Opinion
DOCKET NO. A-0799-05T4 DOCKET NO. A-2318-05T4
01-26-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DWAYNE GILLISPIE, Defendant-Appellant. STATE OF NEW JERSEY, Plaintiff-Respondent, v. GREGORY BUTTLER, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant Dwayne Gillispie in A-0799-05 (Alan I. Smith, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, attorney for appellant Gregory Buttler in A-2318-05 (Michael Confusione, Designated Counsel, on the brief). Marlene Lynch Ford, Ocean County Prosecutor, attorney for respondent State of New Jersey in both A-0799-05 and A-2318-05 (Samuel J. Marzarella, Senior Assistant Prosecutor, of counsel; Roberta DiBiase, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Argued (A-0799-05) December 2, 2008
Submitted (A-2318-05) December 2, 2008
Decided August 18, 2009
Remanded by Supreme Court June 9, 2011.
Resubmitted (A-0799-05 and (A-2318-05)
Before Judges Fuentes, Graves, and Harris.
On appeal from the Superior Court of New
Jersey, Law Division, Ocean County,
Indictment No. 04-07-1211.
Joseph E. Krakora, Public Defender, attorney
for appellant Dwayne Gillispie in A-0799-05
(Alan I. Smith, Designated Counsel, on the
brief).
Joseph E. Krakora, Public Defender, attorney
for appellant Gregory Buttler in A-2318-05
(Michael Confusione, Designated Counsel, on
the brief).
Marlene Lynch Ford, Ocean County Prosecutor,
attorney for respondent State of New Jersey
in both A-0799-05 and A-2318-05 (Samuel J.
Marzarella, Senior Assistant Prosecutor, of
counsel; Roberta DiBiase, Assistant
Prosecutor, on the brief).
PER CURIAM
Defendants Dwayne Gillispie and Gregory Buttler were indicted for two capital murders, along with several other crimes. Their cases were severed and tried separately, which resulted in convictions on all charges, except for capital murder. In our prior decision, we reversed those convictions, addressing only the dispositive issue of the trial judge'serrors in allowing the two juries to consider the unvarnished (and unsanitized) details of defendants' involvement in "an extremely violent robbery" that occurred at a Bronx County, New York barbershop three weeks prior to the homicides identified in the indictment. The New Jersey Supreme Court reversed our determination, reinstated the convictions, and "remanded for disposition of the issues not decided by [us]." State v. Gillispie, 208 N.J. 59, 94 (2011). After analyzing the myriad of remaining issues, we affirm as to Buttler on all issues. As to Gillispie, we affirm his convictions, vacate his sentence, and remand the matter for resentencing pursuant to State v. Natale, 184 N.J. 458 (2005).
Gillispie and Buttler were also indicted for first-degree conspiracy to commit murder; second-degree conspiracy to commit armed robbery; two counts each of felony murder, first-degree robbery, and second-degree burglary; second-degree possession of a weapon for an unlawful purpose; third-degree unlawful possession of a weapon; and third-degree theft. Buttler was also indicted for possession of a weapon by a convicted person, but that charge was severed for trial and ultimately dismissed. See State v. Gillispie, 208 N.J. 59, 67 n.2 (2011).
The same judge tried both cases, albeit with different juries. Gillispie was tried first; Buttler was tried several months later.
I.
Except to the extent necessary to illustrate the issues on remand, we will not repeat the factual background in detail that was set forth in our initial and Supreme Court opinions. Familiarity with those opinions is assumed. The contested issues all stem from events related to a double homicide — both victims were shot in the back of the head and one had her throat slashed — that occurred in Barnegat on the evening of November 28, 2000.
Following trial, Gillispie was sentenced, after merger, to two consecutive terms of life imprisonment without parole for the murders, a term of five years imprisonment for third-degree unlawful possession of a weapon, and a term of ten years imprisonment, with 85% to be served before parole eligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2., on the two second-degree burglary counts. The sentences on the weapons offense and the burglaries were made to run concurrently to each other, but consecutively to the second life sentence. Gillispie, supra, 208 N.J. at 78.
Buttler was similarly (but not identically) sentenced to two consecutive terms of life imprisonment with thirty years of parole ineligibility on each of the two counts of murder. The Law Division also imposed a five-year term for unlawful possession of a weapon, and a ten-year NERA term of imprisonment on each count of burglary. These sentences were to run concurrently to each other, but consecutively to the second life sentence.
Our task on remand is to dispose of the issues not decided when we initially reversed Gillispie's and Buttler's convictions. We do so with the recognition that the Supreme Court agreed with the State that "despite the panel's finding of errors, Gillispie and Buttler both received fair trials, and any alleged errors were harmless." Id. at 93. Additionally, as noted by the Court, "[i]t is undeniable that there was overwhelming proof submitted by the State throughout each trial of defendants' guilt." Ibid. It is through that double-faceted lens that we approach the issues on remand.
Gillespie raises the following points on appeal:
We include only those issues that remain part of the remand proceeding.
POINT II: THE TRIAL COURT ABUSED ITS JUDICIAL DISCRETION AND VIOLATED THE DEFENDANT'S SIXTH AMENDMENT RIGHTS TO A TRIAL BY AN IMPARTIAL JURY AND TO EFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO COMPLY WITH THE JURY'S REQUEST FOR A READBACK OF DEFENSE COUNSEL'S OPENING STATEMENT AND SUMMATION.Buttler raises the following points on appeal:
POINT III: THE DEFENDANT'S ORAL STATEMENTS, "PROBABLY THE SAME GUN WAS USED," AND "TELL JERSEY THE GUY YOU LOCKED UP IS THE GUY WHO DID THE SHOOTING IN JERSEY," MADE TO NEW YORK CITY POLICE DETECTIVE MOJICA SHOULD HAVE BEEN SUPPRESSED BECAUSE THE POLICE ENGAGED IN "UNFAIR MEANS" AND BECAUSE THE DEFENDANT WAS NOT READVISED OF HIS MIRANDA RIGHTS WHEN THE TOPIC OF THE "INCIDENT" IN NEW JERSEY WAS BROUGHT UP (NOT RAISED BELOW).
POINT IV: THE TRIAL COURT'S CONGRATULATORY COMMENTS MADE TO SERGEANT DUFFY IN THE PRESENCE OF THE JURY DEPRIVED THE DEFENDANT OF A FAIR TRIAL BECAUSE IT AMOUNTED TO A JUDICIAL ENDORSEMENT OF THE OFFICER'S CREDIBILITY (NOT RAISED BELOW).
POINT V: THE TRIAL COURT COMMITTED PLAIN ERROR IN [ITS] JURY CHARGE (NOT RAISED BELOW).
A. THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO SPECIFICALLY INSTRUCT THE JURY THAT IN ASSESSING THE CREDIBILITY OF KEITH MERCER IT MUST TAKE INTO ACCOUNT THE PLEA
AGREEMENT THAT HE ENTERED INTO WITH THE PROSECUTOR'S OFFICE (NOT RAISED BELOW).
B. THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO SPECIFICALLY INSTRUCT THE JURY THAT KEITH MERCER'S GUILTY PLEA CANNOT BE USED AS SUBSTANTIVE EVIDENCE OF THE DEFENDANT'S GUILT (NOT RAISED BELOW).
C. THE TRIAL COURT COMMITTED PLAIN ERROR BY INSTRUCTING THE JURY TO CONSIDER THE "INNOCENCE OR GUILT" OF THE DEFENDANT (NOT RAISED BELOW).
D. THE TRIAL COURT ERRONEOUSLY INSTRUCTED THE JURY TO CONSIDER A CAPITAL OFFENSE AGGRAVATING FACTOR IN ITS CHARGE ON NON-CAPITAL MURDER.
E. THE CUMULATIVE EFFECT OF THE ERRORS IN THE TRIAL COURT'S JURY INSTRUCTIONS WARRANT REVERSAL OF THE DEFENDANT'S CONVICTIONS (NOT RAISED BELOW).
POINT VI: THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BY THE PROSECUTOR'S KNOWING VIOLATION OF DISCOVERY.
POINT VII: THE AGGREGATE CUSTODIAL SENTENCE OF TWO LIFE SENTENCES WITHOUT PAROLE PLUS TEN YEARS SUBJECT TO THE NERA PERIOD OF PAROLE INELIGIBILITY WAS MANIFESTLY EXCESSIVE AND VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHTS UNDER BLAKELY V. WASHINGTON AND STATE V. NATALE.
A. IMPOSITION OF BASE SENTENCES ON THE DEFENDANT'S CONVICTIONS FOR UNLAWFUL POSSESSION OF A WEAPON ON COUNT FOURTEEN AND FOR BURGLARY ON COUNTS FIFTEEN AND SIXTEEN THAT EXCEEDED THE STATUTORILY AUTHORIZED TERMS FOR CRIMES OF THE SECOND AND THIRD DEGREE WERE MANIFESTLY EXCESSIVE.
B. THE SENTENCES IMPOSED ON THE DEFENDANT'S CONVICTIONS ON COUNTS FOURTEEN, FIFTEEN, AND
SIXTEEN VIOLATED BLAKELY V. WASHINGTON AND STATE V. NATALE.
C. THE TRIAL COURT ABUSED ITS DISCRETION IN RUNNING THE SENTENCES IMPOSED ON COUNTS FIVE, SIX, FOURTEEN, FIFTEEN, AND SIXTEEN CONSECUTIVELY.
POINT III: THE ACCOMPLICE LIABILITY CHARGE WAS INSUFFICIENT BECAUSE IT FAILED TO TELL THE JURY HOW THE CONCEPT RELATED TO THE LESSER-INCLUDED OFFENSES OF AGGRAVATED AND RECKLESS MANSLAUGHTER (PLAIN ERROR).
POINT IV: THE TRIAL COURT ERRED AND VIOLATED DEFENDANT'S STATE AND FEDERAL CONFRONTATION RIGHTS IN FORECLOSING DEFENSE COUNSEL FROM IMPEACHING KEITH MERCER, THE ALLEGED ACCOMPLICE AND PRIMARY STATE WITNESS, ABOUT HIS INVOLVEMENT WITH DRUGS AT THE TIME FO THE BARNEGAT SHOOTINGS.
POINT V: DEFENDANT'S SENTENCE IS EXCESSIVE.
As with Gillispie, we include only those issues that remain part of the remand proceeding.
Based upon these contentions, our review of the entire record convinces us that there is no basis to reverse the convictions. However, because Gillispie's sentence was not informed by the principles of Natale, we remand for re-sentencing purposes only.
Natale was decided on August 2, 2005, which coincidentally was six weeks after Gillispie's sentencing and six weeks before Buttler's.
II.
A.
Gillispie argues that the trial court abused its discretion by refusing the jury's requests during deliberations for read-backs of defense counsel's opening and closing statements, thereby violating his Sixth Amendment rights to trial by an impartial jury and to effective assistance of counsel. Specifically, he contends that the court engaged in "judicial coercion" by refusing the jury's requests and then converted its lack of persistence into an abandonment. We disagree.
On the first day of jury deliberations, after less than two hours had elapsed, the jury requested the read-backs of the testimony of several witnesses in their entirety, as well as defense counsel's opening and closing statements. The trial court declined to give the jury its requested read-backs, asking instead that jurors deliberate first and then "pinpoint a specific issue or a specific area of testimony or a specific question that you have, and ask for that read-back." Although the court did permit certain testimony to be read back to the jury during its deliberations, it did not provide defense counsel's opening and closing remarks to be reprised. Instead it told the jury the following:
The other things that you requested, openings and closings of defense counsel, it's not evidence. Now, I haven't decided whether I'm going to read it to you or not read it to you, but it's not evidence. I have told you that at the beginning, the middle, and the end of the trial. Opening statements and closing statements of counsel [are] not evidence.On the following day, when pressed by defense counsel, the trial court stated:
Certainly it's information that was presented to you here in open court, and we have the ability to read it back to you. But if I do allow that to happen, it will come with a giant, limiting, cautionary instruction that says you can't rely on it for any reason, [be]cause it's not evidence. You can't use it in your deliberation, [be]cause it's not evidence.
Now, if you want to hear it again just for the sake of hearing it again, I'll consider that. And maybe I'll permit it and maybe I won't. . . .
And I didn't say that I wouldn't read it to them. I explained to them that it was not evidence, what I explained to them on the record yesterday, and that after my commentary, if they still requested it, they should send me a note and let me know that they still requested it. They haven't sent me a note to request it and I don't intend to broach the subject any further until they bring it up.We conclude that the trial court's management of the jury's requests was neither procedurally unsound nor constitutionally infirm.
An appellate court "loathe[s] to interfere" with a trial court's exercise of discretion regarding jury read-backs. State v. Lamb, 134 N.J. Super. 575, 581-82 (App. Div. 1975), aff'd, 71 N.J. 545 (1976). "Courts have broad discretion as to whether and how to conduct read-backs and playbacks." State v. Miller, 205 N.J. 109, 122 (2011). Our Supreme Court has held the following:
The rules governing the read[-]back of testimony are relatively straightforward. It is well-established that "the reading of all or part of the testimony of one or more of the witnesses at a trial, criminal or civil, at the specific request of the jury during their deliberations is discretionary with the trial court." State v. Wolf, 44 N.J. 176, 185 (1965) [citations omitted]
. . . .
