STATE OF NEW JERSEY VS. JOSEPH S. MACCHIA (16-12-0814, UNION COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5473-17

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSEPH S. MACCHIA,

Defendant-Appellant.
________________________

Argued November 16, 2020 – Decided October 4, 2021

Before Judges Currier, Gooden Brown and DeAlmeida.

On appeal from the Superior Court of New Jersey, Law
Division, Union County, Indictment No. 16-12-0814.

John Vincent Saykanic argued the cause for appellant.

Michele C. Buckley, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued the cause
for respondent (Lyndsay V. Ruotolo, Acting Union
County Prosecutor, attorney; Michele C. Buckley, of
counsel and on the brief).

The opinion of the court was delivered by

GOODEN BROWN, J.A.D.
 Following a jury trial, defendant was convicted of second-degree reckless

manslaughter, N.J.S.A. 2C:11-4(b)(1), and sentenced to a six-year term of

imprisonment, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. The

charge stemmed from the fatal shooting of Michael Gaffney outside a bar.

Defendant, then an off-duty police officer, and the victim engaged in fist fights

during the night, which ended when defendant fired his service weapon, hitting

the victim three times. At trial, the State presented a surveillance video of the

encounter as well as the accounts of multiple eyewitnesses. Defendant claimed

he shot the victim in self-defense because the victim was reaching for

defendant's gun.

On appeal, defendant raises the following points for our consideration:

POINT I

THE TRIAL COURT'S ADMITTEDLY ERRONEOUS
INSTRUCTION AS TO WHAT THE JURY WAS
REQUIRED TO FIND IN ORDER TO DISALLOW
SELF-DEFENSE (THE COURT'S INCORRECTLY
REQUIRING THAT DEFENDANT "DID NOT
PROVOKE THE ENCOUNTER WITH THE
PURPOSE TO KILL" AS OPPOSED TO THE
CORRECT "DID NOT PROVOKE THE USE OF
FORCE AGAINST HIMSELF IN THE ENCOUNTER
WITH THE PURPOSE TO KILL") DEPRIVED
DEFENDANT OF HIS DUE PROCESS RIGHT TO A
FAIR TRIAL (U.S. CONST. AMENDS. V, VI, XIV;
N.J. CONST. (1947) ART. I, PARA. 9).

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POINT II

THE TRIAL COURT ERRED IN ITS INSTRUCTION
BY NOT SPECIFICALLY INSTRUCTING THE
JURY THAT IT NEEDED TO UNANIMOUSLY
AGREE ON THE FACTORS DISPROVED BY THE
STATE BEYOND A REASONABLE DOUBT (IN
SPITE OF THE DEFENSE REQUEST AND
OBVIOUS JURY CONFUSION), AND FAILED TO
PROVIDE THE JURY WITH A SPECIAL
INTERROGATORY REGARDING THE THEORY
FORMING THE BASIS FOR ITS CONVICTION
RESULTING IN AN UNCONSTITUTIONAL
PATCHWORK/FRAGMENTED OR LESS THAN
UNANIMOUS VERDICT (U.S. CONST. [AMENDS.]
V, VI, XIV; N.J. CONST. (1947) ART. I, PARA. 9);
AND R[ULE] 1:8-9.

POINT III

THE ERRONEOUS JURY INSTRUCTION AS TO
THE TIMING WITH REGARDS TO THE DUTY TO
RETREAT "AFTER THE SECOND ALTERCATION"
WHEN, IN REALITY, IT WAS AT THE MOMENT
OF THE USE OF DEADLY FORCE, DEPRIVED
DEFENDANT OF HIS DUE PROCESS RIGHT TO A
FAIR TRIAL (U.S. CONST. AMENDS. V, VI, XIV;
N.J. CONST. (1947) ART. I, PARA. 9).

POINT IV

THE TRIAL COURT DENIED DEFENDANT OF HIS
SIXTH AMENDMENT RIGHT OF
CONFRONTATION TO FULLY CROSS-EXAMINE
A KEY STATE'S WITNESS[] (U.S. CONST.
AMEND. VI; N.J. CONST. (1947) ART. I, PARA. 10).

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POINT V

THE IMPROPER STATE'S CLOSING STATEMENT
(INCLUDING AN IMPROPERLY UTILIZED
POWER POINT PRESENTATION MIS[S]TATING
THE LAW AS TO DUTY TO RETREAT) DEPRIVED
DEFENDANT OF HIS SIXTH AMENDMENT RIGHT
TO A FAIR TRIAL AND FOURTEENTH
AMENDMENT DUE PROCESS RIGHT AND STATE
CONSTITUTIONAL RIGHT TO A FAIR TRIAL (U.S.
CONST. AMENDS. VI, XIV; N.J. CONST. (1947)
ART. I, PARAS. 1, 10).

POINT VI

THE TRIAL COURT ERRED IN ADMITTING
MANY HIGHLY PREJUDICIAL HEARSAY
STATEMENTS OF GAFFNEY THROUGH THE
TRIAL TESTIMONY OF ROBERT LIMA AS
PRESENT SENSE IMPRESSIONS UNDER [N.J.R.E.]
803(C)(3) AND UNDER [N.J.R.E.] 803(C)(2); THE
GAFFNEY/LIMA STATEMENTS SHOULD ALSO
HAVE BEEN RULED INADMISSIBLE UNDER
[N.J.R.E.] 403; DEFENDANT'S CONFRONTATION
AND DUE PROCESS RIGHTS WERE VIOLATED
(U.S. CONST. AMENDS. V, VI, XIV; N.J. CONST.
(1947) ART. I, PARA. 10).

POINT VII

THE TRIAL COURT COMMITTED PLAIN ERROR
(R. 2:10-2) IN FAILING TO ADDRESS TO THE
JURY (EITHER WITH A LIMITING INSTRUCTION
DURING THE TESTIMONY OF LIMA OR DURING
FINAL JURY INSTRUCTIONS) THE LIMITED
PURPOSE OF THE "PRESENT SENSE/STATE-OF-
MIND" HEARSAY EVIDENCE (NOT RAISED
BELOW).

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 POINT VIII

THE TRIAL COURT ERRED IN DENYING THE
MOTION FOR JUDGMENT OF ACQUITTAL AS
THE STATE DID NOT PROVE DEFENDANT'S
GUILT BEYOND A REASONABLE DOUBT; THE
DEFENDANT'S CONVICTION IS CONTRARY TO
THE FOURTEENTH AMENDMENT OF THE
UNITED STATES CONSTITUTION AND [THE]
NEW JERSEY STATE CONSTITUTION (1947) ART.
I, PARAS. 1, 10.

POINT IX

THE NUMEROUS LEGAL ERRORS COMMITTED
BY THE COURT DEPRIVED DEFENDANT OF HIS
FIFTH, SIXTH AND FOURTEENTH AMENDMENT
DUE PROCESS RIGHT TO A FAIR TRIAL AND
NEW JERSEY CONSTITUTIONAL RIGHT TO A
FAIR TRIAL; (U.S. CONST. AMENDS. VI AND XIV;
N.J. CONST. (1947) ART. I, PAR. 10) (NOT RAISED
BELOW).

POINT X

AS THE SENTENCING JUDGE FOUND THAT THE
MITIGATING FACTORS SUBSTANTIALLY
OUTWEIGHED THE ONE AGGRAVATING
FACTOR, THE DEFENDANT SHOULD HAVE
BEEN SENTENCED TO A SENTENCE ONE
DEGREE LOWER PURSUANT TO [N.J.S.A.] 2C:44-
1[(F)](2) AND SENTENCED TO THE MINIMUM
TERM PERMISSIBLE.

We have considered these arguments in light of the record and applicable

legal principles. We reject each of the points raised and affirm.

A-5473-17
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 I.

Following the adjudication of various pre-trial motions, an eleven-day

jury trial was conducted on various dates in May and June 2018, during which

the State produced seventeen witnesses. In addition to the medical examiner

and various law enforcement witnesses, the bar owner, the bartender, and seven

bar patrons testified for the State, including defendant's wife. Defendant

testified on his own behalf. He did not present any additional witnesses. We

glean these facts from the trial record.

Defendant was an eleven-year veteran police officer with the Newark

Police Department. Upon completion of his shift on May 12, 2016, defendant

returned to his home, changed into his civilian clothes, and secured his service

weapon on his waist in an off-duty holster, covering it with "an oversized tee

shirt." Thereafter, defendant and his wife, Katherine Macchia, went to Paddy's

Place, a bar located in Union to celebrate Katherine's newly discovered

pregnancy.1 They arrived at about 11:00 p.m., socialized and listened to music.

Several of the patrons, including defendant and his wife, were regular customers

1
The parties stipulated that "Newark Police Department rules and regulations
give off-duty police officers the option of being armed with their service
weapons when they engage in activity that includes the consumption of alcoholic
beverages."
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who knew each other. Over the course of about two hours, defendant consumed

"[six] Miller Lite beers and [two] shots . . . of Jack Daniels" while his wife drank

"[s]eltzer water."

Michael Gaffney, with whom defendant was acquainted, arrived at

Paddy's Place around 10:30 p.m. to meet his friend, Robert Lima, to discuss a

potential construction job. Gaffney and Lima both worked in the construction

industry and had known each other for about twenty years. Lima arrived at the

bar between 10:00 p.m. and 10:30 p.m. and consumed "[a]bout two [drinks]."

Shortly after 1:00 a.m. the following morning, Lima was in the process of

leaving when "he saw Gaffney had a cigarette in his mouth." While outside,

Lima and Gaffney playfully jostled each other over the cigarette Gaffney was

smoking, prompting Gaffney to "joking[ly]" hit Lima's shoulder. According to

Gregory Netschert, another bar patron and friend of Gaffney and Lima, Gaffney

was known among his friends for "play fight[ing]" and had "punched [Netschert]

in the chest" as he was leaving the bar.

Around that time, defendant was also outside smoking a cigarette. When

defendant saw Gaffney hit Lima, he asked Gaffney if he "liked to throw hands"

and Gaffney responded "sometimes." Gaffney and defendant then began "slap

boxing" with each other, which Lima described as "the two . . . squar[ing] with

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each other and hit[ting] each other" without "try[ing] to be malicious." By all

accounts, Gaffney was significantly taller and heavier than defendant.2 At one

point, Gaffney hit defendant and defendant "went down." Gaffney then tackled

defendant, and the two wrestled on the ground. Lima tried unsuccessfully to

separate them. At some point, defendant grabbed Gaffney by the shirt and pulled

the shirt off of him. By that time, other patrons, and the bartender, Nicolette

Bedlivy, had exited the bar and tried to convince defendant and Gaffney to stop

fighting. Eventually, they were separated, and Gaffney walked back inside the

bar while defendant remained outside with his wife, who was pleading with him

to leave. However, defendant was visibly agitated. One bar patron, Anthony

DiMondi, approached defendant and tried to get him to calm down, telling him

he didn't "want to ruin [his] career." Defendant did not respond.

Meanwhile, Gaffney was inside the bar with his friend and former Paddy's

Place bartender, Catherine Vinsko. Vinsko told Gaffney to stop fighting

because defendant would "sue him if he kept it up." Gaffney finally agreed and

walked back to the front door. Standing in the doorway, Gaffney said to

defendant: "Bro, it's over." "I don't want to fight." "Just let's end it." Witnesses

2
According to defendant, Gaffney was "six[-foot] three, six[-foot] four, 260,
270 pounds" and he was "five[-foot] seven, 195 pounds."
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testified that at that juncture, Gaffney and defendant "shook hands" and "chest

bumped" each other to signify a reconciliation. Gaffney then walked back inside

the bar. On the other hand, defendant stayed outside, saying he was "not done."

Although his wife tried to get him to leave, defendant refused. Instead,

defendant stood by the doorway of the bar, looking and pointing at Gaffney "to

entice him to come back out." In response, Gaffney yelled "stop eyeballing me."

Eventually, Gaffney came to the door, and he and defendant began to fight

again. Defendant fell to the ground, and Gaffney got on top of him, punching

him repeatedly. Realizing the fight was not going to stop, Lima went over to

Gaffney and grabbed him. Vinsko also tried to grab Gaffney. As they pulled

him off of defendant, defendant shot Gaffney, striking Gaffney in the chest,

shoulder, and abdomen. Gaffney fell on top of defendant and died shortly

thereafter. Vinsko went back inside the bar and "hit the panic button . . . under

the register," prompting the Union Police Department to respond.

When Union police officers responded to the scene, defendant said he was

"a Newark police officer and [Gaffney] was going for [his] gun." The officers

promptly disarmed and arrested defendant. The officers then approached

Gaffney, who was "non-responsive." When the medical examiner arrived at the

scene, he took control of Gaffney's body.

A-5473-17
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 After his arrest, defendant was placed in the back of Officer Christopher

Connors's patrol vehicle. Because defendant would not stop talking, Connors

read defendant his Miranda3 rights. Defendant's statements were recorded on

the vehicle's dashboard camera and played for the jury during the trial. In the

recording, defendant said he "almost passed out" and Gaffney "fucked [him]

up." Defendant stated: "It happened, then it stopped and then he came out

again." Defendant repeated that he was a Newark police officer, and that

Gaffney was going for his gun.

Officer Rahmel Spann and his partner were responsible for transporting

defendant to the hospital to treat his injuries. While they were in the waiting

room, defendant asked about Gaffney's condition and "showed remorse." He

also asked Spann what he would do if he were "in that situation." Defendant

stated Gaffney "knew [he] was a cop," and reiterated that he thought Gaffney

was "going for [his] gun." Further, defendant told Spann "[he] defecated on

himself" and "felt like he was going to black out." Defendant was discharged

from the hospital with a "head injury, broken nose . . . abrasions to . . . both

knees," and "a sprained left wrist."

3
Miranda v. Arizona, 384 U.S. 436 (1966).
A-5473-17
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 When Bedlivy spoke to officers at the scene, her statements were recorded

on the dashboard camera and played for the jury during the trial. In the recording

and during her trial testimony, Bedlivy said Gaffney "tried to grab [defendant's]

gun." However, at trial, she acknowledged she did not see Gaffney reach for

defendant's gun, and the reason she initially said she did was because defendant's

wife "told [her] that's what" occurred. Defendant's wife confirmed during her

trial testimony that "it was [her] perception" that Gaffney reached for her

husband's gun. Lima, on the other hand, testified at trial that he did not see

Gaffney reach for defendant's gun.

One week after the incident, defendant was interviewed at the Union

County Prosecutor's Office. He was accompanied by his attorney and was

administered his Miranda rights. The recorded interview was played for the jury

at trial. In his statement, defendant explained the altercation began when

Gaffney approached him while he was outside smoking a cigarette and asked

him if he "wanted to fight." 4 Given the size difference, defendant responded

"no." Nevertheless, Gaffney punched him "in the chest" and tackled him to the

ground. While they were wrestling on the ground, "the fight was broken up,"

4
Defendant suggested Gaffney's solicitation to fight may have been prompted
by defendant intervening earlier in Gaffney's attempt to fight another bar patron
who was much smaller and older than Gaffney.
A-5473-17
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and the two "shook hands." Thereafter, when defendant stood outside the bar

door to get "somebody's attention" to "get [his] jacket" and "settle [his] tab,"

Gaffney asked defendant if he was "eyeballing" him and started fighting again

despite defendant's response that he was not "eyeballing" him. During the

second fight, while Gaffney was "straddling [him]," and "pummeling [him] on

the ground . . . both [Gaffney's] hands . . . went to [his] duty weapon." Defendant

said he was "in fear of [his] life and [his] wife's life so [he] had no choice but to

fire to stop the threat." According to defendant, he "fired three . . . shots

consecutively." 5

Surveillance video was recovered from Paddy's Place by Union County

Prosecutor's Office Detective Darius Tokarz. The video was played for the jury

and referred to by the witnesses multiple times during the trial.

Dr. Junaid Shaikh, the medical examiner who performed Gaffney's

autopsy, testified Gaffney "sustained three gunshot wounds, one to the left side

of the chest, one to the left upper shoulder, and one to the right upper aspect of

the abdomen." The gunshot wound to the chest was the fatal wound. Based on

the stippling of gun powder residue observed around each bullet entry wound,

5
During the trial, defendant's grand jury testimony was read to the jury. The
grand jury testimony was largely consistent with his recorded statement.
A-5473-17
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Shaikh believed the gun was fired approximately seven to eight inches from the

skin. Additionally, Shaikh testified Gaffney had injuries to his face, including

bruising just above his left eyebrow and lip, superficial injuries to his nose, a

laceration to his upper lip, and swelling under his left eye. Gaffney also had

injuries to his right knee and right front thigh. According to Shaikh, those

injuries were consistent with a "scuffle or physical altercation."6

At trial, defendant testified on his own behalf consistent with his recorded

statement. He insisted he had done nothing to entice or encourage Gaffney to

fight him. Although Gaffney punched him and broke his nose, causing him to

bleed "profusely," defendant said he did nothing to fight back. Instead,

defendant testified he tried to "hug[] him like a boxer would" to try to get him

to "stop," but Gaffney kept punching him. Defendant said he eventually fell to

the ground, causing his shirt to ride up and expose his gun. He put his hand on

his gun to "retain it in the holster" while Gaffney held him down with his right

6
"Toxicology by the Medical Examiner's Office indicated . . . Gaffney's BAC
[blood alcohol content] was .30% at 1:16 a.m., the time of his death," and "also
indicated . . . Gaffney had consumed cocaine." Defendant's BAC was "estimated
to have been approximately .13%, at 1:16 a.m."

A-5473-17
13
arm and punched him in his face with his left fist. 7 Defendant said Gaffney then

went towards defendant's "right side . . . towards [his] duty weapon." At that

moment, defendant decided to "draw and shoot" to stop Gaffney from obtaining

his gun. Defendant testified he was "quite certain [he] was going to die."

Defendant's motion for judgment of acquittal at the close of the State's

case pursuant to Rule 3:18-1, was denied.8 Following the jury's guilty verdict,

defendant was sentenced on July 27, 2018, and a memorializing judgment of

conviction was entered on the same date. This appeal followed.

II.

In Point I, defendant argues the judge incorrectly instructed the jury on

self-defense. Specifically, defendant contends that in his initial charge to the

jury, the judge left out "the crucial words: 'did not provoke the use of force

against himself in the encounter.'" Although defendant acknowledges the judge

"corrected" the error when he reinstructed the jury, he argues the judge "created

7
Defendant testified he viewed Gaffney "punch[ing him] repeatedly about [his]
head and [his] head hitting the concrete" as "deadly force" being used against
him.
8
After the motion was adjudicated, the State moved to reopen its case to call
an additional witness, which was granted.
A-5473-17
14
an incurable and insurmountable obstacle to the jury's clear understanding," as

a result of which his conviction should be reversed. We disagree.

In the initial charge on self-defense, the judge instructed the jury, in

pertinent part:

To put it succinctly, if the defendant had an honest and
reasonable belief that the use of deadly force was
immediately necessary to save his own life or to avoid
serious bodily harm, he did not provoke the encounter
with the purpose to kill or cause serious bodily harm,
and he could not have safely retreated, then self-defense
applies and the defendant is not guilty.

[Emphasis added.]

There was no objection to the charge.

Following the charge, the jury sent out several notes regarding the self -

defense charge. Consequently, the parties agreed although "there was no error

in the jury charge that was given," a revised instruction was necessary to provide

clarification. In the revised instruction that was agreed to by both parties, the

judge stated in part:

To put it succinctly, if the defendant had an honest and
reasonable belief that the use of deadly force was
immediately necessary to save his own life or to avoid
serious bodily harm, he did not provoke the use of force
against himself in the encounter with the purpose to kill
or cause serious bodily harm and he could not have
safely retreated when he resorted to the use of deadly

A-5473-17
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 force, then self-defense applies and the defendant is not
guilty.

[Emphasis added.]

Because defendant did not object to the jury charge, we review for plain

error and only reverse if the error was "clearly capable of producing an unjust

result." State v. McKinney, 223 N.J. 475, 494 (2015) (quoting R. 2:10-2).

In the context of jury instructions, plain error is "[l]egal
impropriety in the charge prejudicially affecting the
substantial rights of the defendant and sufficiently
grievous to justify notice by the reviewing court and to
convince the court that of itself the error possessed a
clear capacity to bring about an unjust result."

[State v. Camacho, 218 N.J. 533, 554 (2014) (quoting
State v. Adams, 194 N.J. 186, 207 (2008)).]

"Defendant is required to challenge instructions at the time of trial." State

v. Morais, 359 N.J. Super. 123, 134 (App. Div. 2003) (citing R. 1:7-2). "Where

there is a failure to object, it may be presumed that the instructions were

adequate." Id. at 134-35 (citing State v. Macon, 57 N.J. 325, 333 (1971)). "The

absence of an objection to a charge is also indicative that trial counsel perceived

no prejudice would result." Id. at 135. "Consequently, we should only reverse

if we find plain error." Ibid. (citing R. 2:10-2).

"An essential ingredient of a fair trial is that a jury receive adequate and

understandable instructions." State v. Afanador, 151 N.J. 41, 54 (1997).

A-5473-17
16
"Appropriate and proper jury instructions are essential to a fair trial." State v.

Green, 86 N.J. 281, 287 (1981). "The [trial] judge 'should explain to the jury in

an understandable fashion its function in relation to the legal issues involved.'"

McKinney, 223 N.J. at 495 (quoting Green, 86 N.J. at 287). "The trial judge

must deliver '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.'" Ibid. (quoting Green, 86 N.J. at 287-88).

When reviewing an alleged error in the jury charge, "portions 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," State v. Wilbely, 63 N.J.

