Opinion
DOCKET NO. A-4064-09T1
02-03-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. PAUL GAGLIANO, Defendant-Appellant.
Kelly Anderson Smith argued the cause for appellant. Brian D. Gillet, Assistant Prosecutor, argued the cause for respondent (Bruce J. Kaplan, Middlesex County Prosecutor, attorney; Mr. Gillet, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman, Baxter and Nugent.
On appeal from the Superior Court of New
Jersey, Law Division, Middlesex County,
Indictment No. 10-01-0176.
Kelly Anderson Smith argued the cause for
appellant.
Brian D. Gillet, Assistant Prosecutor,
argued the cause for respondent (Bruce J.
Kaplan, Middlesex County Prosecutor,
attorney; Mr. Gillet, of counsel and on the
brief).
PER CURIAM
Defendant Paul Gagliano appeals from his April 1, 2010 conviction on charges of fourth-degree aggravated assault by pointing a firearm, N.J.S.A. 2C:12-1(b)(4) (count two); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count three); and third-degree attempt to cause significant bodily injury, N.J.S.A. 2C:12-1(b)(7), as a lesser included offense of second-degree aggravated assault (count five). On count three, the judge imposed a seven-year term of imprisonment, subject to a three and one-half year period of parole ineligibility. On counts five and two, the judge imposed a four-year term of imprisonment and an eighteen month term of imprisonment, respectively, concurrent to each other and concurrent to the sentence imposed on count three. On appeal, defendant raises the following claims:
Count one was dismissed by the prosecutor at the start of trial, and count four was dismissed by the court after the State rested.
I. THE TRIAL COURT FAILED TO EXCLUDE TESTIMONIES AS A RESULT OF A VIOLATION OF A SEQUESTRATION ORDER.We affirm.
A. At a minimum, the Trial Court should have provided the jury with instruction regarding the Sequestration Disobedience.II. THE TRIAL COURT FAILED TO EXCLUDE IMPROPER AND PREJUDICIAL VIDEO EVIDENCE INTRODUCED BY THE STATE'S EXPERT.
III. THE PROSECUTOR RELIED UPON INAPPROPRIATE REMARKS IN HER SUMMATION THAT DENIGRATED THE DEFENSE, CONSTITUTING PLAIN ERROR.
IV. THE PROSECUTOR MADE SEVERAL IMPROPER REMARKS IN HER OPENING STATEMENT CONSTITUTING REVERS[IBLE] ERROR.
V. [THE] PROSECUTOR COMMITTED PLAIN ERROR BY COMMENTING ON DEFENDANT'S POST-ARREST SILENCE.
I.
Defendant began dating Stephanie Fallacara in 2004, when he was seventeen years old. She ended their relationship in May 2008 to resume a relationship with her former boyfriend, Paulo Simoes. Defendant was extremely upset because he was "in love with the girl. She meant everything to me. We actually were going to have a family together." He described her as his "first love."
According to defendant, between June and July 2008, he and Simoes argued over Fallacara via text messages, with each one asserting "she's mine." Defendant maintained there were "threats back and forth" between himself and Simoes. Defendant said that on July 19, 2008, he awoke to a threat that Simoes sent him in a text message. Defendant responded by threatening to tell Simoes's girlfriend Heather that Simoes was cheating on her by having a relationship with Fallacara. According to defendant, over the course of the day, he and Simoes continued to exchange text messages, escalating in tone. At one point in the day, defendant sent Simoes a text message stating, "[w]ell, if you'd like to meet up and handle this like men, let's do so." According to defendant, Simoes agreed to meet him outside Simoes's home.
At approximately 2:00 a.m. on July 20, defendant left a local club with his friend Justin Slansky and drove to Simoes's residence. When Simoes did not "show up," Slansky drove defendant to Fallacara's residence, where defendant observed the two sitting in Simoes's vehicle.
