NOT FOR PUBLICATION WITHOUT THE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-4010-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MARIO GAYLES, a/k/a
AMEIR CONNEL, and
MARIO GILLS,
Defendant-Appellant.
____________________________
Argued telephonically June 3, 2020 –
Decided August 4, 2020
Before Judges Koblitz, Gooden Brown, and Mawla.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 16-02-0637.
Whitney Faith Flanagan, Assistant Deputy Public
Defender, argued the cause for appellant (Joseph E.
Krakora, Public Defender, attorney; Whitney Faith
Flanagan, of counsel and on the brief).
Hannah Faye Kurt, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued the cause
for respondent (Theodore N. Stephens II, Acting Essex
County Prosecutor, attorney for respondent; Hannah
Faye Kurt, of counsel and on the briefs).
Appellant filed a pro se supplemental brief.
PER CURIAM
Following a jury trial, defendant was convicted of first-degree murder,
N.J.S.A. 2C:11-3(a)(1), (2), (count one); second-degree unlawful possession of
a handgun, N.J.S.A. 2C:39-5(b) (count two); and second-degree possession of a
handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count three). The
convictions stemmed from defendant fatally shooting an associate following a
physical altercation on the street, during which the associate assaulted
defendant. After the assault, defendant left the area but returned shortly
thereafter, shot the associate, and fled on foot. The State's proofs included
accounts from two eyewitnesses who had known defendant and the victim for
nearly two decades, as well as surveillance video of the shooting from different
security cameras in the area. The trial court denied defendant's pre-trial
Miranda1 motion to exclude his statement to detectives, in which he admitted
selling drugs with the victim and having disagreements with him over money,
but denied shooting him. The court also granted the State's in limine motion to
1
Miranda v. Arizona, 384 U.S. 436 (1966).
A-4010-17T4
2
introduce evidence of the victim's and defendant's drug dealing activities
pursuant to N.J.R.E. 404(b). Although defendant denied shooting the victim in
his statement, at trial, his defense was that he committed passion/provocation
manslaughter, not murder.
On January 26, 2018, defendant received an aggregate sentence of life
imprisonment, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-
7.2.2 He now appeals from the February 5, 2018 conforming judgment of
conviction. In his counseled brief, defendant raises the following points for our
consideration:
POINT I
BECAUSE PROVOCATION WAS THE CENTRAL
ISSUE IN THE CASE, THE TRIAL COURT'S
REFUSAL TO TAILOR THE
PASSION/PROVOCATION INSTRUCTION
DENIED [DEFENDANT] A FAIR TRIAL.
POINT II
BECAUSE [DEFENDANT]'S MENTAL STATE WAS
IN DISPUTE, THE TRIAL COURT'S REFUSAL TO
TAILOR THE FLIGHT INSTRUCTION DENIED
[DEFENDANT] A FAIR TRIAL.
2
"[NERA] requires that each defendant sentenced to life imprisonment serve
sixty-three and three-quarters years before parole eligibility." State v. Fortin,
400 N.J. Super. 434, 449 n.5 (App. Div. 2008); see N.J.S.A. 2C:43-7.2(b).
A-4010-17T4
3
POINT III
PERVASIVE PROSECUTORIAL MISCONDUCT
DENIED [DEFENDANT] A FAIR TRIAL
A. THE PROSECUTOR'S REPEATED
MISREPRESENTATIONS OF THE
EVIDENCE IN SUMMATION DENIED
[DEFENDANT] A FAIR TRIAL.
B. THE PROSECUTOR'S REPEATED
DENIGRATIONS OF THE DEFENSE
AND DEFENSE COUNSEL DENIED
[DEFENDANT] A FAIR TRIAL.
C. THE PROSECUTOR'S COMMENT
ON [DEFENDANT]'S DECISION NOT
TO TESTIFY DENIED [DEFENDANT] A
FAIR TRIAL.
D. THE COMBINATION OF REPEATED
COMMENTS DENIGRATING THE
DEFENSE, MISREPRESENTING THE
EVIDENCE, AND DRAWING
ATTENTION TO [DEFENDANT]'S
DECISION NOT TO TESTIFY
WARRANT REVERSAL.
POINT IV
THE ERRONEOUS ADMISSION OF OTHER-
CRIMES EVIDENCE THAT [DEFENDANT] WAS A
DRUG DEALER DENIED HIM A FAIR TRIAL.
POINT V
THE CUMULATIVE EFFECT OF THE
AFOREMENTIONED ERRORS DENIED
A-4010-17T4
4
DEFENDANT A FAIR TRIAL. (NOT RAISED
BELOW).
POINT VI
[DEFENDANT]'S SENTENCE OF LIFE
IMPRISONMENT IS MANIFESTLY EXCESSIVE.
In his pro se brief, defendant raises the following points for our
consideration:
POINT I
THE TRIAL COURT'S FAILURE TO CHARGE THE
JURY ON THE LESSER-INCLUDED OFFENSES OF
AGGRAVATED MANSLAUGHTER AND
RECKLESS MANSLAUGHTER DEPRIVED
[DEFENDANT] OF DUE PROCESS AND
[DEFENDANT'S] RIGHT TO A FAIR TRIAL. . . .
(NOT RAISED BELOW).
A. DEFENSE COUNSEL FAILED TO
OBJECT FOR LESSER INCLUDED
OFFENSES OF AGGRAVATED
MANSLAUGHTER AND RECKLESS
MANSLAUGHTER JURY CHARGE.
POINT II
[DEFENDANT] WAS DENIED A FAIR TRIAL
BECAUSE THE PROSECUTOR FAILED TO
DISCLOSE A PSYCHIATRIC REPORT WHICH
INDICATED THE STATE'S WITNESS WAS
INCOMPETENT TO STAND TRIAL FOR SEVERE
PSYCHIATRIC CONCERNS AND SUICIDAL
IDEATION. (NOT RAISED BELOW).
A-4010-17T4
5
A. THE EVIDENCE WITHHELD
CONSTITUTES NEWLY DISCOVERED
EVIDENCE.
Having considered the arguments and applicable law, we affirm.
I.
We glean these facts from the trial record. At approximately 10:00 p.m.
on July 15, 2015, while walking to the store to get cigarettes, Francine Wilson
observed defendant shoot Icrish Bostic on the corner of Springfield Avenue and
Durand Place in Irvington. At the time of the shooting, Wilson had known
defendant for approximately eighteen years. She testified that she "used to be
an addict" and would "buy [drugs] from [defendant]." She met Bostic "around
the same time" as defendant, and knew Bostic from "being on the streets" and
buying drugs from him as well.
Just prior to the shooting, as Wilson approached the corner, she had
observed a man she had "never seen before" shoving and arguing with Bostic,
while Bostic just "walk[ed] real slow, . . . [not] saying anything." After the
shooting, "[o]nce [Bostic] fell" to the ground, Wilson stated "[defendant] got a
little closer," and "shot [him] up." When the shooting finally stopped, Wilson
"panicked" and "crawled under [a] car" that "was at the corner."
A-4010-17T4
6
According to Wilson, earlier in the afternoon on the day of the shooting,
while she and defendant were in the car of a mutual friend, defendant started
"fussing" about Bostic, saying that he was "tired of him" and that he was "going
to kill him." Wilson testified that the mutual friend cautioned defendant not to
"say that," and told defendant he did not "mean that" because he and Bostic were
"real good friends." Defendant and Bostic "grew up together" and Wilson
believed they "were very close." Wilson explained that although "[t]hey
argued," usually "when they were drinking,"3 they "still hung together."
Magdy Mohammed, who owned a pizzeria on the corner of Springfield
Avenue and Durand Place, also witnessed the shooting outside of his pizzeria
and identified defendant as the shooter. According to Mohammed, a little after
10:00 p.m. on July 15, while he was carrying bags from his car to his store, he
observed defendant and Bostic fighting but "somebody g[o]t involved and
[broke up] the fight." 4 Shortly thereafter, while Mohammed was "smok[ing] a
cigarette" outside his pizzeria, he observed defendant holding a gun, "lift his
arm, and . . . start shooting" at Bostic. After hearing "three shots," Mohammed
3
Wilson described Bostic as "an alcoholic" who had "anger issues" when he
was drinking.
4
Both Mohammed and Wilson acknowledged that Bostic was much bigger than
defendant.
A-4010-17T4
7
left, afraid that defendant would "shoot [him] too" because "[he] saw what
happened."
Like Wilson, Mohammed testified that he had also known defendant and
Bostic for approximately eighteen years before the shooting. According to
Mohammed, he would observe them "[j]ust hanging out" in front of his store.
Although he "saw . . . people . . . hand them money [sometimes]," and they
handed something back in return, he "[did not] know what [it was]." Mohammed
believed that defendant and Bostic were friends and "may have lived together."
