Opinion
DOCKET NO. A-3814-10T2
07-17-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ABDUL GRIGGS, a/k/a ABDUL B. GRIGGS, ABDUL BATES GRIGGS, ABDUL BATI GRIGGS, ABDUL BATIN GRIGGS, ABDUL I. GRIGGS, ABDUL K. GRIGGS, ABDUL R. GRIGGS, ABDULBATI GRIGGS, ABDULBATI I. GRIGGS, IBINISHM GRIGGSABDULBATIN, BATEEN, BATI, AND BATIN, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Karen E. Truncale, Assistant Deputy Public Defender, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Kenneth A. Burden, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, Simonelli and Haas.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 07-01-0015 and 07-01-0016.
Joseph E. Krakora, Public Defender, attorney for appellant (Karen E. Truncale, Assistant Deputy Public Defender, of counsel and on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Kenneth A. Burden, Deputy Attorney General, of counsel and on the brief).
Appellant filed a pro se supplemental brief. PER CURIAM
Following a second jury trial, defendant Abdul Griggs was convicted of first-degree murder, N.J.S.A. 2C:11-3a(1) and (2); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7b. The charges stemmed from the death of John Zephirin, who was shot twice in the back at close range.
On May 4, 2010, the court declared a mistrial in the first trial after the jury was unable to reach a unanimous verdict. The second trial began on June 8, 2010.
The trial judge sentenced defendant to a term of life imprisonment with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, a concurrent five-year term of imprisonment with three years of parole ineligibility on the unlawful possession of a weapon conviction, and a consecutive ten-year term of imprisonment with five years of parole ineligibility on the certain persons conviction. The judge also imposed the appropriate assessments and penalties.
On appeal, defendant's assigned counsel raises the following contentions:
POINT IDefendant raises the following contentions in his pro se supplemental brief:
THE DEFENDANT WAS ERRONEOUSLY PRECLUDED FROM PRESENTING EVIDENCE OF THIRD-PARTY GUILT.POINT II
BECAUSE THE STATE FAILED TO PRODUCE INDEPENDENT CORROBORATION OF THE DEFENDANT'S STATEMENTS CONFESSING TO THE CRIME, THE COURT, SUA SPONTE, SHOULD HAVE DISMISSED ALL THE CHARGES AT THE END OF THE STATE'S CASE; ALTERNATIVELY, THE JURY SHOULD HAVE BEEN GIVEN A CORROBORATION INSTRUCTION. (Not Raised Below).POINT III
A. The Court Should Have Entered A Judgment Of Acquittal As To The Charges Because [T]he Defendant's Statements That He Committed The Shooting Lacked Corroboration.
B. In The Alternative, The Court Should Have Instructed The Jury On The Need For Corroboration Of The Defendant's Confession.
EXCERPTS FROM THE DEFENDANT'S LETTERS SHOULD NOT HAVE BEEN ADMITTED AT TRIAL BECAUSE THEY WERE NOT PROPERLY AUTHENTICATED AND WERE MORE PREJUDICIAL THAN PROBATIVE.POINT IV
A. The Letters Were Not Properly Authenticated.
B. The Admission Of The Letters Was Precluded [B]y N.J.R.E. 403.
THE DEFENDANT'S RIGHT TO CONFRONTATION WAS VIOLATED WHEN THE COURT PERMITTED THE STATE TO ELICIT TESTIMONY ABOUT STIPPLING BASED
UPON AN AUTOPSY REPORT BY A NON-TESTIFYING PATHOLOGIST. (Not Raised Below).POINT V
THE DEFENDANT WAS SENTENCED TO A MANIFESTLY EXCESSIVE TERM OF LIFE WITH AN [EIGHTY-FIVE PERCENT] PAROLE BAR UNDER NERA, AND A CONSECUTIVE [TEN-]YEAR TERM WITH A FIVE[-] YEAR PAROLE BAR.
POINT VIWe reject these contentions and affirm.