420, 422 (1973), and "to determine whether the challenged language was

misleading or ambiguous," State v. Nelson, 173 N.J. 417, 447 (2002). In

"assessing the soundness of a jury instruction," a reviewing court considers how

ordinary jurors would "understand the instructions as a whole," based upon "the

evidence before them, and the circumstances of the trial." State v. Savage, 172

N.J. 374, 387 (2002) (quoting Crego v. Carp, 295 N.J. Super. 565, 573 (App.

Div. 1996)).

Moreover, the effect of any error "must be evaluated in light 'of the overall

strength of the State's case.'" State v. Walker, 203 N.J. 73, 90 (2010) (quoting

A-5473-17
17
State v. Chapland, 187 N.J. 275, 289 (2006)). "Nevertheless, because clear and

correct jury instructions are fundamental to a fair trial, erroneous instructions in

a criminal case are 'poor candidates for rehabilitation under the plain error

theory.'" Adams, 194 N.J. at 207 (quoting State v. Jordan, 147 N.J. 409, 422

(1997)).

Here, the language defendant asserts was missing from the initial charge

was included in the revised instruction. In fact, it was also included in the initial

charge in the paragraph preceding the objectionable language as follows:

[D]eadly force is not justifiable in a situation where the
actor with the purpose of causing death or serious
bodily harm provoked the use of force against himself
in the same encounter . . . . Nor is the use of deadly
force justifiable where the actor knows that he can
avoid the necessity of using such force with complete
safety by retreating.

Even if there was confusion, which we are satisfied there was not, any confusion

was clarified by the judge's revised instruction. Reviewing the charge as a

whole, we find no plain error in the self-defense charge.

III.

In Point II, defendant argues the judge erred in failing to include a specific

unanimity charge as part of the self-defense charge. Defendant claims there was

"obvious jury confusion" regarding self-defense, which the judge failed to

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clarify. According to defendant, the "instructions were 'at best confusing , and

at worst misleading,'" warranting reversal of his conviction.

In the initial self-defense charge to the jury, the judge stated:

Under the law, the State must prove that self-
defense does not apply here. The State must do so
beyond a reasonable doubt. Accordingly[,] the State
must show that: 1) the defendant's belief that the use of
deadly force was necessary to save his own life or to
avoid serious bodily harm was not honest and
reasonable; or 2) although the defendant's belief was
honest and reasonable, the defendant provoked the
encounter with the purpose to kill or cause serious
bodily harm; or 3) although the defendant's belief was
honest and reasonable and the defendant did not
provoke the encounter with the purpose to kill or cause
serious bodily harm, the defendant could have retreated
in complete safety.

Here[,] there is no dispute that the defendant used
deadly force against Mr. Gaffney.

A reasonable belief is one which would be held
by a person of ordinary prudence and intelligence
situated as this defendant was. Please note that self-
defense exonerates a person who uses force in the
reasonable belief that such action was immediately
necessary to prevent his or her death or serious injury,
even if his belief was later proven mistaken.
Accordingly, the law requires only a reasonable, not
necessarily a correct, judgment. The belief must be
sincerely held, that is, it must be a belief that is honestly
held at the time.

ln your inquiry as to whether the defendant knew
that an opportunity to retreat with complete safety was

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19
 available, the total circumstances including the
attendant excitement accompanying the situation must
be considered. You must consider the defendant's
ability to retreat at the time that the defendant decided
to use deadly force.

If the State does not satisfy its burden and you do
have a reasonable doubt, then it must be resolved in
favor of the defendant and you must acquit the
defendant based upon self-defense.

If the State has proved any one of these three
items beyond a reasonable doubt, then the defendant
did not act in self-defense and you must go on to
consider the crime of reckless manslaughter.

After the initial charge, the jury sent out a note asking the "judge [to] go

over self-defense as stated on page [seventeen]." The jury was provided with a

written copy of the jury charge. Page seventeen of the charge contained the

language quoted above. However, because the parties were unclear about the

request, the judge asked the jury for clarification. The jury then sent out a

second note stating "[d]o all three questions have to be yes for self-defense or

one of the three to be self-defense?"

After conferring with counsel, the judge responded:

Based on your prior question I know you're referring to
the three questions that appear on page [seventeen] of
[twenty-two] in the jury charge. Here is the response
and I think there may be some confusion among you
because the State has to disprove self-defense beyond a
reasonable doubt. And when you're talking about

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 things being proved and things being disproved,
sometimes it's hard to understand what "yes" means and
what "no" means so I'll try to clarify that.

Talking about the items one, two and three . . . on
page [seventeen] of [twenty-two] of the jury charge, the
State must prove one or two or three beyond a
reasonable doubt in order to disprove self-defense.
Said differently, if the State proves one or two or three
beyond a reasonable doubt, then there can be no self-
defense.

Before the end of the day, at the request of the parties, the judge provided

the jurors with further clarification on the self-defense charge as follows:

Ladies and gentlemen, before I send you home for the
day, I do want to provide you with some additional
clarification with regard to the applicability of [one],
[two], and [three], the meaning of those rules of law in
the context of your determination.

I'm referring to page [seventeen] of the charge.
With regard to Item N[umber] [One] which addresses
the defendant's belief that the use of deadly force was
necessary to save his own life or to avoid serious bodily
harm being honest or reasonable -- excuse me -- honest
and reasonable, you're to analyze that question as of the
time the deadly force was used. However, you are free
to consider all the facts and circumstances in evidence
that led up to that moment in time in performing that
analysis.

With regard to number [two], the provocation
issue, whether or not the defendant provoked the
encounter with the purpose to kill or cause serious
bodily harm. It will be up to you to determine when the

A-5473-17
21
 encounter began, but it must be some time after the
reconciliation that you've heard about in the testimony.

With regard to item [three], which is the duty to
retreat, the duty to retreat applies when the defendant
resorts to the use of deadly force. So[,] when you're
considering the opportunity to retreat, it must be as of
the time deadly force is used. So[,] there's a little bit of
a different time period depending upon which question
you're looking to and I want to make sure there's no
confusion that it is not all exactly the very same time
period potentially.

Both parties agreed the judge's clarification was responsive and appropriate.

On the next court day, the parties again discussed the self-defense charge:

[COURT]: So[,] we've had some discussions
concerning the jury's questions that were sent to the
[c]ourt, and I think we've reached a resolution of the
issue, but I want to go over a couple things with counsel
first.

First of all, I believe that the parties agree that
there was no error in the jury charge that was given to
the jurors. Is that correct, [Prosecutor]?

[PROSECUTOR]: Yes. Thank you.

[COURT]: [Defense counsel]?

[DEFENSE COUNSEL]: That is correct.

[COURT]: Now due to the jury's request for
clarification of certain issues, the parties agree that it is
prudent to provide them with a revised charge on self-
defense . . . . The parties have reviewed the revised

A-5473-17
22
 charge . . . and consent to it. Do I have that correct,
[Prosecutor]?

[PROSECUTOR]: Yes. Thank you.

[COURT]: [Defense counsel]?

[DEFENSE COUNSEL]: Yes.

In the revised charge, the judge instructed the jury:

Now we're getting to the point in the self-defense
charge that's modified to address your questions.

The State must prove that self-defense does not
apply here. The State must do so beyond a reasonable
doubt. Accordingly, the State must prove any one of
the following beyond a reasonable doubt to show that
self-defense does not apply here: 1) At the time
defendant resorted to deadly force his belief that the use
of deadly force was necessary to save his own life or to
avoid serious bodily harm was not honest and
reasonable; or 2) After the reconciliation between
defendant and Mr. Gaffney, the defendant provoked the
use of deadly force against himself in the encounter
with the purpose to kill or cause serious bodily harm.
It is for the jury to decide what the encounter was and
when the encounter began after the reconciliation
between defendant and Mr. Gaffney; or 3) At the time
he resorted to deadly force the defendant could have
retreated in complete safety.

Here, there is no dispute that the defendant used
deadly force against Mr. Gaffney.

....

A-5473-17
23
 If the State does not satisfy its burden and you do
have a reasonable doubt, then it must be resolved in
favor of the defendant and you must acquit the
defendant based upon self-defense.

If the State has proved any one of these three
items beyond a reasonable doubt, then the defendant
did not act in self-defense and you must go on to
consider the crime of reckless manslaughter.

There was no objection to the revised charge.

Later that day, the jury sent another note, stating "[j]ury cannot come to

unanimous decision on question one on the verdict sheet."9 After discussing the

note with counsel, the judge — with counsels' approval — instructed the jury to

continue deliberations as it had "not spent any significant amount of time

deliberating" given the "interruptions for breaks and video readbacks and

testimony readbacks." The judge, without objection, also repeated the portion

of the general charge relating to the jurors' obligation "to consult with one

another" and "deliberate with a view to reaching an agreement if you can do so

9
Question one on the verdict sheet read:

Did the State disprove, beyond a reasonable doubt, the
applicability of self-defense? If your answer is yes,
proceed to question two. If your answer is no, then you
have found the defendant not guilty due to self-defense.
Stop your deliberations and notify the Sheriff's Officer,
but do not reveal your results.
A-5473-17
24
without violence to individual judgment." The judge also reminded the jurors

to "not surrender [their] honest conviction[s] as to the weight or effect of

evidence . . . solely because of the opinion of [a] fellow juror[] or for the mere

purpose of returning a verdict." The jury did not reach a verdict that day.

On the next court day, the judge addressed an e-mail he received from

defense counsel suggesting, in response to the jury's note regarding its inability

to reach a verdict on question one, the court should instruct the jury that its

decision must be unanimous as to whether the State met its burden to disprove

self-defense under prong one, two, or three of the self-defense charge. In other

words, according to defense counsel, all jurors had to agree the State proved, for

example, defendant could have retreated for the State to meet its burden. If six

jurors believed defendant could have retreated, and six jurors believed defendant

provoked the victim, then the State did not meet its burden. The judge responded

that the issue raised in defense counsel's e-mail was premature considering the

jury's continued deliberations without additional questions.

Later that day, the jury sent another note, asking for, among other things,

"more clarification on justification, self-defense, page [seventeen] . . . where

self-defense does not apply here. Number one, number [two], and number

A-5473-17
25
[three] in plain English." In response, with the consent of the parties, the judge

instructed the jury:

1. You have heard the defendant say that he used
deadly force because at the time he used deadly force
he believed that it was necessary to save his own life or
to avoid serious bodily harm to himself.

The State must prove beyond a reasonable doubt
that defendant's expressed belief was not honest or that
it was not reasonable. If the State proves this beyond a
reasonable doubt, then there is no self-defense.

2. Another way self-defense could be disproven is by
the State proving beyond a reasonable doubt that after
defendant and Mr. Gaffney shook hands outside of
Paddy's Place, defendant with the purpose to kill or
cause serious bodily harm to Mr. Gaffney provoked the
use of force against himself.

If the State proves this beyond a reasonable
doubt, then there can be no self-defense.

[3.] Another way self-defense could be disproven is by
the State proving beyond a reasonable doubt that at the
time defendant used deadly force defendant could have
retreated in complete safety. If the State proves this
beyond a reasonable doubt, then there can be no self-
defense.

....

If the State has proved any one of these three
items beyond a reasonable doubt, then the defendant
did not act in self-defense and you must go on to
consider the crime of reckless manslaughter.

A-5473-17
26
 If the State does not satisfy its burden and you do
have a reasonable doubt, then it must be resolved in
favor of the defendant and you must acquit the
defendant based upon self-defense.

Following this instruction, the judge asked if the parties had any issues

with what he read. Defense counsel requested that the judge instruct the jury,

"if the State has not proved any one of these three items beyond a reasonable

doubt, then the State does not satisf[y] its burden." The judge responded:

I understand your position. I'm looking at what you
propose compared to the words that I read. I find it to
be a distinction without a difference and I don't find that
the clarification is necessary . . . . I'm not going to give
the clarification that you seek because I think it's clear.
I think the burdens are appropriately identified . . . and
the jury was properly instructed.

The jury did not ask any further questions regarding the self-defense charge.

On appeal, defendant argues the judge should have instructed the jury

"that it needed to unanimously agree on the factors disproved by the State

beyond a reasonable doubt."

"The notion of unanimity requires 'jurors to be in substantial agreement

as to just what a defendant did' before determining his or her guilt or innocence."

State v. Frisby, 174 N.J. 583, 596 (2002) (quoting United States v. Gipson, 553

F.2d 453, 457 (5th Cir. 1997)); see also Ramos v. Louisiana, 590 U.S. ___, ___,

140 S. Ct. 1390, 1396-97 (2020) (recognizing "a defendant 'enjoys a

A-5473-17
27
constitutional right to demand that his liberty should not be taken from him

except by the joint action of the court and the unanimous verdict of a jury of

twelve persons'" (quoting Thompson v. Utah, 170 U.S. 343, 351 (1898))).

Indeed, both the New Jersey Constitution and Court Rules require a unanimous

jury verdict in a criminal case. N.J. Const. art. I, para. 9; R. 1:8-9.

"Ordinarily, a general instruction on the requirement of unanimity suffices

to instruct the jury that it must be unanimous on whatever specifications it finds

to be the predicate of a guilty verdict." State v. Parker, 124 N.J. 628, 641 (1991).

Our Supreme Court has held, however, that a specific unanimity requirement is

necessary "in cases where there is a danger of a fragmented verdict" and, in such

cases, "the trial court must upon request offer a specific unanimity instruction."

Id. at 637 (quoting United States v. North, 910 F.2d 843, 875 (D.C. Cir. 1990)).

This circumstance can arise where the facts are "exceptionally complex" or

where there is a variance between the indictment and the trial proofs. Id. at 636.

Moreover, "[a]lthough such a charge should be granted on request, in the

absence of a specific request, the failure so to charge does not necessarily

constitute reversible error." Id. at 637. The "core question" in such cases is

whether the "instructions 'as a whole posed a genuine risk that the jury would

be confused.'" Id. at 638 (quoting North, 910 F.2d at 951).

A-5473-17
28
 Here, the judge gave a general unanimity charge, in accord with the Model

Jury Charges (Criminal), "Criminal Final Charge" (rev. May 12, 2014). At the

end of the instructions, the judge stated in pertinent part:

You are to apply the law as I have instructed you
to the facts as you find them to be for the purpose of
arriving at a fair and correct verdict. The verdict must
represent the considered judgment of each juror and
must be unanimous as to each charge. This means all
of you must agree if the defendant is guilty or not guilty
on each charge. That would apply to the issue of self-
defense as well.

....

You may return on each crime charged a verdict
of either not guilty or guilty. Your verdict, whatever it
may be as to each crime charged, or the issue of self-
defense, must be unanimous. Each of the [twelve]
members of the deliberating jury must agree as to the
verdict.

[Emphasis added.]

We are satisfied that the charge given was sufficient. The State did not

advance different theories based on different acts and different evidence.

Moreover, nothing in our jurisprudence suggests that the jury's findings need be

unanimous on how the State disproves self-defense so long as the jury

unanimously agrees that the State disproved self-defense beyond a reasonable

doubt. See, e.g., Model Jury Charges (Criminal), "Justification – Self Defense

A-5473-17
29
(In Self Protection) (N.J.S.A. 2C:3-4)" (rev. June 13, 2011).10 Nonetheless,

relying on State v. Tindell, 417 N.J. Super. 530 (App. Div. 2011), defendant

asserts a specific unanimity instruction was required.

In Tindell, we held:

The risk of a non-unanimous verdict occurs if, as here,
there are multiple alleged victims who are not
separately identified in the charging instrument, by
name or by such other characteristics as to enable a
reasonable person to ascertain their identity as the
victims of the crime, and are not specifically identified
as such in the jury charge and on the verdict sheet.
Here, the nature of the alleged threats and the
circumstances surrounding them required that the
victims be identified with particularity. Without such
specificity, there is a distinct and legally unacceptable
risk that a jury may return a verdict that was not based
on the unanimous judgment of the deliberating jurors.

[Id. at 555.]

10
As for other jurisdictions, while not controlling, in People v. Mosely, 488
P.3d 1074, 1076 (Colo. 2021), the Colorado Supreme Court held that "the jury
need not unanimously agree on the specific reason that self-defense was
disproven, so long as it unanimously agrees that the prosecution disproved self -
defense beyond a reasonable doubt." The Court explained that self-defense was
"treated as an additional element that the prosecution bears the burden of
disproving," and "a jury must unanimously agree only on whether, but not how,
each element of a charged offense was established[.]" Id. at 1081. See also
State v. Mekoshvili, 223 A.3d 834, 841-43 (Conn. App. Ct. 2020) (finding
"unanimity on whichever element of self-defense the jury might find to have
been disproven" was not required), certif. granted, 223 A.3d 60 (Conn. 2020);
Harrod v. State, 203 S.W.3d 622, 628 (Tex. App. 2006) (holding that the jury
was "not required to agree unanimously on the specific component of self-
defense on which it was not persuaded").
A-5473-17
30
 None of the concerns identified in Tindell that warranted a specific

unanimity charge are applicable here. There were no separate evidential theories

or victims presented in the State's proofs.

Defendant also relies on State v. Bzura, 261 N.J. Super. 602 (App. Div.

1993) to support his position, but his reliance is misplaced. In Bzura, the

defendant was charged with false swearing under N.J.S.A. 2C:28-2(a), but the

indictment actually alleged "the form of false swearing proscribed by N.J.S.A.

2C:28-2[(c)]." Id. at 613. Although the trial judge allowed the State "to amend

the indictment to allege a violation of N.J.S.A. 2C:28-2[(c)] rather than N.J.S.A.

2C:28-2[(a),]" the judge delivered jury instructions that described elements of

both false swearing offenses. Id. at 613-615.

In reversing defendant's false swearing conviction, we held:

[T]he jury instruction would have permitted some
jurors to vote for a guilty verdict based on the form of
false swearing proscribed by N.J.S.A. 2C:28-2(a), . . .
while permitting other jurors to find guilt based on the
form of false swearing proscribed by N.J.S.A. 2C:28-
2(c) . . . . To permit individual jurors to agree on a
guilty verdict based on such different factual predicates
would countenance a non-unanimous jury verdict . . . .

[Id. at 614-15.]

The facts here are clearly distinguishable.

A-5473-17
31
 Likewise, defendant's reliance on State v. Jackson, 326 N.J. Super. 276

(App. Div. 1999) and Frisby, 174 N.J. at 593, is misguided. In Jackson, we held

that although the State had established a prima facie case that the defendant

possessed cocaine found in the pocket of some pants, the evidence was

insufficient to establish a prima facie case that the defendant possessed other

cocaine found in a dresser drawer. 326 N.J. Super. at 279. Because the jury

charge failed to distinguish between the two, we concluded "it [was] possible

that some of the jurors convicted defendant based only on possession of cocaine

found in the dresser drawer. Thus, the jury's required unanimity was

compromised." Id. at 282.

In Frisby, the State offered two separate theories to support the charge of

endangering the welfare of a child: 1) injuring the child or failing to properly

supervise him, which resulted in the injury; or 2) abandoning the child. 174 N.J.

at 599. To that end, the State advanced different theories "based on different

acts and entirely different evidence." Ibid. Our Supreme Court held because

"the allegations . . . were 'contradictory,' 'conceptually distinct,' and not even

'marginally related' to each other," the general unanimity charge was insufficient

and a more specific unanimity instruction was required. Id. at 599-600.

A-5473-17
32
 In contrast, here, the State's evidence was uncomplicated. The State did

not try to prove that defendant committed the crime by presenting different

theories based on different acts or different evidence. The State presented only

one theory to support the charge of reckless manslaughter — defendant and

Gaffney engaged in a fist fight, which ended in defendant shooting and killing

Gaffney. Thus, there was no danger of a fragmented verdict and a specific

unanimity charge was not required. The judge's charge was appropriate and did

not sanction a non-unanimous verdict.

As to jury confusion, we are satisfied that any initial confusion the jury

may have had about the self-defense charge was remedied by the judge's answers

to the jury's questions and the judge's supplemental instructions, which were

sanctioned by both parties. It is firmly established that "[w]hen a jury requests

clarification," the trial court "is obligated to clear the confusion." State v.

Conway, 193 N.J. Super. 133, 157 (App. Div. 1984). If the jury's question is

ambiguous, the trial court must clarify the jury's inquiry by ascertaining the

meaning of its request. State v. Graham, 285 N.J. Super. 337, 342 (App. Div.

1995). Here, the judge satisfied his obligation as evidenced by the fact that the

jury had no further questions or requests for clarification of the self-defense

charge. See State v. McClain, 248 N.J. Super. 409, 421 (App. Div. 1991) ("The

A-5473-17
33
failure of the jury to ask for further clarification or indicate confusion [after

readback of jury charge] demonstrates that the response was satisfactory.").

IV.

In Point III, defendant argues for the first time on appeal that the judge

gave an erroneous instruction on "the timing with regard to the duty to retreat"

in connection with the self-defense charge. Specifically, he argues the judge

should have instructed the jury that the duty to retreat was "at the moment of the

use of deadly force" and not "after the second altercation."

After the final charge, the jury sent out a note, asking "Does the 'encounter'

begin when Gaffney came out of the bar or when [defendant] was on the

ground?" With the agreement of the parties, the judge responded, "When the

third encounter begins is for you to decide. However, it must be after the

defendant and Mr. Gaffney reconciled." Later that same day, with the agreement

of the parties, the judge further clarified the duty to retreat, telling the jurors

"the duty to retreat applies when the defendant resorts to the use of deadly force.

So[,] when you're considering the opportunity to retreat, it must be as of the time

deadly force is used."

On the next court day, following discussions with the parties regarding

"the jury's request for clarification of certain issues" related to the self-defense

A-5473-17
34
charge, the judge determined with the agreement of the parties that it would be

"prudent to provide [the jury] with a revised charge on self-defense." The judge

then gave the jury the revised instructions after the parties reviewed and agreed

on them. As to the duty to retreat, in the revised instructions, the judge told the

jury:

In your inquiry as to whether the defendant knew
that an opportunity to retreat with complete safety was
available, the total circumstances including the
attendant excitement accompanying the situation must
be considered. You must consider the defendant's
ability to retreat at the time that the defendant decided
to use deadly force.

Neither party objected to the revised instruction. Indeed, the prosecutor

stated he and defense counsel "worked on the language yesterday and it's

acceptable." Nonetheless, on appeal, defendant now argues the revised

instruction on the "duty to retreat" was erroneous. However, we find no error,

let alone plain error, in the instruction.

The general rule is that a person is not justified in using deadly force if he

may avoid death or serious bodily injury by retreating. N.J.S.A. 2C:3-4(b)(2).

"The Code requires that if a person 'knows that he can avoid the necessity of

using [deadly] force with complete safety by retreating,' he must do so or lose

self-defense as a justification for his conduct." State v. Rodriguez, 195 N.J. 165,

A-5473-17
35
175 (2008) (alteration in original) (quoting N.J.S.A. 2C:3-4(b)(2)(b)). The duty

to retreat arises only in cases involving deadly force. Stated differently, there

is no duty to retreat unless deadly force is used. See State v. Moore, 158 N.J.

292, 304, 308-11 (1999) (explaining there is no duty to retreat where the actor

"display[s] or brandish[es] a firearm . . . when the need for self-protection is

reasonably perceived and he merely intends to create an apprehension in the

aggressor that he will use deadly force if necessary" (quoting State v. Harmon,

203 N.J. Super. 216, 223 (App. Div. 1985), rev'd on other grounds, 104 N.J. 189

(1986))). There is also no duty to retreat unless one "can do so safely." State v.

Gartland, 149 N.J. 456, 467 (1997).

Here, the judge properly instructed the jury that defendant's duty to retreat

arose when he decided to use deadly force. Up until that point in time, defendant

did not have a duty to retreat. Consequently, there was no error in the judge's

revised instructions.

V.

In Point IV, defendant argues the judge deprived him of his right to "fully

cross-examine" one of the State's witnesses, Robert Lima. We disagree.

On numerous occasions during Lima's cross-examination, defense counsel

contrasted Lima's recollection of events on the night in question with the

A-5473-17
36
videotape, while injecting counsel's own observations of the video. The

prosecutor eventually asked to be heard at sidebar:

I think we've established Mr. Lima remembers a
different sequence than on the video. I just want to be
careful moving forward and I don't think counsel is
doing this purposely, but injecting helpful facts that
enlarge contradiction, so if he could just keep – maybe
just the time frame, describing what the parties are
doing in the time frame almost as a refreshed
recollection . . . . So[,] I'm just asking you isolate it to
the minute and time without the over editorialization.

The judge responded to the prosecutor's objection as follows:

Here is what I'm seeing. I'm seeing that the defense is
seeking an advantage, playing out discrepancies
between the witness' recollection and the tape.
However, when the discrepancy is found, the defense
goes forward and tries to amplify the difference by
switching between temporal positioning, meaning what
the witness recalls and what the witness is seeing today
on the tape to try to broaden the gap between the
discrepancy. I think we're now at the point where it's
confusing the jury in the sense of it's taking away from
what this witness says he recalls and now we're getting
into an exposition on what this witness believes he sees
on the tape. The witness has recounted the events as he
recalls them twice now. The tape is the tape, and
arguments can be made from the tape with regard to the
reliability and credibility of this witness. I think at this
point we're now getting into an area where the jurors
are going to end up being confused and we're not
serving a useful purpose through this exercise.

Defense counsel disagreed with the judge's assessment, saying:

A-5473-17
37
 I'm going back and forth to make sure we're talking
about the same thing and always differentiating what is
on the video and what he recalls. This is cross-
examination. I can lead this witness. I want to show
the jury that he is manufacturing. He's embellishing.
His memory is abysmally bad and he does invent
things; and when we go back and review the tape he
sees that it doesn't square with what he said, and then
we need to probe so that the jury sees this witness is
abysmally unreliable.

In response, the judge told defense counsel his method was improper and

suggested "show[ing Lima] the tape and ask[ing] him if he believe[d] the tape

show[ed] what he recalled." According to the judge, that way, Lima will "give

you a yes or no" answer. The following colloquy ensued:

[DEFENSE COUNSEL]: This little incident right
here, the second push. There's a question of the first
push and second push. He said it was the first push. He
acknowledged it. His position conformed with the
video. Okay. We're good. Now we have a second
fight. He's saying that Macchia goes after Gaffney. I'm
using the push as a point of reference in the testimony
to show it's manifestly false. He didn't go after him.

[COURT]: The issue whether or not he went after him
is an issue to be decided by the jury upon viewing the
tape. It's not going to depend upon whether or not the
witness agrees with what the tape shows. What I would
like to have happen, I would like to stop the practice of
going back and forth between the tape and the witness'
testimony and trying to in a positive feedback way have
the witness continue to be impeached. It's not serving
a purpose. You'll have your arguments.

A-5473-17
38
 [DEFENSE COUNSEL]: This is the first time in
my entire career impeaching a State's witness is
considered a bad thing. That's the essence of cross-
examination.

[COURT]: That's not what I'm saying. The practice
that you're employing is confusing and misleading to
the jury. It is not serving a useful purpose. You have
your grounds for argument from impeachment. I'm not
saying you can't question this witness. What I'm
saying, you have to change your method.

[Emphasis added.]

Following the sidebar discussion, defense counsel continued to question Lima

using the surveillance videotape. Neither the prosecutor nor the court

interjected.

"Both the federal and New Jersey constitutions guarantee criminal

defendants the right 'to be confronted with the witnesses against'" them. State

v. Budis, 125 N.J. 519, 530 (1991) (quoting U.S. Const. amend. VI; N.J. Const.

art. I, para. 10). "The right to cross-examine is an essential element of that

right." State v. Harvey, 151 N.J. 117, 188 (1997). The right of confrontation

affords defendants the opportunity "to cross-examine the state's witnesses" and

"protects against improper restrictions on questions defense counsel may ask

during cross-examination." Budis, 125 N.J. at 530-31. "It further encompasses

the right to elicit favorable testimony on cross-examination of the state's

A-5473-17
39
witnesses." Id. at 531. Nevertheless, "evidence helpful to the defense" may be

excluded "if exclusion serves the interests of fairness and reliability." Id. at 531-

32. "Thus, a defendant's constitutional right to confrontation does not guarantee

unlimited cross-examination of a witness." Harvey, 151 N.J. at 188.

"The scope of cross-examination . . . rests within the sound discretion of

the trial court." Ibid.; see also N.J.R.E. 611(a)(3) and (b) (allowing the court to

exercise reasonable control over cross-examination to "protect witnesses from

harassment or undue embarrassment"). "[T]rial courts 'retain wide latitude . . .

to impose reasonable limits on . . . cross-examination based on concerns about,

among other things, harassment, prejudice, confusion of the issues, the witness'

safety, or interrogation that is repetitive or only marginally relevant.'" Budis,

125 N.J. at 532 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)).

Indeed, "a cross-examiner does not have a license to roam at will under the guise

of impeaching credibility." State v. Engel, 249 N.J. Super. 336, 375 (App. Div.

1991). "A trial judge has broad discretion to determine the proper limits of

cross-examination of a witness whose credibility is put in issue." Ibid. We "will

not interfere with [the trial court's] control [of cross-examination] unless clear

error and prejudice are shown." State v. Gaikwad, 349 N.J. Super. 62, 86-87

A-5473-17
40
(App. Div. 2002) (quoting State v. Murray, 240 N.J. Super. 378, 394 (App. Div.

1990)).

Here, we discern no abuse of discretion in the judge limiting defense

counsel's method of going "back and forth" between Lima's testimony and the

videotape based on the judge's determination that the methodology was

"confusing and misleading to the jury." Notably, the judge did not stop defense

counsel from questioning Lima or from using the videotape; rather, the judge

simply instructed defense counsel to question Lima in a less confusing manner.

As the judge astutely pointed out, "[t]he tape is the tape, and arguments can be

made from the tape with regard to the reliability and credibility of th[e] witness"

regardless of "whether or not the witness agrees with what the tape shows."

VI.

In Point V, defendant argues the prosecutor misstated the law on self-

defense and duty to retreat in summations, and the misstatement was

compounded by the prosecutor's use of a PowerPoint presentation, which

included the misstatement. Defendant urges, "th[e] visual imagery was

extremely prejudicial," and the judge's refusal to give a curative instruction

deprived him of a fair trial, warranting a reversal of his conviction.

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41
 During summation, the prosecutor argued, "There are options that were

not taken. [Defendant] could have left in complete safety between the final

encounter and the second [sic] encounter. His wife asked him to go. He

doesn't." Defense counsel promptly objected. The judge sustained the objection

and instructed the jury to "disregard the last comment by the prosecutor."

The prosecutor continued, "At the time another option that's available to

a trained officer, [defendant], is to call 9-1-1. Now, clearly he's getting beaten

up. He's getting beaten repeatedly in the face. He can't do that to himself. He

can't get to his phone." Defense counsel again objected. At sidebar, defense

counsel stated: "We have the visual up which is perpetuating an incorrect

statement that he couldn't retreat, the second fight, which is the essence of the

sustained objection. I originally asked it to be taken off. It's the first line. "

After viewing the screen displaying the prosecutor's PowerPoint, the judge

directed the prosecutor to remove the objectionable slide and "continue with

[his] argument."

Shortly thereafter, defense counsel made another objection, arguing the

PowerPoint slide displayed an "[i]ncorrect statement of the law." Defense

counsel stated: "It's not provoke, it's provoke with intent to cause serious bodily

injury or death, and that's the essence of the difficulty here." The judge

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42
responded he did not "see any harm" and did not "see a necessity for [a] curative

instruction" because defense counsel had "given a clear explanation of the law"

during his summations and the judge would "give a clear explanation of the law"

during the final charge. Further, according to the judge, "the jury [would] be

instructed to disregard anything that differs from" the court's instructions on the

law.

"[P]rosecutors in criminal cases are expected to make vigorous and

forceful closing arguments to juries" and are therefore "afforded considerable

leeway in closing arguments as long as their comments are reasonably related to

the scope of the evidence presented." State v. Frost, 158 N.J. 76, 82 (1999). In

other words, as long as the prosecutor "stays within the evidence and the

legitimate inferences therefrom," State v. R.B., 183 N.J. 308, 330 (2005)

(quoting State v. Mayberry, 52 N.J. 413, 437 (1968)), "[t]here is no error," State

v. Carter, 91 N.J. 86, 125 (1982). In that regard, "[v]isual aids such as

PowerPoint presentations" are permissible in closing arguments but "must

adhere to the same standards as counsels' spoken words." State v. Williams, 244

N.J. 592, 617 (2021).