Defendant became "angry" and "upset." He "wanted to brawl, . . . wanted to actually make things come to a head with [Simoes]." Slansky, however, refused to stop the car and drove defendant back to his, Slansky's, home where defendant retrieved his truck and drove back to Fallacara's home with Slansky riding in the passenger seat. As defendant drove, Slansky observed defendant "reach[] down [under the seat], and pick[] up a black box" containing a weapon that was "black" and looked like a "regular gun."
According to Slansky, when he and defendant arrived at Fallacara's home, defendant positioned his truck next to Simoes's vehicle, and defendant "starting yelling out the window." Slansky described what happened next: "[Simoes] got out of his truck, he walked around the front of it, and as he walked around the front of it, [defendant] shot him." Slansky heard a "pop" that sounded like a "hydrogen powered gun or CO2" when defendant fired the gun. Defendant, who never got out of his truck, sped away quickly. As they were leaving, Slansky heard "something" hit the back of defendant's truck, as if Simoes "threw something."
Defendant testified, admitting that he shot Simoes, but insisted that the gun in question was an Airsoft gun that was essentially a toy, and was capable of firing only plastic pellets, not the copper BB that was ultimately removed from Simoes's tear duct. Defendant maintained that his original intention was merely to engage in a fistfight with Simoes, but when he observed Simoes exit his vehicle, and reach behind his seat, defendant became "a little nervous[.]" When Simoes "charg[ed]" toward defendant's truck with something in his hand, defendant reached for his Airsoft and "discharged it." Defendant insisted that he fired the Airsoft "[t]o push [Simoes] back" because Simoes had "something" in his hand that he was "coming at me with," and asserted that he fired at Simoes in self-defense. After firing the Airsoft, defendant drove back to Slansky's home, where he threw the Airsoft into Slansky's garbage pail.
On cross-examination, defendant admitted that although the Airsoft "shoots plastic BB's[,] . . .[t]here was a copper BB" in the Airsoft that night. When asked whether anyone else had access to the Airsoft that night, defendant stated that "[Slansky] did," but denied that he was insinuating Slansky had loaded the weapon with copper BB's.
Defendant admitted that when he was initially questioned by a detective, he never mentioned that Simoes "came at [him]." He also admitted that when asked by the detective whether he owned a BB gun, he denied owning one. He admitted to having sent Simoes twenty-nine text messages on the night of July 19, 2008.
Simoes's account was vastly different. He testified that as soon as he began dating Fallacara, defendant began calling him "non-stop in the middle of the night, everything, threatening me, talk[ing] about nine-millimeter all the time, he's going to jump me with his friend."
According to Simoes, on the night of July 19, 2008, he was with Fallacara and some of her friends at a local restaurant. While they were there, defendant called him between five and ten times. Although Simoes did not answer all of the calls, whenever he "answered the phone, it was just him [defendant] threatening me." After Simoes and Fallacara left the restaurant, and were parked in front of Fallacara's house, defendant drove up, stuck his head out the window and started "screaming, yelling, cursing." At that point, Simoes stepped out of his truck. While still on the curb, he heard a "gust of air." At first, Simoes "didn't think it was anything," but when he wiped his face, he saw blood and knew he had been shot by defendant's BB gun. Holding his car keys in his hand, Simoes was able to "smack[] the back of [defendant's] truck" with his keys as defendant pulled away.
Simoes denied making any arrangements on the night in question to engage in a fist fight with defendant. He also asserted that he did not reach for a crowbar, tire iron or any other metal object before stepping out of his truck, adding that when he purchased the truck it did not contain such equipment.
Simoes ultimately underwent surgery, during which a 4.5 millimeter copper-washed steel BB was removed from the inner corner of the eyelid of Simoes's right eye, near the tear duct. The surgeon who removed the BB opined that the projectile was resting on bone, but could have blinded Simoes had the BB traveled closer to his eye.
One of the principal issues at trial was whether defendant shot Simoes with a BB gun, as the State claimed, or whether instead he fired the BB from an Airsoft. Defendant maintained that an Airsoft is not a "firearm" within the meaning of N.J.S.A. 2C:39-1(f), and therefore, sought to establish that an Airsoft is capable of firing a 4.5 millimeter BB, which was the size of the BB that was removed from Simoes's tear duct. Stated differently, defendant sought to disprove the State's theory that because the bore of an Airsoft is larger than the diameter of the BB in question, the BB could not have been fired from an Airsoft, but must have been fired from a BB gun.
In furtherance of his contention that he fired an Airsoft, and not a BB gun, defendant presented the testimony of an expert, Lateis Dickerson, who described the Airsoft that defendant said he used on the night in question. Dickerson testified that he had not been able to examine the Airsoft that defendant said he fired at Simoes because the pistol was no longer available; however, based upon the information defendant provided, he believed that the model was most likely an Airsoft Trademark HX 689 A, which Dickerson characterized as a "toy," adding that he "would not consider it a firearm." He noted that one can purchase an Airsoft without possessing a firearms purchaser identification card. He opined that although an Airsoft typically shoots a 6 millimeter pellet through its 6 millimeter bore, an Airsoft could also fire a smaller projectile such as the 4.5 millimeter pellet removed from Simoes's tear duct.
As a rebuttal witness, the State called Sergeant Frank J. Redding. Redding opined that an Airsoft is incapable of firing a 4.5 millimeter projectile, adding that "the minimum size" projectile that an Airsoft can fire is 6 millimeters. He explained that if the projectile is significantly smaller than the bore, which would be the case with a 4.5 millimeter BB fired from a 6 millimeter bore, the "air cup" in the Airsoft would not be able to expel the BB. The prosecutor showed Redding a 4.5 millimeter steel, copper-washed BB identical to the one removed from Simoes's tear duct and asked Redding whether such a projectile could be fired from a 6-millimeter Airsoft. Redding answered "[a]bsolutely not."
Over defendant's objection, the judge permitted the State to present a two-minute videotape prepared by Redding to demonstrate that a 4.5 millimeter projectile could not be fired through an Airsoft pistol that had a 6 millimeter bore. Originally, Redding intended to present such a demonstration in the courtroom before the jury, but the judge prohibited the live demonstration on the advice of the Sheriff's Department, which had expressed safety concerns. The videotape was intended to demonstrate that unless the projectile "tightly fit[s] in the bore of the barrel," the "cup of air" that pushes the projectile out of the barrel of the Airsoft would not be able to propel the projectile.
Defendant objected to the videotape, arguing that the particular model of Airsoft used by Redding in the videotape demonstration was not the Airsoft Trademark HX 689 A about which defendant's expert Dickerson had testified. The prosecutor explained that because of the extremely short period of time that had elapsed after Dickerson's testimony, Redding had been unable to obtain the same model Airsoft that Dickerson described. The State asserted, however, that the Airsoft model Redding used in his videotape demonstration was "substantially identical" to the gun about which Dickerson had rendered his opinion. At the N.J.R.E. 104(a) hearing, defendant argued that the prejudice from the showing of the videotape substantially outweighed its probative value. Notably, defendant contended Redding's videotape demonstration had no probative value, because Redding utilized a different model Airsoft from the one defendant claimed to have used. In overruling defendant's objection, the judge reasoned that the videotape would assist the jury in its factfinding function.
The prosecutor asserted at trial that defense counsel had not alerted her to the actual scope of Dickerson's intended testimony.
II.
In Point I, defendant asserts that because Fallacara and Simoes violated a sequestration order on the first day of trial, the judge committed reversible error when he refused to exclude their testimony or, at a minimum, instruct the jury concerning their violation of the sequestration order. The State argues that because the judge never issued a sequestration order, and because there was no proof that Fallacara and Simoes were discussing their trial testimony, the judge did not err in refusing to grant defendant's requested relief.
The pertinent facts can be stated briefly. During the luncheon recess on the first day of trial, a paralegal from defense counsel's office observed Fallacara and Simoes seated next to each other on a bench talking, and one of them pointed at the paralegal as she passed by. At the time of trial, Fallacara and Simoes were engaged to be married. The paralegal was unable to hear what the two were discussing, and there was no proof that their conversation concerned the trial. For that reason, and because no sequestration order had ever been issued, the judge denied defendant's motion to exclude the testimony of Fallacara and Simoes, and refused to instruct the jury that Simoes and Fallacara had violated a sequestration order. The judge's handling of the matter was entirely correct.