Irvington Detective Christopher Burrell was one of the first officers to
respond to the scene of the shooting. Upon arrival, he found Bostic "lying on
the sidewalk face down bleeding from the head." Bostic was pronounced dead
at the scene and removed by the Medical Examiner, where a subsequent autopsy
revealed a total of "nine" gunshot wounds, three to the head. The cause of death
was reported as "multiple gunshot wounds to [the] head, torso, and extremities,"
and the "manner [of death was] homicide." 5
Along with other responding officers, Burrell secured the scene, identified
shell casings, canvassed for witnesses, and located surveillance videos from
5
The toxicology analysis showed that Bostic's blood alcohol level was above
the legal limit to drive.
A-4010-17T4
8
security cameras in the area, including Mohammed's pizzeria, before turning the
case over to the Essex County Prosecutor's Office (ECPO) Crime Scene Unit.
An ECPO detective recovered five projectiles and eleven 9-millimeter shell
casings, all of which were "discharged" from the same firearm, "a 9[-
]millimeter, semiautomatic."
The surveillance videos captured the shooting from different angles, and
corroborated the accounts of the two eyewitnesses. In one surveillance video,
Bostic and an unidentified male are depicted engaged in a "verbal dispute."
When defendant "[came] into the scene on the video," a "physical altercation
occur[ed] between . . . Bostic and [defendant]." Bostic, who, based on the
Medical Examiner's report "weighed approximately 275 pounds," initiated the
fight and "punch[ed defendant] in the face." Bostic then "grab[bed defendant]
from behind," and "thr[e]w him to the ground," pulling defendant's "hair while
he [was] on the ground."
The video showed defendant then leaving the area and going "around the
corner" onto Durand Place, with Bostic following in that direction. Another
surveillance video showed defendant "passing . . . in front of the camera" on
Durand Place, "then a minute or so later com[ing] right back around the corner
with a handgun in his [right] hand." After defendant came back from around the
A-4010-17T4
9
corner holding the gun, he "shot the first shot" at Bostic. When Bostic "fell to
the ground," defendant walked towards Bostic and continued to shoot at him.
Afterwards, another surveillance video "capture[d defendant] fleeing onto
Durand Place" and "go[ing] up into a property on the right side." Defendant
then "c[a]me back out into the street area" and "[ran] away . . . on Durand Place."
Based on the eyewitness accounts and the surveillance videos, on July 17,
2015, a warrant was issued for defendant's arrest. Approximately one week
later, on July 25, 2015, defendant was arrested in Crawford County,
Pennsylvania, a six to seven-hour drive from Irvington. After waiving his
Miranda rights, defendant was interviewed by ECPO Detective Wilfredo Perez
and his partner at the Crawford County jail. Initially, defendant told Perez that
he had arrived in Pennsylvania on July 11, four days before the shooting , and
had been staying with his cousin after being driven there by a friend.6 Defendant
also stated he lived in Trenton, not Irvington.
Defendant eventually admitted hearing about a "dude that got killed" in
Irvington, and stated that the decedent, Bostic, had been "[a] friend of [his]."
Defendant described his relationship with Bostic as being "about money and
6
During the trial, Quiana Bowman, the friend defendant claimed drove him to
Pennsylvania, denied "driving . . . to Crawford County, Pennsylvania" any time
"in July of 2015." She also denied having a driver's license or owning a car.
A-4010-17T4
10
friendship." He admitted that he had sold drugs with Bostic in Irvington, around
Durand Place and Springfield Avenue, and that Bostic "used to live with [him]."
Defendant also stated that he had disagreements with Bostic because Bostic was
"an alcoholic" and "drank too much."
Usually, according to defendant, the fights "came about because of
money." Defendant described two such recent physical fights with Bostic as
follows:
[T]he first one happened I kicked his ass . . . . We
fought. Police came. . . .
And the second time we get into a fight he started
terrorizing the neighborhood . . . people on the corner
. . . and all that. Somebody went and call the police.
I'm looking at this is my place of business where I eat
at, so I go try to talk to him, like, 'Yo, relax, calm the
fuck down'. He telling me, 'Well, I'm on the east side,'
this that . . . . I don't have none of that shit. When I try
to walk off, he sneaks me from the back. When he
sneaks me, I turn around, kicked his ass, you know what
I mean, because he can't fight. I kick his ass. There
was a couple people out there. He try and grab hair and
all that.
So . . . . [w]e go in the back yard. I fuck him up.
Boom, that was that.
According to defendant, Bostic could not "beat [him], so why should he
matter to [him]?" Defendant stated that because Bostic "never [saw] nobody
else come up, . . . he think[s] everything's supposed to be for him" and "he didn't
A-4010-17T4
11
want to see nobody else get money." Despite the fights, defendant stated he
"personally, . . . [paid] . . . no attention" to Bostic and "never had no [serious]
beef with [Bostic], . . . for this type of situation to occur." He explained that
Bostic could not "stop what [defendant did] . . . . [b]ecause people [did not] want
to deal with [Bostic]; they'd rather deal with [defendant] because [defendant
was] more respectful than [Bostic's] ass [was]."
Defendant stated his only "problem" with Bostic "was when he started
acting like that towards other people," like "store owners." Defendant explained
that when the store owners "call[ed] the police," defendant's ability "to make
money" was adversely impacted. Defendant denied killing Bostic, and stated
that although they "continuously . . . g[o]t in[to] . . . fight[s,] . . . the next day
. . . [he was his] man" and "would still spend the night at [defendant's] house."
Defendant suggested that Perez "look at other people that [Bostic] was beefing
with . . . around the area."
After the State rested, defendant elected not to testify at the trial. In
summations, defense counsel maintained that defendant committed
passion/provocation manslaughter, not murder. Thereafter, the jury returned a
verdict of guilty to murder and the related weapons offenses, and this appeal
followed.
A-4010-17T4
12
II.
In Point I of his counseled brief, defendant argues the trial judge denied
him "a fair trial" by rejecting his request to "instruct the jury that it could
consider the history of physical altercations between [defendant] and Bostic in
its determination of whether [defendant] was reasonably provoked by Bostic's
assault." We disagree.
It is well-settled that "[c]lear and correct jury instructions are essential for
a fair trial." State v. Randolph, 441 N.J. Super. 533, 558 (App. Div. 2015)
(quoting State v. Brown, 138 N.J. 481, 522 (1994)). Because "[t]he trial court
must give 'a comprehensible explanation of the questions that the jury must
determine, including the law of the case applicable to the facts that the jury may
find,'" State v. Baum, 224 N.J. 147, 159 (2016) (quoting State v. Green, 86 N.J.
281, 287-88 (1981)), courts have an "independent duty . . . to ensure that the
jurors receive accurate instructions . . . , irrespective of the particular language
suggested by either party." State v. Reddish, 181 N.J. 553, 613 (2004). As "an
indication of the paramount importance of accurate jury instructions," our
Supreme Court has "held that erroneous instructions on material issues are
presumed to be reversible error." Ibid. (quoting State v. Marshall, 173 N.J. 343,
359 (2002)).
A-4010-17T4
13
Where, as here, the challenge is not to the legal accuracy of the jury
instruction, which comported with the model jury charge, but to the adequacy
of the charge in light of the denial of the defendant's request to mold or tailor
the model jury charge to the facts of the case, we apply a harmless error analysis.
See R. 2:10-2. "Under that standard, there must 'be "some degree of possibility
that [the error] led to an unjust result. The possibility must be real, one sufficient
to raise a reasonable doubt as to whether [it] led the jury to a verdict it otherwise
might not have reached."'" Baum, 224 N.J. 147, 159 (alterations in original)
(quoting State v. Lazo, 209 N.J. 9, 26 (2012)); see also State v. Macon, 57 N.J.
325, 337-38 (1971) ("The question is whether there is a reasonable possibility
that the [error] complained of might have contributed to the conviction."). "Our
review, moreover, must not lose sight of the distinction between instructions
that are legally incorrect and those that are merely 'capable of being improved.'"
State v. Cagno, 211 N.J. 488, 514-15 (2012) (quoting State v. Delibero, 149 N.J.
90, 106 (1997)).
While "[n]o party is entitled to have the jury charged in his or her own
words," State v. Jordan, 147 N.J. 409, 422 (1997), a trial judge may be required
in certain situations to mold or tailor the model jury charge "in a manner that
explains the law to the jury in the context of the material facts of the case." State
A-4010-17T4
14
v. Concepcion, 111 N.J. 373, 379 (1988). "That requirement has been imposed
in various contexts in which the statement of relevant law, when divorced from
the facts, was potentially confusing or misleading to the jury." State v.
Robinson, 165 N.J. 32, 42 (2000). In such instances, "the trial court was
required to explain an abstract issue of law in view of the facts of the case. " Id.
at 43. However, "we generally leave it to the sound discretion of the trial judge
to decide when and how to comment on the evidence." State v. Pigueiras, 344
N.J. Super. 297, 317 (App. Div. 2001) (citing Robinson, 165 N.J. at 45).
"In New Jersey a purposeful killing can be either murder or
passion/provocation manslaughter." State v. Coyle, 119 N.J. 194, 221 (1990).
"When the record contains evidence of passion/provocation, the State can obtain
a murder conviction only if it proves beyond a reasonable doubt th at the
purposeful killing was not the product of passion/provocation." Ibid. "If there
is sufficient evidence of passion/provocation, a trial court must instruct the jury
that 'to find murder it must be convinced beyond a reasonable doubt that the
accused did not kill in the heat of passion.'" Id. at 221-22 (quoting State v.
Grunow, 102 N.J. 133, 145 (1986)).
A homicide which would otherwise be a purposeful or
knowing murder, that is committed in the heat of
passion resulting from a reasonable provocation, is
reduced to passion/provocation manslaughter, so long
A-4010-17T4
15
as the killing occurs before sufficient time has passed
that an ordinary person in similar circumstances would
have cooled off.
[State v. Viera, 346 N.J. Super. 198, 212 (App. Div.
2001) (citing N.J.S.A. 2C:11-4(b)(2)).]
Thus, to establish passion/provocation manslaughter, "the provocation
must be adequate; the defendant must not have had time to cool off between the
provocation and the slaying; the provocation must have actually impassioned
the defendant; and the defendant must not have actually cooled off before the
slaying." State v. Mauricio, 117 N.J. 402, 411 (1990). "The first two criteria
are objective," while "the other two are subjective." Viera, 346 N.J. Super. at
212.
To find the first criterion, that "the provocation was adequate," a jury must
"conclude that the loss of self-control was a reasonable reaction." Ibid. "Stated
another way," the jury must conclude that "'the asserted provocation was
[]sufficient to inflame the passions of a reasonable person.'" Ibid. (quoting
Mauricio, 117 N.J. at 412). To find "[t]he third criterion, . . . the provocation
must actually have impassioned the perpetrator." Id. at 213.
It is well settled that when there is evidence of prior
physical abuse of defendant by the decedent, the jury
must be told that a finding of provocation may be
premised on "a course of ill treatment which can induce
a homicidal response in a person of ordinary firmness
A-4010-17T4
16
and which the accused reasonably believes is likely to
continue."
[State v. Kelly, 97 N.J. 178, 218-19 (1984) (quoting
State v. Guido, 40 N.J. 191, 211 (1963)).]
While we have acknowledged that such cases typically "involve[] a continued
course of physical abuse involving persons in a familial relationship," we have
"decline[d] to hold that a familial relationship is necessary" to find "a course of
ill-treatment . . . sufficient" to establish "adequate provocation." Viera, 346 N.J.
Super. at 216.
Here, during the charge conference, relying on Coyle, defense counsel
requested that the judge tailor the passion/provocation charge and instruct the
jury that "reasonable provocation can be a continuing course of ill treatment by
the decedent against the defendant." Defense counsel asserted that given the
"continuing pattern of fighting between the [victim and defendant]," the charge
was appropriate. The prosecutor objected, stating that the charge was
"completely inappropriate" because "[t]he evidence" showed "fighting back and
forth" between defendant and the victim, not "ill treatment" or "abuse or . . .
anything like that."
The judge denied defense counsel's request, explaining:
I considered defendant's argument as to including some
language pursuant to State v. Coyle, as to a pattern of
A-4010-17T4
17
ill treatment. I don't see that as the case here. . . . I
think, here, you have a situation where both
individuals, defendant and victim, knew each other for
quite a long period of time, according to the witnesses
that knew them.
According to . . . defendant, they had a couple of
fights in the past. Defendant claims he got the best of
. . . the victim in the past. But certainly no one testified
as to any type of continuing course of ill treatment by
the victim towards . . . defendant. I don't see any
pattern here of that. A couple of skirmishes in the past,
maybe, but no . . . evidence that anything was out of the
ordinary, or that it was a one-sided physical
relationship. So I will not include the proposed
additional charge.
However, over the prosecutor's objection, the judge concluded that the
evidence showing that "prior to the shooting," defendant was "somewhat easily
manhandled by the victim," who was "considerably heavier and larger than . . . .
defendant" justified charging the standard passion/provocation charge.
Thereafter, the judge instructed the jury on passion/provocation manslaughter,
tracking the model charge. See Model Jury Charges (Criminal), "Murder,
Passion/Provocation and Aggravated/Reckless Manslaughter (N.J.S.A. 2C:11-
3a(1) and (2); 2C:11-4(a), (b)(1) and (b)(2))" (rev. June 8, 2015); see also State
v. R.B., 183 N.J. 308, 325 (2005) ("[I]nsofar as consistent with and modified to
meet the facts adduced at trial, model jury charges should be followed and read
in their entirety to the jury."); Estate of Kotsovska, ex rel. Kotsovska v.
A-4010-17T4
18
Liebman, 221 N.J. 568, 596 (2015) (noting that a "presumption of propriety . . .
attaches to a trial court's reliance on the model jury charge" when it is used for
"the specific purpose for which [it] was adopted").
We are satisfied the judge properly provided the standard model jury
charge for passion/provocation manslaughter, and correctly exercised his
discretion in denying defendant's request to tailor the charge. In Coyle, our
Supreme Court reversed the defendant's murder conviction partly because the
trial judge failed to tailor the charge to indicate the existence of "prolonged
abuse culminating in a killing." 119 N.J. at 226. The Court found that because
there was "evidence that the decedent ha[d], in the past, consistently physically
abused one with whom the defendant [stood] in close relationship," and "the
defendant kn[ew] of that abuse, 'the jury [should have been] told that a finding
of provocation may be premised on "a course of ill treatment which [could]
induce a homicidal response in a person of ordinary firmness and which the
accused reasonably believe[d was] likely to continue."'" Id. at 227 (quoting
Kelly, 97 N.J. at 219). The Court reasoned that "[a]bsent [this] detailed
instruction, a jury might not make an informed decision on the
passion/provocation manslaughter issue." Id. at 228; see also State v. Lamb, 71
N.J. 545, 551 (1976) ("Since there was evidence of prior repeated physical
A-4010-17T4
19
mistreatment of defendant by decedent, including threats to her life, . . . the jury
should have been instructed . . . to consider not only decedent's conduct and
threats that night, but also his prior mistreatment of defendant" in determining
the question of provocation.).
Here, unlike Coyle, there was no evidence of the victim's ill treatment or
prolonged abuse of defendant or someone close to defendant. Instead, there was
evidence of prior physical fights, during which defendant admittedly had the
upper hand. Indeed, defendant bragged about beating the victim in the past,
expressed no fear of him, and acknowledged that although "[t]hey argued, . . .
they still hung together." In these circumstances, it was the precipitating
"physical confrontation" in which the victim assaulted defendant, rather than
any preceding events, from which "a jury could rationally conclude that the
killing was the product of passion/provocation." Coyle, 119 N.J. at 225
("Various types of provocatory conduct have been deemed adequate, and
'battery, except for a light blow, has traditionally been considered . . .
sufficiently provocative.'" (alteration in original) (quoting Mauricio, 117 N.J. at
414)). In the absence of any evidence of the victim's prior physical abuse of
defendant, tailoring of the charge was not warranted. We also reject defendant's
contention that the judge repeating the standard charge on reasonable
A-4010-17T4
20
provocation in response to the jury's request for clarification of "reasonable
provocation" was "reversible error." See Jordan, 147 N.J. at 422 (explaining
that "all that is necessary is that the charge as a whole be accurate").
Defendant relies on Viera, State v. Erazo, 126 N.J. 112 (1991), and State
v. Bonano, 59 N.J. 515 (1971) to support his contention that tailoring was
warranted, but his reliance is misplaced. The necessity to tailor the jury charge
was not addressed in any of these cases, only whether the evidence provided a
rational basis for a passion/provocation charge, an issue that is not in dispute in
this case. Viera, 346 N.J. Super. at 217; Erazo, 126 N.J. at 124; Bonano, 59 N.J.
at 523-24.
III.
In Point II of his counseled brief, defendant argues that the judge's
"[f]ailure to instruct on the nuances of flight under the facts of this case rendered
the instruction inadequate" and the error "reversible." We disagree.
At the charge conference, defendant did not object to a flight charge since
defendant was "conceding consciousness of guilt," and asked the judge to omit
the language indicating that "defendant denie[d] any flight," to which the judge
agreed. However, defense counsel requested that the instruction be tailored to
include the following language:
A-4010-17T4
21
[D]efendant does not contest that he fled or that he fled
because he committed a crime. As you are now aware,
the defendant concedes that he is guilty of the crime of
heat of passion/provocation manslaughter [and] the
weapons offenses. Flight can only be used in
considering whether the defendant committed a crime,
not which crime he committed.