On the other hand, "prosecutors may not advance improper arguments,"

State v. Lazo, 209 N.J. 9, 29 (2012), and "[i]t is as much [the prosecutor's] duty

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43
to refrain from improper methods calculated to produce a wrongful conviction

as it is to use every legitimate means to bring about a just one," Frost, 158 N.J.

at 83 (quoting State v. Farrell, 61 N.J. 99, 105 (1972)). Nonetheless, "even when

a prosecutor's remarks stray over the line of permissible commentary," reversal

of a conviction is not automatically required. State v. McNeil-Thomas, 238 N.J.

256, 275 (2019). Rather, "the severity of the misconduct and its prejudicial

effect on the defendant's right to a fair trial" is weighed, and a conviction is

reversed only if "the conduct was so egregious as to deprive defendant of a fair

trial." State v. Wakefield, 190 N.J. 397, 437 (2007) (quoting State v.

Papasavvas, 163 N.J. 565, 625 (2000)); see State v. Jackson, 211 N.J. 394, 408-

09 (2012) ("'[N]ot every deviation from the legal prescriptions governing

prosecutorial conduct' requires reversal." (quoting State v. Williams, 113 N.J.

393, 452 (1988))).

"Prosecutorial comments are deemed to have violated the defendant's right

to a fair trial when they 'so infect[] the trial with unfairness as to mak e the

resulting conviction a denial of due process.'" Jackson, 211 N.J. at 409

(alteration in original) (quoting State v. Koedatich, 112 N.J. 225, 338 (1988)).

A determination as to whether a prosecutor's comments had the capacity to

deprive defendant of a fair trial must be made "within the context of the trial as

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44
a whole." State v. Feaster, 156 N.J. 1, 64 (1998). To warrant reversal, there

must have been "some degree of possibility that [the prosecutor's comments] led

to an unjust result." R.B., 183 N.J. at 330 (quoting State v. Bankston, 63 N.J.

263, 273 (1973)). That "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." Ibid. (alteration in original) (quoting Bankston, 63 N.J. at

273).

Here, following defense counsel's objection, the judge instructed the jury

to disregard the prosecutor's comment regarding when defendant could have left

the scene. Additionally, the judge instructed the prosecutor to remove the

objectionable slide from his PowerPoint presentation, thereby minimizing any

prejudice.11 What is more, in accordance with the Model Jury Charges, in the

final charge, the judge instructed the jury:

You must accept and apply this law for this case as I
give it to you in this charge. Any ideas you have of
what the law is or what the law should be or any
statements by the attorneys as to what the law may be

11
In Williams, 244 N.J. at 616, the Court stated "[t]o avoid objection or possible
error, we encourage counsel to disclose to each other and the court any visual
aids intended to be used during closing argument, but we do not require that
practice." It is unclear in the record whether the PowerPoint presentation was
disclosed to counsel and the court prior to summations, but, as the Court stated,
such disclosure is not required. Ibid.
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45
 must be disregarded by you if they are in conflict with
my charge.

....

Arguments, statements, remarks, openings, and
summations of counsel are not evidence and must not
be treated as evidence. Although the attorneys may
point out what they think important in this case, you
must rely solely upon your understanding and
recollection of the evidence that was admitted during
the trial. Whether or not the defendant has been proven
guilty beyond a reasonable doubt is for you to
determine based on all of the evidence presented during
the trial. Any comments by counsel are not controlling.

We are satisfied that the judge's instruction on the applicable law and the

import of any contrary statements by the attorneys as to the applicable law

sufficed to cure any error. "The authority is abundant that courts presume juries

follow instructions." State v. Herbert, 457 N.J. Super. 490, 503 (App. Div.

2019).

VII.

In Point VI, defendant argues the judge erred in "admitting many highly

prejudicial hearsay statements of Gaffney through the trial testimony of Robert

Lima." We disagree.

Pre-trial, the State moved to admit through Lima's testimony three hearsay

statements Gaffney allegedly made to defendant prior to being shot: 1) "I'm

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46
done"; 2) "What's going on here?"; 12 and 3) "Stop, stop, stop." The State argued

Gaffney's statements were admissible under the state-of-mind exception to the

hearsay rule, N.J.R.E. 803(c)(3), and were relevant because "the verbal jousting

and repartee between Gaffney and [d]efendant [were] a central feature of the

case." In response, defense counsel argued Gaffney's statements were not

relevant and Lima's recollection was so poor that it was inherently unreliable

and thus excludable under N.J.R.E. 403.13

In a written opinion issued May 14, 2018, the judge granted the State's

motion. Initially, the judge found Gaffney's statements were "relevant to the

issues of the reasonableness of [d]efendant's use of deadly force; opportunity to

retreat; and provocation." Further, according to the judge, the statements were

"not unfounded speculation or a general statement of fear"; instead, they were

"contemporaneous expressions of intent made directly to the [d]efendant" and

"reflect[ed] Gaffney's mental . . . condition." Additionally, "although two

separate altercations occurred," according to the judge, because "there was no

cooling down period between the two" and "[b]oth [d]efendant and Gaffney

12
The statement "What's going on here?" was never testified to at trial by any
witness.
13
Defendant did not object to similar hearsay statements made by Vinsko.
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47
were under the stress of the events," the statements "were made without the

opportunity to fabricate." Thus, the judge admitted the statements under the

state-of-mind exception to the hearsay rule, N.J.R.E. 803(c)(3), as well as the

excited utterance exception to the hearsay rule, N.J.R.E. 803(c)(2). 14

Further, in rejecting defendant's argument that Lima's testimony was

excludable under N.J.R.E. 403 due to the unreliability of Lima's recollection,

the judge found "[t]he probative value of the evidence [was] not substantially

outweighed by its potential prejudice." The judge explained:

The [c]ourt has no doubt that Mr. Lima was a legally
competent witness. There is no indicia of fraud or any
abuse of the integrity of the [c]ourt that would warrant
the court to preclude his testimony. The defense is free
to attack his recollection and credibility on cross-
examination before the jury.

We review "the trial court's evidentiary rulings for abuse of discretion."

State v. Gorthy, 226 N.J. 516, 539 (2016). Thus, "trial courts are granted broad

discretion in making decisions regarding evidentiary matters, such as whether a

piece of evidence is relevant . . . and whether a particular hearsay statement is

14
The judge further noted that if the statements were not being offered for the
truth of the matter asserted, "but to show that [d]efendant was aggressive after
the end of the first fight," then they were also "admissible as non-hearsay
evidence."
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admissible under an appropriate exception." State v. Scharf, 225 N.J. 547, 572

(2016) (citations omitted).

When a declarant's "state of mind . . . is at issue in a case," N.J.R.E.

803(c)(3) "allows admission of extrajudicial statements to show the [declarant's]

state of mind." State v. Benedetto, 120 N.J. 250, 255-56 (1990). Specifically,

under N.J.R.E. 803(c)(3), a statement is admissible if it was "made in good faith"

and described "the declarant's then existing state of mind, emotion, sensation or

physical condition (such as intent, plan, motive, design, mental feeling, pain, or

bodily health), but not including a statement of memory or belief to prove the

fact remembered or believed."

"The necessary predicate to admission of such evidence is that: a) the

statement reflects a mental or physical condition of the declarant which

constitutes a genuine issue in the case; or b) the statement is otherwise relevant

to prove or explain the declarant's conduct." State v. Downey, 206 N.J. Super.

382, 390 (App. Div. 1986). That said, "[t]he 'state of mind' hearsay exception

should be construed narrowly, focusing specifically on the declarant's state of

mind and whether that state of mind is directly relevant to the issues at trial."

State v. McLaughlin, 205 N.J. 185, 189 (2011).

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 "[W]hen a victim's state-of-mind hearsay statements are relevant to show

the declarant's own conduct, and when such conduct is known or probably

known to the defendant, it also can give rise to motive, and the statements

become admissible for that purpose, subject to the usual balancing under

N.J.R.E. 403." State v. Calleia, 206 N.J. 274, 296 (2011). "When a victim's

projected conduct permits an inference that defendant may have been motivated

by that conduct to act in the manner alleged by the prosecution, the statement

satisfies the threshold for relevance." Ibid.; see, e.g., State v. Rogers, 19 N.J.

218, 228 (1955) ("All evidentiary circumstances which are relevant to or tend to

shed light on the motive or intent of the defendant or which tend fairly to explain

his actions are admissible . . . ."). "Of course, trial courts should remain vigilant

to ensure that an evidentiary submission's probative value is not substantially

outweighed by prejudicial effect." Calleia, 206 N.J. at 297 (citing N.J.R.E. 403).

"Particularly where the declarant is deceased, the rule is rooted in

necessity and justified upon the basis that the circumstances provide a rational

substitute for the benefit of cross-examination." Downey, 206 N.J. Super. at

390. "It is said that the purpose and object underlying the confrontation

requirement are satisfied because the circumstances afford a sufficient guarantee

of testimonial trustworthiness to justify admission." Ibid. Thus, the victim's

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50
state of mind is a relevant issue to be decided by the jury where there is "an issue

as to whether a deceased might have harbored a suicidal design," or "was

accidentally killed," or "so feared the accused that he was an unlikely aggressor

where the justification of self-defense is raised." Id. at 391. Even "[w]hen the

victim's declarations do not express fear of the defendant, they might be

admissible . . . as a declaration of the victim's state of mind." State v. Machado,

111 N.J. 480, 489 (1988).

Here, the judge acknowledged for the State to overcome defendant's self-

defense claim, it would have to prove:

1) [d]efendant's belief that the use of deadly force was
necessary to save his own life or to avoid serious bodily
injury was not honest or reasonable; or 2) although
[d]efendant's belief was honest and reasonable,
[d]efendant was the aggressor; or 3) although
[d]efendant's belief was honest and reasonable, and
[d]efendant was not the aggressor, [d]efendant could
have retreated in complete safety.

The judge correctly concluded Gaffney's statements were relevant and

admissible to show Gaffney's actions in response to defendant's conduct and

"that defendant may have been motivated . . . to act in the manner alleged by the

prosecution." Calleia, 206 N.J. at 296.

As noted, alternatively, the judge found Gaffney's statements were

admissible as excited utterances under N.J.R.E. 803(c)(2). Under the Rule, three

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51
conditions must be met. The statement must be: 1) related to a startling event;

2) made under the stress of excitement caused by the event; and 3) made without

opportunity for the declarant to deliberate or fabricate. State ex rel. J.A., 195

N.J. 324, 340 (2008). Here, the evidence submitted at the pretrial hearing, which

included the videotape and witness testimony, clearly showed Gaffney was

under the stress of the fight when he made the statements and had no opportunity

to deliberate or fabricate. Thus, we discern no abuse of discretion in the judge's

alternative admissibility ruling.

Defendant further argues that Gaffney's statements should have been

excluded under N.J.R.E. 403(a). The Rule "mandates the exclusion of evidence

that is otherwise admissible 'if its probative value is substantially outweighed

by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or

(b) undue delay, waste of time, or needless presentation of cumulative

evidence.'" State v. Cole, 229 N.J. 430, 448 (2017) (quoting N.J.R.E 403). We

see no basis to question the judge's balancing of the pertinent factors and finding

that N.J.R.E. 403(a) did not warrant exclusion of the evidence.

VIII.

In Point VII, defendant argues the judge committed error by failing to

provide a limiting instruction for Lima's testimony regarding the hearsay

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52
statements Gaffney made during his encounter with defendant. Because

defendant did not raise this issue at trial, we again review under the plain error

standard of review. See State v. Townsend, 186 N.J. 473, 498 (2006).

In Scharf, the Court permitted the State to introduce statements made by

the victim about her fear of the defendant. 225 N.J. at 572-73. The Court found

these statements were "relevant to disputed, material factual issues about [the

victim's] state of mind toward defendant, about her marital relationship, and

about her likely conduct that were ultimately argued [at trial] where the defense

was accidental death." Id. at 574-575. However, to ensure the evidence was

used properly, the Court determined that a limiting instruction was necessary.

Id. at 580.

One of the hearsay statements deemed admissible in Scharf was the

statement the victim made to a friend that she was "very afraid for her life" and

"very afraid [the defendant] was going to kill her." Id. at 562. The Court stated

"[a] limiting instruction is required here to guard against the risk that the jury

will consider the victim's statements of fear as evidence of the defendant's intent

or actions." Id. at 581 (citing Calleia, 206 N.J. at 292). The Court explained

"[s]uch state-of-mind testimony may properly be used only for evaluating the

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53
victim's actions or the likelihood of him or her acting in a certain way"; and "the

evidence may not be used as evidence of the defendant's actions or intent." Ibid.

Here, the statements that were admitted, "I'm done" and "Stop," were

clearly admitted as evidence of Gaffney's state of mind and actions, namely, his

desire to discontinue the fight with defendant. Unlike Scharf, there was no clear

risk the jury could have considered these statements as evidence of defendant's

"actions or intent." Ibid. Thus, we conclude the judge's failure to provide a

limiting instruction following Lima's testimony did not have the capacity to

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

In any event, "the prejudicial effect of an omitted instruction must be

evaluated in light of the totality of the circumstances." Townsend, 186 N.J. at

499 (quoting State v. Marshall, 123 N.J. 1, 145 (1991)). The evidence against

defendant was significant. The jurors had the benefit of watching the damning

surveillance videotape for themselves as well as hearing multiple witnesses'

accounts of how the fight between Gaffney and defendant evolved. See Walker,

203 N.J. at 90 (finding the effect of any error must be considered "in light 'of

the overall strength of the State's case'" (quoting Chapland, 187 N.J. at 289)).

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54
 IX.

In Point VIII, defendant argues the judge erred in denying his motion for

a judgment of acquittal as the State did not "prove beyond a reasonable dou bt

that defendant did not reasonably and honestly believe that it was immediately

necessary for him to use deadly force to prevent Gaffney from inflicting death

or serious bodily injury upon him." Defendant also argues the State "failed to

prove beyond a reasonable doubt that defendant provoked the use of force

against himself in the encounter, with the purpose of causing serious bodily

injury or death to Gaffney" and "failed to prove beyond a reasonable doubt that

defendant had an opportunity to retreat in complete safety at the time that he

resorted to the use of deadly force against Gaffney."

At the conclusion of the State's case, defense counsel moved for a

judgment of acquittal, arguing "no reasonable jury could conclude beyond a

reasonable doubt that the State has disproven the claim of self-defense in this

case." In denying the motion, the judge explained:

Among the evidence that's significant is that the jurors
may see this matter as a fist fight. The defendant,
although he says he has a fractured nose and he had a
small bone displaced in his wrist, suffered injuries that
a reasonable juror might look at and say nothing
different than an ordinary person would sustain in an
ordinary fight and that from those injuries draw the

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55
inference that at no time was the defendant facing
serious bodily harm.

There's also evidence . . . from the medical
examiner that if it's accepted by a juror would have
[defendant] giving as good as he got to Mr. Gaffney
essentially. Mr. Gaffney reportedly had multiple facial
injuries that came from blunt force trauma that was not
the result of him hitting the sidewalk after he had been
shot dead. Furthermore, the video in this case supports
the fact that he did not fall face first onto the sidewalk
because he fell on top of [defendant]. I think that's
plain from the video. As such he would have been
cushioned in his fall.

....

The description of the defendant throughout the
evening after the first encounter was that he was in a
highly agitated state. Those are my words, not any
witness' words. He was intoxicated. He was out of
control. These are conclusions that an ordinary juror
could reach. And they would reach these conclusions
by watching the video, listening to the testimony of him
ignoring the pleas of his newly pregnant wife to go
home and others. If they accepted Mr. Lima's version
of the events, the victim himself was telling the
defendant to leave. The jurors may listen to the excuse
offered by the defendant of wanting to pay his bill to
avoid theft of services and to get his jacket as not being
honestly made, and they could listen to that and find
that that is a post hoc excuse being offered by the
defendant and, therefore, reflective of his mental state
and purpose at the time . . . . They may find that
because the defendant is seen on the video towards the
end standing in front of the door and gesturing with an
arm, they may find that to be the defendant was
pointing to Mr. Gaffney and essentially calling Mr.

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56
 Gaffney out after being abused by Mr. Gaffney and
enraged. They may find he was so enraged he decided
to kill Mr. Gaffney. That is a result that would be
supported by the evidence.

With regard to the issue of retreat, in addition to
everything I just mentioned, they may find that when
they look at the video . . . they see the defendant
reaching for his weapon as he falls. They may find that
he had decided at that point to kill Mr. Gaffney. That
would be a point in time that was sooner than the point
being advanced by counsel as the point that the jurors
must consider, that being the point advanced by counsel
is the point in time where Mr. Gaffney is standing over
the defendant and repeatedly striking him.

The jurors could find it was mutual combat, as I
noted earlier . . . and although [defendant] was on the
ground, he had an opportunity to escape, to roll over, to
go away, to not go for his gun as an initial matter.
These are things that a reasonable juror looking at the
totality of the evidence could see and could reasonably
find.

The judge stated further that once the jurors "overcome the hurdle of self-

defense, the issue of manslaughter and the sufficiency of the evidence available

to sustain a conviction of manslaughter . . . is patent."

Under Rule 3:18-1, a defendant is entitled to a judgment of acquittal at the

close of the State's case, "if the evidence is insufficient to warrant a conviction."

The test is "whether, based on the entirety of the evidence and after giving the

State the benefit of all its favorable testimony and all the favorable infere nces

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57
drawn from that testimony, a reasonable jury could find guilt beyond a

reasonable doubt." State v. Williams, 218 N.J. 576, 594 (2014) (citing State v.

Reyes, 50 N.J. 454, 458-59 (1967)). The evidence may be "direct or

circumstantial," Reyes, 50 N.J. at 459, and "[i]nferences need not be established

beyond a reasonable doubt." Tindell, 417 N.J. Super. at 549. "We review the

record de novo in assessing whether the State presented sufficient evidence to

defeat an acquittal motion." State v. Dekowski, 218 N.J. 596, 608 (2014).

Applying these principles, we conclude that based on the State's proofs, a

reasonable jury could find that defendant did not act in self-defense and

committed the crime of reckless manslaughter.

"Criminal homicide constitutes manslaughter when . . . [i]t is committed

recklessly . . . ." N.J.S.A. 2C:11-4(b)(1). "Under the Code, exoneration on the

basis of self-defense would be clearly inconsistent with a finding of

manslaughter that a person recklessly killed his aggressor." Rodriguez, 195 N.J.

at 172. However, under N.J.S.A. 2C:3-4(b)(2), the use of deadly force is not

justifiable "unless the actor reasonably believes that such force is necessary to

protect himself against death or serious bodily harm." Deadly force is

impermissible if "[t]he actor, with the purpose of causing death or serious bodily

harm, provoked the use of force against himself in the same encounter; or [t]he

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actor knows that he can avoid the necessity of using such force with complete

safety by retreating." Ibid. at 171-72 (quoting N.J.S.A. 2C:3-4(b)(2)).

"Self-defense exonerates a person who kills in the reasonable belief that

such action was necessary to prevent his or her death or serious injury, even

though this belief was later proven mistaken." Id. at 172 (quoting State v. Kelly,

97 N.J. 178, 198 (1984)). "Before resorting to deadly force, one must have both

an objectively reasonable and an honest that is, sincere belief 'in the need to kill

in self-defense.'" Ibid. (quoting Kelly, 97 N.J. at 198-200). "Based on the

Code's own language, a person who kills in the honest and reasonable belief that

the protection of his own life requires the use of deadly force does not kill

recklessly." Ibid.

Thus, in order to overcome a self-defense claim, the State is required to

prove that: 1) defendant's belief that the use of deadly force was necessary to

save his own life or to avoid serious bodily injury was not honest or reasonable;

or 2) although defendant's belief was honest and reasonable, defendant was the

aggressor; or 3) although defendant's belief was honest and reasonable, and

defendant was not the aggressor, defendant could have retreated in complete

safety. See N.J.S.A. 2C:3-4(b)(2).

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 The State's proofs included the surveillance videotape of the fight, from

which a reasonable jury could find in and of itself proof beyond a reasonable

doubt that defendant did not act in self-defense.15 The State's proofs also

included the testimony of multiple eyewitnesses, including Lima, from which a

reasonable jury could conclude that defendant did not act in self-defense. As

the judge pointed out, although defendant sustained injuries during the fight, a

reasonable jury could find that these injuries were not life-threatening, but

injuries typically sustained in a fistfight. While defendant argued that he did

not punch or otherwise attack Gaffney, the videotape showed otherwise.

Moreover, the medical examiner testified that Gaffney sustained injuries ot her

than the bullet wounds. Based on the entirety of the evidence, we agree with

the judge that a jury could find beyond a reasonable doubt the State disproved

defendant's claim of self-defense and proved defendant was guilty of reckless

manslaughter.

X.

In Point IX, defendant argues the cumulative effect of the trial errors

undermined his rights to due process and a fair trial, warranting reversal of his

15
Our review of the surveillance videotape supports the State's position that
Gaffney did not reach — or even attempt to reach — for defendant's gun.
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60
conviction. "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." State v. Jenewicz, 193 N.J. 440, 473 (2008). However, here,

because we conclude there were no reversible errors either alone or combined,

defendant's cumulative error argument must also fail.

In Point IX, defendant also argues the judge erred in "overruling a defense

objection" to the readback of his cross-examination only, in response to the

jury's request for same. On the fourth day of deliberations, 16 the jury sent a note

requesting a "read back of defendant's testimony while on the stand, specifically

just the prosecutor's cross-examination part." Over the State's objection, defense

counsel asked the judge to essentially read back defendant's entire testimony.

In denying counsel's request, the judge stated:

I'm going to deny the defendant's request for the
following reasons. One, the question is specific and
emphatic. The word "just" is underlined which to me
indicates that the jurors have considered the testimony
as a whole and have determined for whatever reason
that they only want to hear the cross-examination. I
understand the arguments of defense counsel.
However, those arguments assume or presuppose that
the jurors need to be reminded of what happened on
direct. Here, as I said, from the phrasing of the specific

16
The jury returned its verdict on the fifth day of deliberations.
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61
 question itself, it appears to the court that they are
mindful of it but for their own reasons wish only to hear
cross-examination. I don't see that the interests of
justice would be offended by answering their specific
question and, therefore, I'm denying the request.

"Jurors should not be required to watch or hear more testimony than they

ask for." State v. Miller, 205 N.J. 109, 123 (2011) (citing State v. Wilson, 165

N.J. 657, 661 (2000)).

[W]here a request is clearly circumscribed, the trial
court has no obligation to compel jurors to hear
testimony they have not asked for or to continue a read
back after they have expressly indicated that they have
heard enough. That is so even if one of the parties
registers a request for a further read back.

[Wilson, 165 N.J. at 661 (citations omitted).]

"Courts have broad discretion as to whether and how to conduct read-

backs and playbacks." Miller, 205 N.J. at 122. Here, we discern no abuse of

the judge's discretionary authority. The jury's request was clear and specific.

Thus, the judge was under no obligation to read back defendant's direct

examination in addition to his cross-examination, despite defense counsel's

request.

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 XI.

In Point X, defendant argues that because the mitigating factors

substantially outweighed the aggravating factors, the judge should have

downgraded his sentence to the range for a third-degree offense.

We review sentences "in accordance with a deferential standard," State v.

Fuentes, 217 N.J. 57, 70 (2014), and are mindful that we "should not 'substitute

[our] judgment for those of our sentencing courts,'" State v. Cuff, 239 N.J. 321,

347 (2019) (quoting State v. Case, 220 N.J. 49, 65 (2014)). Thus, we will

affirm the sentence unless 1) the sentencing guidelines
were violated; 2) the aggravating and mitigating 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."

[Fuentes, 217 N.J. at 70 (alteration in original) (quoting
State v. Roth, 95 N.J. 334, 364-65 (1984)).]

At defendant's sentencing hearing, the judge found aggravating factor

nine, N.J.S.A. 2C:44-1(a)(9) ("need for deterring . . . defendant and others from

violating the law"), and mitigating factors three, seven, and eight, N.J.S.A.

2C:44-1(b)(3) ("defendant acted under a strong provocation"); N.J.S.A. 2C:44-

1(b)(7) ("defendant has no history of prior delinquency or criminal activity" );

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63
N.J.S.A. 2C:44-1(b)(8) ("defendant's conduct was the result of circumstances

unlikely to recur").17

Although the judge found the mitigating factors "substantially

outweigh[ed]" the sole aggravating factor, the judge "decline[d] to downgrade"

defendant's sentence to the third-degree range. Citing N.J.S.A. 2C:44-1(f)(2),

17
We reject defendant's contention that the judge erred in his evaluation and
rejection of mitigating factors two, four, five, nine, ten, and eleven. As to factor
two, N.J.S.A. 44-1(b)(2) ("defendant did not contemplate that [his] conduct
would cause or threaten serious harm"), the judge found it "inapplicab le"
because the evidence showed "defendant knew he was using deadly force at the
time he used it." As to factor four, N.J.S.A. 44-1(b)(4) ("substantial grounds
[exist] tending to excuse or justify the defendant's conduct, though failing to
establish a defense"), the judge stated defendant "picked a fight" with Gaffney
after the two had reconciled, and when defendant started "losing, he used his
weapon without legal justification." Similarly, the judge rejected factor five,
N.J.S.A. 44-1(b)(5) (the victim "induced or facilitated" the commission of the
crime), because defendant "reinstituted the dispute after reconciliation." As to
factor nine, N.J.S.A. 44-1(b)(9) ("[t]he character and attitude of the defendant
indicate that [he] is unlikely to commit another offense"), despite the numerous
letters submitted regarding defendant's good character, the judge, citing State v.
O'Donnell, 117 N.J. 210 (1980), found there was "a lack of true remorse" on
defendant's part. As to factor ten, N.J.S.A. 44-1(b)(10) (defendant would
"respond affirmatively to probationary treatment"), the judge found this factor
"inapplicable" as defendant was convicted of a second-degree crime which
carried a presumption of imprisonment. Finally, as to factor eleven, N.J.S.A.
2C:44-1(b)(11) (defendant's "imprisonment . . . would entail excessive
hardship"), the judge found, that while defendant would suffer some hardship,
he failed to show how such hardship was beyond those "common to all persons
. . . subject to prolonged incarceration." As to factor six, N.J.S.A. 44-1(b)(6)
(defendant would "compensate the victim" or "participate in a program of
community service"), defendant conceded its inapplicability.
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which permits a sentence one degree lower where "the interest of justice

demands," the judge explained:

In [State v.] Megargel, [143 N.J. 484, 501-502 (1996)],
our Supreme Court held that in determining what is in
the interest of justice, the defendant must come forward
with compelling reasons that are, "[i]n addition to and
separate from," the factors argued in mitigation . . . .
There must be truly, extraordinary, and unanticipated
circumstances to overcome the presumption of
imprisonment.

[D]efense counsel lists what are argued as compelling
factors in . . . his submission . . . . I find that . . .
counsel's points did not make compelling reasons.
Instead, they served to highlight that defendant should
have known better. As a police officer, he should not
have drunk to excess, having [six] beers and two Jack
Daniels in . . . the [little] time he was at the bar, and
certainly he shouldn't have done it while he was armed.
He should not have brushed his pregnant wife aside
when she was begging him to leave and physically
trying to direct him away. He should not have ignored
the pleas of, literally, the entire bar who were telling
him to go. He should not have persisted in picking a
fight with a much larger and stronger man who he
believed to be using illegal drugs. He should not have
remained in an establishment where he believed patrons
were using illegal drugs. Furthermore, counsel's
recollection of events is not accurate, in the [c]ourt's
estimation, when he says [defendant] was always
retreating and never threw a punch. The video shows
otherwise. There's nothing unique about [defendant] as
a person. For example, this is not a case involving
mental retardation or other similar, unique
circumstance for the [c]ourt to consider. To put it

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 succinctly there are no compelling reasons to
downgrade here.

Sentencing a first- or second-degree offender to a sentence one degree

lower is governed by N.J.S.A. 2C:44-1(f)(2), which provides, in pertinent part:

In cases of convictions for crimes of the first or
second degree where the court is clearly convinced that
the mitigating factors substantially outweigh the
aggravating factors and where the interest of justice
demands, the court may sentence the defendant to a
term appropriate to a crime of one degree lower than
that of the crime for which he was convicted.

In Megargel, our Supreme Court observed that "the standard governing

downgrading is high," and proceeded to provide guidance on when a defendant's

first- or second-degree conviction should be downgraded pursuant to the

statutory framework. 143 N.J. at 500. Specifically, the Court established a two-

part test: 1) "[t]he court must be 'clearly convinced that the mitigating factors

substantially outweigh the aggravating ones'"; and 2) "that the interest of justice

demand[s] a downgraded sentence." Id. at 496 (quoting N.J.S.A. 2C:44-1(f)(2)).

The Court further explained that in applying this test, "the severity of the crime"

is "the most . . . important factor . . . ." Id. at 500 (citing State v. Hodge, 95 N.J.

369, 379 (1984)).

The Court continued, "[i]n evaluating the severity of the crime, the trial

court must consider the nature of and the relevant circumstances pertaining to

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the offense," including if "[t]he surrounding circumstances" make the offense

"very similar to a lower degree offense, thus suggesting that a downgraded

sentence may be appropriate." Id. at 500. Although trial courts may consider

"facts personal to the defendant" including "a defendant's role in the incident to

determine the need to deter him from further crimes and the corresponding need

to protect the public from him," the focus should be the crime itself. Id. at 501

(citing State v. Jarbath, 114 N.J. 394, 407 (1989)). The Court explained "[t]he

paramount reason we focus on the severity of the crime is to assure the

protection of the public and the deterrence of others. The higher the degree of

the crime, the greater the public need for protection and the more need for

deterrence." Id. at 500.

Additionally, "[t]he decision to downgrade a defendant's sentence 'in the

interest of justice' should be limited to those circumstances in which defendant

can provide 'compelling' reasons for the downgrade." Id. at 501-02 (quoting

State v. Jones, 197 N.J. Super. 604, 607 (App. Div. 1984)). "These reasons must

be in addition to, and separate from, the 'mitigating factors which substantially

outweigh the aggravating factors,' that the trial court finds applicable to a

defendant under the first prong of [N.J.S.A. 2C:44-1(f)(2)]." Id. at 502.

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 Here, the judge found no "compelling reasons" to sentence defendant in

the third-degree range despite defendant's arguments to the contrary. Instead,

based on the balancing of the aggravating and mitigating factors, the judge

sentenced defendant to the lower end of the second-degree range. See Case, 220

N.J. at 64-65 ("[W]hen the mitigating factors preponderate, sentences will tend

toward the lower end of the range, and when the aggravating factors

preponderate, sentences will tend toward the higher end of the range." (quoting

State v. Natale, 184 N.J. 458, 488 (2005))).

Defendant's reliance on State v. L.V., 410 N.J. Super. 90 (App. Div. 2009),

to support his argument for a downgraded sentence is misplaced. In L.V., we

determined that "the high standard governing downgrading [a sentence]" under

N.J.S.A. 2C:44-1(f)(2) was met. Id. at 112. We held that "[t]he judge erred in

refusing to sentence defendant as a third-degree offender," id. at 113, for

"second-degree aggravated assault and second-degree reckless manslaughter"

stemming from her throwing her two newborn babies out the window at the

direction of her abusive father, leading to the death of the first child and severe

injuries to the second. Id. at 93-96. The babies were conceived from her father's

repeated and pervasive sexual molestation of defendant over a five-year period.

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Id. at 93-96. The first child was born when defendant was sixteen years old and

the second was born when defendant was eighteen years old. Id. at 95-96.

In L.V., the record revealed that the defendant was "a person of very

limited intelligence, functioning at a level in school initially below a five-year-

old child and by the time of the crimes at the level of a six-year-old child." Id.

at 112. She had "a severe language disorder and severe deficits in

comprehension and syntax" and suffered "from PTSD and Major Depressive

Disorder." Ibid. Further:

The circumstances surrounding her behavior were
extreme and severe. She had been raped by her father
repeatedly for years, causing impairment of her
judgment and decision-making ability. She felt
powerless toward her father and feared for her life and
that of her mother. Her cognitive limitations impaired
her ability to seek help with respect to the rapes and her
pregnancies and affected her desire not to have her
babies abused, and she was socially isolated by her
abusive father. Her cultural and language barriers and
her lack of assimilation into the community also
prevented her from seeking help.

[Id. at 112-13.]

Clearly, those circumstances do not obtain here.

In sum, because the judge's findings were supported by the record,

comported with the sentencing guidelines, and do not shock the judicial

conscience, we discern no abuse of the judge's sentencing discretion.

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Affirmed.

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