STATE OF NEW JERSEY VS. HARRY J. NEHER (13-09-0902, GLOUCESTER 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NOT FOR PUBLICATION WITHOUT THE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-0818-15T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

HARRY J. NEHER, a/k/a JOHN NEHER,

Defendant-Appellant.
__________________________________

Submitted December 4, 2017 – Decided June 7, 2018

Before Judges Messano and Vernoia.

On appeal from Superior Court of New Jersey,
Law Division, Gloucester County, Indictment
No. 13-09-0902.

Joseph E. Krakora, Public Defender, attorney
for appellant (Jay L. Wilensky, Assistant
Deputy Public Defender, of counsel and on the
briefs).

Charles A. Fiore, Acting Gloucester County
Prosecutor, attorney for respondent (Douglas
B. Pagenkopf, Special Deputy Attorney General/
Acting Assistant Prosecutor, on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM
 Defendant Harry J. Neher appeals his convictions following a

jury trial and aggregate forty-year sentence for first-degree

murder, tampering with evidence, hindering apprehension and

weapons offenses. Based on our review of the evidence in light

of the applicable law, we affirm defendant's convictions, vacate

his sentence and remand for resentencing.

I.

On December 31, 2012, Sabrina Bullock's lifeless body was

discovered in a storage shed behind defendant's apartment building

in Woodbury. Bullock was found with a computer keyboard cord tied

around her neck, and it was later determined she died as a result

of blunt force head and neck trauma.

Defendant, a self-employed electronics technician, was

subsequently arrested and charged in an indictment with the

following offenses: knowing or purposeful murder, N.J.S.A. 2C:11-

3(a)(1) (count one); possession of a weapon for an unlawful

purpose, N.J.S.A. 2C:39-4(d) (count two); tampering with evidence,

N.J.S.A. 2C:28-6(1) (count three); hindering apprehension,

N.J.S.A. 2C:29-3(b)(1) (count four); and unlawful possession of a

weapon, N.J.S.A. 2C:39-5(d) (count five).

The evidence presented at defendant's trial showed that on

December 30, 2012, Bullock was reported missing by her mother,

Maggie Bullock, who last spoke with Bullock at around 5:30 p.m.

2 A-0818-15T4
the previous day. Maggie Bullock went to defendant's apartment

to look for her daughter because she had previously seen Bullock

and defendant together. Later in the day, Maggie Bullock spoke

with defendant on the phone and defendant asked, "[W]hat do you

think, I killed [Bullock]?"

Defendant and his then-girlfriend Kelly Gall lived in an

apartment building on Broad Street in Woodbury and often bought

drugs from Bullock. Based on information received from Bullock's

mother, on December 30, 2012, Woodbury Patrolman Andrew

DiGiambattista went to defendant's apartment seeking information

concerning Bullock's whereabouts. Defendant said he had seen

Bullock the previous evening at "[a]pproximately [eight] p.m.,"

and spoke with Bullock about assisting her with her laptop

computer.

Police used information obtained from Bullock's cell phone

carrier to trace Bullock's phone to the parking lot behind

defendant's apartment. On December 31, 2012, DiGiambattista

investigated the parking lot, and found Bullock's body inside a

storage shed. She "appeared to have full rigor mortis and . . .

was cold to the touch." DiGiambattista also observed "a [keyboard]

cord wrapped around her neck."

During DiGiambattista's trial testimony, he identified

photographs depicting the shed as he observed it on December 31,

3 A-0818-15T4
2012. Following an objection by defense counsel, DiGiambattista

acknowledged he did not take the photographs. In response to

questions posed by the court, however, he testified he was present

when some of the photographs were taken and that all of the

photographs accurately depicted the scene in the shed as he

observed it.

Detective Nicholas Schock took the photographs and also

testified they accurately depicted the scene in the shed. He

identified photographs showing "footwear impressions that [were]

made in blood" around the victim and "a keyboard that was found

underneath [Bullock] with the cord" wrapped around her neck.

Schock also took photographs of defendant's apartment, tested

areas of the bathroom he believed might contain suspected blood

and swabbed a blood sample from the bathroom sink. A crime scene

investigator testified he removed a section from the shed's floor

that appeared to contain evidence of "footwear impressions."

The evidence also showed two trash bags containing clothing

were recovered during the investigation: one from a dumpster behind

defendant's apartment, and another from a trash corral located

near the apartment. The bag recovered from the dumpster contained

a black hooded jacket, a ski mask, a pair of sneakers, blue knit

gloves, a green hooded sweatshirt and a black Airwalk T-shirt.

Schock testified the sneakers were a men's size ten and a half,

4 A-0818-15T4
and had a distinctive "jagged" tread sole pattern. The bag

recovered from the trash corral contained household garbage, a

pill bottle prescribed to Gall, and two pairs of sweatpants, one

of which contained areas with suspected blood.

The State presented evidence showing comparisons between

defendant's DNA, Bullock's DNA, and DNA obtained from the clothing

found in the bags recovered from the dumpster and trash corral.

Bullock's DNA was obtained through the use of a sexual assault

evidence collection kit, which in part included the taking of a

blood sample from Bullock's body.

An expert in forensic serology and biological stain analysis

testified that blood was recovered and tested from one of the

sneakers, and the sweatshirt and jacket recovered from the bag

found in the trash corral. An expert in DNA testing analysis

testified that the DNA found on the sweatshirt contained a mixed

DNA profile, with Bullock as the major contributor and defendant

as the minor contributor. The expert further explained that the

DNA found on a second sweatshirt sample also contained a mixed

profile, and that defendant's DNA was the source of the major DNA

profile found.

