NOT FOR PUBLICATION WITHOUT THE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-5820-17T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JUSTIN GARCIA a/k/a
EAZE GARCIA,
Defendant-Appellant.
_______________________
Submitted May 27, 2020 – Decided July 9, 2020
Before Judges Accurso, Gilson and Rose.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Indictment No. 17-01-0055.
Joseph E. Krakora, Public Defender, attorney for
appellant (Daniel Vincent Gautieri, Assistant Deputy
Public Defender, of counsel and on the brief).
Esther Suarez, Hudson County Prosecutor, attorney for
respondent (Ednin D. Martinez, Assistant Prosecutor,
on the brief).
PER CURIAM
Following a bifurcated jury trial, defendant Justin Garcia was convicted
of murder and weapons offenses for the execution-style shooting death of his
friend, Javon Murray; thereafter, the same jury convicted defendant of certai n
persons not to have weapons. After denying defendant's motion for a new trial
and the State's motion for a discretionary extended term, the trial court ordered
the appropriate merger, ran all remaining counts concurrently, and sentenced
defendant to an aggregate term of life imprisonment. Pursuant to the No Early
Release Act (NERA), N.J.S.A. 2C:43-7.2, defendant must serve nearly sixty-
four years in prison before he is eligible for parole.
During the multi-day jury trial, the State presented the testimony of ten
witnesses and introduced in evidence more than one hundred exhibits. But no
one witnessed the shooting; the weapon was not recovered; and no projectiles
or shell casings were found at the scene. Instead, the evidence against defendant
was largely circumstantial: surveillance video footage and defendant's cell
phone records captured his actions during the minutes leading up to the shooting;
cell tower information tracked defendant's activity – and inactivity – in the hours
that followed. And a mutual friend of defendant and Murray heard the gunshot,
saw defendant run away from the scene, and saw another man pick up the gun.
Defendant did not testify at trial.
A-5820-17T1
2
Defendant now appeals, arguing:
POINT I
THE PROSECUTOR COMMITTED MISCONDUCT
IN HER SUMMATION IN MULTIPLE WAYS,
INCLUDING VOUCHING FOR HER
EYEWITNESS'S CREDIBILITY BASED ON
INFORMATION OUTSIDE THE TRIAL RECORD
AND PROVIDING MISLEADING INFORMATION
REGARDING THE REASONABLE-DOUBT
STANDARD.
(Not Raised Below)
POINT II
THE INSTRUCTION ON FLIGHT AS
CONSCIOUSNESS OF GUILT WAS
UNCONSTITUTIONAL BECAUSE IT SHIFTED
THE BURDEN OF PROOF FROM THE STATE TO
THE DEFENDANT.
(Not Raised Below)
POINT III
THE COURT ERRED IN IMPOSING A LIFE
SENTENCE WITH A 63.75-YEAR PAROLE BAR ON
[DEFENDANT], FOCUSING LARGELY ON THE
FACT THAT [DEFENDANT] MAINTAINED HIS
INNOCENCE IN IMPOSING SUCH A LONG TERM
UPON A YOUTHFUL OFFENDER WHO HAD
NEVER PREV[]IOUSLY BEEN SENTENCED TO
PRISON.
POINT IV
THE COURT ERRED IN IMPOSING FINANCIAL
PENALTIES ON A MERGED COUNT.
A-5820-17T1
3
(Not Raised Below)
After consideration of the trial testimony and the arguments raised on
appeal, we affirm defendant's convictions, finding insufficient merit in the
contentions raised in point II to warrant extended discussion in this written
opinion, R. 2:11-3(e)(2), beyond the comments that follow. We focus instead
on point I. We also reject the contentions raised in point III and affirm
defendant's sentence, but remand to correct the judgment of conviction to
remove the fines assessed on the merged conviction.
I.
Sometime between 2:40 and 2:44 a.m. on July 21, 2016, Murray was shot
from behind by a single bullet. Jersey City police detectives assigned to a nearby
precinct heard the gunshot and within minutes were dispatched to the scene on
Clinton Avenue. By the time they arrived, Murray had died; he was still
clutching money in his hand. Police found two cell phones and a small bottle of
alcohol in Murray's pocket, arguably ruling out robbery as a motive for the
shooting. One of the responding detectives testified the windshield of a blue
Ford Expedition next to Murray's body was struck by a bullet at an upward angle.
According to the medical examiner, a single bullet entered Murray's neck below
his left ear; traveled at a slight upward angle; and exited his cheek near his right
A-5820-17T1
4
ear, severing the spinal cord. The entrance wound was situated seven-and-one-
half inches below the top of Murray's head; the exit wound six inches below.