The prosecutor objected to the proposed language as "being argument and
summation." The judge agreed with the prosecutor, and, tracking the model jury
charge on flight, Model Jury Charges (Criminal), "Flight" (rev. May 10, 2010),
later instructed the jury as follows:
Now 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. If
you find that the defendant, fearing that an accusation
or arrest would be made against him on the charge
involved in the indictment, took refuge in flight for the
purpose of evading the accusation or arrest on that
charge, then you may consider such flight in connection
with all the other evidence in the case, as an indication
or proof of consciousness of guilt. Flight may only be
considered as evidence of consciousness of guilt if you
should determine that the defendant's purpose in
leaving was to evade accusation or arrest for the offense
charged in the indictment.
It is for you, as judges of the facts, to decide
whether or not evidence of flight shows a consciousness
of guilt and the weight to be given such evidence in
light of all the other evidence in the case.
A-4010-17T4
22
We discern no error in the judge's flight charge. Other than omitting the
language denying flight as requested by defense counsel, the charge was "a
verbatim recitation" of the model jury charge and "consistent with controlling
New Jersey precedent." State v. Rodriguez, 365 N.J. Super. 38, 53 (App. Div.
2003); see State v. Mann, 132 N.J. 410, 418-19 (1993) ("For departure to take
on the legal significance of flight, there must be circumstances present and
unexplained which, in conjunction with the leaving, reasonably justify an
inference that it was done with a consciousness of guilt and pursuant to an effort
to avoid an accusation based on that guilt." (quoting State v. Sullivan, 43 N.J.
209, 238-39 (1964))).
Defendant cites State v. Randolph, 228 N.J. 566 (2017) to support his
contention that the flight charge should have been tailored to reflect that "[his]
flight was indicative of his consciousness of guilt . . . to the lesser charge of
manslaughter," as opposed to "the offense charged in the indictment." In
Randolph, the defendant was being pursued by two different law enforcement
agencies on entirely separate crimes. Id. at 593. "At the very same time that
the Jersey City police was conducting its investigation and surveillance" of the
defendant's building "for drug activity," the United States "Marshals were
rushing to the third floor to arrest [the] defendant" on "a homicide charge." Id.
A-4010-17T4
23
at 593-94. The Court thus posited that the circumstances "raise[d] the inevitable
question[:] If defendant, in fact, was fleeing up the stairs, was his flight
prompted by an attempt to escape detection for drug dealing or for a homicide?"
Id. at 594.
The jury never learned that the United States Marshals
were on defendant's trail and arrested him in the
building at the time of the Jersey City police
investigation. Of course, such a disclosure would have
been highly prejudicial given that defendant was on
trial for drug offenses and not for committing a
homicide. Because of what it did not know, the jury
could not give weight to evidence that any flight might
have been motivated for reasons other than the drug
investigation.
[Ibid.]
"[G]iven the peculiar facts in th[e] case," the Court found that in a re-trial, "the
trial court must cautiously consider whether . . . a flight charge is appropriate"
and "[i]n doing so, the court must determine whether the probative value of
evidence of flight is 'substantially outweighed by the risk of . . . undue prejudice,
confusion of issues, or misleading the jury,' and whether a carefully crafted
limiting instruction could ameliorate any potential prejudice." Id. at 595
(quoting N.J.R.E. 403(a)).
Contrary to defendant's assertion, the circumstances in Randolph are
materially distinguishable from the facts of this case. Moreover, Randolph does
A-4010-17T4
24
not invalidate the model flight charge specifying that the defendant's motivation
for fleeing is prompted by "fear[] that an accusation or arrest would be made
against him on the charge involved in the indictment." While "flight from the
scene for reasons unrelated to the crime charged would not be probative of guilt
on that charge," here, the jury was not "left to speculate" about "defendant's
motivation" because it is undisputed that defendant fled after committing a
homicide. Id. at 594-95. Indeed, during summations, defense counsel
commented:
This is not murder. Yes, [defendant] left. He ran. He
went to Pennsylvania. You'll hear the [j]udge instruct
you that that could be seen as . . . a consciousness of
guilt. We're not denying that. . . . We're standing in
front of you and telling you that [defendant] is guilty of
a very serious crime, the most serious crime. And that
is passion/provocation manslaughter.
Thus, there was no need to "tailor the charge to the facts of the case to
prevent juror confusion." See id. at 578 (quoting State v. Randolph, 441 N.J.
Super. 533, 563-64 (App. Div. 2015)). Because the judge gave the model jury
charge for both murder and passion/provocation manslaughter, "[c]onsidering
the instructions in their entirety, in the context of the evidence and the arguments
of trial counsel, we are convinced that the charge was fair." Robinson, 165 N.J.
at 47; see Cagno, 211 N.J. at 514 ("This court has repeatedly held that portions
A-4010-17T4
25
of a charge alleged to be erroneous cannot be dealt with in isolation but the
charge should be examined as a whole to determine its overall effect." (quoting
State v. Wilbely, 63 N.J. 420, 422 (1973))).
IV.
In Point III of his counseled brief, defendant argues the prosecutor (a)
"made repeated improper comments that were not supported by the evidence ,"
(b) made comments "that denigrated the defense and defense counsel," and (c)
made comments "that drew attention to [defendant's] election not to testify."
Defendant asserts that while "the court intervened, instructing the jury on its
own motion to disregard one remark," defendant was nonetheless deprived of
"due process and a fair trial."
"Prosecutors can sum up cases with force and vigor, and are afforded
considerable leeway so long as their comments are 'reasonably related to the
scope of the evidence presented.'" State v. Pressley, 232 N.J. 587, 593 (2018)
(quoting State v. Timmendequas, 161 N.J. 515, 587 (1999)). "[I]f a prosecutor's
arguments are based on the facts of the case and reasonable inferences
therefrom, what is said in discussing them, 'by way of comment, denunciation
or appeal, will afford no ground for reversal.'" State v. Smith, 167 N.J. 158, 178
(2001) (quoting State v. Johnson, 31 N.J. 489, 510 (1960)).
A-4010-17T4
26
"[W]hile a prosecutor must advocate a position vigorously, there are
boundaries to such conduct." State v. Hawk, 327 N.J. Super. 276, 281 (App.
Div. 2000). A prosecutor is "not permitted to cast unjustified aspersions on the
defense or defense counsel." Smith, 167 N.J. at 177. Further, a prosecutor may
not make comments "which may adversely affect an accused's Fifth Amendment
rights" or "either in subtle or obvious fashion draw attention to a defendant's
failure to testify." State v. Engel, 249 N.J. Super. 336, 382 (App. Div. 1991).
However, "[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); see State
v. McGuire, 419 N.J. Super. 88, 145 (App. Div. 2011) ("A prosecutor's
otherwise prejudicial arguments may be deemed harmless if made in response
to defense arguments."). In fact, "[a] prosecutor may respond to defense claims,
even if the response tends to undermine the defense case." State v. Nelson, 173
N.J. 417, 473 (2002).
An appellate court "must assess the prosecutor's comments in the context
of the entire trial record," id. at 472, including whether the trial was lengthy and
the prosecutor's remarks short or "errant." Engel, 249 N.J. Super. at 382. "A
finding of prosecutorial misconduct does not end a reviewing court's inquiry
A-4010-17T4
27
because, in order to justify reversal, the misconduct must have been 'so
egregious that it deprived the defendant of a fair trial.'" Smith, 167 N.J. at 181
(quoting State v. Frost, 158 N.J. 76, 83 (1999)).
"Thus, to warrant a new trial 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.'" Id. at 181-82 (quoting Timmendequas, 161 N.J. at 575).
In determining whether a prosecutor's actions were
sufficiently egregious to warrant the reversal of a
conviction, a reviewing court should take into account:
(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.
[Id. at 182 (citations omitted).]
"Generally, if no objection was made to the improper remarks, the remarks
will not be deemed prejudicial." Timmendequas, 161 N.J. at 576. "Failure to
make a timely objection indicates that defense counsel did not believe the
remarks were prejudicial at the time they were made," ibid. (citation omitted),
and deprives the court of the "opportunity to take curative action." Frost, 158
N.J. at 84.
A-4010-17T4
28
When a defendant raises prosecutorial misconduct for the first time on
appeal, we need only be concerned with "whether the remarks, if improper,
substantially prejudiced the defendant['s] fundamental right to have the jury
fairly evaluate the merits of [his or her] defense, and thus had a clear capacity
to bring about an unjust result." Johnson, 31 N.J. at 510; see State v. Ross, 229
N.J. 389, 407 (2017) (noting that under the plain error standard of review, R.
2:10-2, "[t]he possibility of an unjust result must be 'sufficient to raise a
reasonable doubt as to whether the error led the jury to a result it otherwise might
not have reached'" (quoting State v. Williams, 168 N.J. 323, 336 (2001))).
A. Comments Not Supported By The Evidence
Turning to defendant's specific contentions, first, defendant asserts the
following comments were not supported by the evidence: (1) that defendant "had
planted a gun in the area prior to Bostic's attack, with the intent to use it to
murder him[;]" (2) "that the shooting was motivated by a 'turf battle' between
[defendant] and Bostic[;]" and (3) "that [defendant] had lied in a sworn
statement."
Regarding defendant secreting a gun beforehand, referring to the
surveillance video that tracked defendant's path on Durand Place and Burrell's
testimony that defendant approached an abandoned building on Durand Place
A-4010-17T4
29
prior to returning with the gun, the prosecutor stated that "[t]he gun was planted
[in an abandoned building] ahead of time for [defendant] to go get it and retrieve
it and kill [Bostic]." Also, referring to Wilson's testimony that earlier that
afternoon, defendant had told her that he was going to kill Bostic, the prosecutor
stated that defendant had brought the gun to the area "to have it nearby for the
murder later in the evening." Contrary to defendant's contentions, we are
satisfied that these comments are reasonably related to the scope of the evidence
presented, and the reasonable inferences drawn therefrom. Moreover, defense
counsel interposed no objection.
Defendant also challenges the following related comments made by the
prosecutor while showing the surveillance video retrieved from Mohammed's
pizzeria:
I'm gonna start it again here at the moment when . . .
defendant walks across the screen. This is right after
the fight. And just look at the way he's walking with
his body posture. Agitated? Angry, even? Nothing.
Just walking away. . . . Is he terrified? Is he going to
run to get his gun? No. Because that's not the point.
The point is murder. The point is getting rid of
[Bostic]. . . . Calmly walking away thinking, all right,
I'm gonna go get the gun, make sure it's loaded, I think
I loaded it last time. . . . I'm gonna go get it, I'm gonna
come back – – I guess I'll come back the same way, he'll
probably still be there. Thinking it through, all this
time to think through every detail of how he's gonna do
it.
A-4010-17T4
30
Defense counsel objected to the prosecutor's narration of defendant's train
of thought, explaining to the judge that the prosecutor "put[] words into
[defendant's] mouth" and improperly "indicat[ed] that he[] used this gun before."
The prosecutor countered that it was "an inference that the jurors [could] draw"
and response to defense counsel's claim that defendant "lost self-control," and
"[was] not thinking." The judge agreed that the comment was objectionable.
However, instead of adopting defendant's requested curative instruction, before
giving the final charge, the judge instructed the jury in pertinent part that
when the [p]rosecutor, in his summation, was
discussing what . . . defendant may have said to himself
at a certain point in time, that is his comment based on
what some of the other evidence is in the case. But
there is no evidence in the record of what . . . defendant
or anyone else said at the time of the incident. So you
cannot speculate as to what someone may have said at
that point in time when you heard no evidence of it.
We agree that the comment was improper, but are satisfied that the judge's
prompt, forceful, and targeted curative instruction ameliorated any prejudice to
defendant. "We will presume that the jury adhered to the court's instruction."
State v. Feaster, 156 N.J. 1, 65 (1998). Indeed, the comments are no more
prejudicial than the statements in Feaster. There, over defendant's objection, the
prosecutor argued that the defendant had loaded and cocked the gun during the
car ride to the scene of the murder, a claim which "had no basis in the record
A-4010-17T4
31
and was highly improper." Id. at 62. Nevertheless, the Court determined that
the comments "in the context of the entire trial" did not have the capacity to
deprive defendant of a fair trial. Id. at 63.
Defendant also challenges the prosecutor's references to "a 'turf battle'"
and competition between defendant and Bostic. The prosecutor stated:
[Wilson] also tells you, makes clear that they're
competitors. It's not just from . . . defendant's mouth.
They're selling drugs on the same street corner.
[Mohammed] tells you the same thing. They're selling
drugs on the same street corner, this one corner. This
is a turf battle, ladies and gentlemen. This is a battle
for that street corner. And this was a murder to make
sure that [Bostic] no longer got more of the money.
Remember, ten times, all [defendant] could talk about
in the statement is money and how [Bostic] wants to
have all the money.
Again, we are satisfied that these comments are reasonably related to the
scope of the evidence presented, and the reasonable inferences drawn therefrom.
Further, defense counsel interposed no objection. We disagree with defendant's
contention on appeal that his and Bostic's friendship prevented them from being
competitors. Indeed, as defendant acknowledged in his statement, his
relationship with Bostic was "about money and friendship."
Defendant also challenges the prosecutor's comment that defendant "chose
to give a sworn statement" to police, and argues "[t]he prosecutor's only reason
A-4010-17T4
32
to claim that the statement was sworn was to present [him] as a person who lies
under oath." Defense counsel objected to the prosecutor's comment and
requested a curative instruction. Counsel explained that the "statement was not
sworn" and the jury could be confused, having seen other witnesses come to
court and give sworn testimony under oath. The prosecutor countered that
defendant "swore at the end of the statement and affirmed that it was the truth."
The judge replayed the pertinent portion of defendant's statement. At the
conclusion of the statement, Perez asked defendant whether "everything
[defendant] told [them was] the truth" as "[defendant] know[s] it," and defendant
replied "[y]ep."
The judge determined that there was "a disagreement as to whether or not
. . . defendant was sworn when he gave the statement to the detectives or whether
he affirmed to the truth of his statement." As a result, when addressing
defendant's statement in the final charge, the judge gave the following curative
instruction:
There was also for your consideration in this case a
recorded statement allegedly made by . . . defendant. It
is your function to determine whether or not the
statement was actually made by . . . defendant, and if
made, whether the statement or any portion of it is
credible. It is also your function to determine whether
. . . defendant swore to the truth of or affirmed the truth
of the statement. In considering whether or not the
A-4010-17T4
33
statement is credible, you should take into
consideration the circumstances and facts as to how the
statement was made, as well as all other evidence in this
case relating to this issue.
We are persuaded that the comment, while improper, was not so egregious
as to deprive defendant of a fair trial. Indeed, the falsity of defendant's
statement, in which he denied killing Bostic, was not disputed by the defense.
Thus, the defense itself acknowledged that defendant had lied to the detectives.
Moreover, the judge's curative instruction ameliorated any prejudice to
defendant.
B. Comments Denigrating The Defense
Next, we consider defendant's argument that the prosecutor denigrated the
defense by referring to it as "ridiculous," "an 'insult to [the jury's] intelligence,'"
"a 'smokescreen,'" and "a 'trap.'" Defendant also contends the prosecutor
implied that defense counsel and defendant "manufactured" and "fabricated the
passion/provocation defense" because they could not contest "identification."
Further, according to defendant, the prosecutor "unfairly mischaracterized the
defense summation" by claiming that "the defense was a mere appeal to
sympathy," and that "the jury should not convict [defendant] of murder because
the person he killed was a drug dealer."
A-4010-17T4
34
Because defendant made no objection to these comments, we review for
plain error, see R. 2:10-2, and "may infer from counsel's failure to object to the
remarks at the time they were made that he [or she] did not in the atmosphere of
the trial think them out of bounds." Johnson, 31 N.J. at 511; see State v. Atwater,
400 N.J. Super. 319, 337 (App. Div. 2008) ("Where there was no objection at
the time, there is an inference that the defense did not view the summation as
prejudicial in the context of the trial.").
Defendant cites the following comment in support of his contention that
the prosecutor implied the defense was manufactured or tailored:
Now . . . defendant can't contest identification in
this case. And that goes, again, to why the argument is
being made to you, the appeal for sympathy. You can't
contest identification. . . . [D]efendant tried until all
the evidence was obtained and set up. Crap, you know,
. . . where am I going with identity? I can't say it wasn't
me, actually, why did I say that, oh, geez, what am I
gonna do now? So then it becomes, well, it's passion,
it's provocation.
In State v. Daniels, our Supreme Court held that "prosecutors are
prohibited from making generic accusations of tailoring during summation."
182 N.J. 80, 98 (2004). However, "[i]f there is evidence of tailoring, beyond
the fact that the defendant was simply present at the trial and heard the testimony
of other witnesses, a prosecutor may comment, but in a limited fashion." Id. at
A-4010-17T4
35
98-99. However, in every case, "[t]he prosecutor's comments must be based on
the evidence in the record and the reasonable inferences drawn therefrom." Id.
at 99.
Here, we are satisfied defendant's comments fell within permissible
bounds. The prosecutor's reference to the disparity between defendant's
statement to detectives, in which he denied shooting Bostic, and his defense at
trial as argued by defense counsel in openings7 and summation, acknowledging
that defendant shot Bostic, were clearly supported by the record. These
comments are not equivalent to "the insinuations of manufactured testimony
based upon collusion" that were condemned in Nelson, 173 N.J. at 462, and State
v. Rose, 112 N.J. 454, 518 (1988), or the statements implying that the defense
expert's testimony "was manufactured out of empathy" denounced in State v.