III.
In Point II, defendant asserts that the judge erred by allowing the State to present the two-minute videotape prepared by Sergeant Redding.
As we have noted, defendant was charged in count three with possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a). To establish a defendant's guilt under that statute, the State must prove that the weapon utilized satisfies the definition of the term "firearm" in N.J.S.A. 2C:39-1(f). In relevant part, N.J.S.A. 2C:39-1(f) defines a "firearm" to include:
[w]ithout limitation, any firearm which is in the nature of an air gun, spring gun or pistol or other weapon of a similar nature in which the propelling force is a spring, elastic band, carbon dioxide, compressed or other gas or vapor, . . . or is ignited by compressed air, and ejecting a bullet or missile smaller than three-eighths of an inch in diameter, with sufficient force to injure a person.
[(Emphasis added).]
There are 25.4 millimeters to an inch. Three-eighths of an inch is the equivalent of 9.525 millimeters.
As we have noted, in addition to asserting that he had shot Simoes in self-defense, defendant maintained that he fired an Airsoft gun, contending that it was a $9.95 toy that did not require a firearms purchaser permit. Defendant further argued that the Airsoft did not qualify as a "firearm" within the meaning of N.J.S.A. 2C:39-1(f). More specifically, even though Simoes had been shot with a 4.5 millimeter steel BB, defendant argued that the metal projectile was discharged from an Airsoft, which he asserted was a "toy" and not a firearm. The State, in contrast, urged the jury to conclude that defendant utilized a BB gun, and that no Airsoft ever existed. For that reason, the expert testimony of Sergeant Redding was a key piece of evidence in the State's case, because Redding offered an opinion that an Airsoft could not discharge a 4.5 millimeter BB or projectile.
On appeal, defendant advances four reasons in support of his contention that the judge's handling of Sergeant Redding's testimony denied him a fair trial: 1) the judge failed to analyze the admission of the videotaped evidence under N.J.R.E. 403, thereby failing to determine if the probative value of the proffered evidence was "substantially outweighed by the risk of undue prejudice, confusion of issues or misleading the jury"; 2) the judge neglected to issue an instruction to the jurors cautioning them "as to the perils of videotapes" and the capacity of a videotape to distort the evidence; 3) the judge erred by failing to caution the jury that the Airsoft gun examined by Sergeant Redding was not the one "purportedly used by the defendant"; and 4) the judge failed to bar Redding from issuing an opinion on the ultimate issue at trial.
"Traditional rules of appellate review require substantial deference to a trial court's evidentiary rulings." State v. Morton, 155 N.J. 383, 453 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001). We review the trial judge's decision, in admitting or excluding evidence, for an abuse of discretion. State v. Koedatich, 112 N.J. 225, 313 (1988), cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989).
Turning first to defendant's argument that the judge was required by N.J.R.E. 403 to exclude Sergeant Redding's testimony, we note that Sergeant Redding testified as a rebuttal witness. Prior to Redding's testimony, defendant presented the expert opinion of his expert, Dickerson, who opined "there's usually an exception to any [general] rule and there can be situations where smaller projectiles can be fired through guns with . . . larger barrels." Because defendant had discarded in Slansky's trash can the pistol he used to shoot Simoes, neither Dickerson nor Redding was able to test the actual pistol. We perceive no reason why the testimony of Redding had any greater capacity than the testimony of Dickerson to mislead or confuse the jury. Each one tested an Airsoft that he said was similar to the one defendant used on the night in question. Although Dickerson opined that the Airsoft defendant possessed would likely have been model HX 698 A, Dickerson could not be certain that the HX 698 A was the same Airsoft that defendant had used. Instead he stated, "it's my understanding that [the HX 698 A] is similar to what was used." (emphasis added).