However, that broad grant of discretion is not unbridled. For example, "where the testimony is reasonably available, a judge should not refuse to grant a jury request to have it read merely because the reading would take time . . . . [T]here is no just reason for insisting that laymen jurors must have an unfailing and unanimous memory of all the testimony they hear in the courtroom." Wolf, supra, 44 N.J. at 186.
[State v. Wilson, 165 N.J. 657, 660 (2000) (citations omitted).]
Opening statements and summations of counsel are not evidence. State v. Timmendequas, 161 N.J. 515, 578 (1999). The purpose of opening statements is to better prepare the jury to understand the evidence, and such statements are limited to the facts that counsel intends to prove. State v. Wakefield, 190 N.J. 397, 442 (2007), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2007). Similarly, the purpose of a closing argument "is to draw together all the facts at the end of the trial and to present the theories of the litigants to prepare the jury 'to make a proper decision.'" State v. Vigilante, 194 N.J. Super. 560, 562 (Law Div. 1983). Accordingly, a re-reading of an opening statement or summation may incline the jury to base its decision on counsel's comments, not the evidence itself. See Condella v. Cumberland Farms, Inc., 298 N.J. Super. 531, 538 (Law Div. 1996) (declining to allow portions of videotape of defense counsel's opening to be shown to the jury because it would have the force and effect of evidence).
Here, the trial court initially explained to the jury that the opening and closing statements of counsel were not evidence, and that it was to rely only on the evidence in reaching a verdict. After receiving the jury's initial request for the read-backs, the court reminded the jury that attorney statements were not evidence, and any decision to allow them would be accompanied by a limiting instruction. Defense counsel did not object to these statements, and we presume the jury followed the court's instruction. State v. Feaster, 156 N.J. 1, 65 (1998) (citations omitted), cert. denied, 532 U.S. 932, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001).
The court acted within its discretion by asking the jury to further deliberate and reconsider its requests for the read-backs. See State v. Rodriguez, 234 N.J. Super. 298, 310 (App. Div.) (holding court acted within its discretion when it directed jury to rethink its request for a read-back), certif. denied, 117 N.J. 656 (1989). Where, as here, a jury returns its verdict without pressing its request for a re-reading, it is evident that the jury no longer needed the read-back to reach its decision. De Bello v. De Bell, 163 N.J. Super. 305, 307 (App. Div. 1978) (discerning no improper use of discretion where jury requested read-back and then continued its deliberations and reached a verdict before the court was able to read the testimony).
B.
Gillispie contends that the trial court committed plain error by failing to suppress his statements to a New York City detective about the New Jersey incident because they were obtained by unfair means and without a re-reading of his Miranda rights. We are unpersuaded.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
While in custody in New York for questioning about the Bronx barbershop robbery, Gillispie was advised of his Miranda rights prior to giving any oral or written statements. He signed a form indicating that he read the rights and waived them. Gillispie did not request an attorney, and there is nothing in the record to suggest that he did not want to speak with the detective, who described Gillispie as cooperative. Gillispie was neither promised anything in exchange for his statements nor threatened by anyone. The entire custodial interrogation took approximately two hours.
At the end of the interview, Gillispie was told that detectives from New Jersey wanted to speak with him, but he was not told what they wanted to discuss. The detective explained Gillispie's response:
When I finished up and I asked him and I told him that the detectives are here to speak to you — speak to him about an incident in New Jersey, Mr. Gillispie stated: "Probably same gun was used." Once again, I told him, I [said] — I informed him to speak to the guys in New Jersey, and he continued to state — and at this point, he's looking at me right in the face, and he's pointing back and forth with his —
Yeah. He's looking at me in the face and he's using his — pointing at me back and forth, you know, after I told him the second time that — just to speak to the people in Jersey, he says: "Tell Jersey the guy you locked up is the guy who did the shooting in Jersey." And he's — at that point he points to himself.
The trial court found that the State met its burden of proof beyond a reasonable doubt and that the statements were admissible. It concluded that Gillispie was properly advised of his Miranda rights and gave these statements knowingly, voluntarily, and freely.
Our review of the totality of the circumstances amply supports the determination of voluntariness, lack of coercion, and an absence of unfairness. The evidence shows that Gillispie made his statements after he was advised of his constitutional rights, understood them, and knowingly and intelligently waived them. There is no evidence of any physical or mental coercion. Gillispie did not assert his right to remain silent or request an attorney. The record is devoid of any evidence that Gillispie was deceived in any way. In fact, Gillispie was twice advised by the detective to speak to the "guys in New Jersey," and was not interviewed by him about the New Jersey case. Instead, the evidence showed Gillispie volunteered the information without any apparent prompting from the detective.