DEFENDANT WAS DEPRIVED A FAIR AND IMPARTIAL TRIAL, WHEN [THE] STATE MADE INFLAMMATORY, PREJUDICIAL, AND BIAS[ED] STATEMENTS ABOUT DEFENDANT IN [ITS] SUMMATION, AND IN [ITS] OPENING STATEMENT, WHICH SHOWS PROSECUTORIAL MISCONDUCT. (Not Raised Below).POINT VII
A. During summation the [S]tate unquestionably made[]"FOUL BLOWS" by calling the defendant a "murderer" and ["]cold-blooded killer[",] which reads as follows:
B. Defendant is again deprived a fair trial which violated defendant's [S]ixth [Amendment] right, when [the] [S]tate told [the] jury in [its] opening statement that they will receive portions of letters from the defendant in which he admitted to one of his paramour[s] that he did the shooting or committed the murder.
DEFENDANT WAS PREJUDICE[D] AND RECEIVED A[] PARTIAL TRIAL WHEN [THE] TRIAL COURT FAILED TO GIVE PROPER INSTRUCTIONS TO CRUCIAL AND IMPROPER TESTIMONY, DEFENDANT['S] TRIAL WAS "UNFAIR AND PARTIAL" WHEN [THE] TRIAL COURT ALLOWED A WITNESS WHO WASN'T AN EXPERT TO
IDENTIFY WHAT SHE BELIEVED [WERE] PHONE RECORDS FOR IDENTIFICATION PURPOSE.[] (Not Raised Below).
A. During the course of defendant's trial [there] was testimony that the defendant had a prior trial, in which was said ["]these questions wasn't asked the [']last time['] I was here", which [occurred] during [the] [S]tate's witness['s] direct examination.
There was also testimony from defense counsel which state's as follows: in fact, in the last trial or in another proceeding regarding this case you were asked if you adopted and agreed with his findings and you stated that you did. Is that correct?
A: [T]hat's correct.
B. Defendant['s] trial was "unfair and partial", when [the] trial court allowed a witness who wasn't an expert to identify what she believed [were] phone records for identification purpose[s].
We derive the following facts from the record. At approximately 11:00 a.m. on August 3, 2006, T.J. was walking past apartment buildings on Irvington Avenue in Elizabeth when she saw defendant, who was wearing a white T-shirt, and Zephirin conversing in a walkway between two buildings. She saw no one else with the two men. As T.J. continued walking, she heard gunshots, turned around, saw Zephirin lying in the walkway, and saw defendant running toward the street. She saw no one else near the walkway. She ran to Zephirin and used his cellphone to call an ambulance. The ambulance took the unconscious Zephirin to the hospital, where he died five days later without regaining consciousness.
C.H. was across the street from the walkway. Prior to the shooting, she saw Zephirin exit a building and say to an unknown man, "Good morning, sir. How are you doing? . . . Did you walk your dog today?" The man, who was smaller than defendant in size and light-skinned, then went into a store. C.H. saw defendant approach and speak to Zephirin in the walkway, but paid no attention to them. She then heard gunshots, saw Zephirin fall to the ground in the walkway, and saw defendant run across the street, enter a parked silver car, and drive away. C.H. saw no one else in the walkway.
Detective Gunther Graham of the City of Elizabeth Police Department heard a police transmission about the shooting. As he drove toward the crime scene, he saw a tall, thin African-American male wearing a white T-shirt "running full speed" in the opposite direction of the crime scene. The male, later identified as defendant, was "really agitated" and "really hyped up." The detective saw defendant turn around and yell something to a heavier set African-American male who was approximately fifty yards behind defendant. The heavier male turned and walked away from defendant. Graham lost sight of this man, but saw defendant run into a doorway. Graham radioed police headquarters and reported what he saw. Police units responded and searched the area. After approximately thirty minutes, Graham saw defendant exit a doorway and enter a blue station wagon. The police stopped the vehicle, searched defendant, but found no weapon in his possession. Defendant was arrested and charged with Zephirin's murder.
I.
Defendant sought to establish third-party guilt through the testimony of Zephirin's girlfriend, who told the police that prior to the shooting, Zephirin had a dispute with another drug dealer over drug dealing territory. Relying on State v. Koedatich, 112 N.J. 225 (1988), cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989), and State v. Sturdivant, 31 N.J. 165 (1959), cert. denied, 362 U.S. 956, 80 S. Ct. 873, 4 L. Ed. 2d 873 (1960), the judge barred the testimony, finding there was no link between the drug dealer and the shooting.
Defendant also sought to establish third-party guilt through C.H., who allegedly told the police that the unknown man to whom Zephirin spoke said to Zephirin, "What, are you following me?" Again relying on Koedatich and Sturdivant, the judge barred this evidence because this person was unknown and his alleged statement to Zephirin did not establish any animosity between the men. The judge also found there was no link between this person and the heavier man Graham saw running behind defendant. The judge subsequently barred defense counsel from alluding to third-party guilt in summation.
C.H. never testified to this alleged fact at the second trial.
Defendant contends in Point I of assigned counsel's brief that the trial judge erred by precluding him from presenting evidence of third-party guilt and precluding defense counsel from alluding to it in summation. We review a judge's ruling on admission of evidence of third-party guilt for abuse of discretion. State v. Cotto, 182 N.J. 316, 333 (2005).
The court must provide criminal defendants the opportunity to present a complete defense including that someone else committed the crime charged. Id. at 332. Such a defense includes the right to introduce evidence of third-party guilt if the proof offered has a rational tendency to engender a reasonable doubt with respect to an essential feature of the State's case. Ibid. This requires the defendant to offer evidence that "creates the possibility of reasonable doubt" by demonstrating some link between the third party and the victim. Id. at 333. Because this is a fact sensitive inquiry, the court has broad discretion to admit or preclude such evidence. Ibid.
It is not enough to prove some hostile event and leave its connection to the crime charged to mere conjecture. Sturdivant, supra, 31 N.J. at 179. "There must be some link between the evidence and the victim or the crime." Koedatich, supra, 112 N.J. at 301. "To be admissible, the third[-]party evidence need not show substantial proof of a probability that the third person committed the act; it need only be capable of raising a reasonable doubt of the defendant's guilt." State v. Fulston, 325 N.J. Super. 184, 191 (App. Div. 1999), certif. denied, 163 N.J. 397 (2000).
Here, no individual was specifically identified as the third party, and there was no link whatsoever between the proposed third-party guilt evidence and the shooting. The proffered evidence was nothing more than mere conjecture, and it would not assist the jury in reaching a just verdict. Koedatich, supra, 112 N.J. at 301. Because there was no evidence of third-party guilt adduced at trial, the judge properly barred defense counsel from alluding to it in summation. See State v. Bogen, 13 N.J. 137, 140 (holding that while counsel had "the broadest latitude in summation," "comment must be restrained within the facts shown or reasonably suggested by the evidence"), cert. denied, 346 U.S. 825, 74 S. Ct. 44, 98 led 350 (1953). Moreover the trial court has the obligation to dispel mistaken legal theories offered in summation. State v. Whitaker, 200 N.J. 444, 465 (2009). Accordingly, there was no error in the judge's preclusion of evidence of third-party guilt.
II.
A few days before the shooting, defendant called his ex-girlfriend, L.P., and told her to "[j]ust stay downtown" because "he did [not] want [her] around when he do somebody dirty," meaning Zephirin. After his arrest, defendant admitted to L.P. that he shot Zephirin.
Shortly after the shooting, defendant admitted to his girlfriend, F.J., that he just shot someone. After his arrest, defendant called F.J., asked her to find the car he drove the day of the shooting, and told her there was a gun in the car. Defendant also asked F.J. to call his friend, Twan, and tell Twan where the car was located and to get the gun. F.J. found the car the next day and called Twan and told him the gun was in the car.
Defendant contends for the first time on appeal in Point II of assigned counsel's brief that the judge should have sua sponte dismissed the charges at the close of the State's case for lack of independent corroboration of his admissions to his girlfriends. Alternatively, defendant contends the judge erred in failing to sua sponte give a corroboration instruction. We review these contentions for plain error to determine whether they were capable of producing an unjust result. State v. Macon, 57 N.J. 325, 336 (1971); R. 2:10-2.
When the State receives a confession from a defendant, "the State must 'introduce independent proof of facts and circumstances to generate a belief in its trustworthiness, plus independent proof of loss or injury.'" State v. Reddish, 181 N.J. 553, 617 (2004) (quoting State v. Lucas, 30 N.J. 37, 56, 62 (1959)). The quantum of evidence required to establish corroboration is narrow because "'[c]onfessions like other admissions against interest, stand high in the probative hierarchy of proof.'" Id. at 617-18 (alteration in original) (quoting Lucas, supra, 30 N.J. at 57; State v. DiFrisco, 118 N.J. 253, 273 (1990), cert. denied, 516 U.S. 1129, 116 S. Ct. 959, 133 L. Ed. 2d 873 (1996)). In a trial for murder, "independent proof of loss or injury," may be established by the victim's death. Id. at 618-19. However, the remaining elements of the offense must be established by independent evidence, which may include corroborated admissions. State v. Cook, 17 9 N.J. 533, 564 (2004).
Reviewing defendant's contention under a plain error standard, we conclude the record contains sufficient independent evidence to corroborate defendant's admissions to his girlfriends. Defendant separately admitted to them that he shot Zephirin, but these admissions were merely a portion of the overwhelming evidence establishing defendant's guilt for first-degree murder. There was the testimony of two eyewitnesses, T.J. and C.H., as well as F.J.'s testimony that pursuant to defendant's instructions, she found the car he was driving the day of the shooting and contacted Twan to retrieve the gun.
We also discern no plain error in the judge's failure to sua sponte give a corroboration instruction. Reddish, supra, 181 N.J. at 621. Where a judge instructs the jury of its duty to assess credibility, and defense counsel presents arguments challenging the truthfulness of an admission or confession, there is no plain error. Id. at 622.
Here, defense counsel stated during summation that there was no physical evidence that defendant placed phone calls to L.P. and F.J., and thus, he did not make any admission to them. Counsel also discussed the concept of credibility, as did the judge during the final charge. As in Reddish, here "the failure of the court to instruct the jury specifically on its duty with respect to corroboration does not rise to the level of plain error." Ibid.
III.
Defendant wrote F.J. several letters from jail. At an N.J.R.E. 104 hearing held during the first trial, F.J. testified at length about six letters. The letters bore exhibit numbers S-65, S-66, S-67, S-70, S-74, and S-77 at both trials. Defendant contends for the first time on appeal in Point III of assigned counsel's brief that the judge erred in admitting excerpts of S-65, S-66 and S-77 in the second trial because they were not properly authenticated as required by N.J.R.E. 901. This contention lacks merit.
We reject defendant's contention, raised for the first time on appeal, that the letters were inadmissible under N.J.R.E. 403 as unduly prejudicial. Defendant has offered no basis for excluding the letters under this Rule. He did not identify any undue prejudice he suffered, nor did he establish that any prejudice outweighed the probative value of the letters.
F.J. testified at the N.J.R.E. 104 hearing that: she and defendant had a habit of writing letters to each other; the letters were addressed to her residence and bore defendant's name, address, and prison number on the envelope; she recognized defendant's handwriting and signature; defendant addressed her by her first name or her nickname; defendant sometimes referred to himself as her husband and her as his wife; and the letters referred to the gun and personal things, such as their children and sex life, their favorite song, conversations they had when she visited him in the jail, his gambling winnings, her job, a tattoo of defendant's name on her arm, and her prior relationships. In S-65, defendant instructed her to call Twan and ask if he got the gun from the car.
The judge found F.J.'s testimony "very credible," reviewed the letters in detail, and determined they were sufficiently authenticated. The judge concluded as follows:
[W]hen one considers all of this evidence in total it does authenticate these documents. These are about general items, they are about specific items, they are about some private items, and as a whole it proves that these letters were written by the defendant to [F.J.] about the private conversations that they had and about specific information known to both of them. And even as to the general information, although that could be known by other people, when taken in context with the other more private information it certainly authenticates these documents through the context of the conversations and the information set forth therein.