The expert also determined that one of the DNA samples from

the jacket showed a mixed DNA profile, with the victim as the

major contributor and defendant as the minor contributor. The

5 A-0818-15T4
expert explained that the second DNA sample from the jacket

revealed three contributors, with defendant as the source of the

major DNA profile.

An expert in footwear impression analysis testified that she

conducted test impressions of the sneakers recovered from the bag

found in the dumpster, and compared them to the impressions

developed from the shed's flooring. Defendant objected to the

expert's testimony concerning photographs of the impressions used

during the analysis because the expert had not taken the

photographs. The court questioned the expert, and she explained

that the photographs accurately depicted the impressions and the

flooring. Defendant's counsel indicated he was satisfied, and

there was no further objection to the testimony.

The expert opined that eight of the twenty-two impressions

from the shed's floor shared a similar "chevron" or "zig[-]zag"

pattern as the soles of the recovered sneakers. She testified

that eight of the other impressions did not include sufficient

characteristics to provide a basis for comparison, and

acknowledged the possibility that other impressions did not come

from the recovered sneakers.

The State presented testimony from an expert in forensic

pathology that Bullock suffered a "half inch fracture in the right

side and . . . a quarter inch fracture in the left side of the

6 A-0818-15T4
neck." Bullock also suffered from "compression of the neck or

blunt trauma to the neck" which indicated her neck "was either

squeezed" or there was a blow to her neck causing a hemorrhage.

The expert testified Bullock "died of blunt head and neck trauma

that caused bleeding around the membranes of the brain and bleeding

within the brain. Additionally there was hemorrhage in the neck

organs indicating blunt neck trauma with possible compression."

Defendant testified at trial that he knew Bullock because he

bought drugs from her. He explained she came to his apartment

during the morning hours of December 29, 2012, and later he fought

with Gall because she believed he was "cheating on her" with

Bullock. He testified that during the day, Gall called Bullock

and argued with her over the phone.

Defendant testified he called Bullock at around 7:40 p.m. to

see if he could buy marijuana, and Bullock came to the apartment

a short time later. According to defendant, he and Bullock left

the apartment and went outside to smoke marijuana. He returned

to the apartment alone to obtain a cellphone for Bullock and while

he looked around the apartment, he saw Gall in the bathroom wearing

an "Airwalk t-shirt" washing blood off her hands. He saw blood

on Gall's forehead, and when he told her he was going outside to

meet Bullock, Gall pushed him causing him to injure his thumb.

7 A-0818-15T4
 Defendant explained that he prepared to leave the apartment,

put on his jacket and noticed blood on his hand. He said he asked

Gall to see her hands but did not see any cuts, and that is when

he "found out that it was [Bullock's] blood and that [Gall] had

attacked [Bullock]." Defendant did not explain what caused him

to reach that conclusion.

Defendant denied killing Bullock, but admitted taking clothes

Gall placed into the plastic bag and putting the bag in the trash

corral. He admitted the sneakers had been given to him by Gall,

but said he did not wear them because they were too small. He

denied wearing the jacket and sweatshirt found in the bag on the

day of the murder. He admitted he disposed of the bag in the

trash corral, and Gall cleaned their apartment.

Defendant testified that Gall placed the other bag in the

dumpster. He admitted the bag contained clothes that he wore on

the day Bullock was murdered. He testified he found out Bullock

was murdered on December 31, 2012, but also stated that on December

30, 2012, he knew Bullock was in the shed. On cross-examination,

defendant "admit[ed] that [he] tried to cover up a crime, but

. . . didn't commit the murder."

Gall testified as a rebuttal witness for the State. She

explained that she knew Bullock because she and defendant bought

drugs from her. Gall denied believing defendant was cheating on

8 A-0818-15T4
her with Bullock, and testified she knew defendant went to

Bullock's house on occasion to fix her computer. Gall said that

on the evening of December 29, 2012, defendant returned to their

apartment and asked for assistance because he "got jumped." She

saw defendant take off his clothes and put them in a plastic bag.

He then said he was going to the hospital and left the apartment

with the plastic bag. Gall denied any involvement in Bullock's

murder.

The jury found defendant guilty on each of the charges in the

indictment. At defendant's sentencing proceeding, the court

imposed a forty-year sentence with "a parole ineligibility period

of [thirty] years," for defendant's first-degree murder

conviction. The court merged defendant's conviction for tampering

with evidence with his conviction for hindering apprehension, and

sentenced defendant to a term of eighteen months on those charges.

The court also merged defendant's convictions for the two weapons

offenses, and sentenced defendant to eighteen months. The court

ordered that the sentences be served concurrently.

At a subsequent resentencing hearing, the court explained

that it erred in its imposition of the parole ineligibility period

for the sentence on the murder conviction. The court stated that

the sentence imposed for the murder conviction was subject to the

No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and therefore

9 A-0818-15T4
modified that sentence to include an eighty-five percent period

of parole ineligibility and a five-year period of parole

supervision as required under NERA.

Defendant appealed from the judgment of conviction and

presents the following arguments for our consideration:

POINT I

THE TRIAL COURT ERRED PREJUDICIALLY IN
ADMITTING EVIDENCE OF A RAPE KIT TAKEN OF THE
VICTIM IN THE ABSENCE OF ANY EVIDENCE OR
ALLEGATION OF SEXUAL ASSAULT.

POINT II

THE PROSECUTOR COMMITTED PREJUDICIAL
MISCONDUCT, NECESSITATING REVERSAL, [U.S.
Const. amend. XIV]; [N.J. Const. art. I, ¶¶
9, 10]. (NOT RAISED BELOW)

A. State's Opening Statement

1. The Opening Constituted a
Repeated Declaration of
Guilt.

2. The Opening Was Overly
Inflammatory.

3. The Opening Was Improperly
Argumentative.

B. State's Summation

C. These Improprieties Constituted
Plain Error.

POINT III

THE TRIAL COURT ENGAGED IN EXCESSIVE
QUESTIONING OF WITNESSES, TO THE DEFENDANT'S

10 A-0818-15T4
 PREJUDICE. [U.S. Const. amend. XIV]; [N.J.
Const. art. I, ¶¶ 9, 10]. (NOT RAISED BELOW).

POINT IV

THE TRIAL COURT IMPOSED AN EXCESSIVE SENTENCE,
NECESSITATING REDUCTION.

In a supplemental pro-se brief, defendant further argues:

POINT I

THE PROSECUTOR COMMITTED PREJUDICIAL
MISCONDUCT, NECESSITATING REVERSAL. [U.S.
Const. amend. XIV]; [N.J. Const. art. I, ¶¶
9, 10].

POINT II

THE TRIAL COURT ERRED WHILE DELIVERING
INSTRUCTIONS TO THE JURY.

POINT III

THE CUMULATION OF CERTAIN ERRORS DEPRIVED
DEFENDANT OF A FAIR TRIAL.

II.

A.

Defendant first argues the court erred by allowing testimony

that a sexual assault evidence collection kit was utilized to

collect evidence from Bullock's body, and that the results of the

testing did not reveal any evidence of a sexual assault. 1

Defendant argues the testimony was irrelevant because there was

1
Defendant does not argue that the evidence obtained from the
use of the kit, such as Bullock's blood sample and resulting DNA
profile, was improperly admitted into evidence.

11 A-0818-15T4
no allegation or evidence Bullock was the victim of a sexual

assault, and highly prejudicial because it unnecessarily

introduced the specter of sexual assault into the case, producing

revulsion toward defendant and sympathy for Bullock. We are not

persuaded.

"[C]onsiderable latitude is afforded a trial court in

determining whether to admit evidence, and that determination will

be reversed only if it constitutes an abuse of discretion." State

v. Kuropchak, 221 N.J. 368, 385 (2015) (citation omitted). "In

light of the broad discretion afforded to trial judges, an

appellate court evaluates a trial court's evidentiary

determinations with substantial deference." State v. Cole, 229

N.J. 430, 449 (2017). "Under that standard, an appellate court

should not substitute its own judgment for that of the trial court,

unless 'the trial court's ruling was so wide of the mark that a

manifest denial of justice resulted.'" Kuropchak, 221 N.J. at 385

(citations omitted). We apply those standards here.

"The fundamental principle guiding the admission of evidence

is relevance." State v. Weaver, 219 N.J. 131, 149 (2014).

Evidence is relevant if it has "a tendency in reason to prove or

disprove any fact of consequence to the determination of the

action." N.J.R.E. 401. Nevertheless, even "relevant evidence may

be excluded if its probative value is substantially outweighed by

12 A-0818-15T4
the risk of (a) undue prejudice, confusion of issues, or misleading

the jury or (b) undue delay, waste of time, or needless

presentation of cumulative evidence." N.J.R.E. 403.

We find no abuse of discretion in the court's admission of

the experts' testimony about the use of the sexual assault kit and

the results of their findings from the kit, including the absence

of sperm or any other indicia of a sexual assault. The testimony

established facts of consequence: law enforcement's comprehensive

investigation of the potential circumstances surrounding Bullock's

murder and the processes used to obtain the DNA evidence that

inculpated defendant. Defendant and Bullock's mixed DNA profiles

in the blood found on the clothing directly linked defendant to

Bullock's murder. Bullock's DNA was obtained from the use of the

sexual assault kit.

Defendant argues the witnesses' reference to a "sexual

assault kit" and the evidence showing Bullock was tested for

physical evidence of sexual assault was unnecessary, unduly

prejudicial and diverted the jury's attention by introducing

sexual assault into the case. The record does not support this

contention. There was no allegation of sexual assault, defendant

was not charged with sexual assault and the testimony established

there was no evidence of a sexual assault. The only evidence

obtained from the use of the kit was Bullock's blood and the

13 A-0818-15T4
resulting DNA profiles. Indeed, on cross-examination of one of

the State's experts, defense counsel ably obtained an unequivocal

admission that the use of the kit yielded no evidence of a sexual

assault. Defendant makes no showing that the testimony confused

the jury or diverted its attention from the charges in the

indictment. We therefore find no basis to depart from the

"substantial deference" we pay "to the trial court's 'highly

discretionary determination.'" State v. Cook, 179 N.J. 533, 568

(2004).

Moreover, even if it was error to permit the experts to refer

to the "sexual assault kit," the error was harmless. R. 2:10-2.

The evidence showing defendant's guilt was overwhelming, and based

on our review of the record, we are convinced that admission of

the testimony, even if error, was not clearly capable of producing

an unjust result. R. 2:10-2; State v. R.B., 183 N.J. 308, 328

(2005).

B.

Defendant next argues a reversal is required because the

prosecutor engaged in misconduct in his opening and closing

arguments. More specifically, defendant claims that during the

prosecutor's opening statement, he repeatedly declared defendant's

guilt, used inflammatory language to attack defendant and create

sympathy for Bullock and was improperly argumentative. Defendant

14 A-0818-15T4
further contends that during summation, the prosecutor denigrated

defendant, expressed impermissible personal opinions about

defendant's credibility and the evidence and made misstatements

about the evidentiary record.

"A prosecutor must 'conscientiously and ethically undertak[e]

the difficult task of maintaining the precarious balance between

promoting justice and achieving a conviction,' ensuring that at

all times his or her 'remarks and actions [are] consistent with

his or her duty to ensure that justice is achieved.'" State v.

Jackson, 211 N.J. 394, 408 (2012) (alterations in original)

(quoting State v. Williams, 113 N.J. 393, 447-48 (1988)).

"Notwithstanding the high standard to which a prosecutor is

held as he or she gives an opening statement or summation, 'not

every deviation from the legal prescriptions governing

prosecutorial conduct' requires reversal." Id. at 408-09 (quoting

Williams, 113 N.J. at 452). "Prosecutorial misconduct is a basis

for reversal of a criminal conviction if the conduct was so

egregious that it deprived the 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)).

In reviewing a claim of prosecutorial misconduct, a reviewing

court considers: "whether 'timely and proper objections' were

raised; whether the offending remarks 'were withdrawn promptly';

15 A-0818-15T4
. . . whether the trial court struck the remarks and provided

appropriate instructions to the jury . . . [and] whether the

offending remarks were prompted by comments in the summation of

defense counsel." State v. Smith, 212 N.J. 365, 403-04 (2012)

(citations omitted).

Generally, if no objection was made to the
improper remarks, the remarks will not be
deemed prejudicial. Failure to make a timely
objection indicates that defense counsel did
not believe the remarks were prejudicial at
the time they were made. Failure to object
also deprives the court of the opportunity to
take curative action.

[State v. Timmendequas, 161 N.J. 515, 576
(1999) (citations omitted).]

Measured against these standards, we find no basis to reverse

defendant's convictions based on the prosecutor's alleged improper

statements.

Defendant argues the following comments in the prosecutor's

opening constituted impermissible statements about defendant's

guilt:

Who you will not see in this courtroom is []
Bullock. She will not be here to tell you
what happened on December 29, 2012. And I get
to introduce to you her, who [] Bullock was
before this man right here got to her.

. . . .

Ladies and gentlemen, let me reintroduce you
to the person who did this. This killer right
there, take a look at him.

16 A-0818-15T4
 . . . .

[T]he police in this case did locate that
evidence he attempted to discard, and it was
found.

And but for that being found he possibly could
have gotten away with murder.

. . . .

Ladies and gentlemen, this man's a killer,
right here. He is a murderer, and the State
intends to prove that.

A prosecutor has great leeway in his or her opening comments.

See id. at 692. Our review of a prosecutor's opening statement

"is two-fold: whether the prosecutor committed misconduct, and,

if so, 'whether the prosecutor's conduct constitutes grounds for

a new trial.'" State v. Wakefield, 190 N.J. 397, 446 (1994)

(quoting State v. Smith, 167 N.J. 158, 181 (2001)). In order to

satisfy the second prong of that test, a prosecutor's misconduct

"must have been 'so egregious that it deprived defendant of a fair

trial.'" Ibid. To warrant a new trial, the prosecutor's comments

"must have substantially prejudiced defendant's fundamental right

to have a jury fairly evaluate the merits of his defense." Ibid.

We reject defendant's contention that the prosecutor's

statements were impermissible or require a reversal. Defendant

relies on select statements but fails to properly consider them

in their context. The prosecutor made each statement as part of

17 A-0818-15T4
a broader and permissible message that the State intended to prove

defendant was a murderer, and not that the prosecutor was declaring

defendant as such.

For example, after calling defendant the "killer right

there," the prosecutor stated: "Now you may be wondering . . .

[w]hat proof do you have?" and explained in detail the evidence

the State would present to establish defendant killed Bullock.

The prosecutor's explanation of how he intended to prove defendant

was the killer is not only within the bounds of permissible

conduct, but is also what an opening statement is intended to be.

See State v. Walden, 370 N.J. Super. 549, 558 (App. Div. 2004) ("A

prosecutor's opening statement should provide an outline or

roadmap of the State's case. It should be limited to a general

recital of what the State expects, in good faith, to prove by

competent evidence." (quoting State v. Torres, 328 N.J. Super.

77, 95 (App. Div. 2000))).

At all times during his opening statement, the prosecutor

reminded the jury of what he intended to prove, using phrases such

as "You'll be able to see," "You'll hear from those individuals,"

and "the State [] expects to present to you," certain types of

evidence. The prosecutor also made clear that the State "must

prove" defendant murdered the victim beyond a reasonable doubt,

and that "it intend[ed] to prove that." Thus, when considered in

18 A-0818-15T4
context, we discern no intention by the prosecutor to declare

defendant's guilt.

Moreover, defendant did not object to any of the prosecutor's

declarations during the opening statement. To the contrary,

defense counsel began his opening statement by properly reminding

the jury that, in accordance with the court's preliminary

instructions, "what is said in an opening statement is not

evidence," and that "[a]nything [the prosecutor] just said [is

not] evidence."

Defendant's reliance on State v. Rivera, 437 N.J. Super. 434

(App. Div. 2014), is misplaced. In Rivera, the prosecutor

explicitly declared the defendant's guilt by using a PowerPoint

presentation in his opening statement that showed "a photograph

[of the] defendant's face and neck, which [was] displayed with a

bright red border." Id. at 447. "It also include[d] text, printed

in the same color and density, 'Defendant GUILTY OF: ATTEMPTED

MURDER.' The words 'Defendant' and 'GUILTY OF:' appear[ed] on

separate lines to the right of [the] defendant's photograph, and

'ATTEMPTED MURDER' appear[ed] below the photograph in much larger

typeface." Ibid.

The prosecutor in Rivera explicitly declared the defendant's

guilt by listing the words "guilty of" next to "attempted murder."

Ibid. In reversing the defendant's convictions, we recognized

19 A-0818-15T4
that "[o]ur Supreme Court "has consistently condemned conduct that

invades the exclusive province of the jury to resolve factual

disputes, assess credibility and decide whether the State's

evidence establishes guilt." Id. at 449 (citations omitted). We

found "[i]t is difficult to conclude that a prosecutor's

declaration of the defendant's guilt before the first witness is

sworn would not have invaded the province of the jurors." Id. at

450.2

Here, the prosecutor's comments do not rise to the same level

or degree as those employed by the prosecutor in Rivera. There

was no declaration of defendant's guilt, and the prosecutor's

comments were accompanied by an acknowledgment that the State had

the burden of proving the elements of the offenses charged and a

description of the evidence which the prosecutor intended to

introduce to satisfy that burden. See State v. Hipplewith, 33

N.J. 300, 311 (1960) (explaining it is improper for a prosecutor

2
Our decision in Rivera did not turn exclusively on the
prosecution's use of the PowerPoint presentation during its
opening. The prosecutor also used the PowerPoint presentation in
summations and "included statements about the law of self-defense
that were so oversimplified as to be misleading." Id. at 463.
Thus, we were also concerned with the jury's "capacity to follow
[the trial judge's] instructions." Id. at 464 (citations omitted).
We reversed based on the "cumulative impact of the prosecutor's
misconduct." Id. at 465.

20 A-0818-15T4
to state, explicitly or implicitly, his or her personal belief of

a defendant's guilt unless it is based on the evidence).

Moreover, even if the prosecutor's statements were improper,

they did not deprive defendant of a fair trial, Wakefield, 190

N.J. at 467, and the lack of any objection to the statements may

be properly viewed as an acknowledgement they were not prejudicial,

See State v. Frost, 158 N.J. 76, 83 (1999) (holding generally,

"remarks will not be deemed prejudicial" if no objection was made

at trial); see also State v. Abdullah, 372 N.J. Super. 252, 267-

68 (App. Div. 2004) ("Where, as here, the defendant's lawyer fails

to object at trial, we may legitimately infer that counsel did not

consider the remarks inappropriate or prejudicial."), aff'd in

part, rev'd in part on other grounds, 184 N.J. 497 (2005).

We also reject defendant's assertion that the prosecutor's

opening statement was overly inflammatory based on his description

of how Bullock appeared when her body was found:

The [] Bullock that you'll see? She's bloody,
beaten, swollen, with her lifeless body
propped on a keyboard with its cord wrapped
around her neck . . . .

[The State] took photographs of [defendant's]
hands . . . .

I'm going to leave those pictures for you to
judge. You can evaluate them. You can
evaluate if they are bruises on his hands and
if it's consistent with being involved in this
brutal, vicious murder of [] Bullock.

21 A-0818-15T4
 "A prosecutor may summarize the State's case graphically and

forcefully." State v. W.L., 292 N.J. Super. 100, 110 (1996). At

the same time, however, a prosecutor "may not make 'inflammatory

and highly emotional' appeals which have the capacity to defer the

jury from a fair consideration of the evidence of guilt." Id. at

111 (quoting State v. Marshall, 123 N.J. 1, 161 (1991)).

We have not hesitated to criticize rhetorical excesses by

prosecutors that invite juror sympathy for the victim. See, e.g.,

State v. Roman, 382 N.J. Super. 44, 58-59 (App. Div. 2005)

(criticizing prosecutor's remarks that it was the duty of adults,

including the jurors, to protect the child victim); State v.

Buscham, 360 N.J. Super. 346, 364-65 (App. Div. 2003) (same);

State v. Hawk, 327 N.J. Super. 276, 282 (App. Div.

2000) (suggestions that the jury "send a message" through its

verdict, "were inappropriate, inflammatory and constitute[d]

misconduct"). Contrary to defendant's claim, however, the

prosecutor's comments were not "calculated to arouse sympathy for

the victim and hate and anger against the defendant," like the

comments we determined required a reversal in W.L., 292 N.J. Super.

at 111. In W.L., the prosecutor commented on the innocence of all

children generally, the effects of the crime on the victim's

family, and advised the jury that if it found the State has proven

22 A-0818-15T4
its case it had a "strong duty to find him guilty." Id. at 105-

09.

Here, the prosecutor provided nothing more than a brief and

accurate description of Bullock's body as it appeared when it was

discovered, coupled with a preview of the evidence that would be

presented to establish the body's condition. The prosecutor's

description was graphic, but there was no objection, and the

description was neither impermissible, see W.L., 292 N.J. Super.

at 110-11, nor capable of depriving defendant of a fair trial, see

Wakefield, 190 N.J. at 443.

We similarly reject defendant's contention that the

prosecutor's opening statement was unduly argumentative. We find

no support in the record for defendant's reliance on State v.

Spano, 64 N.J. 566, 567 (1974), where the Court reversed a

defendant's conviction because the prosecutor interrupted defense

counsel's opening statement and declared the defendant had an

opportunity to appear before the grand jury and testify, but did

not do so. The Court determined the prosecutor's comment

constituted a declaration that the defendant would have testified

if he was innocent, but was guilty because he did not. Id. at

567-68. The prosecutor made no comparable remarks here.

23 A-0818-15T4
 C.

Defendant further contends the prosecutor committed

prosecutorial misconduct by misstating facts in support of his

argument defendant was not credible and by stating defendant was

a liar. Although we agree the prosecutor's comments were improper,

we are not convinced they were sufficiently prejudicial to have

deprived defendant of a fair trial.

We consider the propriety of a prosecutor's comments during

summation under a standard similar to that applied in our

consideration of comments made during opening statements. A

prosecutor is "entitled to wide latitude in his [or her] summation

. . . [s]o long as he [or she] stays within the evidence and the

legitimate inferences therefrom." R.B., 183 N.J. at 330 (quoting

State v. Mayberry, 52 N.J. 413, 437 (1968)).

In our determination of the propriety of a prosecutor's

summation, we consider "whether 'timely and proper objections'

were raised; whether the offending remarks 'were withdrawn

promptly'; and whether the trial court struck the remarks and

provided appropriate instructions to the jury." Smith, 212 N.J.

at 403 (internal citation omitted) (quoting Frost, 158 N.J. at

83). If prosecutorial misconduct occurred and the comments "were

sufficiently egregious, a new trial is appropriate, even in the

24 A-0818-15T4
face of overwhelming evidence" of a defendant's guilt. Id. at

404.

"Whether particular prosecutorial efforts can be tolerated

as vigorous advocacy or must be condemned as misconduct is often

a difficult determination to make. In every instance, the

performance must be evaluated in the context of the entire trial,

the issues presented, and the general approaches employed." State

v. Negron, 355 N.J. Super. 556, 576 (App. Div. 2002). "To justify

reversal, the prosecutor's conduct must have been clearly and

unmistakably improper, and must have substantially prejudiced

[the] defendant's fundamental right to have a jury fairly evaluate

the merits of his [or her] defense." State v. Nelson, 173 N.J.

417, 460 (2002) (alterations in original) (quoting State v.

Papasavvas, 163 N.J. 565, 625 (2000)).

Defendant argues he was improperly denigrated by the

prosecutor's comments concerning defendant's statements to

Bullock's mother when she asked if he had seen Bullock after

Bullock went missing. The prosecutor told the jury:

[W]hat type of ruthless individual will look
a mother who's looking for her daughter in the
eye when he knows, he knows she's dead. He
knows she's dead and he didn't tell her. He
knows it.

And not only did he not tell her, Taylor
Bullock was there too, her poor daughter. He
looked her in the eye too. They're looking

25 A-0818-15T4
 for [the victim] . . . and he knows. Ladies
and gentlemen, that is not a character trait
of someone who just covers a crime up. That
is a character trait of a murderer. That is
a character trait of someone who kills a
wom[a]n and tries to take another one down
while doing it. That's what he is.

We have criticized a prosecutor's use of derogatory

statements about a defendant, see, e.g., Wakefield, 190 N.J. at

467; State v. Pennington, 119 N.J. 547, 576-77 (1990), and the

prosecutor's references to defendant as "ruthless" and having a

"character trait of a murderer" were improper comments having no

place in defendant's trial. However, we must evaluate the

challenged remarks in the context of the "summation as a whole."

State v. Atwater, 400 N.J. Super. 319, 335 (App. Div. 2008)

(citation omitted).

Here, the prosecutor's comments were fleeting, and made

during a summation that otherwise detailed the substantial

evidence supporting the determination of defendant's guilt.

"Generally, . . . a 'fleeting and isolated' remark is not grounds

for reversal." Gorthy, 226 N.J. at 540 (quoting State v. Watson,

224 N.J. Super. 354, 362 (App. Div. 1988)). Moreover, "[w]hen,

as here, the defendant does not object to the prosecutor's

statement, that statement does not warrant reversal of the

conviction unless it is 'of such a nature as to have been clearly

capable of producing an unjust result.'" Ibid. (quoting R. 2:10-

26 A-0818-15T4
2); accord State v. Echols, 199 N.J. 344, 360 (2009). We are

therefore satisfied that the improper comments did not

"substantially prejudice[] . . . defendant's fundamental right to

have a jury fairly evaluate the merits of his . . . defense."

State v. Ingram, 196 N.J. 23, 43 (2008).

We have carefully considered defendant's remaining

contentions, including those asserted in defendant's pro se

supplemental brief, and find they are without sufficient merit to

warrant discussion in a written opinion. R. 2:11-3(e)(2). We add

only that the prosecutor's assertions of fact during summation,

when considered in context, were either directly supported by the

evidence or constituted inferences reasonably drawn from the

evidence. In addition, the court instructed the jurors that they

were "the sole exclusive judges of the evidence, of the credibility

of the witnesses, and the weight to be attached to the testimony

of each witness . . . regardless of what counsel said or may have

said recalling the evidence in this case." We presume the jury

followed the court's instructions, Smith, 212 N.J. at 409, and

therefore accorded no weight to any purported misstatement of fact

in the prosecutor's summation. The challenged statements

otherwise did not deprive defendant of a fair trial.

27 A-0818-15T4
 D.

Defendant further contends the court erred by engaging in

what he characterizes as excessive questioning of DiGiambattista

and the State's footwear impressions expert. During

DiGiambattista's testimony, the court asked questions about

whether the photographs he was shown accurately depicted the scene

in the shed and Bullock's body when he found her. The court

similarly asked the expert questions about whether photographs

that she did not take accurately depicted the footwear impressions

found on the shed's flooring. Defendant argues the questioning

constituted unwarranted judicial intervention and violated his

right to a fair trial. We disagree.

Defendant did not object to the court's questioning of the

witnesses. We therefore review for plain error, and "disregard

any alleged error 'unless it is of such a nature as to have been

clearly capable of producing an unjust result.'" State v.

Funderburg, 225 N.J. 66, 79 (2016) (quoting R. 2:10-2). We find

no plain error here.

In State v. Ross, 229 N.J. 389, 408-09 (2017), the Court

recently summarized the relevant legal standard:

The New Jersey Rules of Evidence explicitly
permit trial judges to interrogate witnesses.
Judges are authorized to question witnesses
"in accordance with law and subject to the

28 A-0818-15T4
right of a party to make timely
objection." N.J.R.E. 614.

Indeed, we have recognized that the
discretionary power of a judge to participate
in the development of proof is of "high
value." [State v. Guido, 40 N.J. 191, 207
(1963)]. A trial judge may intervene to
expedite the proceedings and clarify
testimony. [State v. O'Brien, 200 N.J. 520,
534 (2009)]. A trial judge may also pose
questions to help elicit facts from a witness
who is in severe distress. [State v. Taffaro,
195 N.J. 442, 451 (2008)].

Although a trial judge has wide latitude to
question witnesses, a judge must exercise this
authority with "great restraint," especially
during a jury trial. Ibid. A judge must use
considerable care when questioning witnesses
to avoid influencing the jury. Ibid. There
is a grave risk that a trial court may
influence a jury through its questioning by
signaling doubt about a witness's credibility
or suggesting that it favors one side over the
other. See O'Brien, 200 N.J. at 523 (noting
that [a] judge "holds powerful symbolic
position vis-a-vis jurors . . . and must
refrain from any action that would suggest
that he favors one side over the other, or has
a view regarding the credibility of a party
or a witness"). A fine line separates proper
and improper judicial questioning. A trial
court crosses this line when its inquiries
give the jury an impression that it takes one
party's side or that it believes one version
of an event and not another. See Taffaro, 195
N.J. at 451.

In determining whether a trial judge crossed
over this line, we must examine the record as
a whole. See id. at 454. "[I]t is the impact
of the court's questions, and not the number
of minutes they lasted, which matters
most." Ibid.

29 A-0818-15T4
 Measured against that standard, we are satisfied the court

did not abuse its discretion by questioning the witnesses about

the accuracy of the photographs. The court's questions were

limited to the witnesses' knowledge concerning the photographs,

and could neither be reasonably interpreted as favoring one side

of the case nor as expressing an opinion on the credibility of

either side's version of the events. Cf. O'Brien, 200 N.J. at 537

(reversing conviction based on judge's questioning of a witness

"le[ft] the impression that [the judge] did not believe [the]

defendant's claim"). The record simply does not support or permit

a conclusion that the court's questioning was capable of producing

an unjust result. R. 2:10-2.

E.

Defendant challenges his sentence, claiming the court erred

by imposing an excessive sentence based upon its application of

aggravating factors one, "[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," N.J.S.A. 2C:44-1(a)(1); three, the risk defendant will

commit another offense, N.J.S.A. 2C:44-1(a)(3); six, the extent

and seriousness of defendant's prior record, N.J.S.A. 2C:44-

1(a)(6); and nine, the need to deter defendant and others from

violating the law, N.J.S.A. 2C:44-1(a)(9).

30 A-0818-15T4
 "Appellate review of sentencing is deferential, and appellate

courts are cautioned not to substitute their judgment for those

of our sentencing courts." State v. Case, 220 N.J. 49, 65 (2014)

(citation omitted). Thus, disturbing a sentence is permissible

in "only three situations: (1) the trial court failed to follow

the sentencing guidelines, (2) the aggravating and mitigating

factors found by the trial court are not supported by the record,

or (3) application of the guidelines renders a specific sentence

clearly unreasonable." State v. Carey, 168 N.J. 413, 430 (2001).

Our Supreme Court has cautioned that a reviewing court should

not second-guess a trial court's diligent exercise of its

sentencing discretion that is in accordance with the sentencing

guidelines. State v. Cassady, 198 N.J. 165, 180-81 (2009); State

v. Roth, 95 N.J. 334, 365 (1984). Rather, appellate courts must

abide by a sentence imposed in accordance with the sentencing

guidelines unless it "shocks the judicial conscience." Cassady,

198 N.J. at 180; see also State v. Tindell, 417 N.J. Super. 530,

570 (App. Div. 2011). We are "empowered – indeed obligated – to

correct a clearly unreasonable sentence, even if the judge applied

correctly the statutory sentencing guidelines." Tindell, 417 N.J.

Super. at 571.

A trial court must not only make findings of aggravating and

mitigating factors, but must also weigh and balance the factors

31 A-0818-15T4
in a process that requires more than a quantitative comparison of

"the number of pertinent aggravating factors with the number of

applicable mitigating factors." State v. Fuentes, 217 N.J. 57,

72 (2014). The sentencing court must "qualitatively assess[] and

assign[] appropriate weight in a case-specific balancing process."

Id. at 72-73. "When the aggravating and mitigating factors are

identified, supported by competent, credible evidence in the

record, and properly balanced," an appellate court must affirm the

sentence provided it does not shock our judicial conscience. Case,

220 N.J. at 65. If the sentencing court "forgoes a qualitative

analysis" of the aggravating and mitigating factors "or provides

little 'insight into the sentencing decision,' then the

deferential standard of appellate review of a sentence does not

apply. Ibid.

In a sentencing court's application of aggravating factors,

"sentencing courts are cautioned to avoid 'double counting'

circumstances that the Legislature has already incorporated as an

element of the offense." State v. Lawless, 214 N.J. 594, 608

(2013). Thus, relying on factors that support an element of a

crime, such as the victim's death which underlies the murder

offense, may not be used as aggravating factors for sentencing of

that particular crime. Ibid.

32 A-0818-15T4
 Here, defendant argues the court engaged in impermissible

double counting by finding aggravating factor one based on the

injuries resulting in Bullock's death. The court gave substantial

weight to aggravating factor one, and found the factor because

Bullock "died of blunt head and neck trauma" that "caused bleeding

around the membrane of the brain and bleeding within the brain,"

as well as "hemorrhage within the neck organs indicating blunt

neck trauma with possible compression." The court also noted that

a "cord was used" that was "wrapped around her neck."

Where the defendant is charged with a purposeful and knowing

murder, "the sentencing court's application of aggravating factor

one must be based on factors other than the death of the victim

and the circumstances essential to support a finding" that the

defendant knowingly and purposely caused the victim's death.

Fuentes, 217 N.J. at 76. The sentencing court must engage in a

"nuanced analysis of the defendant's offense," and provide a clear

explanation to permit an appellate court to determine if the

elements of offense have been double counted. Ibid. "[A]

sentencing court may justify the application of aggravating factor

one, without double[]counting, by reference to the extraordinary

brutality involved in an offense" or where the "defendant's

behavior extended to the extreme reaches of the prohibited

behavior." Id. at 75 (citation omitted).

33 A-0818-15T4
 Here, the sentencing court could not properly find

aggravating factor one simply because "a death resulted from

defendant's conduct," id. at 76 (quoting State v. Briggs, 349 N.J.

Super. 496, 505 (2002)), but instead was required to determine if

defendant's conduct "was 'especially heinous, cruel, [or]

depraved'" based on the information in the record, id. at 77

(alteration in original) (quoting N.J.S.A. 2C:44-1(a)(1)). The

court, however, did not adequately explain the basis for its

application of aggravating factor one. It "neither discussed in

detail the circumstances of the offense nor identified the facts

in the record – distinct from the facts necessary to prove the

elements of [murder] – that supported its finding." Ibid. We are

therefore constrained to vacate defendant's sentences and remand

for resentencing. The court shall determine "if there is credible

evidence in the record to support" its finding of aggravating

factor one and "provide a detailed explanation of its findings

with respect to this and any other factor applied." Id. at 78.

We do not find merit in defendant's contention the court

erred by relying on his prior offense history as a basis for

finding aggravating factors three and nine. Defendant contends

the court also erred in weighing those factors because it failed

to consider the lack of severity of his previous offenses.

34 A-0818-15T4
 The law is well-settled that a court may properly consider

defendant's prior history of criminality to support findings of

aggravating factors three, six and nine. State v. Dalziel, 182

N.J. 494, 502 (2005). The record supports the court's

determination because it shows defendant had 1999 convictions for

two counts of third-degree burglary, N.J.S.A. 2C:18-2, and one

count of third-degree arson, N.J.S.A. 2C:17-1(b)(2), under two

indictments. He was sentenced to serve a jail term as a condition

of probation. In 2001, the Family Court entered a domestic

violence temporary restraining order against him that was

subsequently withdrawn. In 2002, 2005, 2008, and 2009, he was

found guilty of offenses in municipal court. In 2010, he was

found guilty in municipal court of abuse, abandonment, or cruelty

of children, N.J.S.A. 9:6-1. In 2010, he was found guilty in

municipal court of three separate offenses. In 2012, he was

convicted of fourth-degree unlawful possession of a stun gun,

N.J.S.A. 2C:39-3(h), and received a probationary sentence. Less

than one year later, he committed the murder and other offenses

for which the court imposed the sentence under review.

A sentencing court may consider the length of a defendant's

criminal record, irrespective of whether each offense resulted in

a conviction, State v. Tanksley, 245 N.J. Super. 390, 397 (App.

Div. 1991), and may consider convictions for relatively minor

35 A-0818-15T4
offenses. State v. T.C., 347 N.J. Super. 219, 244 (App. Div.

2003). Defendant's record demonstrates a lengthy and consistent

history of violating the law and provided sufficient credible

evidence supporting the court's finding of aggravating factors

three, six and nine. See State v. O'Donnell, 117 N.J. 210, 216

(1989) ("[A]n appellate court should not second-guess a trial

court's finding of sufficient facts to support an aggravating or

mitigating factor if that finding is supported by substantial

evidence in the record."). We further discern no basis to "second-

guess" the court's weighing any of those aggravating factors. See

Cassady, 198 N.J. at 180-81.

Defendant's remaining arguments are without merit sufficient

to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Defendant's convictions are affirmed. We vacate defendant's

sentence and remand for further proceedings in accordance with

this opinion. We do not retain jurisdiction.

36 A-0818-15T4