Around the time of the shooting, a few young adults – including nineteen-
year-old N.C. (Nancy)1 – were in the area. Around 11:30 p.m. on July 20, Nancy
ran into Murray on Clinton Avenue and they spoke for a few minutes about "the
usual stuff" friends discuss. Sometime later, defendant approached Nancy and
told her to contact Murray and "ask him where he was." Nancy did not comply
with defendant's "persistent" demands and walked away when another friend,
Faith Skipper, met up with her. Nancy and Skipper then walked to a fast food
restaurant.
About twenty minutes later, Nancy and Skipper returned to Clinton
Avenue. Nancy entered the home of her friend, Ruby, 2 while Skipper remained
outside. As Nancy was entering the home, she "saw a person in all black, [a]
short person [3] going through the alleyway between the house [sic]." A few
1
Because we find the witness's safety outweighs the Judiciary's commitment to
transparency in this opinion, we use initials to protect her privacy and a
pseudonym for ease of reference.
2
Ruby's last name is not contained in the record; we intend no disrespect by
using her first name.
3
Nancy testified the man was about her height: four feet, eleven inches tall. A
detective later testified defendant is five feet, one inch tall.
A-5820-17T1
5
minutes later, Nancy joined Skipper and two other friends – Kenneth Bernavil
and Talik Smith – who were "chilling" in Bernavil's BMW. The car was parked
across the street from Ruby's house.
Nancy testified that the group was "just talking and everything and then
after a while [they] heard the shot." Nancy did not see the shooting; when she
heard the gunshot, she turned and saw Murray fall to the ground. Nancy then
saw the "same person, same height . . . run . . . through the alley again" and
"[d]rop the gun." Nancy observed another man pick up the gun and hand it to a
third man before leaving; both men were taller than the gunman. Nancy stayed
behind to check on Murray while Bernavil drove off in the BMW with Smith
and Skipper. Realizing "something was wrong," Nancy reentered Ruby's home.
The next day, Nancy was interviewed by police.
During her trial testimony, Nancy acknowledged she initially told police
the shooter was "short with dreads" and "had a white shirt with blue pants on,"
which differed from her trial testimony, but was consistent with the surveillance
footage shown to the jury. Nancy selected defendant's photograph from an array
during her interview. Hudson County Prosecutor's Office (HCPO) Detective
Paulo Hernandez, who performed the array, testified Nancy was "scared and
hesitant" when doing so. Nancy also identified defendant in court as the shooter.
A-5820-17T1
6
Defense counsel questioned Nancy about her prior statements to police,
some of which were inconsistent with her trial testimony. As one example, on
cross-examination Nancy said she saw Murray enter a white van with several
other unidentified people before the shooting. But Nancy told police she saw
Murray enter a white van with Jared, her former boyfriend. Nancy also told
police she did not go to the fast food restaurant with Skipper, but stayed behind
with Ruby, Smith, and Bernavil. On redirect examination, Nancy stated she did
not immediately disclose all details to the detectives because she was "scared"
and "didn't know what to do." Although Nancy denied she was frightened while
testifying, her demeanor suggested otherwise. 4
The State also called Bernavil, who did not see the shooting and thought
the "pop" he heard at that time was caused by a garbage truck as it was driving
down the block. Police stopped Bernavil's car as he was driving away. Bernavil
4
During their summations, defense counsel and the prosecutor commented on
Nancy's nervous demeanor while testifying. In her oral decision, denying
defendant's motion for a new trial, the court made detailed findings about
Nancy's demeanor: "[Nancy] appeared visibly terrified entering the courtroom
. . . . As she entered the witness stand she whimpered making what the [cou rt
will] call for a lack of a better description, primordial sounds, akin t o a
frightened or wounded animal." The court recalled "hear[ing] [Nancy] breathing
to keep herself calm and composed . . . . Most telling was the way she positioned
herself during the course of her testimony." Nancy "moved to the rear of the
witness stand" and "shield[ed] herself from the view of . . . defendant . . . ."
A-5820-17T1
7
allowed police to search the car, where they found a spent shell casing in a
crevice of the front seat. Police detained Bernavil, Smith, and Skipper, but none
of the occupants was charged in connection with Murray's murder. Bernavil,
who was studying criminal justice and "regularly" fired weapons at the shooting
range, told police he had done so earlier that day. The State moved into evidence
a photograph of Bernavil firing guns at the shooting range a few days before the
incident.
HCPO detectives obtained surveillance footage from several businesses
and residences near the scene of the shooting, which were played for the jury at
trial without narration. One surveillance video depicts a man matching Nancy's
description of defendant – a male with dreadlocks wearing a white shirt, blue
pants, and a baseball cap – entering a liquor store near the crime scene a few
hours before the shooting. Another surveillance video shows a similarly dressed
man, without a baseball cap, crouching down near a car on Clinton Avenue and
placing an object in the waistband of his pants about forty minutes before the
shooting. The same man appears in a third video with another man, believed to
be Murray, walking on Clinton Avenue shortly before the shooting. 5
5
None of the videos depicted the murder; apparently footage had been erased
from one of the videos before it was turned over to police.
A-5820-17T1
8
HCPO detectives also extracted data from defendant's cell phone, pursuant
to a communications data warrant. The State's telecommunications analysis
expert, HCPO Detective Sean O'Leary, testified that defendant's phone
continuously activated cell towers on Clinton Avenue and Kennedy Boulevard
in the month leading up to the shooting. O'Leary opined defendant never left
the southern area of Jersey City for more than a few hours during that timeframe.
In the minutes leading up to the murder, defendant exchanged messages
with Geetay Sal, Kishan Sparkman, and someone identified in defendant's phone
only as "Stars." Around the time of the shooting – at 2:20 a.m. and 2:40 a.m. –
defendant's phone activated a cell tower near Clinton Avenue. Shortly after the
shooting – at 2:44:58 a.m. and 2:45:38 – defendant placed two calls to Sal. And
about a half-hour later defendant called Sparkman.
During the next thirty-four hours, "multiple people" attempted to contact
defendant, but his phone did not text or call anyone. Defendant's phone did not
activate another cell tower until 7 p.m. on July 21. Unlike defendant's cell tower
activations during the month before the murder, that cell tower was located in
the northern end of Jersey City. Defendant's phone continued to activate cell
towers in the northern section of the city.
On July 22, defendant's phone accessed an online news article regarding
A-5820-17T1
9
the homicide, which stated the shooter was at large and police sought the public's
assistance with any leads. After accessing the article, defendant resumed
outgoing communications with his phone. HCPO Detective Brenton Porter
testified by that time, police were no longer canvassing the area around the crime
scene.
On July 23, defendant's cell phone resumed activating cell towers near
Clinton Avenue. That afternoon, defendant messaged Dominick Rodriguez,
who lives in Florida, and asked whether he "could come out there for a little
while[.]" Rodriquez asked defendant the reason for his visit. Defendant replied:
"Too much to say on the phone . . . ." When Rodriguez pressed defendant for
more information, defendant said his reason "had nothing to do with money,
wasn't even my beef . . . my boy just got killed three days ago." Defendant told
Rodriguez he would likely leave for Florida the following day. About a half-
hour later, defendant messaged Sal asking, "why people are saying [sic] that
Toya told?" Police identified Toya as Murray's friend or girlfriend. On July 25,
2016, defendant was arrested.
II.
For the first time on appeal, defendant challenges several comments made
during the prosecutor's summation. Because no objections were made at trial,
A-5820-17T1
10
we conduct our review by employing the plain error standard. In that regard,
"[w]e may reverse on the basis of unchallenged error only if the error was
'clearly capable of producing an unjust result.'" State v. Ross, 229 N.J. 389, 407
(2017) (quoting R. 2:10-2).
In reviewing a claim of prosecutorial misconduct, we consider whether:
defense counsel raised "timely and proper objections"; "the offending remarks
were withdrawn promptly"; "the trial court struck the remarks and provided
appropriate instructions to the jury"; and "the offending remarks were prompted
by comments in the summation of defense counsel." State v. Smith, 212 N.J.
365, 403-04 (2012) (internal citations and quotation marks omitted).
"Generally, if no objection was made to the improper remarks, the remarks will
not be deemed prejudicial." State v. R.B., 183 N.J. 308, 333 (2005) (citation
omitted). "Failure to make a timely objection indicates that defense counsel did
not believe the remarks were prejudicial at the time they were made," and
"deprives the court of the opportunity to take curative action." State v.
Timmendequas, 161 N.J. 515, 576 (1999).
Moreover, New Jersey courts have long recognized prosecutors "are
afforded considerable leeway in making opening statements and summations."
State v. Williams, 113 N.J. 393, 447 (1988). They may even do so "graphically
A-5820-17T1
11
and forcefully." State v. Pratt, 226 N.J. Super. 307, 323 (App. Div. 1988).
Nonetheless, "the primary duty of a prosecutor is not to obtain convictions
but to see that justice is done." Smith, 212 N.J. at 402-03. A prosecutor's "duty
is to prove the State's case based on the evidence and not to play on the passions
of the jury or trigger emotional flashpoints, deflecting attention from the hard
facts on which the State's case must rise or fall." State v. Blakney, 189 N.J. 88,
96 (2006). "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
Williams, 113 N.J. at 447-48).
Even if the prosecutor exceeds the bounds of proper conduct, that finding
does not end our inquiry "because, in order to justify reversal, the misconduct
must have been 'so egregious that it deprived the defendant of a fair trial.'" State
v. Smith, 167 N.J. 158, 181 (2001) (quoting State v. Frost, 158 N.J. 76, 83
(1999)). "To justify reversal, 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."
A-5820-17T1
12
Timmendequas, 161 N.J. at 575 (citation omitted); see also State v. Nelson, 173
N.J. 417, 460 (2002).
Against that legal backdrop, we turn to defendant's overlapping claims
that the prosecutor impermissibly vouched for Nancy's credibility and bolstered
her testimony with evidence outside the trial record; denigrated defense counsel
by stating he "spun kind of a tale" about the killer's identity; and
mischaracterized the "reasonable doubt" standard by referring to defense
counsel's theories as "imaginary doubt." Defendant argues those cumulative
errors denied him a fair trial. Having reviewed the prosecutor's summation
"within the context of the trial as a whole," State v. Feaster, 156 N.J. 1, 64
(1998), we reject defendant's belated contentions.
We begin by summarizing defendant's arguments to give context to the
prosecutor's closing remarks at issue. Defendant's trial strategy focused on
impeaching the credibility of Nancy and poking holes in the State's
circumstantial evidence that tied him to the shooting. During summation,
defense counsel argued, "[Nancy] never said that she saw [defendant] fire a
gun." Counsel then noted the State will ask the jury "to draw certain inferences
from certain facts that [Nancy] did say and try to bring [it] to a conclusion saying
that [defendant] must have been the one that did this."
A-5820-17T1
13
In seeking to discredit Nancy, defense counsel cited portions of her
testimony that differed from her prior statements to police. For example,
counsel argued: "Clearly, she lied" when Nancy said she did not know the
occupants of the white van. He also cast doubt on Nancy's statement that she
saw defendant drop the gun and another man pick it up and hand it to a third
man. Counsel reviewed with the jurors the trial court's ensuing "false in one,
false in all" charge in relation to Nancy's testimony. See Model Jury Charges
(Criminal), "False in One – False in All" (rev. Jan. 13, 2013) (instructing jurors
that they may believe all or some of a witness's testimony if they find the witness
"willfully or knowingly testified falsely to any material facts in the case, with
intent to deceive [them]"). Counsel said Nancy "seemed to be very nervous"
when she testified, arguing people "get nervous because they're not supposed to
be lying . . . ."
Defense counsel also suggested arguments the prosecutor would make
during her summation concerning the shooter's height:
The prosecutor is going to argue to you, I believe,
too many points that they say is [sic] corroboration.
They're [sic] going to say that the victim was 5'9, that
[defendant] is 5'2 and that the angle of the bullet path
was slightly upward, so it must have been a short person
who shot [Murray].
And, defense counsel also suggested someone else, including Bernavil,
A-5820-17T1
14
could have killed Murray. Toward the end of his summation, counsel showed
the jury the photograph of Bernavil firing a rifle at the shooting range, with two
other handguns "on the board, right in front of where he's shooting . . . ."
Counsel then asked the jury: "What does that mean? Does that mean that
[Bernavil] did it? I don't know . . . we don't know. There's not enough evidence
before you to make a decision about that."
Defendant now claims the prosecutor impermissibly vouched for Nancy's
credibility, and referred to evidence not presented at trial to bolster Nancy's
credibility. Defendant notes the following comments as indicia of vouching and
bolstering by the prosecutor:
[Nancy] was so terrified she didn't even want to
walk in the courtroom. She was terrified out here. And,
we're supposed to believe that she sat up here with the
intent to look all of you in the face and just lie about
everything. And, if she was going to lie, . . . what was
the reason for it. Because that's another factor for you
to consider . . . bias, whether there's a motive to lie,
whether she has an interest in the outcome of the case.
She doesn't . . . she has no motive to lie. And, if
she did, if she did have a reason to lie, if she did have a
reason for whatever reason to put this on . . . defendant,
why wouldn't she say, I saw him pull the trigger? She
didn't say it because she didn't see it and because she
was telling you the truth.
....
A-5820-17T1
15
She was terrified to initially identify him. And,
she was terrified in here to identify him. [Nancy] is a
young woman who we can see just wanted to do the
right thing. That's all she wanted to do.
The prosecutor's comments followed defense counsel's skillful attempt to
discredit Nancy's testimony and question the reason for her demeanor by arguing
inconsistencies in Nancy's testimony and her "nervous" responses were indicia
of her untruthfulness. The prosecutor neither expressed a personal belief or
opinion as to the truthfulness of Nancy's testimony, see State v. Staples, 263
N.J. Super. 602, 605 (App. Div. 1993), nor attempted to vouch for her
credibility, State v. Walden, 370 N.J. Super. 549, 560 (App. Div. 2004). Rather,
taken in context, the comments were made in response to defendant's argument.
See State v. Marshall, 123 N.J. 1, 156 (1991) (finding it proper for a prosecutor
to argue that a witness's testimony is credible, but improper to offer an opinion
on the witness's credibility). And, the prosecutor's comments were based on the
evidence in the trial record. See Blakney, 189 N.J. at 96. Not only did the
detective who conducted the array testify that Nancy was "scared" when she
identified defendant as the shooter at the police station, but also as noted above,
the court detailed Nancy's "visibly terrified" demeanor in court.
Defendant cites other portions of the prosecutor's summation to further
support his argument that the prosecutor bolstered Nancy's testimony with facts
A-5820-17T1
16
that were not in evidence. Defendant takes issue with the prosecutor's
"evaluation of the crime scene":
So, the entrance wound . . . was 4'10 and a half
inches off the ground at that slightly upward trajectory
. . . . [D]efendant was 5'1 at the time of the murder. So,
think about this. Even if you've never shot a gun
before, you know what the obvious stance is when
you're about to shoot someone, right?
You go to eye level. You don't go from the top
of your head. You go from eye level because you want
to see your target. What do you think the eye level is
from the top of [defendant]'s head? Two to three
inches? 5'1 minus two to three inches is 4'10 and a half
inches off the ground.
Do you think it's just a coincidence that the
entrance wound to the victim perfectly matches up with
[defendant]'s eye level[?]
The prosecutor's comments were based upon the "evidence revealed
during the trial and reasonable inferences . . . drawn from that evidence." Smith,
167 N.J. at 178. Although the medical examiner testified he could not state the
shooter's height "within a reasonable degree of medical certainty," he stated the
victim's height, and Porter testified as to defendant's height. The medical
examiner also detailed his measurements of the entrance and exit wounds vis-à-
vis the crown of Murray's head, and the trajectory of the bullet as it entered the
victim's skull. Considering the prosecutor's statements in the context of the trial
A-5820-17T1
17
as a whole, Feaster, 156 N.J. at 64, a reasonable jury could infer from the
evidence adduced that defendant matched the approximate height of the
shooter.6
Moreover, "[a] prosecutor is permitted to respond to an argument raised
by the defense so long as it does not constitute a foray beyond the evidence
adduced at trial." State v. Munoz, 340 N.J. Super. 204, 216 (App. Div. 2001).
As stated, defense counsel expressly fronted the disparity in heights between
defendant and Murray and the angle of the bullet's trajectory, commenting that
the prosecutor will argue the shooter was shorter than the victim. Counsel then
asked the jury, "I don't know, what do you think about that argument? I don't
think very much of it." We discern nothing improper or factually incorrect about
the prosecutor's responsive comments. See Frost, 158 N.J. at 85.
Nor are we persuaded by defendant's assertions that the prosecutor
improperly speculated about defendant's ability to change his clothes, and the
meaning of a text message sent after the shooting. At issue are the following
remarks:
6
To support his argument on appeal that "there is no one perfect shooting
stance," defendant cites an article written by a retired detective that is not
contained in the trial record. Accordingly, it is inappropriate for our
consideration on appeal. See State v. Robinson, 200 N.J. 1, 20 (2009).
A-5820-17T1
18
You saw from the liquor store video that . . .
defendant was wearing a baseball cap. In the later
videos, he's not wearing a baseball cap. We know from
the phone records, he hasn't left the area of Clinton
Avenue. What does that suggest? He's got a place
where he can go to stash clothes, to change clothes in
that area. He's there every day.
So, it's not a stretch. It's not an imaginary doubt.
It's reasonable to conclude that he had a place where he
could change his clothes, to throw on a dark hoodie,
especially when there's [sic] thirty-five minutes
between when he arms himself and when the victim is
standing there.
....
[Defendant] reaches out to [a friend] and he says, "Yo,
why are people saying Toya told?" Do you remember
who Toya was? Detective Porter testified Toya is
Alexis Brown . . . the girlfriend or friend of the victim.
....
Why would you ask the question if you didn't do
it? Why would you care? Because he did do it.
Because he found out somebody told and he's asking
. . . why are people saying Toya told.
[(Emphasis added).]
Again, the prosecutor's statements were reasonably-based inferences from
the evidence adduced at trial. As to the garment-changing comments, the State
presented cell site data, indicating defendant had been present continuously in
the vicinity of the shooting for one month. The State also presented Nancy's
A-5820-17T1
19
conflicting accounts regarding defendant's clothing at and near the time of the
crime. In an attempt to explain the inconsistencies in Nancy's statements, the
prosecutor asked the jury to infer from those facts that defendant changed his
clothing. And, regarding defendant's inquiring text message, the prosecutor
questioned defendant's motive, suggesting the message was indicative of his
guilt. The jury reasonably could infer from the text message that defendant was
concerned "Toya" was disclosing information about the crime to others. In our
view, the prosecutor's remarks did not exceed the bounds of fair comment on the
evidence. See Smith, 167 N.J. at 178.
Lastly, we turn to defendant's contentions that the prosecutor's references
to imaginary doubt mischaracterized the reasonable doubt standard, and that her
comment, "as to the killer's identity, defense counsel has spun kind of a tale for
you, right[,]" denigrated defense counsel. Defendant also cites the following
comments to support his argument:
Because there's imaginary doubt, which you can reject.
And, then there's reasonable evidence. Defense counsel
wants you to think that all of this evidence is unreliable
or if it is reliable, it's all merely a coincidence . . .
evidence like [Nancy's] testimony.
He wants you to think it's all unreliable because
it all incriminates his client. Or he wants you to think
it's all a coincidence because he wants you to look the
other way. He wants you to look away from all of this
A-5820-17T1
20
evidence because it all leads to only one person as the
murderer, . . . defendant.
....
Direct evidence like somebody's eyewitness
testimony, that gives us a snapshot in time. But, the
circumstantial evidence, that gives us the whole story.
Can you ignore all of these things or call them all just
coincidence, and still have them be reasonable?
That's the difference between imaginary doubt
and reasonable doubt. Anything is possible . . ., but is
it reasonable? Can you ignore these things and still
have it be reasonable? If it's imaginary or
unreasonable, you can reject it. But, follow the
evidence . . . and find this man guilty.
"It is well settled that prosecutors are not permitted to cast unjustified
aspersions on the defense or defense counsel." State v. Rodriguez, 365 N.J.
Super. 38, 50 (App. Div. 2003); see also Frost, 158 N.J. at 86. We have long
recognized prosecutors may not "characterize the defense attorney and the
defense as outrageous, remarkable, absolutely preposterous and absolutely
outrageous." State v. Acker, 265 N.J. Super. 351, 356 (App. Div. 1993); see
also State v. Atwater, 400 N.J. Super. 319, 335 (App. Div. 2008).
In context, the prosecutor's suggestion that counsel "spun kind of a tale,"
while perhaps better avoided, was not egregious or unfair and did not have the
capacity to bring about a result the jury might not otherwise have reached. See
A-5820-17T1
21
Timmendequas, 161 N.J. at 589-90. The prosecutor challenged the viability of
defendant's case theory in response to counsel's assertions that some unspecified
person could have killed Murray. To the extent that fleeting remark could be
viewed as improper, we conclude it does not rise to plain error. See R. 2:10-2.
Turning to the prosecutor's "imaginary doubt" references, we note
defendant's recitation of the prosecutor's comments in this regard omitted her
introduction: "But, you have to ask yourselves this, how much of what defense
counsel said to you is supported by the evidence." The comments should be
contextualized amid the prosecutor's discussion of Nancy's credibility and the
circumstantial evidence that underscored defendant's guilt in response to
counsel's arguments, which the prosecutor contended found no support in the
record. We discern no impropriety in that argument.
The use of the term "imaginary doubt" in those contexts, however, should
have been avoided because it could have been construed as the prosecutor's
instruction to the jury on the law. Nonetheless, we are persuaded any prejudice
resulting from those comments was sufficiently mitigated by the trial court's
thorough instruction on reasonable doubt, which tracked the model jury charge
verbatim. See Model Jury Charges (Criminal), "Reasonable Doubt" (rev. Feb.
A-5820-17T1
22
24, 1997).7 The court also properly instructed the jury it was the sole judge of
witness credibility and that counsels' arguments or comments are not evidence.
"We must assume the jury followed the court's instructions." See State v. Little,
296 N.J. Super. 573, 580 (App. Div. 1997). Accordingly, the prosecutor's
remarks were not sufficiently egregious to find defendant was deprived of a fair
trial. Frost, 158 N.J. at 83.
Finally, we reject defendant's contention that the cumulative effect of the
errors committed during his trial warrants reversal. Defendant has failed to
demonstrate any error or pattern of errors, rising to the level, either singly or
cumulatively, that denied him a fair trial. "A defendant is entitled to a fair trial
but not a perfect one." R.B., 183 N.J. at 334 (internal quotation marks omitted).
III.
Little need be said about defendant's newly-minted challenges to the trial
court's flight instruction. During the charge conference, defense counsel
7
Although the present model jury charge on reasonable doubt does not reference
"imaginary doubt," its predecessor provided, in pertinent part: "Reasonable
doubt is not a mere possible or imaginary doubt, because everything relating to
human affairs is open to some possible or imaginary doubt." Model Jury
Charges (Criminal), "Reasonable Doubt" (rev. May 23, 1994); see also State v.
Medina, 147 N.J. 43, 61 (1996) (adopting the present definition of reasonable
doubt and "direct[ing] trial courts not to deviate from [that] definition").
Prosecutors likewise should not deviate from that definition.
A-5820-17T1
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opposed the State's application to charge flight and sought a mere presence
instruction. The court considered the arguments of counsel; reserved decision;
and thereafter ruled both charges would be included in its final jury instructions.
The court's flight charge as given was closely tailored to the model jury charge,
omitting only the following language: "There has been some testimony in the
case from which you may infer that the defendant fled shortly after the alleged
commission of the crime. The defense has suggested the following
explanation[.]" See Model Jury Charges (Criminal), "Flight" (rev. May 10,
2010). The court omitted that text based on its "conscious decision not to
indicate or provide potential facts . . . for the jur[ors] to consider" because that
could "indicate undue weight to those facts. And, in the end, it's their decision
to consider what facts to find and how much weight to give them." Defendant
did not object to the instruction as given.
Defendant now claims the flight instruction improperly placed the burden
on him "to dis-prove that he left in order to avoid arrest, when it should have
placed the burden on the State to prove that he left to avoid arrest." Defendant
further contends the flight instruction should not have preceded the substantive
charges. Defendant cites no authority to support either contention, and we find
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24
insufficient merit in either claim to warrant discussion in this opinion, R. 2:11-
3(e)(2), beyond the following brief comments.
The trial court's flight charge in this case was nearly a verbatim recitation
of the model jury charge and consistent with New Jersey precedent. See State
v. Mann, 132 N.J. 410, 421 (1993). We have repeatedly held a jury charge that
tracks the language of the governing law and is consistent with the applicable
model jury charge is not plainly erroneous. See Rodriguez, 365 N.J. Super. at
53-54. Nor do we find any error in the placement of the flight charge within the
jury instructions. The charge was issued immediately after the mere presence
charge and before the substantive charges. We therefore discern no error let
alone plain error in the substantive charge or its placement within the overall
instructions. See R. 1:7-2; R. 2:10-2; see also State v. Funderburg, 225 N.J. 66,
79 (2016).
IV.
The crux of defendant's sentencing argument is the trial court's assignment
of weight to the aggravating factors it found applicable. Defendant primarily
claims the court improperly considered and assigned great weight to his lack of
remorse and refusal to accept responsibility. Defendant also contends the court
failed to consider his "relative youth" and lack of prior confinement in a state
A-5820-17T1
25
prison facility in imposing sentence beyond the thirty-year mandatory-minimum
prison term. See N.J.S.A. 2C:11-3(b)(1). Defendant's contentions are
unavailing.
After merging the possession of an unlawful purpose conviction with the
murder conviction, the court sentenced defendant to life imprisonment with an
eighty-five percent period of parole ineligibility under NERA, and concurrent
terms of ten years with five years of parole ineligibility under the Graves Act,
N.J.S.A. 2C:43-6(c), for the unlawful possession of a weapon and certain
persons not to have weapons convictions. The court found and assigned
"substantial weight" to aggravating factor three (the risk defendant will commit
another offense), "heav[]y weigh[t]" to aggravating factor six (the extent of
defendant's criminal history), and the "most weight" to aggravating factor nine
(general and specific deterrence), N.J.S.A. 2C:44-1(a)(3), (6), and (9). Finding
no mitigating factors, N.J.S.A. 2C:44-1(b), the court was "clearly convinced that
the aggravating factors substantially outweigh[ed] the mitigating factors."
In finding and assessing the aggravating factors, the trial court thoroughly
reviewed defendant's personal history and criminal background, which included
six prior indictable convictions, and multiple violations of probation.
Recognizing defendant was twenty-seven years old on the day of sentencing, the
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court noted defendant "has spent his entire . . . adult life involved with the
criminal justice system." The court found defendant had been afforded
"numerous opportunities to rehabilitate and to make a good-faith effort to
change and become a contributing member of society[,]" but his "unlawful
conduct [ha]s only increased in frequency and gravity since his initial conviction
as an adult."
In its assessment of aggravating factor three, the court assigned "great
weight" to defendant's "apparent lack of remorse" toward Murray and his family
"along with defendant's persistent refusal to accept responsibility for his actions
as noted in his pre-sentence interview." The court elaborated:
Given the circumstances of defendant's continued
contacts with the criminal justice system, with the
calculated and violent execution-like manner in which
this jury found that the defendant murdered Javon
Murray and . . . defendant's (indiscernible) position
while blaming others such as his attorney, th[e] court
finds . . . aggravating factor three and gives it
substantial weight.
Sentencing determinations are reviewed on appeal with a highly
deferential standard. State v. Fuentes, 217 N.J. 57, 70 (2014). "The appellate
court must affirm the sentence unless (1) the sentencing guidelines were
violated; (2) the aggravating and mitigating factors found by the sentenci ng
court were not based upon competent and credible evidence in the record; or (3)
A-5820-17T1
27
'the application of the guidelines to the facts of [the] case makes the sentence
clearly unreasonable so as to shock the judicial conscience.'" Ibid. (alteration
in original) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)). Once the trial
court has balanced the aggravating and mitigating factors set forth in N.J.S.A.
2C:44-1(a) and (b), it "may impose a term within the permissible range for the
offense." State v. Bieniek, 200 N.J. 601, 608 (2010). See also State v. Case,
220 N.J. 49, 65 (2014) (instructing that appellate courts may not substitute their
judgment for that of the sentencing court, provided that the "aggravating and
mitigating factors are identified [and] supported by competent, credible
evidence in the record").
We have previously warned against the use of a defendant's refusal to
admit guilt to increase a sentence. See State v. Marks, 201 N.J. Super. 514, 540
(App. Div. 1985) (noting our "view that a defendant's refusal to acknowledge
guilt following a conviction is generally not a germane factor in the sentencing
decision"). We have, however, found a "[d]efendant's consistent denial of
involvement and . . . lack of remorse" supported a finding of aggravating factor
nine, N.J.S.A. 2C:44-1(a)(9), and "indicate[d] that a prison sentence [wa]s
necessary to deter [the] defendant from similar conduct in the future . . . ." State
v. Rivers, 252 N.J. Super. 142, 153-54 (App. Div. 1991). And, in State v. Carey,
A-5820-17T1
28
our Supreme Court recognized a sentencing court may consider the defendant's
failure to take responsibility in support of aggravating factor three. 168 N.J.
413, 426-27 (2001) (upholding the court's finding of aggravating factor three
where the defendant "expresse[d] remorse, but [did] not directly accept
responsibility for the [car] crash or admit that he ha[d] a problem of drinking
and driving").
Our review of the record leads us to conclude the aggravating factors
found were based on competent credible evidence in the record. Indeed,
defendant does not challenge those findings on appeal. At first blush, the court's
assignment of great weight to defendant's lack of remorse and refusal to accept
responsibility gives us pause. However, in its consideration of aggravating
factor three, the court properly considered defendant's recidivism, violations of
probation, and that the present offense was committed while defendant was
released on bail. Accordingly, the court's remarks were not the sole bases for
its application of aggravating factor three. Moreover, the court assigned the
"most weight" to aggravating factor nine and did not consider defendant's lack
of remorse or refusal to accept responsibility in that regard. As the court
correctly determined, defendant's prior probationary and jail terms have not
deterred his criminal activity.
A-5820-17T1
29
Defendant's remaining sentencing contentions lack sufficient merit to
warrant discussion in this written opinion. R. 2:11-3(e)(2). We simply note
defendant's reliance on the neuroscience underscoring Graham v. Florida, 560
U.S. 48 (2010), and State v. Zuber, 227 N.J. 422 (2017), is misplaced. In
Graham and Zuber, the Courts considered the impact of life sentences on
juvenile offenders. Graham, 560 U.S. at 117; Zuber, 227 N.J. at 452-53.
Conversely, defendant was twenty-five years old when he committed the murder
and twenty-seven when he was sentenced to life imprisonment. As such, the
principles espoused in Graham and Zuber are inapplicable here.
Our review of the record leads us to conclude the sentencing guidelines
were followed, the aggravating and mitigating factors were based on competent
credible evidence in the record, and the application of the guidelines to the
"execution-like" murder resulted in a sentence that was reasonable under the
facts of the case and do not "shock the judicial conscience." Roth, 95 N.J. at
364-65. Given our deferential standard of review, we see no reason to second
guess the trial court's sentence. Fuentes, 217 N.J. at 70.
***
In sum, we affirm defendant's convictions and sentence. But we direct the
trial court to amend the judgment of conviction to remove the fines assessed on
A-5820-17T1
30
the possession of a weapon for an unlawful purpose conviction, which the court
correctly merged with the murder conviction. The amended judgment of
conviction shall also remove the merged count from the list of final charges.
Affirmed but remanded to correct the judgment of conviction.
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