Defendant did not object to the admission of excerpts of S65, S-66 and S-77 at the second trial. Thus, we review a judge's evidentiary rulings for abuse of discretion, State v. McLaughlin, 205 N.J. 185, 205 (2011), and review defendant's contention for plain error. Macon, supra, 57 N.J. at 336. We discern no abuse of discretion or error here.
Authentication is satisfied "by evidence sufficient to support a finding that the matter is what its proponent claims." N.J.R.E. 901. The rule does not require absolute certainty or conclusive proof; the proponent is only required to make a prima facie showing of authenticity. State v. Mays, 321 N.J. Super. 619, 628 (App. Div.), certif. denied, 162 N.J. 132 (1999). Once that showing is made, the ultimate question of authenticity is left to the jury. Ibid.
Letters containing information about the crime, as well as personal matters which only the defendant would have known, constitute a proper basis for concluding that the defendant wrote the letters. State v. Porambo, 226 N.J. Super. 416, 428 (App. Div. 1988). A witness's testimony that he received writings directly from the defendant constitutes sufficient authentication. State v. Johnson, 287 N.J. Super. 247, 264 (App. Div.), certif. denied, 144 N.J. 587 (1996).
F.J. testified credibly that she received the letters directly from defendant, she recognized his handwriting and signature, and the letters contained specific personal information which only defendant would have known. Accordingly, there was more than sufficient evidence supporting the judge's finding that letters were properly authenticated.
IV.
Defendant contends for the first time on appeal in Point VI.B. of his pro se supplemental brief that prosecutorial misconduct regarding certain letters denied him a fair trial. Defendant argues the prosecutor improperly said in his opening statement that the jury would have portions of letters wherein defendant admitted to shooting Zephirin or committing the murder; however, the judge barred admission of the letters at the second trial.
While prosecutors "within reasonable limitations[] are afforded considerable leeway in making opening statements[,]" State v. Williams, 113 N.J. 393, 447 (1988), comments in opening statements are to be limited to "facts [they intend] in good faith to prove by competent evidence," State v. Hipplewith, 33 N.J. 300, 309 (1960). Not every act of prosecutorial misconduct mandates a reversal. To warrant reversal, the prosecutorial misconduct must have been so egregious that it deprived the defendant of a fair trial. State v. Timmendequas, 161 N.J. 515, 575 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). To determine whether a prosecutor's comments were sufficiently egregious to justify the reversal of a conviction, a court must consider the tenor of the trial and the responsiveness of counsel and the court to the improprieties when they occurred. "Specifically, the [c]ourt should consider 'whether defense counsel made a timely and proper objection, whether the remark was withdrawn promptly, and whether the court ordered the remarks stricken from the record and instructed the jury to disregard them.'" Id. at 575-76 (citations omitted). Generally, if no objection is made to the improper remarks, the remarks will not be deemed prejudicial. State v. Frost, 158 N.J. 76, 83 (1999).
At the first trial, the judge permitted admission of S-70 wherein defendant admitted committing the crime. The letter stated:
[F.J.], I'm going to keep everything real with you, Baby. Look, dealing with this whole charge I'm good. It isn't as bad as it looks or seems. Yes, a lot of people think that I'm done. It doesn't mean shit at all because I have a legit reason why I done it, and you are able to protect yourself and your family at any cost. That's a law.Thus, defendant knew well in advance of the second trial that the prosecutor would use this critical document to prove he committed the murder. Defendant did not move to bar admission of the letter prior to the second trial, nor did he object to the prosecutor's opening comment. Accordingly, the prosecutor's comment was correct when made and does not constitute prosecutorial misconduct.
[(Emphasis added.)]
Defendant did not object to the letters until the fourth day of the second trial.
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Even if the comment was improper, defendant was not prejudiced thereby. There was other credible evidence that defendant admitted committing the crime. Both F.J. and L.P. testified that defendant told them he shot Zephirin. In addition, the judge specifically instructed that the jury could not consider items that were not in evidence, and could not consider as evidence remarks in counsel's openings and summations. Jurors are presumed to have followed the court's instructions in the absence of evidence demonstrating otherwise. State v. Martini, 187 N.J. 469, 477 (2006), cert. denied, 549 U.S. 1223, 127 S. Ct. 1285, 167 L. Ed. 2d 104 (2007). There is no such evidence here.
V.
At the time of trial, the Union County medical examiner who performed the autopsy on Zephirin, Dr. Leonard Zaretski, was no longer employed by the county. The deputy medical examiner, Dr. Junaid Shaikh, testified instead. Dr. Shaikh reviewed the autopsy report Dr. Zaretski had prepared, as well as diagrams, photographs of Zephirin's body, Zephirin's medical records, and a record of investigation medical examiner report. Dr. Shaikh opined that Zephirin was shot twice in the lower back; one bullet exited the abdomen and the other lodged in the abdominal wall. The doctor also opined that there was stippling around one of the wounds, which indicated the shot was fired at close range.
Defendant challenged Dr. Shaikh's stippling opinion on cross-examination by referring to a notation on Dr. Zaretski's autopsy report that there were small black markings around one of the entrance wounds, which "may" represent stippling. This was the first time the jury heard about the contents of the autopsy report. Defendant contends for the first time on appeal in Point IV of assigned counsel's brief that Dr. Shaikh's cross-examination testimony about the autopsy report violated his right to confrontation was violated.
We discern no error, let alone plain error, in Dr. Shaikh's testimony. The judge held an N.J.R.E. 104 hearing on the admissibility of the stippling evidence, defendant did not object to the Dr. Shaikh's testimony about stippling, and defendant was able to fully challenge the doctor's opinions on cross-examination. More importantly, if there was error, defendant invited it by introducing the contents of the autopsy report on cross-examination. "If a party has 'invited' the error, he [or she] is barred from raising an objection for the first time on appeal." State v. A.R., 213 N.J. 542, 561 (2013).
VI.
In Point V of assigned counsel's brief, defendant contends his sentence is excessive because the judge placed too much weight on the three aggravating factors the judge found: N.J.S.A. 2C:44-1a(3), "[t]he risk that the defendant will commit another offense;" N.J.S.A. 2C:44-1a(6), "[t]he extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted;" and N.J.S.A. 2C:44-1a(9) "[t]he need for deterring the defendant and others from violating the law." The judge found that defendant shot Zephirin in the back and left him to die, and he described defendant as a "seasoned," "cunning and dangerous" criminal, with a long history of violent offenses and weapons offenses. The judge found no mitigating factors.
Our review of a sentence is limited. State v. Miller, 2 05 N.J. 109, 127 (2011). Our basic responsibility is to assure that the aggravating and mitigating factors found by the judge are supported by competent, credible evidence in the record. Ibid.; State v. Bieniek, 200 N.J. 601, 608 (2010). As directed by the Court, we review a sentence for abuse of discretion to determine whether: "(1) the sentencing guidelines were violated; (2) the aggravating and mitigating factors found by the sentencing court were not based upon competent and credible evidence in the record; or (3) 'the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience.'" State v. Fuentes, 217 N.J. 57, 70 (2014) (alteration in original) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).
The record contains competent, credible evidence supporting the judge's findings of aggravating and mitigating factors. Defendant had numerous juvenile charges and was adjudicated delinquent of assault and robbery. As an adult, he had six indictable convictions, including convictions for robbery, aggravated assault, possession of a weapon for an unlawful purpose, and unlawful possession of a weapon. Defendant served six State prison terms, had his parole revoked, and escaped from State prison five times. The life sentence the judge imposed in this case met the sentencing guidelines, and it does not shock our judicial conscience.
VII.
We have considered defendant's remaining contentions in his pro se supplemental brief in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). However, we make the following brief comments.
Generally, derogatory name calling by a prosecutor constitutes misconduct. State v. Darrian, 255 N.J. Super. 435, 458 (App. Div.), certif. denied, 130 N.J. 13 (1992). However, the prosecutor's labeling of defendant as a "cold-blooded killer" did not constitute reversible error because it was supported by the evidence. State v. Morton, 155 N.J. 383, 457 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001). The evidence in this case firmly established that defendant shot Zepherin twice in the back at close range for no apparent reason, thus providing a justifiable basis for the prosecutor's characterization of defendant as a "murderer" and "cold-blooded killer."
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPEALATE DIVISION