Opinion
DOCKET NO. A-3027-12T3
02-02-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. BRIAN FOWLKES, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Marcia Blum, Assistant Deputy Public Defender, of counsel and on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Hoffman, Leone and Whipple. On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 11-02-0295. Joseph E. Krakora, Public Defender, attorney for appellant (Marcia Blum, Assistant Deputy Public Defender, of counsel and on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief. PER CURIAM
Defendant Brian Fowlkes appeals from the judgment of conviction entered after a jury found him guilty of first-degree murder, N.J.S.A. 2C:11-3(a)(1) or (2); second-degree unlawful possession of a weapon without first having obtained a permit, N.J.S.A. 2C:39-5(b); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a). On the murder conviction, the court sentenced defendant to "life with no parole eligibility," concurrent with a five-year sentence on the count charging possession of a weapon for an unlawful purpose.
On appeal, defendant raises the following points for our consideration:
POINT I
IN VIOLATION OF THIS COURT'S RULING ON APPEAL OF THE FIRST TRIAL THAT IT WAS ERROR TO ADMIT A GUN THAT WAS NOT THE MURDER WEAPON SOLELY TO SUPPORT THE JAILHOUSE-SNITCH'S CREDIBILITY, THE GUN WAS AGAIN ADMITTED ON RETRIAL SOLELY TO SUPPORT THE JAILHOUSE-SNITCH'S CREDIBILITY.
POINT II
THE ADMISSION OF FOWLKES'S PURPORTED CONFESSION, ELICITED BY AN UNDISCLOSED GOVERNMENT INFORMANT AFTER FOWLKES WAS INDICTED AND WHILE HE WAS IN CUSTODY, VIOLATED HIS RIGHT TO THE ASSISTANCE OF COUNSEL AND SHOULD HAVE BEEN EXCLUDED. (Not Raised Below).
1. The Informer Deliberately Elicited the Statements.
2. Prior Arrangement Between the State and the Informer.
3. The Informer Was Ostensibly No More than a Fellow Inmate.
4. The Defendant Was in Custody and Under Indictment at the Time He Was Engaged in Conversation with D.C.In addition, defendant presents the following arguments in his pro se letter-brief:
5. Alternatively, the Matter Should Be Remanded to Determine What Information D.C. Elicited After He Met with the Prosecutor.
POINT III
FOWLKES WAS PREJUDICED BY THE ABSENCE OF A COOPERATING-WITNESS INSTRUCTION TELLING THE JURY THAT IT WAS REQUIRED TO GIVE CAREFUL SCRUTINY TO THE JAILHOUSE-SNITCH'S TESTIMONY. (Not Raised Below).
POINT IV
THE PROSECUTOR'S STATEMENT IN SUMMATION THAT "THE STATE DOESN'T BELIEVE DEFENDANT" AND HER ATTEMPT TO VOUCH FOR THE SNITCH BY MISCHARACTERIZING HIS TESTIMONY CONSTITUTED PREJUDICIAL MISCONDUCT. (Not Raised Below).
POINT V
THE COURT ERRED IN MERGING THE TWO GUN OFFENSES TOGETHER; THE CHARGE OF POSSESSION OF A GUN FOR AN UNLAWFUL PURPOSE SHOULD HAVE MERGED WITH THE MURDER. (Not Raised Below).
POINT VI
THE SENTENCE OF LIFE WITHOUT PAROLE IS ILLEGAL.
POINT VII
BECAUSE DEFENDANT HAS CONTINUOUSLY BEEN IN CUSTODY FOR THIS OFFENSE SINCE THE DATE HE WAS ARRESTED, HE SHOULD HAVE RECEIVED CREDIT FROM THE DATE HE WAS ARRESTED TO THE DATE HE WAS RESENTENCED FOLLOWING HIS RECONVICTION.
POINT IWe reject the arguments challenging defendant's convictions, which we affirm. However, we vacate defendant's sentence and remand for resentencing.
THE PROSECUTOR ALLOWED TESTIMONY SHE ELICITED AND KNEW TO BE FALSE GO UNCORRECTED WHILE LATER CAPITALIZING OFF OF IT DURING HER SUMMATION, IN SHOWING A MANIFEST DENIAL OF JUSTICE; COMMITTED MISCONDUCT SO EGREGIOUS, IT VIOLATED FOWLKES' RIGHTS TO DUE PROCESS AND FAIR TRIAL.
POINT II
[THE] TRIAL COURT COMMITTED PREJUDICIAL ERROR, WHEN IT ADMITTED TESTIMONY, WHICH SHOULD HAVE BEEN EXCLUDED IN ACCORDANCE WITH STATE V. COFIELD, 127 [N.J.] 328 [(1992)], WITHOUT GIVING ANY LIMITING OR CURATIVE INSTRUCTIONS TO THE JURY, INFRINGING ON FOWLKES'S DUE PROCESS AND RIGHT TO A FAIR TRIAL.
I.
Because the factual and procedural chronology pertinent to our analysis is intricate, we summarize the record in some detail.
A.
On October 15, 2004, a Middlesex County grand jury returned Indictment Number 04-10-01524, charging defendant with the first-degree murder of Hassan Bass, N.J.S.A. 2C:11-3(a)(1) or (2) (count one) and with second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count two). In 2005, a jury found defendant guilty of both counts. The court then sentenced defendant to life imprisonment with a thirty-year parole disqualifier on the murder conviction, and a concurrent ten-year sentence on the weapons charge. In 2010, we reversed and remanded for a new trial, concluding that improper testimony of two witnesses for the State, in conjunction with improper comments from the prosecutor, substantially prejudiced defendant's right to a fair trial. State v. Fowlkes, A-2939-05 (App. Div. Jan. 7, 2010) (slip op. at 27). We also ruled that the trial court had improperly admitted into evidence a gun, not connected to the murder, found when the police arrested defendant in Virginia a week after the murder. Id. at 32-34.
On February 23, 2011, a Middlesex County grand jury returned a superseding indictment, No. 11-02-00295, charging defendant with: the first-degree murder of Hassan Bass, N.J.S.A. 2C:11-3(a)(1) or (2) (count one); fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4) (count two); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count three); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count four); and third-degree witness tampering, N.J.S.A. 2C:28-5(a) (count five). Before the retrial commenced, the State acknowledged that the aggravated assault and witness tampering counts in the superseding indictment were outside the statute of limitations and thus subject to dismissal. The jury convicted defendant of counts one, three, and four.
B.
We derive the following facts from the retrial record. Late in the afternoon of May 22, 2004, Bass was fatally shot by a masked gunman on the corner of Hassart and George Streets in New Brunswick. At 5:35 p.m., New Brunswick Police Officer Michael Sabo arrived at the murder scene, and obtained a statement from L.S., who described the assailant as "[a]pproximately five foot six with a medium build, blue jeans, dark T-shirt, wearing a mask and a black [head-rag] . . . [w]ith braided hair." The medical examiner concluded that Bass died of a single gunshot wound to the head, described as a contact wound, caused by a .22 caliber bullet fired from a revolver. The murder weapon was never recovered, and no forensic evidence linked defendant to the crime.
In large part, the State's case rested upon the testimony of C.A., defendant's girlfriend, and D.C., a jailhouse informant. On the morning of May 22, 2004, C.A. and defendant went shopping with her mother in Elizabeth for several hours. After returning to defendant's apartment, C.A. took a nap and was awakened by defendant with a gun in his hand, looking around for something. According to C.A., defendant appeared angry. After going back to sleep, she was later awakened by a phone call from defendant, who told her to go to her mother's house. Defendant met C.A. at her mother's house and changed his clothes. C.A. stated that she had a feeling something "bad" had happened when, after defendant returned, he said they were leaving for his mother's home in Virginia. In defendant's book bag, she saw the same gun she saw earlier. During the train ride to Virginia, defendant told C.A. that he had shot someone. She recalled that defendant had a "problem" with another man, who had fought with defendant a few days earlier. After arriving in Virginia, defendant repeated to his mother that he had killed someone.
One week after the shooting, police officers arrived at the Virginia home of defendant's mother with a warrant for defendant's arrest. Because C.A. failed to disclose where defendant was hiding, the Virginia police charged her with obstruction of justice. During their search, the police found a small box that contained a .380 caliber handgun (the Virginia gun), which was not the murder weapon, as well as cocaine. The police also charged C.A. with drug possession and placed her under arrest. She remained in custody in Virginia for three months, repeatedly denying that the drugs were hers. Eventually, the drug charges against her were dismissed.
When C.A. completed her sentence in Virginia, she returned to New Jersey, where defendant remained in custody. Occasionally, defendant would contact C.A. by calling his father, and having his father arrange a conference call with her. Defendant had his father provide two letters to C.A. The letters were in defendant's handwriting, but addressed to defendant and signed, "love, forgotten one" and "Your wife, [C.A.]." C.A. received the letters from defendant's father with instructions that she copy the letters in her own handwriting and return them to him. The content of one letter included how she tried to tell the police that defendant had not shot anyone and that defendant had been with her and "Billy" at the time of the murder; however, because the officers kept telling her the drugs they seized in Virginia belonged to her, she had simply told police what they wanted to hear. C.A. did not copy the letters as defendant requested, and instead turned them over to the Middlesex County Prosecutor's Office.
D.C., a longtime jailhouse informant with a lengthy criminal record, was an inmate in the same county jail as defendant at the end of 2004. D.C. had provided information to law enforcement an estimated fifteen times in the past, and had received benefits for his cooperation in the form of being released on bail on his own recognizance, getting admitted into programs, and having the court consider his cooperation as a mitigating factor.
D.C. testified as to admissions defendant made to him while they were incarcerated together in November 2004. According to D.C., defendant had requested some legal advice from him; however, D.C. told defendant that he could not give him any advice unless he knew what happened in his case. Defendant then told D.C. he had killed someone and was charged with murder. He also told D.C. that problems with Bass began when he and the victim were incarcerated and they had a fight, which resulted in defendant serving time in "ad seg," referring to administrative segregation. The next time they spoke, defendant told him that Bass had punched defendant and given him a bloody lip. Defendant told D.C. that when Bass got out of prison, he started bragging about how he had punched defendant. Defendant did not like the fact that Bass was bragging, and he obtained a gun from a friend and went out looking for Bass. Defendant stated that he found Bass by George Street, and had his friend drop him off and drive around the block. Defendant admitted he "ran up" to Bass and shot him, noting that he also fired his gun a second time into the victim's head. Defendant further told D.C. that at the time of the killing, he was "masked up."
In another conversation, defendant told D.C. that after he killed Bass, he and his girlfriend left New Jersey and went to Virginia. Defendant said he had no idea how law enforcement learned of his whereabouts in Virginia. The police found him at the house where he was hiding, and found a gun in the house. Defendant explained to D.C. that police suspected the gun was the murder weapon, but it was not. Defendant said that his girlfriend knew the location of the murder weapon, and he wanted D.C. to call her and utilize a secret word for gun.
Defendant testified on his own behalf, and denied killing Bass. He admitted that he and Bass had fought while they were both incarcerated at Yardville, and that both of them were punished with "ad seg." He claimed that when they both had completed their time in "ad seg," they spoke and "[e]verything was cool." Defendant testified that at the time of the murder, he was out collecting money owed to him on drug sales so that he and his drug-dealing partners could pool the money and purchase more drugs; moreover, he testified that he already had plans to visit his family in Virginia.
Defendant denied that he gave any information to D.C. about his case. Rather, he claimed that he knew about D.C. earlier, specifically that D.C. had testified against another inmate in the past. He stated that he had told other inmates he did not trust D.C. He also claimed that he shared the discovery in his case with an inmate, Robert Odom, but denied that he shared the discovery with D.C. Odom testified on defendant's behalf, and claimed that he never saw defendant and D.C. talking; however, Odom acknowledged giving paperwork on defendant's case to D.C.
II.
A.
We first consider defendant's claim that the trial court committed reversible error by allowing testimonial evidence of the gun found at the time of defendant's arrest in Virginia. Defendant asserts that the State was barred from introducing evidence of the subject gun to corroborate D.C.'s credibility, in accordance with this court's 2010 decision reversing defendant's murder conviction. See State v. Fowlkes, supra, slip op. at 32-34. Specifically, defendant claims the judge ignored the ruling of this court in defendant's first appeal, and that the testimony was otherwise inadmissible under N.J.R.E. 404(b).
In our 2010 decision, we held that admission of the gun found in the Virginia home solely to corroborate D.C.'s credibility constituted error:
Initially, we categorically reject the State's argument that since possession of the handgun may not have been criminal conduct under New Jersey or Virginia law, it was not "other crimes" evidence subject to N.J.R.E. 404(b)'s exclusion. The Rule applies to conduct that is not criminal. . . .
The State argued at trial that the gun was admissible evidence to corroborate D.C.'s testimony that defendant told him about the police finding the gun at the time of his arrest. The judge deemed not only testimony regarding the finding of the gun, but the actual gun itself, to be admissible under this theory. However, "ordinarily other-crime evidence should not be admitted simply to bolster the credibility of a witness." [State v.] Darby, 174 N.J. [509,] 520 [(2002)]. We see no reason to deviate from the ordinary rule in this case, particularly since we conclude there is no other independent basis for admission.
Furthermore, contrary to the State's assertion that no limiting instruction was necessary because the jury understood the handgun was not the murder weapon, the jury may not have understood that it could not utilize the evidence for a prohibited purpose. In other words, the jury was never told that it could not consider the gun as evidence that defendant had a propensity for carrying firearms, something that was clearly prejudicial. In short, the admission of the .380 caliber handgun found when defendant was arrested in Virginia was error that was further compounded by the failure on the judge's part to provide any limiting instruction.
[Fowlkes, supra, slip op. at 32-34.]
Notwithstanding our 2010 decision, at a pre-trial hearing on December 21, 2010, the trial judge determined that he would allow testimony about the gun to corroborate D.C.'s testimony:
The State is basically saying this is corroborative evidence not bolstering. You attack credibility on many issues you find. I'm sure there will be significant issues of credibility. Quite frankly . . . I'm not going to admit it into evidence absent something unusual happening in trial. I'll permit the testimony and I will say to you what I said to prior counsel . . . [give me] the charge that you believe best cures any possible prejudice and I will[,] unless I find something inappropriate with it[,] use it. [U]nlike the last trial if you do not give me a charge I will instruct prior to the evidence that it can only be used for limited purposes and during the charge it can be used for limited purposes. I will do everything in my power to dissipate any possible prejudice. I do believe based upon my understanding of the case that it is corroborative not bolstering. It's not vouching for the witness's testimony. It's not somebody saying oh, he's truthful. It's a corroborative piece of information not an opinion that bolsters . . . .The court ultimately charged the jury on the gun as follows:
The weapon which was not the murder weapon and was not possessed by the defendant was introduced only to permit you to determine if it supported the testimony and credibility of [D.C.] You may not consider it to infer that the defendant has a propensity to be around guns or possessed that weapon in any way.
As a threshold matter, we maintain that the testimony regarding the Virginia gun constitutes "other-crime evidence" because this testimony referred to the seizure of a weapon for which defendant was not on trial, in accordance with our 2010 decision. Fowlkes, supra, slip op. at 32-34; see also Biunno, Current N.J. Rules of Evidence, comment 7 on N.J.R.E. 404 (2015) ("Despite the fact that the type of evidence permitted by [N.J.R.E.] 404(b) is often referred to merely as 'other crime' evidence, the Rule's allowance of limited admissibility applies to 'crimes, wrongs or acts[.]'").
We agree with defendant that the judge on retrial improperly admitted testimonial evidence of the Virginia gun, contrary to our 2010 decision and remand. "[T]he decision on appeal must be enforced as written, and relief from its direction can be had only in the appellate court whose judgment it is." Tomaino v. Burman, 364 N.J. Super. 224, 233 (App. Div. 2003) (citation and internal quotation marks omitted), certif. denied, 179 N.J. 310 (2004). Accordingly, "the trial court has no discretion when a mandate issues from an appellate court. It simply must comply." Ibid. (citation omitted). Even if the trial court does not agree with our decision and instructions, it "has no choice but to follow those instructions irrespective of its private view as to their soundness." Pressler & Verniero, Current N.J. Court Rules, comment on R. 2:11-3 (2016).
Alternatively, of course, the State could have appealed to a higher court, which the State did not do. --------
Notwithstanding this error, in light of the overwhelming evidence of defendant's guilt and considering the trial judge's limiting instruction regarding the gun, we conclude the testimony regarding the gun represents harmless error. R. 2:10-2. "Under the harmless error analysis, any prejudice to defendant was not such that created a real possibility that the jury arrived at a result it otherwise might not have reached." State v. Marrero, 148 N.J. 469, 492-93 (1997) (citation omitted). The central inquiry for determining whether harmless error occurred is "whether in all the circumstances there was a reasonable doubt as to whether the error denied a fair trial and a fair decision on the merits." State v. Macon, 57 N.J. 325, 338 (1971).
Here, the record strongly supports the jury's verdict, even if the gun testimony had been omitted. Defendant admitted to a history of animosity between himself and the victim. He allegedly made admissions of the murder to several people, including C.A. and D.C., who testified against him. Any potential damage was mitigated by the judge's limiting instructions. See State v. Burns, 192 N.J. 312, 335 (2007) ("[O]ne of the foundations of our jury system is that the jury is presumed to follow the trial court's instructions"). We are satisfied that the jury reached the same result it would have reached even if testimony regarding the Virginia gun had been precluded.
B.
Defendant, for the first time on appeal, contends that D.C.'s testimony should have been excluded because D.C. obtained his information in violation of defendant's Sixth Amendment right to counsel. Specifically, defendant claims that D.C. was acting as a state agent who deliberately elicited defendant's incriminating statements in violation of Massiah v. United States, 377 U.S. 201, 84 S. Ct. 1199, 12 L. Ed. 2d 246 (1964). We disagree.
Whether D.C. violated defendant's right to counsel is not waived under State v. Williams, 219 N.J. 89, 93 (2014), cert. denied, ___ U.S. ___, 135 S. Ct. 1537, 191 L. Ed. 2d 565 (2015), as the State suggests, but defendant must show plain error. See Pressler & Verniero, Current N.J. Court Rules, comment 2.2 on R. 2:10-2 ("When counsel acquiesces in harmful errors that cut mortally into the substantive rights of the defendant, they are subject to plain-error review.") (citation and internal quotation marks omitted). Therefore, the inquiry is whether there exists an error that is "clearly capable of producing an unjust result." Macon, supra, 57 N.J. at 337.
The United States Supreme Court has addressed jailhouse informants and the Sixth Amendment right to counsel in a line of cases. See, e.g., Kuhlmann v. Wilson, 477 U.S. 436, 106 S. Ct. 2616, 91 L. Ed. 2d 364 (1986); Maine v. Moulton, 474 U.S. 159, 106 S. Ct. 477, 88 L. Ed. 2d 481 (1985); United States v. Henry, 447 U.S. 264, 100 S. Ct. 2183, 65 L. Ed. 2d 115 (1980); Massiah v. United States, 377 U.S. 201, 84 S. Ct. 1199, 12 L. Ed. 2d 246 (1964). We have tried to reconcile these various holdings and extract unifying themes:
The existence or absence of an explicit agreement or prearrangement between law enforcement and an informer is obviously an important factor in determining whether the informer is serving as a government agent in an attempt to secure information against the accused. Similarly, governmental involvement placing an informant near the defendant may be a critical circumstance in determining whether incriminating information has been deliberately elicited by the State in the absence of the accused's attorney. Another criterion is the source of the informer's motivation — specifically, whether he or she has been promised a reward in return for obtaining information. While no "definitive test" has yet been developed in determining whether an informer serves as a government agent in obtaining incriminating information and whether the State's involvement is sufficient to ground a finding of "deliberate elicitation," the factors we have described form a valuable
analytical framework for resolution of these issues.
[State v. Leopardi, 305 N.J. Super. 70, 79-80 (App. Div. 1997) (citations omitted), certif. denied, 153 N.J. 48 (1998).]
Defendant's contention that a government agent "deliberately elicited" information from defendant is not supported by the record. First, there is no evidence to suggest that the State instructed D.C. to talk with defendant. Moreover, there is no evidence of a prearranged agreement between D.C. and the Middlesex County Prosecutor's Office to act as its agent. Although D.C. is a self-declared professional informant, who has been an informant "[m]ore than 15 times," this does not establish that he was acting as a government agent. According to D.C., when he first came forward in 2004 with the information and provided it to the Middlesex County Prosecutor's Office, there was no agreement to help him in exchange for his testimony. Rather, an agreement was not reached until he had a second interview.