So viewed, Sergeant Redding's testimony suffered from no greater an infirmity than the testimony it was intended to rebut. Simply stated, Redding's testimony, on both direct and cross-examination, clearly advised the jury that the Airsoft depicted in the video was not the one defendant allegedly used, but was one that, in Redding's opinion, was very similar. There was no realistic possibility that the jury could have been confused.
That Redding's videotape did not utilize the Airsoft HX 698 A did not require its exclusion. The particular Airsoft model used in Sergeant Redding's videotape demonstration had no bearing on the validity of the opinion he expressed. In particular, Dickerson had already testified that defendant fired an Airsoft with a 6 millimeter bore. Redding's opinion was confined to a single proposition: the 4.5 millimeter BB removed from Simoes's tear duct could not have been fired from any Airsoft that had a 6 millimeter bore because the BB can only be fired if it fits snuggly into the bore. Redding opined that if the bore is significantly larger than the projectile, the projectile will not be expelled by the cup of air that propels the projectile from an Airsoft. Such an opinion obviously does not depend on the particular Airsoft model that is used. Redding's opinion -- that an Airsoft with a 6 millimeter bore cannot fire a 4.5 millimeter projectile -- is an opinion that would apply with equal validity to any Airsoft gun equipped with a 6 millimeter bore. Under such circumstances, the videotape demonstration that Redding presented was not subject to exclusion under N.J.R.E. 403, as its probative value, which was substantial, was not outweighed by its capacity to mislead the jury, cause confusion or unduly prejudice defendant.
As for defendant's second argument, that the judge was required to caution the jury about the perils of videotapes and the capacity of the videotape to distort the evidence, defendant fails to explain how this particular videotape was any different from an in-court demonstration. We reject defendant's contention that the judge was obliged to caution the jury that the videotape might be misleading.
As for defendant's argument that the judge erred by failing to advise the jury that the pistol used in the videotape was not the same pistol used on the night in question, for the reasons we have already discussed, such an instruction was not necessary. Quite simply, the jury was well aware from the cross-examination of Redding that this was the case, and, as we have already concluded, Redding's opinion did not depend upon the testing of the identical model of Airsoft pistol. Moreover, defendant fails to provide any authority for the proposition that a judge is obliged to comment on the evidence in the fashion defendant proposes. While there are many instances where a curative or limiting instruction is required to guide the jury in its use of particular evidence, we know of no precedent that would require a judge to caution a jury on the shortcomings that a defendant may perceive in the expert opinion offered by one of the State's witnesses.
The only instruction the judge was required to provide to the jury concerning its evaluation of expert testimony was the thorough and clear instruction the judge provided both before Redding testified and in the judge's final instruction to the jury. On both occasions, the judge cautioned the jury that they were not bound by Redding's opinion, but should instead consider his opinion and give it the weight to which they deemed it to be entitled, adding that it was within their function as jurors to determine "whether the facts on which the testimony of the expert is based actually exist." The judge also instructed the jury that they were free to reject Redding's opinion in its entirety. No further instruction was required.
Finally, defendant argues that the judge erred by permitting Redding to offer an opinion on the ultimate issue, thereby invading the province of the jury, in violation of State v. Odom, 116 N.J. 65, 77 (1989). The ultimate issue in this trial was whether defendant possessed a BB or an Airsoft, because defendant argued that, if he possessed only an Airsoft, which Dickerson testified required no firearms purchaser identification card, he should not be found guilty of violating N.J.S.A. 2C:39-4. Contrary to defendant's arguments, Sergeant Redding's testimony fell far short of expressing an opinion on that subject. Instead, Sergeant Redding's testimony was limited to his opinion that an Airsoft is not capable of firing a projectile as small as the steel BB in evidence. Notably, Redding's opinion was merely the converse of the opinion already expressed by Dickerson. Dickerson opined that an Airsoft could fire a 4.5 millimeter BB. Redding expressed the contrary opinion. Redding's opinion went no further than rebutting the opinion that Dickerson had already expressed. Redding's expert opinion did not invade the province of the jury or express an opinion on the ultimate issue.
Having reviewed defendant's contentions in light of the record and applicable law, we are satisfied that the judge's refusal to exclude the videotape prepared by Redding was a wholly proper exercise of the judge's discretion, and we have been provided with no meritorious basis upon which to disturb that decision.
IV.
In Point III, defendant maintains that he is entitled to a new trial because the prosecutor made "inappropriate remarks in her summation that denigrated the defense, constituting plain error." Defendant did not object to any portion of the prosecutor's summation. When defense counsel does not object to the prosecutor's remarks during summation, such remarks must so "grievously affect the substantial rights of the defendant as to convince the [reviewing] court that they possessed a clear capacity to bring about an unjust result." State v. Sherman, 230 N.J. Super. 10, 18-19 (App. Div. 1988) (citation and internal quotation marks omitted). Generally, if no objection was made to the allegedly improper remark, the remarks will not be deemed prejudicial. State v. Ramseur, 106 N.J. 123, 323 (1987). The failure to object suggests that defense counsel did not believe the remarks were prejudicial at the time they were made. State v. Bauman, 298 N.J. Super. 176, 207 (App. Div.), certif. denied, 150 N.J. 25 (1997). The failure to object also deprives the court of an opportunity to take curative action. Ibid.
While prosecutors are permitted to make vigorous and forceful closing arguments to juries, State v. Harris, 141 N.J. 525, 559 (1995), and to "sum up the State's case graphically and forcefully," State v. Pratt, 226 N.J. Super. 307, 323 (App. Div.), certif. denied, 114 N.J. 314 (1988), prosecutors are prohibited from denigrating the defense, Sherman, supra, 230 N.J. Super. at 19.
Defendant's claim of prosecutorial misconduct arises out of the following portion of the prosecutor's closing:
Defense [counsel] opened this case with the words "preemptive move." And you know what preemptive move you've seen members of the jury? You've seen an auto body repair dated February of this year [2010], not July 2008. . . . The week we started selecting you, they took the car to an auto body [shop]. We saw this Facebook page picture that came up presumably because Paul was holding Stephanie, and if he had just been shot, how could he pick her up? No, the person who took the picture told you no, it was taken when we are at [T.G.I.] Fridays in the parking lot. . . . [T]here were preemptive moves, members of the jury, but they were in preparation for trial. They were in preparation to confuse you.
[(Emphasis added).]
The prosecutor's summation must, of course, be analyzed in context. When she stated that defense counsel "opened this case with the words 'preemptive move,'" the prosecutor was referring to defense counsel's opening statement in which he argued that on the night in question, defendant saw Simoes emerge from his car heading toward him with a crowbar in his hand, and to protect himself against that crowbar, defendant made a "preemptive move" by firing his Airsoft in self-defense. Defense counsel also stated in his opening statement that although defendant had been able to protect himself from the crowbar, he had not been able to protect his truck, because Simoes smashed the crowbar into defendant's truck as defendant pulled away. Defense counsel stated in his opening:
I want to tell you a little bit about what we believe the evidence is going to establish. Let me . . . do that in two words[.] And those two words are "preemptive move."Defense counsel repeated the same arguments in his closing, again using the words "preemptive move."
. . . .
[Defendant] gets to the house and drives by. He sees Ms. Fallacara and [Simoes] in the car. . . . He sees [Simoes] get out [of the car] . . . and pull out an object. Couldn't really tell, looked like a tire iron or crowbar, heavy metal object.
. . . .
[Defendant] saw [Simoes] coming in a rage, with a tire iron or some metal iron object, and [Simoes] . . . was "juiced up" in what we call a road rage. . . . And [defendant] knew this guy [Simoes] and [Simoes] was not in just for a regular fistfight. . . . He had changed the rules of the game and [defendant] needed to take a preemptive move.
And his car was in park. He didn't have time to put it in drive and go. He grabs his Airsoft. . . . He shoots it and discharges it to stop [Simoes] and guess what? He's unsuccessful. He does not stop this kid. . . . [Simoes] keeps coming. [The] evidence will show that [Simoes] gets close enough to [defendant], as [defendant] is driving away, [Simoes] rams this . . . crowbar into [defendant's] truck causing almost $1000 worth of damage[.]
With the exception of the prosecutor's comment that the actions of the defense "were in preparation to confuse you," which we shall address shortly, all of the prosecutor's remarks were based on the facts in evidence. As the State correctly argues, the prosecutor's closing was "merely fair comment on the evidence at trial." As is evident, the prosecutor seized upon defendant's claim that he made a "preemptive move" in firing at Simoes. Utilizing a clever, but entirely permissible, turn of phrase, the prosecutor argued to the jury that the only preemptive move defendant made was using irrelevant evidence to deflect the charges against him. In that vein, the prosecutor commented that the auto body repair slip -- which presumably documented the crowbar damage to defendant's truck and provided the costs for repairing that damage -- was dated a few days before the trial began, not July 2008, when the damage to defendant's truck was allegedly inflicted by Simoes. Such an argument is entirely supported by the facts at trial, and was not improper.
As to the prosecutor's reference to the Facebook page picture that showed Simoes holding Stephanie, the prosecutor described the use of the photograph as a "'preemptive move' made . . . in . . . preparation for trial." Her remark was a fair comment on the evidence at trial. The person who took the photograph, Theresa Wasnak, testified that the photograph -- which was offered by defendant to prove that Simoes was not shot on the day he claimed -- was taken on an occasion other than the day of the shooting. For that reason, the photograph, according to the State, proved nothing. Like the truck repair receipt, the prosecutor argued that the photograph of Simoes did not depict what the defense asserted.
We perceive no error in these remarks. The prosecutor was permitted to so argue to the jury. Her comments were based squarely on the evidence and stayed well within the bounds established by State v. Bradshaw, 195 N.J. 493, 510 (2008) (holding that a prosecutor is permitted to sum up the State's case graphically and "forceful[ly]," so long as the summation is confined to evidence in the record). We reject defendant's attack on the prosecutor's remarks concerning the auto body repair estimate and the Facebook page photograph. We also reject his contention that these remarks unfairly denigrated the defense.
The State concedes, however, that the prosecutor should not have commented that the Facebook picture and the auto body repair estimate were presented "to confuse" the jury. This single, isolated and fleeting remark, which was the only improper part of the prosecutor's twenty-page summation, does not require reversal. State v. Kounelis, 258 N.J. Super. 420, 428-29 (App. Div.) (holding that although it was improper for the prosecutor to suggest that defense counsel's task was to confuse the jury, that remark was not sufficient to require reversal), certif. denied, 133 N.J. 429 (1992). We emphasize that defendant did not object to any portion of the prosecutor's closing, including her remark that defendant's use of the Facebook page and auto body repair estimate "were in preparation to confuse [the jury]." The failure to object demonstrates that defendant did not view the remark as prejudicial or unfair. Ramseur, supra, 106 N.J. at 323. Because the remark was a fleeting and isolated one, and because defendant interposed no objection, we are satisfied that the prosecutor's "confuse you" remark did not "so grievously affect the substantial rights of defendant that it possessed a clear capacity to bring about an unjust result." Sherman, supra, 230 N.J. Super. at 18-19. We reject the argument defendant advances in Point III.
V.
In Point IV, defendant asserts that the prosecutor's remarks in her opening statement denied him a fair trial. He points to three remarks: 1) the prosecutor's statement that defendant was "angry" on the night in question and that the trial was "about anger" and "about revenge"; 2) the prosecutor's remark that defendant's attempt to paint Simoes as an agitated steroid user was nothing but a "distraction"; and 3) the prosecutor's remark that "the bullet" recovered from Simoes's face was less than three-eighths of an inch in diameter.
"The purpose of a prosecutor's opening statement is to present to the jury an outline or summary of what the State expects to prove. Prosecutors should limit themselves in their openings to what they will prove and not anticipate their final argument." State v. W.L., Sr., 292 N.J. Super. 100, 108 (App. Div. 1996) (citation and internal quotation marks omitted).
Addressing the three remarks in sequence, we conclude the prosecutor's reference to defendant being angry and eager to seek "revenge" were well-supported by the evidence the State ultimately produced. Defendant himself admitted in his testimony that he was heartbroken when Fallacara broke up with him and admitted that he wanted to fight Simoes on the night in question because he was angry at Simoes. The prosecutor's remarks concerning defendant's anger were entirely proper, as the State ultimately produced ample evidence to support the prosecutor's description of defendant as "angry."
As for the prosecutor's remark that the defense would be unable to produce any evidence that Simoes was under the influence of testosterone or any other steroid on the night in question, the prosecutor was correct. Although defendant produced the testimony of Simoes's former girlfriend, Heather Naylor, who testified that Simoes had injected testosterone from time to time, there was no proof that he used testosterone on the night of July 19, 2008, or that any such use had any impact on his behavior.
As for the prosecutor's remark that the BB was "a bullet," she quickly corrected herself when defendant objected. The prosecutor proceeded to state, "members of the jury, it's a firearm. It doesn't matter if you call it an Airsoft, a BB, this or that. It is a firearm under our law and that's what our law provides for." As is evident, the prosecutor quickly withdrew the offending reference to a "bullet." Moreover, as we have already noted, the ultimate issue at trial was not the size of the BB, because defendant conceded that the BB removed from Simoes's tear duct was 4.5 millimeters in diameter, which did not exceed the three-eighths of an inch maximum diameter to satisfy the definition of "firearm" in N.J.S.A. 2C:39-1(f). The sole issue at trial was whether the projectile was fired from a BB gun, which is clearly a firearm, or from an Airsoft, which defendant asserted is not a firearm. For that reason, the isolated reference to a "bullet," followed by an immediate correction, had no capacity to deny defendant a fair trial.
As we have noted, the term "firearm" is defined to include "without limitation" an air gun that ejects a missile smaller than three-eighths of an inch in diameter. N.J.S.A. 2C:39-1(f).
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VI.
In Point V, defendant asserts that the prosecutor improperly commented on his post-arrest silence during the State's redirect examination of East Brunswick police officer John Sisolak. Sisolak was the officer assigned to search defendant's truck to look for the gun involved in the shooting of Simoes. Officer Sisolak explained that defendant consented to the search of his truck, and on cross-examination, confirmed that no weapons were found. Sisolak was then asked by defense counsel whether defendant mentioned any damage to his truck, to which Officer Sisolak answered "no."
On redirect, the prosecutor inquired:
[Prosecutor]: You talked to the defendant when he arrived [at his home]?
[Sisolak]: Yes.
. . . .
[Prosecutor]: And he didn't make any mention about what had just happened?
[Sisolak]: No.
[Prosecutor]: Did he tell you that somebody had just hit his truck with something, "Look at what they did?" . . . Did the Defendant say anything to you about any damage to his truck?
[Sisolak]: No.
Defendant's attack on the prosecutor's questions on redirect is meritless. The officer did not provide any substantive testimony in answer to redirect that defense counsel had not already elicited on cross-examination. In answer to defense counsel's question on cross-examination, Sisolak stated that defendant did not mention anything about the damage to his truck. On redirect, the officer stated the same. For this reason, any error by the State in asking the question was harmless.
Moreover, at the time Sisolak questioned defendant, defendant had not yet been placed under arrest. For that reason, defendant's reliance on State v. Lyle, 73 N.J. 403, 409-11 (1978); State v. Deatore, 70 N.J. 100, 107 (1976); State v. Aceta, 223 N.J. Super. 21, 27-28 (App. Div. 1988); and State v. Murray, 151 N.J. Super. 300, 310-11 (App. Div. 1977), is entirely misplaced, as all of those opinions dealt with a prosecutor's comment on a defendant's post-arrest silence, which is not the case here.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION