Opinion
DOCKET NO. A-6279-10T2
10-16-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. FRANK L. MARSH, a/k/a FRANK LEWIS MARSH, JR., Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael Confusione, Designated Counsel, on the brief). Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sapp-Peterson, Lihotz and Maven. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 08-07-1248 and 09-02-0348. Joseph E. Krakora, Public Defender, attorney for appellant (Michael Confusione, Designated Counsel, on the brief). Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). The opinion of the court was delivered by MAVEN, J.A.D.
In February 2009, a Middlesex County grand jury indicted defendant Frank Marsh for the first-degree murder for hire of his co-defendant's business partner, Vincent Russo, N.J.S.A. 2C:11-3(a)(1) or (2), N.J.S.A. 2C:11-3(b)(4), and N.J.S.A. 2C:11-3(b)(4)(d) (count one). The grand jury also indicted defendant for second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count three); and second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (counts four and five). Co-defendant, Raymond Troxell, was charged in the same indictment with the first-degree purposeful or knowing murder of Russo, N.J.S.A. 2C:11-3(a)(1) or (2), N.J.S.A. 2C:11-3(b)(4), and N.J.S.A. 2C:11-3(b)(4)(e) (count two).
Defendant and Troxell were tried separately. A jury convicted Troxell of first-degree murder, which this court affirmed in a published opinion. See State v. Troxell, 434 N.J. Super. 502, 505 (App. Div. 2014). Thereafter, a jury found defendant guilty of first-degree murder for hire (count one), possession of a weapon for an unlawful purpose (count three), and unlawful possession of a weapon (count four). The court dismissed count five.
The court sentenced defendant to life imprisonment without the possibility of parole on count one. On the remaining weapons charges, the court sentenced defendant to ten years imprisonment on each count with three years parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, to run concurrent to the sentence on count one. Defendant raises the following points on appeal:
I. THE TRIAL COURT SHOULD HAVE GRANTED DEFENDANT'S MOTIONS FOR MISTRIAL OR FOR A NEW TRIAL BECAUSE OF THE CUMULATIVE EFFECT OF PROSECUTORIAL MISCONDUCT THROUGHOUT TRIAL BELOW.
II. THE TRIAL COURT ERRED IN ADMITTING EVIDENCE OF DEFENDANT'S OWNERSHIP OF SEVERAL LEGAL GUNS, NONE OF WHICH WERE ALLEGED TO HAVE BEEN THE MURDER WEAPON; THE JURY CHARGE REGARDING THE GUNS ADMITTED WAS UNFAIRLY PREJUDICIAL TO DEFENDANT AND CONSTITUTED IMPROPER COMMENT ON DEFENDANT'S CONSTITUTIONAL RIGHT TO BEAR ARMS (U.S. CONST. AMENDS. II, VI, XIV; N.J. CONST. ART. I, PARA. 10) (Not Raised Below).
III. DEFENDANT'S SENTENCE IS IMPROPER AND EXCESSIVE.
Having considered these points in light of the record and applicable legal standards, we affirm defendant's conviction and sentence, except for the sentences imposed on counts three and four. The sentences imposed on counts three and four must be merged with the sentence imposed on count one. We remand to the trial court to correct the judgment of conviction (JOC) to reflect this merger.
I.
We derive the facts from the evidence produced at trial. In the summer of 2008, Troxell and Russo opened Mezzaluna, an Italian deli in North Brunswick. Troxell and Russo often argued regarding business finances, and tensions steadily mounted over time.
On December 16, 2008, at approximately 6:30 a.m., North Brunswick Township police officer Robert Frangella was dispatched to Mezzaluna. All of the doors were locked when he arrived. A Mezzaluna cook had received a call earlier in the morning from Russo's son, asking if he had worked with Russo the day before because he never returned home. Concerned, the cook drove to the deli where he was met by Officer Frangella, and opened the front door.
Officer Frangella found Russo's body near the back office door on his knees and "facedown with his head in the boxes." The body was "ice cold" and exhibited "lividity in the right arm and hand area[.]" The medical examiner, Tara Briley, who was called to the scene, noticed, upon lifting Russo from the boxes, that he had "a lot of blood covering his face and the left side of his face by his ears." She estimated that Russo had been dead for approximately twelve hours. The autopsy determined that he died from a single gunshot wound to the head, fired at close range.
No spent bullet casings were found at the scene, and a bottle containing Oxycontin was found on a table near the body. Investigator James Napp swept the deli for fingerprints, which revealed one set that did not match those of defendant. No physical evidence recovered from the scene placed defendant at Mezzaluna the night Russo was killed.
John Kissel testified that defendant was one of his best friends, the two having grown up together in Edison. Kissel also knew Troxell from Edison. Kissel owned Alpha Cab Company (Alpha Cab) where both Troxell and defendant worked as cab drivers. In October or November of 2008, Kissel, defendant, and Troxell were at a bar when Troxell said he wanted Russo killed. Defendant told Troxell he would do it, at which point Troxell offered defendant $3000 to kill Russo.
On December 15, 2008, at approximately 7:00 p.m., defendant came to Kissel's office at Alpha Cab. Defendant told Kissel "the thing with Ray and Vinnie [was] done." When Kissel asked what he meant, defendant confirmed that he had killed Russo. According to Kissel, defendant explained he "went to the deli and walked in the back door to pick up Percocets from Vinnie. And they went in Vinnie's office, and Vinnie sat down in a chair. And when Vinnie bent down to go to the bottom drawer, [defendant] . . . put a bullet in his head."
After this conversation, Kissel went to Mezzaluna to look for Russo's truck. Kissel then called Troxell and met him at a Walmart in North Brunswick. Kissel, Troxell, and defendant later met at Troxell's house where Kissel saw Troxell with "a wad of money on him." Although Kissel did not see defendant receive the money from Troxell, he testified that defendant left shortly after Troxell walked in defendant's direction with money in hand. At around 11:15 p.m. that night, Kissel and Troxell went to the North Brunswick Pub, where defendant arrived a short time later.
The testimony of a barmaid at the pub, and surveillance tapes from the bar corroborated the meeting.
Kissel told Lieutenant David Irizarry, of the Metuchen Police Department, that his two friends had murdered Russo. He then gave a recorded statement to Sergeant Paul Miller, of the Middlesex County Prosecutor's Office, the lead investigator on the case, and other officers on December 18, 2010. Kissel told them he was present at the pub when Troxell said he wanted Russo killed and defendant said he would do it for $3000; he heard defendant say "he took care of the thing between Vinnie and Ray"; and he observed what he believed to be an exchange of money between defendant and Troxell the night of December 15. Kissel turned over to police a bullet his dispatcher found in a desk at Alpha Cab.
The dispatcher testified he saw defendant and Troxell speaking outside the cab company on the afternoon of December 15. He also explained that defendant had previously shown him a loaded "two-shot Derringer" he owned. Defendant left one of the Derringer's "very big" bullets in the cab company's office, which the dispatcher put away in a desk. Testimony from the State's ballistics expert revealed that the bullet that produced the fragments found in Russo's body could have been fired from a Derringer.
A Derringer is a "short-barreled pistol having a large bore." Webster's New College Dictionary 306 (2nd ed. 1999).
The dispatcher could not confirm defendant's whereabouts between 6:50 p.m. and 8:10 p.m. on December 15. Specifically, he could not confirm, based on his dispatch records, whether defendant had visited his former fiancée, on the night of December 15, or whether he had stopped at a 7-Eleven in Edison at 7:25 p.m., as defendant had asserted in his pre-trial notice of alibi.
Meanwhile, Charles Chicarella, defendant's friend, testified that on December 15, he was trying to obtain Oxycontin from defendant. Chicarella called defendant several times throughout the day, but was unable to meet him until 10:00 p.m. that night, at which time defendant gave him two pills. The pills produced at trial looked the same as those in the bottle found by Russo's body.
The State then offered the testimony of Sgt. Miller. On December 17, 2008, Lt. Irizarry contacted him about Kissel's statement. Two days later, Sgt. Miller interviewed Troxell, after which he arrested him for Russo's murder. The police then sought to locate defendant. At approximately 4:00 a.m. on December 19, 2008, the Pennsylvania State Police located and arrested defendant at his home in Macungie, Pennsylvania.
Defendant lived in a garage attached to a large home. Sgt. Miller and other law enforcement officers executed a search warrant for defendant's home. Inv. Napp testified that law enforcement retrieved a total of eight long-arm guns and two handguns from defendant's residence. Defendant legally owned all of the recovered guns, none of which were determined to be the murder weapon. A records check revealed that defendant "ha[d] no firearms registered in the State of New Jersey," nor a permit to carry or purchase firearms.
Sgt. Miller's team also seized a coffee can filled with .22 caliber rounds because Russo's injuries "appeared to be from a small caliber handgun." Sgt. Miller and Inv. Napp both testified they found an empty American Derringer "gun box." Law enforcement, however, never found the gun that fit this particular box.
Without objection, defendant's landlord, who frequently hunted deer with defendant, testified that defendant owed him approximately $3000 in unpaid rent. In the search of defendant's home, police recovered $197 in cash. They later learned from defendant's fiancée and her father that they found $2000 in defendant's kitchen cabinet. Nothing found in defendant's home directly linked him to the crime scene.
In addition, as part of his investigation, Sgt. Miller received phone records, which showed repeated contact between defendant, Troxell, and Kissel on December 15, and again on December 16, 2008. The phone records reflect that a series of calls were made from defendant's cellphone. While traveling to Alpha Cab, defendant called Kissel three consecutive times, each call lasting between seven and nine seconds. Sgt. Miller noted the signals bounced off certain cell towers in East Brunswick at Exit 9 of the Turnpike, indicating defendant's northerly direction of travel away from the crime scene at 7:09 p.m., until the time he arrived at Alpha Cab some time shortly thereafter. Defendant also called Troxell's cell phone on December 16 at approximately 3:33 p.m., at which time investigators were interviewing Troxell. At approximately 4:23 p.m., within thirty minutes of his interview by police, Troxell placed an outgoing call to defendant's cell phone.
Defendant's fiancée testified on defendant's behalf as his alibi witness. She explained defendant loved hunting and fishing, and that he owned several rifles and handguns. She could not recall ever having seen an American Derringer in defendant's home. On December 15, she was working at the Metuchen Dental Group from 10:30 a.m. to 8:00 p.m. She testified she saw defendant between 7:30 p.m. and 8:00 p.m. She described his demeanor as "normal" at that time. He remained with her for ten or fifteen minutes. She left work at 8:00 p.m., at which point she went to her parents' house where defendant arrived around midnight.
Defendant also took the stand. He admitted owning an American Derringer, but denied knowing its whereabouts. He recalled showing the Derringer to someone at Alpha Cab, as he often brought a gun with him for protection during his shifts. He testified he did not, however, have a gun with him during his shift on December 15. As to the remainder of his gun collection, he confirmed he owned approximately seven or eight rifles and shotguns, which he used to hunt deer and turkey. He also legally owned six handguns, including a Derringer. He denied owning any copper colored bullets similar as those found in Russo's body.
Defendant admitted he regularly took Oxycodone for a stomach condition. He also acknowledged he sold two Oxycodone pills to Chicarella on December 15, at around 10:00 p.m. He obtained the pills he sold to Chicarella from a man named Coney. He made several calls back and forth to Coney that day in order to obtain pills for both himself and for Chicarella. He denied taking any pills from the bottle found next to Russo's body.
According to defendant, he started working for Kissel as a cab driver in 2007, and was always paid in cash, which he kept in his house. On December 15, he worked from 2:00 p.m. until approximately 11:00 p.m. At around 6:00 p.m., he was driving his cab in Piscataway making his usual pick up. By the time he finished, it was approximately 6:30 p.m., at which point he went back to the cab stand, arriving at approximately 6:50 p.m.
Defendant had been at the cab stand for a few minutes when Kissel arrived in a hurry. He confronted Kissel about money Kissel owed him. He then left in his cab at around 7:20 p.m. and headed to the Edison train station to pick up fares. He recalled stopping at a 7-Eleven before driving to his fiancée's place of employment in Metuchen, where he arrived sometime between 7:30 p.m. and 8:00 p.m. He left her job around 8:00 p.m. and drove to Woodbridge to pick up another fare. He denied being at Troxell's home at 9:00 p.m. that night.
Sgt. Miller's attempt to retrieve the surveillance tapes from the 7-Eleven was unsuccessful. He learned the tape from December 15 had been recorded over per store policy.
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After making another pick up at the Edison train station, he returned to the cab stand sometime after 9:00 p.m. where he stayed until he met Chicarella at 10:00 p.m. He then drove to North Brunswick to meet Kissel for a drink. While at the bar, where defendant remained for ten to fifteen minutes, he received a call from the dispatcher to return to the cab stand to cash out for the night. After doing so, defendant returned to the North Brunswick Pub where he and Troxell walked away to talk about Kissel, who, according to defendant, was acting "very strange that night."
The three men left the bar, at which point they went to Troxell's house because Kissel had told defendant that Troxell would pay him the money Kissel owed him. Kissel and Troxell walked away while defendant sat in the kitchen with Troxell's wife. When Kissel returned to the kitchen, he paid defendant the money he owed him, at which point defendant left the house. Defendant returned to the cab stand to drop off the cab and then drove to his fiancée's parent's house in his personal car.
II.
Defendant claims the trial court erred in failing to grant his motions for a mistrial and a new trial based upon improper conduct by the prosecutor. Defendant argues the conduct during opening statement, cross-examination, and summation, either singularly or cumulatively constitutes prosecutorial misconduct.
As an initial matter, "[a] mistrial is an extraordinary remedy[]" that should be employed "[o]nly when there has been an obvious failure of justice[.]" State v. Mance, 300 N.J. Super. 37, 57 (App. Div. 1997 ). "The decision to grant or deny a mistrial is entrusted to the sound discretion of the trial court[.]" State v. Harvey, 151 N.J. 117, 205 (1997), cert. denied sub nom., Harvey v. New Jersey, 528 U.S. 1085, 120 S. Ct. 811, 145 L. Ed. 2d 683 (2000).
Similarly, "[t]he trial judge on defendant's motion may grant the defendant a new trial if required in the interest of justice." R. 3:20-1. A "motion for a new trial is addressed to the sound discretion of the trial judge, and the exercise of that discretion will not be interfered with on appeal unless a clear abuse has been shown." State v. Russo, 333 N.J. Super. 119, 137 (App. Div. 2000).
Prosecutors must act in accordance with fundamental principles of fairness. State v. Wakefield, 190 N.J. 397, 436 (2007), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008). They may be zealous in enforcing the law, but must refrain from engaging in "conduct lacking in the essentials of fair play[.]" Id. at 437 (internal quotation marks omitted). Prosecutors "'should not make inaccurate legal or factual assertions during a trial and . . . must confine their comments to evidence revealed during the trial and reasonable inferences to be drawn from that evidence.'" Ibid. (quoting State v. Reddish, 181 N.J. 553, 641 (2004)). Further, they may never shift the burden of proof to defendant. See State v. Loftin, 146 N.J. 295, 389 (1996).
When reviewing a prosecutor's statements, an appellate court must evaluate "the severity of the misconduct and its prejudicial effect on the defendant's right to a fair trial and conclude that prosecutorial misconduct is not grounds for reversal of a criminal conviction unless the conduct was so egregious as to deprive defendant of a fair trial." Wakefield, supra, 190 N.J. at 437 (internal quotation marks omitted). To that end, reversal is justified when the prosecutor's conduct was "clearly and unmistakably improper" and "substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his defense." State v. Papasavvas, 163 N.J. 565, 625 (2000). A. Burden Shifting
Defendant claims the State improperly shifted the burden of proof onto him to prove his alibi by commenting during opening remarks that defendant would be calling his fiancée as an alibi witness. Defense counsel objected after the State's opening, arguing the State had "thrown a ball in [his] lap" because it had referenced testimony of his fiancée. The trial court overruled the objection, noting defendant had provided notice of an alibi.
When making opening statements, prosecutors should limit comments to the facts [they] intend[] in good faith to prove by competent evidence[.]" State v. Echols, 199 N.J. 344, 360 (2009) (internal quotation marks omitted). Because "[t]he purpose of a prosecutor's opening statement is to present to the jury an outline or summary of what the State expects to prove[,] [p]rosecutors should limit themselves in their openings to what they will prove[.]" State v. W.L., 292 N.J. Super. 100, 108 (App. Div. 1996) (quoting State v. Ernst, 32 N.J. 567, 577 (1960), cert. denied, 364 U.S. 943, 81 S. Ct. 464, 5 L. Ed. 2d 374 (1961)).
Here, the prosecutor stated in his opening:
"[T]here's going to be a suggestion . . . that Frank Marsh was not at the scene of the crime when this occurred. That defense is going to be very weak because at best [defendant's fiancée] who will testify along those lines would only say that she was with Frank between 7:30 and 8:00 and she would say that she saw him in Metuchen where she works at a dental practice which is not far away."
In this instance, when the prosecutor made reference to defendant's fiancée's anticipated testimony and expressed his opinion that this evidence was a "weak defense," the prosecutor strayed beyond the scope of what is anticipated in a prosecutor's opening statement. The statement, however, was only made once and almost immediately thereafter, the prosecutor told the jury that he was not before the jury "to get into defenses or arguments. Frankly the rules don't allow it."
Further, the court had already informed the jury during preliminary instructions that the attorneys' comments were not evidence. Likewise, in its final instructions to the jury, the court reiterated that "regardless of what counsel said, you know, arguments of counsel, opening statements, summation, remarks, colloquy back and forth, it's not evidence." These timely and effective instructions informed the jury on the limited use of the remarks. See Wakefield, supra, 190 N.J. at 440 (holding that prompt and effective instructions have the ability to neutralize prejudice engendered by an inappropriate comment or piece of testimony). In this light, we reject the claimed error.
As further support for his argument that the prosecutor's remarks had the effect of shifting the burden of proof, defendant focuses on the State's cross-examination, during which the prosecutor asked him whether he attempted to secure surveillance tapes from the 7-Eleven he claimed to have visited the night of Russo's murder. Defense counsel raised an objection, which the court immediately sustained. Outside the presence of the jury, the court characterized the State's implication that defendant had failed to obtain exculpatory evidence as "unfair," and the judge further permitted the State to recall Sgt. Miller to clarify to the jury that the store's tapes had in fact been recorded over by the Store before defendant was charged.
In sustaining defendant's objection, the judge explained in the presence of the jury, that "[n]o obligation rests upon defendant . . . . If that information was supplied to you on that date, you had equal access to any information and have the obligation of proving this case." Also during the State's summation, the judge interrupted to explain that "[t]he defense has no burden to supply you with anything." Finally, in the final charge the judge reiterated the law as to the State's burden to prove all elements of its case.
We discern that the court's timely instructions were sufficient to cure any potential prejudice generated by the prosecutor's questions during cross-examination. See State v. Jenkins, 349 N.J. Super. 464, 479 (App. Div. 2002) (curative instruction alleviated any prejudice from prosecutor's comments allegedly suggesting the defense had burden of proof). We therefore conclude the prosecutor's comments in this specific context do not warrant reversal. B. Pecuniary Gain
Next, defendant contends the prosecutor impermissibly elicited testimony on his financial condition in order to imply that defendant killed Russo for financial gain. During cross-examination, without objection from defendant, the prosecutor elicited testimony from defendant's landlord that defendant was six months behind on his rent, for a total of $3000. The State sought to use this evidence to establish that defendant had a pecuniary interest in killing Russo. The court ruled that while highlighting defendant's alleged poverty as a motive for killing Russo was impermissible, presenting evidence that he was behind on certain debts, and paid those debts with money other than that obtained through normal employment, was a permissible inference for the jury to draw.
The record reveals that defense counsel, outside the presence of the jury, conceded the State may argue defendant's financial motivation for killing Russo in its summation:
[COURT]: So you agree that, in fact, the State can say that this is a financially motivated crime and you may consider the need that this defendant may have had?
[DEFENSE COUNSEL]: I mean, I hung it out there, Judge . . . I think it's a fair comment.
[COURT]: Counsel, you may, in fact, address it, but I tell you walk very gingerly. Don't overdo it. Keep your comments limited to one or two sentences as [defense counsel] did. And I think that would balance it out.
Generally, it is improper to use poverty or lack of financial means as evidence of the defendant's motive to commit a crime. State v. Mathis, 47 N.J. 455, 469-72 (1966) ("[T]here must be something more than poverty to tie defendant into a criminal milieu."); State v. Terrell, 359 N.J. Super. 241, 247 (App. Div.) (noting that use of a defendant's poverty to establish motive is improper), certif. denied, 177 N.J. 577 (2003).
Given defendant's concession, as well as the permissible inference that could be drawn from the State's evidence, we discern no misconduct in the State's reference to the status of defendant's finances at the time of Russo's murder. C. Veracity of Witnesses
Defendant further argues the prosecutor engaged in misconduct by (1) asking defendant on cross-examination to comment on Kissel's truthfulness, and (2) by vouching for Sgt. Miller's veracity before the jury. We will address each issue in turn. Because defendant did not object to either testimony, we review defendant's contentions under the plain error standard. See R. 2:10-2 ("Any error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result[.]").
On cross-examination, the prosecutor questioned defendant about his whereabouts at approximately 7:00 p.m. on December 15, and, in doing so, reiterated Kissel's testimony that he did not see defendant until sometime shortly after 7:00 p.m. that night. In response, defendant stated Kissel said "a lot of different things." The prosecutor then confronted defendant with the cell phone records from the phone company that placed him near Exit 9 at 7:09 p.m. and asked defendant whether Kissel had "made up" the phone records. Defendant answered that Kissel did not make up the records. He continued in his response by stating that Sgt. Miller and the Prosecutor's office had made up the records. After a brief exchange, the prosecutor stated that Sgt. Miller "did not make anything up," then moved on to another topic. In the colloquy regarding defendant's whereabouts, the prosecutor did not ask defendant to comment on Kissel's credibility. The prosecutor was permitted to confront defendant with evidence placing him somewhere other than with Kissel.
We view the prosecutor's comment regarding Sgt. Miller differently. The prosecutor's comment that Sgt. Miller "did not make up anything" was impermissible. Conduct such as this, vouching for a key witness, may lead a jury to accept the witness's credibility based upon information outside the trial evidence. Here, the prosecutor was wrong to interject commentary into defendant's cross-examination. Nonetheless, we conclude the prosecutor's comment regarding Sgt. Miller did not deprive defendant of a fair trial when the comment is considered in the context of the entire trial. State v. Morton, 155 N.J. 383, 419-20 (1998). We observe that shortly after this comment, the court, in response to another comment from the prosecutor that was not framed as a question, admonished the prosecutor that he was being argumentative and instructed the jury that it "will take its evidence from the witness and the witness chair keeping in mind the questions, but remember the testimony is what counts." In light of the trial court's instruction to the jury, the prosecutor's comment was not clearly capable of producing an unjust result. See Bunch, supra, 180 N.J. at 549. D. Knowledge of Evidence Outside Trial Proofs
Defendant next argues the State introduced inadmissible hearsay that violated his Sixth Amendment rights. Specifically, he asserts the introduction of Sgt. Miller's testimony referencing Troxell's custodial statement created an inference Troxell had implicated defendant in Russo's murder, without allowing defendant the right to confront or challenge Troxell. See State v. Bankston, 63 N.J. 263 (1973). Once again, because defendant failed to object to Sgt. Miller's testimony in this regard, we review this issue as plain error. R. 2:10—2.
The State argues that it is entitled to detail the progression and evolution of the murder investigation. Moreover, the State points out the trial court protected defendant's right to a fair trial by instructing the jury not to speculate about Troxell's statement.
On direct examination, Sgt. Miller testified about the investigative events that followed Russo's death. On December 18, he and other officers interviewed Kissel. In response to the prosecutor's question of what he did after meeting with Kissel, the following exchange ensued:
[MILLER]: We interviewed Raymond Troxell.
[STATE]: Now, you know that you can't tell us what he said, right?
[MILLER]: Right. I know that.
[STATE]: How long was this interview?
[MILLER]: Three hours and 17 minutes.
[STATE]: Was it recorded?
[MILLER]: It was, yes.
. . . .
[STATE]: After the video or the statement was taken, what, if anything, did you do with respect to Mr. Troxell?
. . . .
[MILLER]: He was placed under arrest.
[STATE]: What was he charged with?
[MILLER]: Murder.
[STATE]: Was [defendant] under arrest at this point in time?
[MILLER]: He was not under arrest at this point, no.
[STATE]: After the statement that you took from Mr. Troxell was concerned [sic], did you make an attempt to find [defendant]?
[MILLER]: Yes.
[STATE]: Was that the next thing you did?
[MILLER]: Yes.
[STATE]: When did you do that?
[MILLER]: Immediately following our time with Mr. Troxell we then began making efforts to locate [defendant].
[STATE]: Was he eventually located?"
[MILLER]: Yes.
[STATE]: When?
. . . .[MILLER]: At approximately 4 a.m. on December 19th, 2008, Frank Marsh was arrested.
Evaluation of defendant's argument is guided by Bankston in which the Supreme Court held:
It is well settled that the hearsay rule is not violated when a police officer explains the reason he approached a suspect or went to the scene of the crime by stating that he did so "upon information received." Such testimony has been held to be admissible to show that the officer was not acting in an arbitrary manner or to explain his subsequent conduct. However, when the officer becomes more specific by repeating what some other person told him concerning a crime by the accused the testimony violates the hearsay rule. Moreover, the admission of such testimony violates the accused's Sixth Amendment right to be confronted by witnesses against him.
[Id. at 268-69. (citations omitted).]
The Bankston Court added that, "[wh]en the logical implication to be drawn from the testimony leads the jury to believe that a non-testifying witness has given the police evidence of the accused's guilt, the testimony should be disallowed as hearsay." Id. at 271. "The common thread that runs through Bankston [and its progeny] is that a police officer may not imply to the jury that he possesses superior knowledge, outside the record, that incriminates the defendant." State v. Branch, 182 N.J. 338, 351 (2005).
We are not persuaded that the State eliciting this testimony from Sgt. Miller, or the court admitting the testimony was error. The testimony was not improper as it merely explained the course of the investigation at that point in time. Even assuming the testimony was prejudicial because the jury could have inferred that Troxell implicated defendant in the murder, the court's timely instruction that the jury was not to "speculate, guess or wonder what was in a statement that is not before [it] and has nothing to do with this gentleman, this defendant," cured any potential prejudice. The jury is presumed to understand and follow the court's instructions. State v. Burns, 192 N.J. 312, 335 (2007). We conclude that the testimony was not clearly capable of producing an unjust result. E. Expression of Personal Beliefs and Demeaning Comments
Defendant also submits the prosecutor committed misconduct by (1) expressing his personal belief as to defendant's guilt and (2) demeaning the role and personal character of defense counsel. We are not persuaded by these arguments.
At issue is a series of exchanges with regard to the State's "theory" of the case. Beginning with defense counsel's cross-examination of Sgt. Miller, counsel asked if he develops a theory as to how a crime may have been committed during the course of an investigation. Sgt. Miller answered affirmatively. Counsel then asked a hypothetical question:
[DEFENSE COUNSEL]: Well, if the shooting happened at 6:55, based upon your theory
[PROSECUTOR]: Objection. Miller has not testified to any theory that he has.
. . . .
[COURT]: Objection noted.
On re-direct examination, the prosecutor asked Miller what he did to commence an investigation, to which he replied:
Well, if we start with a theory, it's just that, it's a theory. Our job is to follow evidence. We don't follow a theory, we follow the evidence. As the evidence progresses, our theory may change. We may have to adjust. But ultimately we follow evidence. And we're here for evidence. And in my career I've never arrested someone based on theory.Defense counsel objected; the court sustained the objection. The court immediately instructed the jury to disregard Sgt. Miller's comment. In a sidebar discussion on the objection, the judge denied defense counsel's motion for a mistrial, and stated "[t]he jury was given an immediate disregard . . . . [T]his jury is pretty sophisticated . . . . I'm sure they will deal with it appropriately, follow my instructions." The judge cautioned both counsel that "No officer on the stand should be permitted to testify that 'I only arrest guilty people' because it's offering an opinion."
Nothing in the prosecutor's line of questioning suggested an attempt to induce Sgt. Miller to express an opinion of defendant's guilt. Moreover, Sgt. Miller's response that he never arrested anyone based upon a "theory", when considered in the context of his entire response, implies that the sergeant would only arrest based upon the "evidence" because, he stated, "we follow evidence." We discern no misconduct by the prosecutor in this examination. A prosecutor is permitted to "defend the integrity of the investigation." State v. Engel, 249 N.J. Super. 336, 379 (App. Div. 1991).
Defendant further claims that the prosecutor returned to focus on "theories" during his cross-examination. The prosecutor began by asking whether defendant agreed that Sgt. Miller "followed the evidence." Then, the following occurred:
[PROSECUTOR]: That's because you used an American Derringer when you shot Vinnie Russo?The court sustained defense counsel's objection, based on the prosecutor's argumentative comment.
[DEFENSE COUNSEL]: Is that a question?
[DEFENDANT]: That's your theory.
[COURT]: That's a question. And the answer is?
[DEFENDANT]: That's your theory.
[PROSECUTOR]: Well, the evidence points to you. This is not about theories.
[DEFENSE COUNSEL]: Objection
. . . .
[COURT]: That's argumentative. Next question.
As to this claim, it is well-established "that a prosecutor may not declare his personal belief in a defendant's guilt in such a manner as to lead the jury to believe that his opinion is based on something other than the evidence adduced at trial." State v. Ramseur, 106 N.J. at 321 (citing State v. Farrell, 61 N.J. 99, 102 (1972)). A prosecutor may, however, "challenge the opinions expressed by a witness." Ibid.
The prosecutor's impermissible statement, once again injected his opinion into the case. The judge's timely ruling on the objection again cured any prejudice that may have been created by that remark.
Next, defendant contends the prosecutor, in his summation, accused defense counsel of being a bigot and a racist by making reference to the Mafia, and to Coney. This claim is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We only add these brief comments. It is well settled that prosecutors are "afforded considerable leeway in their closing arguments." State v. Smith, 167 N.J. 158, 177 (2001). However, the Supreme Court has articulated several principles with respect to the appropriateness of prosecutor's comments. Ibid. For example, "prosecutors are prohibited from casting unjustified aspersions on the defense or defense counsel." State v. Nelson, 173 N.J. 417, 461 (2002) (citing Smith, supra, 167 N.J. at 177). They may not, among other things, demean the job of the defense lawyer, see State v. Thornton, 38 N.J. 380, 397 (1962), cert. denied, 374 U.S. 816, 83 S. Ct. 1710, 10 L. Ed. 2d 1039 (1963)), or characterize defense counsel's arguments as "outrageous" or "absolutely preposterous," State v. Acker, 265 N.J. Super. 351, 356-57 (App. Div.), certif. denied, 134 N.J. 485 (1993).
We have carefully reviewed the record and find no evidence to support this claim. Specifically, the record is devoid of any reference to the race or ethnicity of the person defense counsel referenced. Moreover, the court instructed the jury several times that the statements of counsel were not to be considered evidence. We conclude there is no evidence of any misconduct here. F. Excessive Reference to Defendant's Weapons
Finally, defendant argues the State's repeated reference to his legal gun collection constituted prosecutorial misconduct since none of the weapons recovered from his Pennsylvania home were linked to the shooting in question or to any other crime. Defendant further contends the prosecutor repeatedly ignored the court's directive to refrain from pursuing certain arguments in connection with the guns, such as defendant's skill as a hunter.
The State proffered the admission of evidence related to defendant's gun collection to show defendant's familiarity with firearms; that defendant owned an American Derringer weapon, the same type of weapon used to kill the victim; and also that an American Derringer was not found among the firearms that were recovered from the residence. It is undeniable the gun collection was a factor in the State's case. Several witnesses testified to the guns recovered from defendant's home, including Inv. Napp, Sgt. Miller, the landlord, and defendant's fiancée. Defendant also freely testified to his gun collection, described himself as a "pretty avid outdoorsman", and admitted he owned an American Derringer.
As defense counsel notes, however, the prosecutor often referenced the guns in the context of defendant's skill as a hunter, which, if anything, suggested an alternative purpose for the admission of the firearms: to show defendant's propensity to kill. On cross-examination of defendant, for example, the State asked,
[PROSECUTOR]: You testified that you hunt deer and you hunt turkey?
[DEFENDANT]: That's correct.
[PROSECUTOR]: And those are two species that require a lot of patience in order to kill?
[DEFENDANT]: Absolutely.
[PROSECUTOR]: Absolutely. There's no doubt about that?
[DEFENDANT]: No doubt about it.
[PROSECUTOR]: Unlike a pheasant where you might just walk along and it pop ups in front of you and you shoot it?
[DEFENDANT]: It requires patience as well.
[PROSECUTOR]: You to have to trudge through the woods?
[DEFENDANT]: Of course.
[PROSECUTOR]: Hunting in general requires patience, doesn't it?
[DEFENDANT]: Yes, it does.
[PROSECUTOR]: Okay. So for deer hunting you start off your day when you go hunting deer doing what? Explain to me what you do to go hunting deer.
Defense counsel objected to the relevance of hunting, at which point the court ordered the parties to sidebar. At sidebar, the State explained it was merely testing defendant's familiarity with guns. The court, however, accused the State of attempting to "address some negative inference he can lay in wait for a person because he can lay in wait for pheasant. I think that's an unfair inference. There's plenty of testimony about his hunting. Move on."
Returning to cross-examination, the prosecutor again asked, "[w]hy is it that you have to be patient?" The court explained to the jury that it had asked the prosecutor to move on and that "[h]unting has nothing to do with this trial. The jury is instructed to disregard this entire line of questioning." The prosecutor persisted in questioning defendant about his shooting practices, at which point the court explained before the jury: "Counsel, the issue of the weapons is tangential. You've covered it. He's familiar with it. He hunts with them and whatever else. I want you to get off the gun issue."
The prosecutor persisted in his summation, arguing that "this case is more than just about $3000. This is about a guy who shot [Russo] with a handgun that he had for a long time probably because he wanted to know what it would feel like." The prosecutor later argued that the case was about more than money, "[i]t was about a guy who had been hunting animals." Defense counsel objected and the court reaffirmed before the jury that "hunting has nothing to do with this case."
In addition to providing curative instructions each time the prosecutor broached the topic of defendant's hunting practices, the court reiterated in its final charge to the jury the limited purpose for which the jury should consider defendant's firearm collection. The final instruction also highlighted the prohibited uses for the evidence, such as evidence of defendant's propensity to commit murder. See Nelson, supra, 173 N.J. at 469-70.
On appeal, defendant contends the prosecutor's disregard for the court's directives constituted prosecutorial misconduct. As support, defendant relies upon Thornton, supra, 38 N.J. at 400, wherein the Court made clear that prosecutors should "confine their summations to a review of, and an argument on, the evidence, and not indulge in improper expressions of personal or official opinion as to the guilt of the defendant, or in collateral improprieties of any type, lest they imperil otherwise sound convictions." In relying upon Thornton, however, defendant fails to note the Court's language that "[i]n a considerable number of cases we and our predecessors have adjudged statements improper but have not reversed because it could not be said that they reached the quality of impropriety which prejudiced the defendant's right to a fair trial." Ibid.
Here, the same is true. While the prosecutor's repeated references to defendant's hunting practices were perhaps excessive, there was sufficient independent evidence upon which the jury could have relied in fairly reaching its verdict. Between Kissel's testimony; the missing murder weapon; defendant's admission to owning an American Derringer like the weapon used to kill the victim; and the cell phone records, which undercut defendant's alibi; the jury had more than defendant's hunting practices on which to base its decision.
Because we conclude the State did not engage in prosecutorial misconduct so egregious as to deprive defendant of a fair trial, we discern no basis upon which to disturb the trial court's discretionary decisions denying defendant's motions for a mistrial and a new trial. See State v. DiRienzo, 53 N.J. 360, 383 (1969) (noting an appellate court will not disturb a trial judge's ruling on a motion for a mistrial unless it is an abuse of discretion resulting in a "manifest injustice").
We turn to defendant's final claim that a mistrial is warranted due to the cumulative effect of the prosecutor's conduct. While one instance of misconduct may not warrant reversal, the cumulative effect of multiple instances may create the requisite prejudice to require reversal. State v. Rodriguez, 365 N.J. Super. 38, 52-53 (App. Div. 2003), certif. denied, 180 N.J. 150 (2004). "We are cognizant that criminal trials create a 'charged atmosphere that frequently makes it arduous for the prosecuting attorney to stay within the orbit of strict propriety.'" State v. Rose, 112 N.J. 454, 516 (1988) (quoting State v. Bucanis, 26 N.J. 45, 56, cert. denied, 357 U.S. 910, 78 S. Ct. 1157, 2 L. Ed. 2d 1160 (1958). As a reviewing court, we should examine (1) whether defense counsel made a timely and proper objection; (2) whether the prosecutor's comment was withdrawn and when; and (3) whether the court provided a curative jury instruction. State v. Zola, 112 N.J. 384, 426 ( 1988), cert. denied sub nom, Zola v. New Jersey, 489 U.S. 1022, 109 S. Ct. 1146, 103 L. Ed. 2d 205 (1989).
We have carefully examined the record concerning the alleged improprieties by the prosecutor. While we do not condone those comments made by the prosecutor, which were inappropriate, we are convinced that defendant was not deprived of a fair trial.
This was a lengthy trial spanning sixteen days. In that regard, the prosecutor's conduct must be viewed in the context of a protracted trial. Engel, supra, 249 N.J. Super. at 382. Therefore, viewing the trial as a whole, we are satisfied the trial judge appropriately and promptly addressed what the record shows were lapses in judgment by the prosecutor. The judge's general and curative instructions appropriately provided the jury with the guidance it needed to reach a fair and sustainable verdict based on the evidence presented at trial, and "obviated any lingering potential for prejudice." Ibid.
III.
Next, defendant argues it was plain error to permit the State to introduce evidence of the guns and ammunition found in his Pennsylvania home because "[t]hey were not connected to the crimes charged against defendant in any manner" and because "the slight relevance the prosecutor claimed the guns had . . . was clearly outweighed by the danger of unfair prejudice[.]" He additionally argues the court's jury instructions with respect to his legal ownership of guns was "insufficient . . . to cure the mountain of prejudice" created by the prosecutor's repeated questioning on this issue. We reject defendant's arguments.
A trial court's evidentiary rulings are reviewed by an appellate court using the abuse of discretion standard. State v. Jenewicz, 193 N.J. 440, 456 (2008). Therefore, "[a] trial court's determination on the admissibility of evidence . . . is entitled to great deference and ordinarily should not be disturbed unless it is 'wide of the mark.'" State v. Fortin, 189 N.J. 579, 597 (2007). Deference is given "to the trial judge's feel for the case since he presided over [it] . . . and had the opportunity to observe and hear the witnesses as they testified." State v. Brooks, 366 N.J. Super. 447, 454 (App. Div. 2004) (quoting State v. Russo, 333 N.J. Super. 119, 137 (App. Div. 2000)).
Except as otherwise provided in the New Jersey Rules of Evidence, or by law, relevant evidence is admissible at trial. N.J.R.E. 402. Evidence is relevant if it has "a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401; see also State v. Hutchins, 241 N.J. Super. 353, 358 (App. Div. 1990) ("The true test is the logical connection between the proffered evidence and a fact in issue, i.e., whether the thing sought to be established is more logical with the evidence than without it.").
Relevant evidence, however, may be excluded "if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence." N.J.R.E. 403. The party urging the exclusion of evidence bears the burden of convincing the court that the Rule 403 considerations control. Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, Comment 1 to N.J.R.E. 403 (2014).
As noted above, the court emphasized the limited purposes for which the guns were introduced at trial, thus highlighting the relevancy of such evidence. Specifically, the court admitted the firearms recovered from defendant's home in order to (1) show defendant's general familiarity with firearms and (2) support the State's argument that the missing Derringer allegedly used to shoot Russo was not found among the firearms recovered from defendant's Pennsylvania residence.
Addressing defendant's contentions on appeal, his familiarity with firearms was directly relevant to the case, as Russo was killed at point blank range by a single gunshot to head. As the State argued below, defendant's familiarity with firearms allowed for the reasonable inference that Troxell would want to hire defendant "over anybody else that the defense may argue is the real killer."
Further, evidence regarding the missing Derringer was highly relevant to the charged crime, since it was the State's contention, bolstered by the dispatcher and expert testimony, that a Derringer was likely the murder weapon. Introducing the gun collection to show that the suspected murder weapon was missing therefrom was relevant, and its probative value was not substantially outweighed by any prejudice to defendant. N.J.R.E. 403.
Most importantly, the judge provided the jury with a limiting instruction, which eliminated any possible prejudice to defendant. The court reminded the jury of the limited purpose for which the weapons recovered from defendant's residence were admitted into evidence:
Now, in this case evidence has been introduced that recovered from defendant's residence were a number of firearms, long rifles as well as handguns and bullets. This was admitted for the limited purpose of showing [defendant's] familiarity with firearms and also that the State alleges that an American Derringer was not found among the firearms that were recovered from the residence. Okay?
You may not, may not use this evidence to conclude that [defendant] has a tendency to commit crimes or that just because he owns weapons, both long rifles and handguns, he must be guilty or, for that matter, is more likely to be guilty of the murder of Mr. Vincent Russo. Similarly, the issue of hunting may not be used, may not be used to infer that he's more likely to commit this offense.
The defendant's hunting, the possession of weapons in Pennsylvania is and was a lawful activity. To the extent that he may have special skill or training specific to hunting, that may be considered by you.
His military service . . . to this country also does not raise any inference
that he's more likely to commit a crime or that he's a violent person or a bad person. There is no connection with the shooting of a Derringer and the military. You may consider that evidence to the extent it impacts on knowledge of weapons, if you believe it does, and inferences from that. But there is no connection between military service and likelihood to commit offenses or being a bad person.
This evidence, all this evidence has been admitted for those very limited purposes and should not be considered for any other purpose.
The lack of prejudicial impact is further illustrated by defendant's failure to object to the proposed instruction either at the charge conference or during the charge itself. See State v. R.B., 183 N.J. 308. Accordingly, we reject defendant's assertion of plain error.
In considering the validity of a jury charge, plain error is "legal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970). Additionally, "[e]rrors impacting directly upon [] sensitive areas of a criminal trial are poor candidates for rehabilitation" under the plain error doctrine. State v. Simon, 79 N.J. 191, 206 (1979).
Contrary to defendant's contention, this limiting instruction was sufficient to overcome any prejudice the State may have created in repeatedly referencing defendant's gun collection and marksmanship. Reading the charge as a whole, State v. Wilbely, 63 N.J. 420, 422 (1973), the instruction reinforces the court's prior statement to the jury that "[h]unting has nothing to do with this trial." While the court permitted the jury to consider defendant's special hunting skills as evidence of his familiarity with weapons, the charge directly cautions against the use of such evidence to prove defendant's propensity to commit the crime. Moreover, we "presume that the jury followed the instruction accurately." State v. Winder, 200 N.J. 231, 256 (2009).
IV.
Lastly, we consider defendant's contentions that his sentence was excessive. Defendant argues the trial court erred in failing to merge his convictions for weapons offenses under counts three and four into his conviction for murder under count one. We agree.
The failure to merge convictions when appropriate results in an illegal sentence. State v. Romero, 191 N.J. 59, 80 (2007). The State conceded this error. Accordingly, we remand for the trial court to correct the judgment of conviction to accurately reflect the merger of counts three and four into count one.
Next, defendant submits the trial court erred by misapplying the aggravating factors, because the court allegedly gave "insufficient explanation of the specific facts on which it relied in making each determination." He also contends the court impermissibly double counted the elements in aggravating factors one and two, because they were "already part and parcel of the first-degree murder for hire crime." We reject these contentions.
This court applies a deferential standard of review to a trial judge's sentencing determination. State v. Fuentes, 217 N.J. 57, 70 (2014) (citing State v. O'Donnell, 117 N.J. 210, 215 (1989)). Our role in reviewing sentencing decisions is therefore limited. We must affirm a defendant's sentence unless:
(1) the sentencing guidelines were violated; (2) the aggravating and mitigating factors found by the sentencing court were not based upon competent and credible evidence in the record; or (3) 'the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience.'We are required to affirm a sentence, even if we would have arrived at a different result, "as long as the trial court properly identifie[d] and balance[d] aggravating and mitigating factors that are supported by competent credible evidence in the record." State v. Lawless, 214 N.J. 594, 606 (2013) (quoting O'Donnell, supra, 117 N.J. at 210, 215).
[Ibid. (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).]
Defendant contends the court double counted the elements in aggravating factors one and two because they were "already part and parcel of the first-degree murder for hire crime." The State contends defendant's arguments have no practical effect on the outcome because he is subject to a mandatory life sentence under the murder for hire statute. N.J.S.A. 2C:11-3(b)(4). Defendant's claim lacks merit.
Under the murder for hire statute, if the State proves one of several "triggering factors," a defendant is eligible for a mandatory sentence of life imprisonment without parole. N.J.S.A. 2C:11-3(b)(4) sets forth one such triggering factor: a defendant convicted of purposeful or knowing murder, N.J.S.A. 2C:11-3(a)(1) or (2), becomes eligible for a mandatory sentence of "life imprisonment without . . . parole" if he, "as an accomplice[,] procured the commission of the offense by payment or promise of payment of anything of pecuniary value." Troxell, supra, 434 N.J. Super at 510. In this case, the jury found defendant guilty of murder and found he did so "for payment of money from Raymond Troxell." As required by statute, the court sentenced defendant to a life sentence without parole.
The triggering factor applied here, pecuniary gain, N.J.S.A. 2C:11-3(b)(4)(d), is unlike aggravating factors one, N.J.S.A. 2C:44-1(a)(1) (offense was "committed in an especially heinous, cruel, or depraved manner") or two, N.J.S.A. 2C:44-1(a)(2) ("gravity and seriousness of the harm inflicted on the victim," including whether defendant knew the victim was vulnerable). As such, the judge did not double count the factors.
Even if the judge had done so, it would have had no practical effect on the outcome because defendant is subject to an aggregate mandatory life sentence for the murder and weapons offenses. Nevertheless, we have carefully canvassed the record, and although the judge did not provide a lengthy explanation of his reasons, we cannot conclude that he mistakenly exercised his discretion by imposing the sentence for these offenses. On balance, the aggravating factors outweigh the non-existent mitigating factors. We find no abuse of discretion in the judge's findings with respect to aggravating and mitigating factors, and will therefore, not disturb the results.
Having considered these points in light of the record and applicable legal standards, we affirm defendant's conviction and sentence, except for the sentences imposed on counts three and four. The sentences imposed on counts three and four must be merged with the sentence imposed on count one. We remand to the trial court to correct the JOC to reflect this merger.
Affirmed as to the conviction and sentence. Remand to correct the JOC to reflect the merger of counts three and four into count one. 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