"The federal courts consistently have refused to extend the rule of Massiah and Henry to situations where an individual, acting on his own initiative, deliberately elicits incriminating evidence." State v. Bey, 258 N.J. Super. 451, 472 (App. Div.) (citations and internal quotation marks omitted) (listing several federal and state court cases), certif. denied, 130 N.J. 19 (1992). Accordingly, we find no Sixth Amendment violation, and no need for an evidentiary hearing.
C.
Defendant also contends, for the first time on appeal, that the trial judge abused his discretion by not providing the jury with a charge on cooperating codefendant or witness testimony, which instructs the jury to consider such testimony with "careful scrutiny." See Model Jury Charge (Criminal), "Testimony Of A Cooperating Co-Defendant Or Witness" (2006). Again, because this charge was not requested at trial, it is subject to plain-error review.
Footnote one of the cooperating witness model jury charge provides: "This charge should not be given except upon the request of defense counsel." As this charge was not requested, we find no plain error in not providing it to the jury. Moreover, although this instruction can apply when a cooperating witness was involved in "another criminal matter," the jury was made fully aware to consider if D.C.'s testimony "was influenced by the hope or expectation of . . . favorable treatment or reward," and that his "special interest" warranted "careful scrutiny," through defense counsel's cross-examination of D.C. and closing argument. Accordingly, we find no plain error.
D.
Defendant further contends, for the first time on appeal, that the prosecutor improperly argued during her summation that she personally believed defendant to be incredible, and that she improperly vouched for D.C.'s credibility. We again review for plain error, and we find none.
In the first argument cited by defendant as objectionable, the prosecutor told the jury, "[t]he State doesn't believe the defendant when he says he gave discovery to Mr. Odom and I don't think that, I would submit to you, that you should not believe that either." In particular, defendant argues that, because so much of the State's case depended on the jury believing D.C.'s claim that defendant had confessed to him, the prosecutor's statement "was carefully and deliberately targeted to impugn Fowlkes's credibility and shore up D.C.'s credibility."
"Prosecutors in criminal cases are expected to make vigorous and forceful closing arguments to juries. We afford prosecutors considerable leeway in closing arguments so long as their comments are reasonably related to the scope of the evidence presented." State v. Timmendeguas, 161 N.J. 515, 587 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). However, "[w]hile a prosecutor has the right to call to the jury's attention discrepancies in a defendant's testimony and then argue that the defendant was not truthful, a prosecutor cannot express a personal opinion regarding the credibility of a defendant's testimony[.]" State v. Jenkins, 299 N.J. Super. 61, 70 (App. Div. 1997). While we agree with defendant that the prosecutor went beyond fair comment when she improperly remarked that "the State doesn't believe the defendant," this did not constitute plain error. R. 2:10-2. Both counsel had very long summations, and defense counsel similarly expressed his personal belief on witness credibility, when he told the jury, "I wouldn't trust [D.C.] with any words that [D.C.] had to say." In addition, the prosecutor informed the jury at the start of her summation that "[c]omments of counsel during summation are just that."
Similarly, defendant argues that the prosecutor improperly mischaracterized D.C.'s earlier statements that he viewed an individual like defendant — with a murder charge — as someone whom he refuses to help and on whom he plans to "snitch," as "evidence of D.C.'s high moral standards." The prosecutor pointed out to the jury during summation that D.C. "said the types of people he doesn't help are the ones that he personally believes to be murderers[.]" Defendant asserts that the prosecutor rephrased and mischaracterized D.C.'s testimony. Again, even if improper, we do not find these comments, made during a lengthy summation after a long trial, were "clearly capable of producing an unjust result." R. 2:10-2. Defense counsel's failure to object during summation indicates that he did not find the remarks improper or unfairly prejudicial at the time.
Defendant's remaining arguments challenging his convictions lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
D.
Regarding defendant's sentence, the State concedes that life without parole was not a proper sentence here; that possession of a firearm for an unlawful purpose should have merged with the murder conviction, leaving the unlawful possession conviction unmerged; and that defendant should receive gap-time credit from our January 7, 2010 reversal to December 2, 2012, the day before resentencing for murder. We therefore remand for a new sentencing hearing.
Affirmed as to defendant's convictions, and remanded for resentencing consistent with this opinion. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION