They told McGhee to use
defendant's phone number on her loan applications, should any
questions arise. Barksdale also overheard a phone conversation
during which defendant told McGhee "to do what was needed to get
the loans completed."
With the HELOC applications, McGhee submitted a W-2 form from
2008 and pay stubs from 2009, which identified New Jerusalem House
of God (NJHOG) as her employer. At the time, defendant was a pastor
at NJHOG. McGhee's W-2 stated that she had income of $87,532.16
in 2008. However, an accountant whose firm had provided services
to NJHOG testified that NJHOG did not have employees in 2008.
Between November 2009 and January 2010, McGhee applied for
and was granted HELOC loans at six different banks, using the
Glenview Lane property as collateral for all of the loans. The
Bank, Cornerstone Bank, Sun Bank, Susquehanna Bank, Beneficial
Bank, and Roma Bank issued HELOC loans to McGhee. Barksdale did
not sign any of the loan documents, but he drove McGhee to three
of the closings, and went into the banks with her for two of the
closings. All six loans closed, and McGhee obtained a total amount
of $616,617.27.
5 A-3700-15T4
All six banks issued payoff checks in the amount of about
$130,000 to BBG to satisfy the existing mortgage on the Glenview
Lane property. Barksdale deposited these checks, which totaled
about $800,000, in BBG's account. He explained that defendant had
the discretion to control the use of all the funds in the account
except for the amount needed to pay off the existing mortgage on
the Glenview Lane property.
Barksdale said that before the HELOCs closed, he issued at
defendant's direction, six $20,000 checks to Jerry Hostetter, who
was one of defendant's business partners. Defendant told Barksdale
that after the HELOCs closed, he should take the $120,000 Barksdale
advanced to Hostetter from the monies obtained in the HELOC scheme.
Defendant also directed Barksdale to use $106,000 from the
HELOCs to pay Duane Ortega, who had advanced funds to defendant
for the down payment for the purchase of the property in
Springfield. Barksdale also disbursed monies from the HELOCS
directly to defendant. Other monies from the HELOCS were deposited
in joint bank accounts held by McGhee and defendant, and defendant
withdrew funds from those accounts.
Barksdale testified that at the time of trial, he was serving
a prison sentence. He explained that in December 2011, he pleaded
guilty in federal court to conspiracy to commit wire fraud. As
part of his plea, Barksdale admitted that he had conspired with
6 A-3700-15T4
McGhee in the HELOC scheme involved in this case. He also admitted
he had advised and assisted McGhee in carrying out that scheme.
Barksdale entered into a cooperation agreement with federal
prosecutors, which required that he tell the truth and cooperate
with federal and state authorities. Barksdale stated that he had
received an eighteen-month reduction in his prison sentence as a
result of his cooperation. The federal court ultimately sentenced
Barksdale to twenty months in jail.
Barksdale testified in this case on July 29, 2015. He said
he was due to be released on December 15, 2015, but he could be
released sometime between August and October 2015, because he had
earned "good time" credits. Barksdale said he did not have a
cooperation agreement with the State, but he could benefit from
testifying for the State in this matter.
Barksdale also stated he was under the impression the State's
prosecutor would write to the federal authorities and indicate he
had been cooperative. Barksdale said if such a letter was sent,
he might be released from jail "within a month or so." He stated,
however, that there was no guarantee he would be released early.
That was up to the judge in the federal court. Barksdale said he
had no written agreement with the State, and the federal
cooperation agreement only required that he "tell the truth."
7 A-3700-15T4
The State also presented testimony from persons at the six
banks who issued the HELOC loans. The State also presented the
HELOC loan documents and other bank records. Defendant and McGhee
did not testify at trial.
In his closing statement, defendant's attorney argued that
the State had not presented sufficient evidence to show defendant
participated in the HELOC scheme. He said there was no evidence
defendant knew about or presented McGhee's false W-2 statement to
the banks with the HELOC applications.
Defendant's attorney also asserted defendant did not sign any
of the documents related to the HELOC scheme. He did not attend
the closings, and did not receive any checks from the loan
closings. Defendant's attorney attacked Barksdale's credibility,
and said the jury should not believe anything Barksdale said.
The jury found defendant and McGhee guilty of both charges.
Defendant appeals and raises the following arguments:
POINT I
THE TRIAL JUDGE'S REFUSAL TO ALLOW DEFENSE
COUNSEL TO CROSS-EXAMINE ALLEGED UNINDICTED
CO-CONSPIRATOR WILLIAM BARKSDALE, THE STATE'S
STAR WITNESS, REGARDING THE SPURIOUS CLAIMS
HE MADE AGAINST [McGHEE'S] ATTORNEY IN AN
ATTEMPT TO REDUCE HIS FEDERAL SENTENCE AND/OR
OBTAIN AN EARLIER RELEASE, VIOLATED
DEFENDANT'S RIGHTS TO CONFRONTATION, DUE
PROCESS OF LAW AND A FAIR TRIAL.
. . . .
8 A-3700-15T4
POINT II
THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY
IT COULD USE BARKSDALE'S PRIOR INCONSISTENT
STATEMENTS – WHICH LARGELY EXCULPATED FRYAR –
AS SUBSTANTIVE EVIDENCE WAS REVERSIBLE ERROR.
(Not Raised Below).
POINT III
FRYAR WAS DENIED A FAIR TRIAL WHEN THE
PROSECUTOR IMPROPERLY VOUCHED FOR AND
BOLSTERED BARKSDALE'S CREDIBILITY BY TELLING
THE JURY IN SUMMATION THAT HE HAD NO
COOPERATION AGREEMENT WITH [THE] STATE AND
ONLY "A VAGUE HOPE THAT MAYBE SOME DAY
POSSIBLY HE MIGHT GET OUT SLIGHTLY EARLIER,"
DESPITE HIS KNOWLEDGE THAT BARKSDALE HAD GONE
SO FAR AS TO FALSELY ACCUSE [McGHEE'S]
ATTORNEY OF MISCONDUCT IN THE HOPES OF FURTEHR
REDUCING HIS SENTENCE. (Not Raised Below).
POINT IV
THE CUMULATIVE EFFECT OF THE AFOREMENTIONED
ERRORS DENIED FRYAR A FAIR TRIAL. (Not Raised
Below).
II.
Defendant first argues that the trial judge erred by refusing
to allow his attorney to cross-examine Barksdale regarding certain
"claims" he allegedly made against McGhee's attorney Mark Fury
prior to trial. Defendant contends the judge's ruling denied him
his constitutional rights to confrontation, due process, and a
fair trial. We disagree.
The record reveals the following. Prior to the start of
defendant’s trial, the prosecutors learned that Fury had
communicated with Barksdale in a series of text messages. In one
9 A-3700-15T4
of those messages, Fury stated that he would be "coming after"
Barksdale. Because Barksdale claimed he had known Fury for
approximately five years and Barksdale believed the texts were
threatening, the State filed a motion to disqualify Fury from
representing McGhee at trial.
The trial judge denied the motion, finding that Fury's
personal relationship with Barksdale did not create a conflict of
interest sufficient to disqualify Fury from representing McGhee.
In her decision, the judge also stated that the content of the
messages was not relevant to whether Fury had a personal
relationship with Barksdale, but nevertheless found that the
alleged threats were not credible.
Later, during the trial, Barksdale testified for the State
about his relationships with defendant and McGhee and his
involvement in the HELOC scheme. When he cross-examined Barksdale,
defendant's attorney sought to question Barksdale about the text
messages he sent to Fury and the false statements Barksdale
allegedly made about the texts. The judge ruled that the defense
could not use specific instances of conduct for the purposes of
impeaching Barksdale's character for truthfulness.
On appeal, defendant argues that if defense counsel had been
permitted to question Barksdale about the messages sent to Fury,
he would have been able to show that Barksdale hoped to benefit
10 A-3700-15T4
from his cooperation with the State by making baseless charges
against Fury. Defendant argues his attorney "could have show[n]
that [Barksdale's] bias and motivation were so strong that
[Barksdale] . . . lie[d] when he fabricated allegations against
[McGhee's] attorney."
"[A] trial court's evidentiary rulings are 'entitled to
deference absent a showing of an abuse of discretion, i.e., there
has been a clear error of judgment.'" State v. Brown, 170 N.J.
138, 147 (2000) (quoting State v. Marrero, 148 N.J. 469, 484
(1997)). We will "not substitute [our] own judgment for that of
the trial court, unless 'the trial court's ruling is so wide of
the mark that a manifest denial of justice resulted.'" State v.
J.A.C., 210 N.J. 281, 295 (2012).
The Sixth Amendment to the Constitution of the United States
and Article I, Paragraph 10 of the New Jersey Constitution
guarantee an accused in a criminal case the right to confront
adverse witnesses. State v. Guenther, 181 N.J. 129, 147 (2004).
"A defendant's right to confrontation is exercised through cross-
examination, which is recognized as the most effective means of
testing the State's evidence and ensuring its reliability." Ibid.
(citations omitted).
The Confrontation Clause was not, however, "intended to sweep
aside all evidence rules regulating the manner in which a witness
11 A-3700-15T4
is impeached with regard to general credibility." Id. at 150
(citing Davis v. Alaska, 415 U.S. 308, 321 (1974)) (Stewart, J.,
concurring). In this case, the trial judge properly applied
N.J.R.E. 405(a) and N.J.R.E. 608 in limiting defendant's attorney
from questioning Barksdale about his communications with Fury.
N.J.R.E. 405(a) provides that, "[w]hen evidence of character
or a trait of character of a person is admissible, it may be proved
by evidence of reputation, evidence in the form of opinion, or
evidence of conviction of a crime which tends to prove the trait."
N.J.R.E. 405(a) states, however, that "[s]pecific instances of
conduct not the subject of a conviction of a crime shall be
inadmissible."
Furthermore, N.J.R.E. 608 governs the admission of character
evidence for truthfulness or untruthfulness. The rule states that:
(a) The credibility of a witness may be
attacked or supported by evidence in the form
of opinion or reputation, provided, however,
that the evidence relates only to the witness'
character for truthfulness or untruthfulness,
and provided further that evidence of truthful
character is admissible only after the
character of the witness for truthfulness has
been attacked by opinion or reputation
evidence or otherwise. Except as otherwise
provided by Rule 609[1] and by paragraph (b)
1
N.J.R.E. 609 provides that, "[f]or the purpose of affecting the
credibility of any witness, the witness' conviction of a crime
shall be admitted unless excluded by the judge as remote or for
other causes."
12 A-3700-15T4
of this rule, a trait of character cannot be
proved by specific instances of conduct.
(b) The credibility of a witness in a criminal
case may be attacked by evidence that the
witness made a prior false accusation against
any person of a crime similar to the crime
with which defendant is charged if the judge
preliminarily determines, by a hearing
pursuant to Rule 104(a), that the witness
knowingly made the prior false accusation.
[(emphasis added).]
Our evidence rules "bar 'the use of prior instances of conduct
to attack the credibility of a witness for two essential reasons:
to prevent unfairness to the witness and to avoid confusion of the
issues before the jury.'" State v. Scott, 229 N.J. 469, 498 (2017)
(quoting Guenther, 181 N.J. at 141 (2004)) (Albin, J., concurring).
Furthermore, N.J.R.E. 608 "was designed to prevent unfair foraging
into the witness's past" and to prevent "wide-ranging collateral
attacks on the general credibility of a witness [that] would cause
confusion of the true issues in the case." Guenther, 181 N.J. at
141-42.
Here, the trial judge determined that by seeking to question
Barksdale about the messages Barksdale sent to Fury and his alleged
false statements about them, defendant's attorney was seeking to
attack Barksdale's character for untruthfulness by showing
specific instances of conduct. The judge correctly determined that
N.J.R.E. 405(a) and N.J.R.E. 608 precluded that line of inquiry.
13 A-3700-15T4
Furthermore, the application of our evidence rules did not
unfairly limit the defense from confronting Barksdale's
credibility. Indeed, the record shows that defendant's attorney
questioned Barksdale extensively about his cooperation agreement
with the federal government, which allegedly showed that Barksdale
had a motive to lie about defendant's involvement in the HELOC
scheme.
Defendant's attorney also questioned Barksdale extensively
about his relationship with defendant, and sought to show the
evidence did not support Barksdale's claim that defendant was the
key participant in the HELOC scheme. Simply put, at trial,
defendant had ample opportunity to confront Barksdale and
challenge his credibility.
Defendant also argues that the trial judge's ruling was
erroneous because it precluded him from showing that Barksdale was
biased. "The Confrontation Clause permits a defendant to explore,
in cross-examination, a prosecution witness's alleged bias." State
v. Bass, 224 N.J. 285, 301 (2016).
Bias has been defined as "the relationship between a party
and a witness which might lead the witness to slant, unconsciously
or otherwise, his testimony in favor of or against a party." Scott,
229 N.J. at 482 (quoting United States v. Abel, 469 U.S. 45, 47
(1984)). Nevertheless, a defendant's right to confrontation
14 A-3700-15T4
"do[es] not entitle counsel 'to roam at will under the guise of
impeaching the witness.'" Bass, 224 N.J. at 302 (quoting State v.
Pontery, 19 N.J. 457, 473 (1955)).
Here, Barksdale's text messages to Fury and his alleged false
statements about them were not probative of bias against defendant.
Barksdale's messages and statements had no bearing upon the
offenses for which defendant was charged or any bearing upon
Barksdale's relationship with defendant.
The messages and statements also did not create an inference
that Barksdale would be inclined to slant his testimony against
defendant or McGhee. Indeed, as the trial judge stated:
[t]he only reason for questioning Mr.
Barksdale regarding the texts would be in
essence to demonstrate to the jury that he is
a liar based on specific instances of conduct.
To show that because he lied about the texts
he probably also lied in his testimony is
exactly the type of evidence that is barred
by [N.J.R.E.] 405 and 608. Here, there is not
a prior conviction related to [the] text
messages and the character trait [for]
[untruthfulness] is not an essential element
of the charged claim or defense.
We are convinced the judge's decision to preclude defendant's
attorney from questioning Barksdale about the text messages was
not a mistaken exercise of discretion. The judge's ruling was
consistent with the applicable rules of evidence, and did not deny
15 A-3700-15T4
defendant of his rights to confront Barksdale, due process, or a
fair trial.
III.
Next, defendant argues the trial judge erred by failing to
instruct the jury it could consider prior inconsistent statements
by witnesses as substantive evidence. Defendant did not, however,
raise this objection to the jury instructions at trial. We
therefore must determine whether the absence of the instruction
was plain error.
Generally, "an appellate court will not disturb a jury's
verdict based on a trial court's instructional error 'where the
charge, considered as a whole, adequately conveys the law and is
unlikely to confuse or mislead the jury, even though part of the
charge, standing alone, might be incorrect.'" Wade v. Kessler
Inst., 172 N.J. 327, 341 (2002) (quoting Fischer v. Canario, 143
N.J. 235, 254 (1996)). The focus is upon whether the instructions
are capable of producing an unjust result or prejudicing
substantial rights. Fisch v. Bellshot, 135 N.J. 374, 392 (1994).
On appeal, defendant argues that at trial, Barksdale
minimized his involvement in the HELOC scheme and portrayed
defendant as the mastermind of the scheme. He contends Barksdale's
prior statements "told an altogether different story," which was
much more favorable to the defense. He argues that the trial
16 A-3700-15T4
judge's failure to charge the jury that it could consider
Barksdale's prior inconsistent statements as substantive evidence
deprived him of due process and a fair trial.
In her final instructions to the jury, the trial judge
addressed prior inconsistent statements of witnesses. The judge
stated:
You have heard that, before this trial,
witnesses made statements that may be
different from their testimony in the trial.
It is up to you to determine whether these
statements were made and whether it was
different from the witness' testimony in the
trial.
These earlier statements were brought to your
attention only to help you decide whether to
believe the witness' testimony here at trial.
You cannot use it as proof of the truth of
what a witness said in the earlier statement.
You can only use it as one way of evaluating
that witness' testimony in this trial.
The judge further explained that the jury could take into
consideration "whether the witness made any inconsistent or
contradictory statements" and "the possible bias, if any, in favor
of the side for whom the witness testified." The judge did not,
however, instruct the jury that a prior inconsistent statement
"may be considered by [the jury] as substantive evidence of the
prior contradictory statement or omitted statement." See Model
Jury Charges (Criminal), "Prior Contradictory Statements of
Witnesses (No Defendant)" (approved May 1994).
17 A-3700-15T4
When a trial judge fails to instruct the jury on the
substantive use of a prior inconsistent statement, the question
on appeal is whether the statement at issue relates solely to
credibility, or whether the statement has value as substantive
evidence bearing upon a disputed issue of fact. State v. Hammond,
338 N.J. Super. 330, 342-43 (App. Div. 2001). Here, defendant
argues that the inconsistencies in Barksdale's testimony, if
accepted by the jury as substantive evidence, would have made the
jury less likely to find him guilty.
The record shows, however, that any inconsistencies in
Barksdale's testimony related primarily to his credibility. At
trial, Barksdale noted that he was testifying six years after the
HELOC loan scheme was carried out, and he did not recall some
details of the transactions. Moreover, any inconsistencies between
Barksdale's trial testimony and his prior statements about the
HELOC scheme did not directly contradict those parts of his
testimony which detailed defendant's involvement in the scheme and
the benefits defendant derived therefrom.
Defendant places great weight upon the fact that when he
pleaded guilty to the federal charges, Barksdale did not mention
defendant. However, this only showed that Barksdale did not
identify defendant as a participant in the HELOC scheme when he
pleaded guilty. The prior statement was relevant to whether
18 A-3700-15T4
Barksdale's trial testimony was credible, but it was not
substantive evidence showing that defendant did not conspire to
or participate in the HELOC scheme.
We therefore conclude that the absence of an instruction
informing the jury that it could consider any prior inconsistent
statement of a witness as substantive evidence did not constitute
plain error. It was not an error "clearly capable of producing an
unjust result." R. 2:10-2.
IV.
Defendant further argues he was denied a fair trial because
of certain comments the assistant prosecutor made in his summation.
Defendant contends the prosecutor's comments require a new trial.
To warrant reversal of a conviction, "the prosecutor's
conduct must have been 'clearly and unmistakably improper,' and
must have substantially prejudiced defendant's fundamental right
to have a jury fairly evaluate the merits of his defense." State
v. Timmendequas, 161 N.J. 515, 575 (1999) (quoting State v. Roach,
146 N.J. 208, 214 (1996)). In making this assessment, we "must
consider (1) whether defense counsel made timely and proper
objections to the improper remarks; (2) whether the remarks were
withdrawn promptly; and (3) whether the court ordered the remarks
stricken from the record and instructed the jury to disregard
them." State v. Frost, 158 N.J. 76, 83 (1999).
19 A-3700-15T4
Where defense counsel fails to object to the challenged
comments during summation, it "suggests that defense counsel did
not believe the remarks were prejudicial at the time they were
made." Id. at 84 (citing State v. Bauman, 298 N.J. Super. 176, 207
(App. Div. 1997)). "The failure to object also deprives the court
of an opportunity to take curative action." Ibid.
Under those circumstances, the comments should be deemed
harmless, unless they were "sufficient to raise a reasonable doubt
as to whether the error led the jury to a result it otherwise
might not have reached." State v. Bakka, 176 N.J. 533, 548 (2003)
(quoting State v. Bankston, 63 N.J. 263, 273 (1973)).
In support of his argument, defendant cites the following
comments by the assistant prosecutor:
The fact is Mr. Barksdale doesn't have a
strong incentive to cooperate with the State.
There's no formal cooperating agreement. There
has never been a formal cooperating agreement
between the State and Mr. Barksdale. He has a
vague hope that maybe some day possibly he
might get out slightly earlier if he
cooperates with the State. He could get out
in August at the earliest. We're in August
already. I would submit to you that he does
not have a strong incentive to cooperate with
the State.
Here, defendant argues that the assistant prosecutor
improperly vouched for Barksdale's credibility. He also argues
that the prosecutor bolstered Barksdale's testimony by suggesting
20 A-3700-15T4
he no longer had an incentive to cooperate with the government at
all.
As we have explained, on direct examination, Barksdale
testified that he had a cooperation agreement with federal
prosecutors. He testified that the agreement had already been
taken into account when he was sentenced. Barksdale also stated
that at the time of trial, he had no formal agreement with the
State or the federal government, but it was his impression that
if he cooperated in the prosecution of defendant and McGhee, his
federal prison sentence might be shortened by "a month or so."
Barksdale emphasized that this was "still up to the judge." He
said his only obligation was to tell the truth.
During his closing argument, defendant's attorney argued that
Barksdale was not a credible witness and the jury should not accept
anything he said about defendant's involvement in the HELOC scheme.
He stated, in pertinent part:
Now, the State has not prosecuted [Barksdale],
nor does the State have an[y] intention of
prosecuting him. In fact, as you heard, the
State wrote glowing comments to the federal
judge who sentenced him. Which is one of the
reasons, . . . that he got such a good deal.
Defendant's attorney also stated that the judge
"has given you an instruction on how to weigh [the credibility of]
somebody who pled guilty." Counsel stated that Barksdale was
21 A-3700-15T4
"trying to sing for his supper. He's got skin in the game. He
wants a good result here and he's willing to do anything for it."
We are convinced that the prosecutor's remarks were a
reasonable response to defense counsel's closing argument. The
prosecutor's statements were fair comment on the evidence. The
evidence showed that Barksdale never had a formal written
cooperation agreement with the State.
Moreover, the evidence supported the prosecutor's statement
that Barksdale did "not have a strong incentive to cooperate with
the State." Barksdale had a cooperation agreement with the federal
prosecutors, but when he testified at defendant's trial, his
cooperation could only result in a possible reduction of his
federal sentence by "a month or so."
We therefore conclude the prosecutor's statements were not
improper. Furthermore, because defendant's attorney did not object
to the remarks when they were made, it must be presumed counsel
did not view the remarks as prejudicial to the defense. Frost, 158
N.J. at 84 (citing Bauman, 298 N.J. Super. at 207). The
prosecutor's remarks did not deny defendant of a fair trial or
require reversal of his conviction.
V.
Defendant argues that even if the individual errors
complained of do not rise to the level of plain error, their
22 A-3700-15T4
cumulative impact warrants reversal of his conviction. We
disagree.
The cumulative error doctrine provides that where a court's
legal errors "are of such magnitude as to prejudice the defendant's
rights or, in their aggregate have rendered the trial unfair," a
new trial must be granted. State v. Orecchio, 16 N.J. 125, 129
(1954). However, even where a defendant alleges multiple errors,
"the theory of cumulative error will still not apply where no
error was prejudicial and the trial was fair." State v. Weaver,
219 N.J. 131, 155 (2014).
Here, the errors complained of did not deny defendant his
right to a fair trial. As noted, the judge's omission of a portion
of the instruction on prior inconsistent statements made by
witnesses may have been erroneous, but it did not rise to the
level of plain error. The other claimed errors were not prejudicial
and did not deny defendant his right to a fair trial. We conclude
the cumulative error doctrine does not apply in this case.
Affirmed.
23 A-3700-15T4