Defendant relies on State v. Hartley, 103 N.J. 252 (1986), to argue that his statements also should have been suppressed because his Miranda rights were not re-administered before he was told about the New Jersey detectives waiting to question him. In Hartley, the defendant clearly and unequivocally asserted his right to remain silent, but when later questioned by federal authorities who did not re-read the warnings in connection with their joint investigation, he made inculpatory statements. Id. at 255. The Court held that "before an accused's previously-asserted right to remain silent may be deemed to have been 'scrupulously honored,' law-enforcement authorities must, at a minimum, readminister the Miranda warnings." Id. at 256. Absent renewed warnings, the Court held that any inculpatory statement given in response to police-initiated custodial interrogation after the right to silence had been invoked was inadmissible. Ibid.
Hartley is factually distinguishable because Gillispie never invoked the right to remain silent. In fact, he proceeded to answer questions for two hours about events that occurred in the Bronx, not in New Jersey. Moreover, Gillispie was not questioned about the New Jersey incident. He made his unsolicited comments immediately upon hearing that New Jersey detectives were waiting to speak with him. See State v. Magee, 52 N.J. 352, 374-76 (1968), cert. denied, 393 U.S. 1097, 89 S. Ct. 891, 21 L. Ed. 2d 789 (1969) (holding the defendant's unsolicited admissions made two-and-a-half days after his custodial interrogation were made voluntarily and did not require renewed Miranda warnings); see also State v. Milledge, 386 N.J. Super. 233, 245 (App. Div.) (holding there was no need for a complete re-reading of Miranda rights to a defendant where there was a short interval between two interrogations, an identical subject matter of questioning, and a lack of any evidence that time lapse diluted the defendant's memory), certif. denied, 188 N.J. 355 (2006).
C.
Gillispie contends that he was deprived of a fair trial because of the trial court's comments to State's witness Sergeant Michael Duffy of the Barnegat Township Police Department. At the conclusion of Duffy's testimony on behalf of the State, the following exchange occurred in the presence of the jury:
The Court: Thank you, Sergeant. You may step down. And nobody else has said it. I will say to you, congratulations on your 30th anniversary in law enforcement.The court evidently was responding to an answer Duffy gave during his direct examination earlier in the afternoon. When asked how long he had been a police officer, Duffy responded, "[Thirty] years tomorrow."
The Witness: Thank you, your honor.
The Court: I remember him when he was just a puppy.
Gillispie argues that the trial court's comment to Duffy in the jury's presence amounted to a "judicial endorsement" of his testimony and, by implication, the State's case, thereby depriving him of a fair trial. He argues that the comments were "so unnecessary that the trial court clearly crossed the fine line that separates the neutral [demeanor] of an unbiased judge from a judge who becomes an advocate for one of the parties." Gillispie also argues that the comments were so solicitous that jurors could easily have found that the court was endorsing Duffy's credibility and "the veracity of the State's proofs." Because of a trial court's capacity to influence the verdict of a jury, Gillispie submits that his convictions should be reversed.
Our review of the record convinces us that the trial court's fleeting comments had no capacity to inject unfairness into Gillispie's trial. When viewed within the context of the overall trial proceedings, the congratulatory expression was readily understood by the jury as relating to the passage of thirty years in the witness's career, which was unconnected to any issue in the trial. Moreover, the remarks came in the midst of a very lengthy trial during which numerous witnesses testified. Importantly, defense counsel did not object to the remarks either at the time it was made or at any point thereafter. Plainly, the off-hand remarks were not viewed at the time as significant, and we view them as innocuous and inconsequential.
Gillispie claims that the court's comments had the capacity to influence the verdict. He relies upon State v. Vergilio, 261 N.J. Super. 648, 657 (App. Div.), certif. denied, 133 N.J. 443 (1993), for the proposition that even a smile can influence a jury. In Vergilio, the defendant claimed the judge's unintentional smile undermined the credibility of a witness, and no curative instruction was given. Id. at 657-58. We, however, found a sufficient cure in the general charge that the jury was the ultimate judge of witness credibility. Id. at 658.
Although we find nothing amiss in how the trial court spoke to Duffy, its lengthy jury instruction regarding credibility, which stressed to the jurors that they were "the sole judges of the facts, the credibility or believability of the witnesses" was sufficient to eradicate any mid-trial gaffe. There is no indication that the jury did not follow, or was unable to follow, these instructions. Thus, the court's instruction cured any potential judicial interference in the jury's deliberative process.
D.
Gillispie argues that the jury charge was fatally flawed in five ways: (1) it failed to tell the jury that it should take into account witness Keith Mercer's plea agreement when assessing his credibility, (2) it neglected to explain that the jury should not use Mercer's guilty plea as substantive evidence of Gillispie's guilt, (3) it told jurors that they should consider the "innocence" or guilt of Gillispie, (4) it erroneously instructed that a capital offense aggravating factor was relevant to non-capital murder; and (5) its cumulative errors warrant reversal of his convictions.
Mercer was an accomplice of Gillispie and Buttler at both the Barnegat murders and the Bronx barbershop robbery. Gillispie, supra, 208 N.J. at 67-68. Mercer testified as a State's witness pursuant to a plea agreement at an N.J.R.E. 104 hearing and at both Gillispie's and Buttler's trials. Id. at 68, 71-72, 76.
It is well established that "'[a]ppropriate and proper charges to a jury are essential for a fair trial.'" State v. Reddish, 181 N.J. 553, 613 (2004) (quoting State v. Green, 86 N.J. 281, 287 (1981)). "A charge is a road map to guide the jury, and without an appropriate charge a jury can take a wrong turn in its deliberations." State v. Cuni, 303 N.J. Super. 584, 603 (1997), aff'd, 159 N.J. 584 (1999) (quoting State v. Gartland, 149 N.J. 456, 475 (1997)).
When a jury charge error is raised on appeal, the charge must be read as a whole; we will not read just the portion alleged as error. State v. Delibero, 149 N.J. 90, 106 (1997). "[P]ortions 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." Gartland, supra, 149 N.J. at 473. We are required to consider "in the context of the entire case, whether the error was clearly capable of affecting the verdict or the sentence." State v. Bey, 129 N.J. 557, 624- 25 (1992) (internal quotation marks omitted). These principles arise from the well-settled jurisprudence that a defendant is entitled to a fair trial, not a perfect one. State v. Boiardo, 111 N.J. Super. 219, 233 (App. Div.), certif. denied, 57 N.J. 130 (1970), cert. denied, 401 U.S. 948, 91 S. Ct. 931, 28 L. Ed. 2d 231 (1971).
In our initial opinion we relied upon State v. Adams, 194 N.J. 186, 208 (2008), to require that on retrial the jury be instructed that it must take into account Mercer's plea agreement when assessing his credibility and that the plea is not substantive evidence of Gillispie's guilt. See Gillispie, supra, 208 N.J. at 83-84. Notwithstanding those retrial-related conclusions, the lack of such instructions in Gillispie's trial did not constitute plain error requiring reversal of his convictions. As noted by the Court, and confirmed by our searching review of the record, "Gillispie and Buttler both received fair trials, and any alleged errors were harmless." Id. at 93.
In like vein, we do not subscribe to Gillispie's contention that the trial court impermissibly, and reversibly, injected the concept of innocence into its instructions. "A verdict of not guilty is not synonymous with innocence; innocence connotes a person free from blame. A not guilty verdict simply means the jury found that the State did not carry its burden of proof." State v. White, 360 N.J. Super. 406, 413 (App. Div. 2003). A finding that a defendant is not guilty beyond a reasonable doubt, therefore, is not the same as finding a defendant innocent. Ibid. We have held that because of the "starkly different choices presented to the jury," a trial court's injection of the concept of innocence may tend to reduce the State's burden of proof. Ibid.
In White, a case that required a new trial for other reasons, we discussed "the use of the phrase 'guilt or innocence' throughout the charge." Id. at 411. Although we did not consider the use of the phrase an error, that in isolation would require a new trial, we recommended that the phrase be avoided all together. Id. at 413.
Similarly, in State v. Vasquez, 374 N.J. Super. 252, 265 (App. Div. 2005), objection was made to a charge telling the jury that the defendant was "entitled to have his guilt or innocence separately considered on each count[.]" That instruction is similar to one of the instructions at issue here. In Vasquez, we found the trial court misused the term "innocence," and advised judges to avoid the instruction. Ibid. Nonetheless, again, we saw no likelihood that the misstatement affected that jury's verdict. Ibid. From our canvass of Gillispie's trial, including the court's full instructions to the jury, we are unable to agree with Gillispie's contention that the limited references to innocence had any capacity to influence the jury's outcome.
Gillispie's final arguments concerning the jury charge do not warrant extended discussion. R. 2:11-3(e)(2). These relate to (1) the brief misstatement of the court in beginning to read a capital aggravating factor but stopping after a few words and (2) cumulative error. Specifically, the jury heard only the following words: "The grand jurors also present the following aggravating factors are present with respect to this count: The murder was outrageously wanton or vile. . . ." After a lengthy trial with multiple witnesses, there is nothing to suggest that the verdict would have been different if these few words were not spoken and their inclusion as part of the jury charge does not warrant reversal of Gillispie's convictions.
"Our obligation is to ensure that defendant had a fair trial." State v. Jenewicz, 193 N.J. 440, 473 (2008). We are satisfied that the instructions imparted to the jury created no doubt about the reliability of the outcome achieved in these proceedings. Cf. State v. Koskovich, 168 N.J. 448, 540 (2001); State v. Orecchio, 16 N.J. 125, 129 (1954).
E.
Gillispie argues that the trial prosecutor engaged in misconduct warranting a reversal when he failed to disclose to defense counsel a non-verbal admission made by Gillispie, which first came to the prosecutor's attention during his pretrial interview of Duffy. Duffy revealed that he saw Gillispie pointing at himself during his interrogation by the New York City detective. Gillispie contends that the prosecutor violated the continuing duty to provide discovery under Rule 3:13-3(g) and that the discovery violation prejudiced his due process rights to a fair trial.
Duffy was Gillispie's sole witness. Defense counsel apparently sought to use Duffy to impeach the New York detective's testimony about Gillispie's reaction when told that detectives from New Jersey wanted to speak with him. On cross-examination of Duffy, the State sought to rebut any negative inferences created by the direct examination. Duffy testified that during Gillispie's interrogation, he was standing in the hallway of the police precinct looking through the window. He saw the detective and Gillispie, but could not hear them. Duffy further testified that he saw Gillispie making gestures and pointing several times at both himself and the detective. On redirect, Duffy admitted that his report did not mention the finger pointing.
Subsequently, defense counsel argued that he was unaware that Duffy had observed the interrogation and Gillispie's gestures, and moved for a mistrial based on the prosecutor's putative discovery violation. Among other things, the prosecutor argued that he had no obligation to disclose the new information when defense counsel could have asked Duffy the same questions during his pretrial interview. The court denied the motion, finding the prosecutor did not violate his continuing duty to provide discovery.
Rule 3:13-3(g) contemplates that a trial judge will take appropriate action when the State fails to comply with its continuing duty to disclose relevant information. State v. Clark, 347 N.J. Super. 497, 508 (App. Div. 2002). If either party fails to honor its discovery obligations, the rule provides that the court "may order such party to permit the discovery . . . , grant a continuance or delay during trial, or prohibit the party from introducing in evidence the material not disclosed, or it may enter such other order as it deems appropriate." R. 3:13-3(g).
An appellate court reviews a trial court's decision regarding the appropriate remedy for a discovery violation under an abuse-of-discretion standard. State v. Utsch, 184 N.J. Super. 575, 580 (App. Div. 1982). However, we will reverse a conviction only if we find that the State's discovery violation prejudiced a defendant by denying a fair trial. State v. Blake, 234 N.J. Super. 166, 172-73 (App. Div. 1989).
Although we are troubled by the prosecutor's attempt to blame defense counsel for not unearthing Duffy's observations during a pre-trial interview, the totality of the circumstances does not warrant reversal based upon the State's non-compliance with its discovery obligations. Gillispie's defense was fully aware of Duffy's presence during Gillispie's interrogation in New York; it had readily-available tools to mitigate any harm inflicted during Duffy's cross-examination; and the finger-pointing was merely cumulative of other evidence that implicated Gillispie in the New Jersey crimes. We do not perceive that the prosecutor's conduct in this instance was sufficiently egregious to warrant the undoing of Gillispie's otherwise fairly-obtained conviction. Cf. Clark, supra, 347 N.J. Super. at 510 (reversing a conviction because "the denial of a continuance coupled with the discovery violation by the prosecutor deprived defendant of a fair trial").
F.
Gillispie's last point relates to his sentence. At the time of sentencing, the trial court did not have the benefit of Natale. Consequently, it sentenced Gillispie, in part, to terms of imprisonment that exceeded what were then presumptive terms.The court imposed an aggregate sentence of two life terms plus a ten-year NERA period of incarceration.
Natale invalidates the five-year term for third-degree unlawful possession of a weapon, and the ten-year term of imprisonment on each count of second-degree burglary. Id. at 495-96.
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Although the State argues that there was no violation of Natale, we are not so sanguine. We remand for reconsideration of the ten-year sentence imposed for each of the second-degree burglaries and the five-year sentence imposed for third-degree unlawful possession of a weapon. Because the application of Natale's principles may impact upon the aggregate imprisonment Gillispie will be required to serve, the court shall also reconsider not only the base terms imposed for all of Gillispie's convictions, but also the application of consecutive sentences for any of the convictions, including the two murders. Our determination is not intended to telegraph or foretell any particular result, and we leave the ultimate re-sentencing to the principled discretion of the Law Division.
III.
A.
Buttler's first contention on remand relates to what he claims were imperfect jury instructions that failed to properly link accomplice liability to the lesser-included offenses of aggravated and reckless manslaughter. Buttler asserts, at worst, that he was Gillispie's accomplice because Gillispie was the actor who fired the shots that killed the victims. The State contends that contrariwise, Buttler was the mastermind of the crimes, the one who planned and organized the robberies, and the individual who recruited Gillispie to pull the trigger.
Buttler argues that the jury charge did not provide an understandable explanation regarding accomplice liability and failed to properly distinguish the different states of mind required for conduct to satisfy the elements of the disparate grades of related crimes. See State v. Savage, 172 N.J. 374, 388 (2002); State v. Bielkiewicz, 267 N.J. Super. 520, 528 (App. Div. 1993). Our review of the jury charge in its totality, however, convinces us that not only were the instructions given to the jury appropriate, but that there was no harm visited upon Buttler as a result thereof.
The court provided thorough charges to the jury. As relevant here, it instructed the jury on how a person may be found guilty individually and as an accomplice; the elements of criminal intent; the definition of "purposely" and "recklessly"; the elements of aggravated and reckless manslaughter; and the relationship of the general charges of accomplice liability with murder, aggravated manslaughter, and reckless manslaughter. We discern little chance that the jury was misled, confused, or reached a verdict that was unwarranted by the evidence. Indeed, as the Supreme Court noted, "[t]he critical issue as to Buttler was whether he was Gillispie's accomplice, and the proofs on that issue were undeniable." Gillispie, supra, 2 08 N.J. at 94.
B.
Next, Buttler contends that his defense was hamstrung when the trial court limited cross-examination of the State's key and cooperating witness Mercer. Buttler's proffered theory of the case included the idea that Mercer, not Buttler, was the mastermind of the crimes. When Mercer disclaimed knowledge of certain aspects of drug trafficking in southern New Jersey, suggesting an absence of leadership knowledge, Buttler's attorney pressed the witness with particular examples, trying for impeachment.
The record simply does not support Buttler's contention that he was unable to explore all relevant areas while cross-examining Mercer. Although there were occasions when the trial court required more focused and tailored questioning, rather than allow a series of fractious interchanges, we discern no material truncation of Buttler's right to confront and attempt to impeach the State's most important witness.
More importantly, the court's management of the trial in this regard was not an abuse of discretion. See N.J.R.E. 611 (b). We will not interfere with the trial court's exercise of discretion, absent a showing of "clear error and prejudice." State v. Adames, 409 N.J. Super. 40, 61 (App. Div.) (citations omitted), certif. denied, 200 N.J. 504 (2009). We detect no such error and prejudice in this record.
C.
Buttler's final contention asserts that his sentence is excessive. As noted, the trial court imposed an aggregate sentence of two consecutive terms of life imprisonment with thirty years of parole ineligibility, plus a NERA ten-year term of imprisonment. In fashioning its sentence the trial court found five aggravating factors: "1 (great weight), 2, 3 (heavy weight), 6 (great weight), [and] 9." See N.J.S.A. 2C:44-1(a)(1), (2), (3), (6), and (9). As for mitigating factors, the court found the following: "0." See N.J.S.A. 2C:44-1(b). Because the identification of the relevant aggravating factors is supported by the record and the trial court properly engaged in the weighing and analysis of all factors, we have no basis to second-guess the sentence. State v. O'Donnell, 117 N.J. 210, 215 (1989); State v. Johnson, 42 N.J. 146, 161 (1964). The sentence does not shock our judicial conscience. State v. Roth, 95 N.J. 334, 364-65 (1984).
The factors that must guide a trial court's decision whether to impose concurrent or consecutive sentences are:
(1) whether "the crimes and their objectives were predominately independent of each other"; (2) whether they "involved separate acts of violence or threats of violence"; (3) whether they "were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior"; (4) whether they "involved multiple victims"; and (5) whether "the convictions for which the sentences are to be imposed are numerous."We discern no reason to disturb the trial court's application of the Yarbough factors.
rState v. Spivey, 179 N.J. 229, 244 n.4 (2004) (quoting State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986)).]
Finally, to the extent that we have not expressly articulated a determination regarding Buttler's remaining sentencing and other arguments, we do so because they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
IV.
In summary, we affirm Buttler's convictions and sentence. As for Gillispie, we affirm his convictions, but vacate the sentence, and remand for resentencing pursuant to Natale and in accordance 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