Jenewicz, 193 N.J. 440, 472 (2008). See id. at 471 ("[W]hen the prosecutor
stated that [the defense expert] 'crossed over the bridge from being an objective
psychiatrist to a subjective advocate' out of a 'zeal to help [the defendant],' it
was the prosecutor who crossed the line of acceptability."); Nelson, 173 N.J. at
7
In her opening statement, defense counsel asserted "Ladies and gentlemen,
this is not an identification case. [Defendant] does not deny that he was there
on July 15[], 2015. He does not deny that he shot . . . Bostic. He doesn't deny
it and he's never denied it."
A-4010-17T4
36
462 (finding that the prosecutor's allegations that the expert testimony was
contrived and that there was collusion between the experts and the defense were
not supported by the record and constituted reversible error); Rose, 112 N.J. at
518 (finding misconduct where the prosecutor had stated that defense doctors
"were explained the law by the lawyers, as to what he's being charged with, what
he faced and how he could beat the penalty that the law provides for him").
We also reject defendant's contention that the prosecutor "unfairly
mischaracterized the defense summation" by claiming that "the jury should not
convict [defendant] of murder because the person he killed was a drug dealer."
On the contrary, the prosecutor "agree[d] completely" with defense counsel that
"the fact that [Bostic and defendant were] drug dealers doesn't matter." The
prosecutor stressed "we don't judge them to be bad people because of that for
this particular case. All it tells us is motive."
On the other hand, we agree with defendant's assertion that the prosecutor
denigrated the defense by referring to it as "ridiculous," "an 'insult to [the jury's]
intelligence,'" "a 'smokescreen,'" and "a 'trap.'" In urging the jury to reject the
passion/provocation defense, the prosecutor exhorted the jury, "Don't fall into
the trap. Don't fall into the smokescreen. Don't get lost in the smokescreen.
Focus on the facts." As the prosecutor painstakingly reviewed the video
A-4010-17T4
37
surveillance, he argued that defendant committed premeditated murder, and
explained to the jury
This was no, oh my God, I lost all self-control. It's
ridiculous. It's an insult to your intelligence as human
beings to think that that is an adequate provocation to
lose self-control . . . .
....
There he is, calmly walking. I would describe it like a
stroll. And I don't think that's any exaggeration or mere
argument. Let's look at it again. Just strolling to go get
his 9 millimeter and shoot the [victim eleven] times.
Provoked? Losing self-control, at a loss of self-
control there? It's, again, an insult to our intelligence.
Before the prosecutor proceeded any further, the judge sua sponte
instructed the jury:
I'll just ask you to disregard the last remark, jurors. . . .
As far as insult to your intelligence. I know it was
mentioned twice, but, look, each attorney makes their
own arguments . . . . And then, obviously, as I told you,
you are the judges of the facts and I will instruct you on
the law.
In State v. Acker, we held that the prosecutor's comments in summation
"were so egregious, inflammatory and prejudicial as to deny [the] defendant a
fair trial," and reversed the defendant's convictions for sexual assault of two
minors and related charges. 265 N.J. Super. 351, 356 (App. Div. 1993). There,
A-4010-17T4
38
the prosecutor disparaged the defense with baseless allegations, and, over
defense counsel's objection, suggested that it was the jury's "function . . . to
protect young victims of alleged sexual offenses as a group." Ibid. While the
latter "argument alone had the clear capacity to deprive defendant of his
constitutional right to a fair trial," we determined it was also "highly improper
for the prosecutor to characterize the defense attorney and the defense as
outrageous, remarkable, absolutely preposterous and absolutely outrageous."
Id. at 356-57. We noted "defense counsel was attacked unjustifiably for simply
trying to discredit the State's case." Id. at 356.
In State v. Ates, we affirmed the defendant's murder conviction,
concluding that the prosecutor's comment in summation that his medical expert's
testimony "was 'absolutely preposterous,' although improper, was insufficient to
raise a reasonable doubt that it led the jury to a verdict it would not have
otherwise reached." 426 N.J. Super. 521, 536 (App. Div. 2012). Noting that
"the failure to object [gave] rise to an inference that the defense did not view the
remark as prejudicial," we explained that "[e]ven when an improper comment is
made, . . . we must consider its context to determine whether the prejudicial
effect warrants reversal." Ibid. Likewise, here, in light of the considerable
evidence of guilt and the judge's sua sponte curative instruction, which was
A-4010-17T4
39
reinforced in the final charge, we conclude the comments, although improper,
were insufficient to raise a reasonable doubt that it led the jury to a verdict it
would not have otherwise reached. Indeed, like Ates, "[t]he prosecutor's
summation relied on the voluminous evidence introduced by the State
implicating defendant in the murder." Ibid.
C. Comments Implicating Defendant's Election Not To Testify
Next, we consider defendant's contention that the following comment, to
which there was no objection by defense counsel, constituted an impermissible
reference to defendant's decision not to testify:
Well, what's clear is that [defense counsel's] arguments
have many, many problems. Number one, it's
completely at odds with her own client's statement. The
[j]udge took quite a bit of time with all of you, during
voir dire, to go over that constitutional right, that a
defendant does not have any obligation to testify. And
that's absolutely true. That's why we took such time
and we were so careful about that because there is no
constitutional obligation to testify. The burden is on
me to prove this offense to you, this murder to you. But
many of you voiced that you did expect the defendant
to say the truth. And in this case, the defendant chose
to speak. He chose to give a sworn statement. You
heard the statement. No one was pressuring him. He
was calm. He was relaxed. Again, going to the lack of
passion/provocation. He didn't sound upset about what
happened. He was cool, calm, and collected. He was
gonna deny it all. He hadn't seen the [surveillance]
video yet. So that was gonna be his first line of defense.
A-4010-17T4
40
He was just gonna deny it. It wasn't me, I don't know
what you're talking about.
So, yeah, that's BS. We can disregard that. It's a
BS story, other than that it tells us that he's a liar. He's
not gonna say the truth. But the funny thing about the
truth, as we all know from life, is that it has a funny
way of kind of rising to the surface. We do our best to
lie sometimes. We know people in life that just do their
best to cover things up, but the truth has a funny way.
And for . . . defendant, it managed to rear its ugly head.
That statement is littered with the resentment that he
had toward [Bostic]. How much motive he had to get
rid of [Bostic]. It's not the fight. He tells you in his
statement, they fought all the time.
"The Fifth Amendment forbids a prosecutor from commenting upon a
defendant's failure to testify as such comment would penalize defendant's
constitutional right against self-incrimination." State v. Scherzer, 301 N.J.
Super. 363, 439 (App. Div. 1997). Thus, "[r]eversal is mandatory if the
prosecuting attorney has unambiguously called attention to [the] defendant's
failure to testify in exercise of his fifth-amendment constitutional right." State
v. Williams, 113 N.J. 393, 454 (1988); see also Scherzer, 301 N.J. Super. at 439
(finding that a "[c]omment about a defendant's failure to present evidence is
impermissible, if it could only be referring to the absence of testimony by the
defendant"). However, "[n]ot all prosecutorial comments on [a] defendant's
failure to testify . . . compel this result." Williams, 113 N.J. at 454.
A-4010-17T4
41
Significantly,
[a] prosecutor has the right to make fair comment on
the evidence and to argue to the jury the significance of
the testimony presented, but when he begins to discuss
the significance of what testimony was not presented
and if it does not clearly appear that persons other than
defendant could have been called, there is a danger that
he may reflect upon a defendant's [f]ifth [a]mendment
right to remain silent. Every time a prosecutor stresses
a failure to present testimony, the facts and
circumstances must be closely examined to see whether
the defendant's right to remain silent has been violated.
[Scherzer, 301 N.J. Super. at 440 (quoting State v.
Sinclair, 49 N.J. 525, 548-49 (1967)).]
In Sinclair, the Court disapproved of the prosecutor's "repeated remark"
that the testimony of an eyewitness "was 'uncontradicted' -- in view of the
testimony showing that only Sinclair and his co-defendant could deny the
testimony of [the eyewitness]." 49 N.J. at 459. The Court concluded there was
a "danger that the jury would draw an improper inference from Sinclair's failure
to take the stand." Ibid. In State v. Irizarry, we found reversible error where,
over defense counsel's objection, part of the prosecutor's summation "unfairly
urged the jury to disregard a proper defense argument because defendant did not
testify to support it." 270 N.J. Super. 669, 675 (App. Div. 1994). We reasoned
that the prosecutor's comments "lent added weight to the State's evidence in a
A-4010-17T4
42
case where the elements of the crime [were] not clear-cut and the State's proofs
left room for a reasonable doubt as to [the] defendant's guilt." Id. at 676.
However, in Williams, the Court found that "[t]he record . . . [was] devoid
of any indication that the State improperly referred to [the] defendant's silence
at trial." 113 N.J. at 455. The Court explained that "the State's comments were
directed to properly admitted evidence, not defendant's failure to testify." Ibid.
Likewise, in State v. Purnell, the Court found no reversible error in the
prosecutor's references "to the various statements of defendant and his family"
or to the prosecutor's comment that the defendant "fail[ed] to explain how his
sweatshirt was found at [a prosecution witness's] house." 126 N.J. 518, 539-40
(1992). The Court explained that the sweatshirt comment was in response to
defense counsel's assertion in summation that the witness had lied when she
testified that the defendant was at her house, and "there [was] no indication that
the prosecutor sought to take advantage of defendant's failure to testify in th[e]
case." Id. at 540.
Similarly, in State v. Zola, the Court found no misconduct where a
prosecutor stated in his opening "[s]cience fails to be of assistance here, and
only [the defendant] and [the murder victim] know for sure." 112 N.J. 384, 427
(1988). The Court also found no impermissible comment on the defendant's
A-4010-17T4
43
failure to testify in "the prosecutor's closing remarks that 'the primary basis for
knowing what [the defendant] did or didn't do at [the murder victim's] apartment
. . . [was] the self-serving statements of [the defendant] . . . ." Ibid. According
to the Court, "these comments were intended to address not so much the failure
of the defendant to testify as the incompleteness of the experts' analyses of all
the evidence in the trial." Ibid.
Here, because the prosecutor's comments were directed at defendant's
statement to the detectives, which was properly admitted at trial, and responded
to defense counsel's summation, the comments did not infringe on defendant's
constitutional right not to testify. See State v. O'Neill, 193 N.J. 148, 180 (2007)
("In considering the admissibility of a defendant's incriminating statements
following unwarned and warned interrogations, the proper standard under state
law focuses on whether the defendant knowingly, voluntarily, and intelligently
waived his rights before speaking to the police.").
Indeed, given the prosecutor's prefatory comments as well as the judge's
instruction in the final charge to "not consider for any purpose or in any manner
. . . that defendant did not testify," unlike Sinclair, there was no danger that the
jury would draw an improper inference from defendant's failure to take the
stand. Further, unlike Irizarry, evidence of defendant's guilt for murder was
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overwhelming given the two eyewitness accounts as well as the surveillance
videos depicting the shooting. In sum, "[w]e have carefully reviewed each
instance of impropriety asserted by defendant[]" and are satisfied that, "[w]hile
in several instances the prosecutor walked on or even crossed the line," when
viewed both separately and in the aggregate, the prosecutor's comments "did not
jeopardize defendant's right to a fair trial." Scherzer, 301 N.J. Super. at 446.
V.
In Point IV of his counseled brief, defendant argues evidence that
defendant was a drug dealer "should have been excluded because it was
irrelevant, and its probative value was outweighed by its prejudicial effect."
Defendant asserts that at the pre-trial hearing to determine the admissibility of
the evidence to prove motive, "the [S]tate failed to show that [defendant] and
Bostic were competitors, or, for that matter, that either of them w[as] engaged
in the drug trade at the time of the shooting."
Our "review of a trial judge's determination on the admissibility of 'other
bad conduct' evidence is one of great deference." State v. Goodman, 415 N.J.
Super. 210, 228 (App. Div. 2010) (quoting State v. Foglia, 415 N.J. Super. 106,
122 (App. Div. 2010)). Because the decision "rests in the sound discretion of
the trial court," State v. Willis, 225 N.J. 85, 96 (2016), "[o]nly where there is a
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'clear error of judgment' should the 'trial court's conclusion with respect to that
balancing test' be disturbed." State v. Marrero, 148 N.J. 469, 483 (1997)
(quoting State v. DiFrisco, 137 N.J. 434, 496-97 (1994)).
"N.J.R.E. 404(b) generally precludes the admission of evidence pertaining
to other crimes or wrongs, except to show 'proof of motive, opportunity, intent,
preparation, plan, knowledge, identity or absence of mistake or accident when
such matters are relevant to a material issue of dispute.'" Goodman, 415 N.J.
Super. at 229 (quoting N.J.R.E. 404(b)). "[W]hen motive or intent is at issue,
we generally admit a wider range of evidence." State v. Jenkins, 178 N.J. 347,
365 (2004). In State v. Cofield, 127 N.J. 328, 338 (1992), "the Court articulated
a four-part test designed to guide the determination of when to admit such
evidence." State v. Barden, 195 N.J. 375, 389 (2008).
The Cofield test requires that:
1. The evidence of the other crime must be
admissible as relevant to a material issue;
2. It must be similar in kind and reasonably
close in time to the offense charged;
3. The evidence of the other crime must be
clear and convincing; and
4. The probative value of the evidence must
not be outweighed by its apparent
prejudice.
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[State v. Williams, 190 N.J. 114, 122 (2007) (citing
Cofield, 127 N.J. at 338).]
"In Williams, however, the Court observed that the second Cofield factor
'is not one that can be found in the language of Evidence Rule 404(b). Cofield's
second factor, therefore, need not receive universal application in Rule 404(b)
disputes.'" Goodman, 415 N.J. Super. at 230 (quoting Williams, 190 N.J. at
131). Indeed, "[i]ts usefulness as a requirement is limited to cases that replicate
the circumstances in Cofield." Williams, 190 N.J. at 131.
Ultimately, if the party seeking to admit the evidence
"demonstrate[s] the necessity of the other-crime
evidence to prove a genuine fact in issue and the court
has carefully balanced the probative value of the
evidence against the possible undue prejudice it may
create, the court must instruct the jury on the limited
use of the evidence."
[State v. Willis, 225 N.J. 85, 100 (2016) (alteration in
original) (quoting Cofield, 127 N.J. at 340-41).]
"The instruction should be given when the evidence is presented and in the final
charge to the jury." Barden, 195 N.J. at 390.
Here, following the pre-trial hearing, during which Wilson and
Mohammed testified consistent with their trial testimony, the judge admitted,
under N.J.R.E. 404(b), the testimonial evidence of drug dealing activities as well
as defendant's unredacted admissions in that regard contained in his statement
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to detectives. Applying the Cofield factors, the judge determined "the State met
its burden by providing . . . clear and convincing evidence" of "drug dealing" to
prove "[d]efendant's motive for [the] shooting," which was "highly relevant to
the case." The judge expounded that "[e]ach witness testified that [d]efendant
and decedent were engaged in drug dealing in the same vicinity," and defendant
conceded in his statement that "the decedent thought he was entitled to the lion's
share of the activity."
Further, the judge concluded "the probative value of the evidence [was]
not outweighed by its prejudice," noting "the fact that the . . . evidence
implicates the decedent, in addition to . . . [d]efendant, as a drug dealer tends to
lessen the prejudicial effect of the State's evidence." Additionally, the judge
gave the requisite limiting instruction when the evidence was presented and in
the final charge to the jury. See Feaster, 156 N.J. at 64-65 (noting that it is
"presume[d] that the jury adhered to the [trial] court's instruction").
Notwithstanding defendant's contentions to the contrary, we agree with the
judge's decision and discern no abuse of discretion. See State v. Green, 274 N.J.
Super. 15, 31-32 (App. Div. 1994) (finding that the defendant's "participation in
drug sales constituted critical evidence in establishing his motive" for
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committing murder based on "the State's theory" that the defendant retaliated
against the victim for his earlier robbery of one of the defendant's confederates).
VI.
In Point V of his counseled brief, defendant argues even if we find no
individual errors warranting reversal, the "cumulative effect" of the individual
errors "cast[s] sufficient doubt upon the verdict to warrant reversal." Reddish,
181 N.J. at 615; see also Jenewicz, 193 N.J. at 473 ("We have recognized in the
past that even when an individual error or series of errors does not rise to
reversible error, when considered in combination, their cumulative effect can
cast sufficient doubt on a verdict to require reversal."). However, we conclude
there were no reversible errors and any existing errors lack a cumulative effect
to require reversal.
VII.
In Point VI of his counseled brief, defendant argues the judge "erred in
finding that [defendant] was subject to a mandatory extended term, failed to
consider a significant mitigating factor, and imposed an excessive sentence."
"Appellate review of the length of a sentence is limited." State v. Miller,
205 N.J. 109, 127 (2011). We will
affirm the sentence unless (1) the sentencing guidelines
were violated; (2) the aggravating and mitigating
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factors found by the sentencing court were not based
upon competent and credible evidence in the record; or
(3) "the application of the guidelines to the facts of [the]
case makes the sentence clearly unreasonable so as to
shock the judicial conscience."
[State v. Fuentes, 217 N.J. 57, 70 (2014) (alteration in
original) (quoting State v. Roth, 95 N.J. 334, 364-65
(1984)).]
Defendant argues the judge erred in sentencing him on the murder
conviction "to a mandatory extended term pursuant to N.J.S.A. 2C:44-3(d),
which applies to a second offender with a firearm, because the evidence does
not establish that [defendant] had a prior firearm conviction." Pursuant to
N.J.S.A. 2C:44-3, "[i]f the grounds specified in subsection d. are found," and
the defendant is being sentenced for committing murder with a gun, among other
designated offenses, "the court shall sentence the defendant to an extended term
. . . , and application by the prosecutor shall not be required." Subsection d
specifies that in order to be eligible for mandatory extended term sentencing,
the defendant must be "at least [eighteen] years of age and . . . been previously
convicted of . . . [N.J.S.A.] 2C:11-4," among other crimes, and "used or
possessed a firearm, as defined in 2C:39-1f., in the course of committing or
attempting to commit [that] crime[], including the immediate flight therefrom."
N.J.S.A. 2C:44-3(d).
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At sentencing, defendant, then thirty-four years old, conceded that he was
"eligible for mandatory extended term sentencing," based on a prior homicide.
The record reveals that in 2005, defendant pled guilty to reckless manslaughter,
N.J.S.A. 2C:11-4, in connection with a robbery. The original indictment
charged defendant with murder and related offenses. Accordingly, as correctly
noted by the judge, defendant's sentencing exposure on the instant murder
charge was "between [thirty-five] years and life imprisonment, of which . . .
defendant shall serve [thirty-five] years before being eligible for parole."
N.J.S.A. 2C:43-7(a)(6).
Next, defendant argues the judge "erred in failing to consider mitigating
factor [eleven,] N.J.S.A. 2C:44-1(b)(11)," based on the hardship his
incarceration would cause to his five-year-old son. The judge acknowledged
that defendant was "single," "ha[d] no history of employment," and "ha[d] one
child, age [five], who currently reside[d] with the mother." While the judge
found that "no statutory mitigating factors" applied, or "were cited by the
defense," the judge considered defendant's showing of remorse to the victim's
family as a non-statutory mitigating factor. On the other hand, the judge found
aggravating factors three, N.J.S.A. 2C:44-1(a)(3) ("[t]he risk that . . . defendant
will commit another offense"); six, N.J.S.A. 2C:44-1(a)(6) ("[t]he extent of . . .
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defendant's prior criminal record and the seriousness of the offenses of which
he has been convicted"); and nine, N.J.S.A. 2C:44-1(a)(9) ("[t]he need for
deterring . . . defendant and others from violating the law").
In that regard, the judge explained:
[D]efendant has an unabated adult criminal history,
which seems only to be interrupted by periods of
detention or incarceration. [8] Despite being just [thirty-
four] years of age, defendant has now been convicted
of five felonies as an adult, including two separate
homicides.
....
There is a substantial need to protect the public from
this defendant given his numerous violent convictions,
including this most recent offense where he shot and
killed a friend of his at point blank range, with multiple
shots, even while his friend remained defenseless on the
ground. And, again, this was just two years after being
released from State Prison for a manslaughter
conviction.
"Based on the analysis of aggravating and mitigating factors," the judge
was "clearly convinced that [the] aggravating factors substantially
predominate[d]." Applying our deferential standard of review, we are satisfied
8
The judge also recounted defendant's juvenile history, consisting of
"[nineteen] petitions . . . resulting in ten adjudications[,]" the "first contact"
occurring "just one month past [defendant's eleventh] birthday."
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that the judge's findings are amply supported by the record, that the sentence
comports with the guidelines enunciated in the Code of Criminal Justice, and
that the aggregate sentence 9 does not reflect an abuse of discretion or shock our
judicial conscience.
VIII.
In Point I of his pro se brief, defendant argues the judge erred in failing to
charge "the lesser included offenses of [a]ggravated [m]anslaughter and
[r]eckless [m]anslaughter." As defendant points out, neither charge was
requested by defense counsel at trial.
When a defendant does not request the judge to charge a particular lesser-
included offense, the judge need not sua sponte give that instruction unless the
facts clearly indicate that the jury could find the defendant guilty of the lesser -
included offense, rather than the charged offense. State v. Choice, 98 N.J. 295,
299 (1985). Notably, the trial court is not obliged to, "on its own meticulously
. . . sift through the entire record in every murder trial to see if some combination
of facts and inferences might rationally sustain a manslaughter charge." Ibid.
9
The judge imposed a concurrent ten-year term, with a five-year period of
parole ineligibility, on the unlawful possession of a handgun charge, and merged
the possession of a weapon for an unlawful purpose charge with the murder
conviction.
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"Instead, the evidence supporting a lesser-included charge must 'jump[] off the
page' to trigger a trial court's duty to sua sponte instruct a jury on that charge."
State v. Fowler, 239 N.J. 171, 188 (2019) (alteration in original) (quoting State
v. Denofa, 187 N.J. 24, 42 (2006)).
A defendant commits manslaughter when he acts
recklessly, causing the death of another human being.
N.J.S.A. 2C:11-4(b)(1). A killing will be considered to
constitute aggravated manslaughter if it is done
recklessly and "under circumstances manifesting
extreme indifference to human life." N.J.S.A. 2C:11-
4(a)(1). A defendant acts recklessly when he or she
"consciously disregards a substantial and unjustifiable
risk" that death will occur from the defendant's conduct,
and disregarding the risk "involves a gross deviation
from the standard of conduct that a reasonable person
would observe" in the same situation. N.J.S.A. 2C:2-
2(b)(3).
[Id. at 188-89.]
In Fowler, the Court found no error in the exclusion of aggravated
manslaughter or reckless manslaughter as lesser-included offenses of murder
where "the jury was presented with two distinct, mutually exclusive versions of
events" in the murder trial of defendants Joey Fowler and Jamil Hearns. Id. at
189. "The State depicted a premeditated and purposeful murder" while "[the
d]efendants' version asserted that, faced with an armed assailant at close range,
Hearns attempted to disarm his attacker using non-lethal force in an unpopulated
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area." Ibid. The Court concluded that "neither the State's nor defendants'
scenario reasonably depict[ed] Hearns as an actor who consciously disregarded
a substantial and unjustifiable risk providing a platform for a manslaughter or
aggravated manslaughter charge based on recklessness." Id. at 189-90.
We reach the same conclusion here. Neither the State's nor defendant's
scenario provided the basis for an aggravated manslaughter or reckless
manslaughter charge, "let alone constitutes a scenario where that conclusion
jumps off the page." Id. at 190.
IX.
In Point II of his pro se brief, defendant argues the State deprived him of
a fair trial by failing to disclose correspondence received from a behavioral
healthcare facility until one day before the jury returned its verdict . The
correspondence related that Wilson was suffering from "suicidal ideation" when
she was admitted into their program in May 2017, some four months before the
trial. According to defendant, the evidence was both exculpatory and newly
discovered evidence.
"It is well-settled that the suppression by the prosecution of evidence
favorable to a defendant violates due process of law where the evidence is
favorable to the defense, and is material." State v. Russo, 333 N.J. Super. 119,
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133-34 (App. Div. 2000) (citing Brady v. Maryland, 373 U.S. 83, 87 (1963)).
The result is referred to as a Brady violation. "In order to establish a Brady
violation, the defendant must show that: (1) the prosecution suppressed
evidence; (2) the evidence is favorable to the defense; and (3) the evidence is
material." State v. Martini, 160 N.J. 248, 268-69 (1999) (alterations in original)
(quoting Brady, 373 U.S. at 87). "[E]vidence is 'material' if there is a 'reasonable
probability that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different.'" Id. at 269 (quoting United States v.
Bagley, 473 U.S. 667, 682 (1985)).
On the other hand,
to qualify as newly discovered evidence entitling a
party to a new trial, the new evidence must be (1)
material to the issue and not merely cumulative or
impeaching or contradictory; (2) discovered since the
trial and not discoverable by reasonable diligence
beforehand; and (3) of the sort that would probably
change the jury's verdict if a new trial were granted.
[State v. Carter, 85 N.J. 300, 314 (1981).]
"[D]etermining whether evidence is 'merely cumulative, or impeaching,
or contradictory,'" under prong one of the Carter test "necessarily implicates
prong three[.]" State v. Nash, 212 N.J. 518, 549 (2013) (quoting State v. Ways,
180 N.J. 171, 188-89 (2004)). Because "prongs one and three are inextricably
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intertwined," evidence that "'would shake the very foundation of the State's case
and almost certainly alter the earlier jury verdict' could not be categorized as
'merely cumulative.'" Ibid. (quoting Ways, 180 N.J. at 189). All three prongs
"must be met before the evidence can be said to justify a new trial." Carter, 85
N.J. at 314.
Here, defendant failed to establish that the evidence constitutes either
exculpatory or newly discovered evidence to meet either standard.
Significantly, even assuming delayed disclosure and the potential to impeach
Wilson's credibility, given the overwhelming evidence of defendant's guilt, we
are satisfied that the result of the proceeding would have been no different.
Affirmed.
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