Opinion
DOCKET NO. A-3854-13T3
04-13-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ANTWINE J. RIVERA, a/k/a ANTWINE JABER, Defendant-Appellant.
Robert N. Agre argued the cause for appellant (Agre & Jensen, attorneys; Mr. Agre and Annmarie Jensen, on the briefs). Ian C. Kennedy, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Mr. Kennedy, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Hoffman, Leone and Whipple. On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 13-01-0049. Robert N. Agre argued the cause for appellant (Agre & Jensen, attorneys; Mr. Agre and Annmarie Jensen, on the briefs). Ian C. Kennedy, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Mr. Kennedy, of counsel and on the brief). PER CURIAM
Defendant Antwine J. Rivera appeals his judgment of conviction for the murder of Jeffrey Moss in Millville in the early hours of May 4, 2012. We affirm.
I.
We summarize the testimony elicited at the five-day jury trial. Defendant shot Moss following a dispute concerning a woman, A.B. Defendant had known A.B. for many years, and previously had a sexual relationship with her. In May 2012, A.B. was dating Moss.
Given the nature of this case, we use initials to protect the identities of the witnesses.
On the night of the shooting, A.B. was at a party with defendant. Moss did not want A.B. to be with defendant, told her to leave the party, and drove her to their home. A.B. then went to a relative's house. Moss followed in his car, and was pulling her away from the house when defendant and his brother arrived in his brother's car. Defendant and Moss "had a few words." Moss and A.B. got into Moss's car. Moss backed his car into the brother's car, and defendant broke the back window of Moss's car.
Moss and A.B. drove to the house of his friend, G.F. Moss told G.F. he was "going after" defendant. Meanwhile, A.B. ran to a street corner where friends had congregated. A.B. saw a car dropping off defendant and his brother. Defendant squatted down by the side of a house at the corner.
Moss and G.F. walked to the corner. Moss said he wanted to see defendant. After a few minutes, G.F. and then Moss started to walk away from the corner. Defendant ran out from his hiding place behind the house. A.B. heard defendant shout something like: "You're not going to see me tomorrow, you're going to see me now." G.F. heard someone shout something like "they're looking for me. Well, I'm here." G.F. turned and saw defendant pointing a gun.
Both A.B. and G.F. saw defendant begin shooting at Moss, and saw Moss fall to the ground. G.F. saw Moss clutching his chest; A.B. believed Moss was shot in the back. Near the corner, the police later found five .45 caliber shell casings, all fired from the same gun. A .45 caliber bullet was later recovered from Moss's chest.
Immediately after shooting Moss, defendant ran and was picked up by a car. The .45 caliber gun was never recovered. A.B. ran to Moss and found he still had a 9 mm handgun in the waistband of his pants. Hysterical, A.B. took the 9 mm gun and shot into the air until the gun ran out of bullets. A.B. or G.F. allegedly fired a second gun. The police found nine 9 mm shell casings approximately fifteen feet from the .45 caliber shell casings. Seven of the 9 mm casings had been fired from one gun, and two from a different gun.
Patrol officer Kimberly Hall received a radio call advising that shots had been fired, and that a silver vehicle was possibly involved and may have fled the scene. Officer Hall arrived at the scene and found A.B. holding Moss, with a handgun on the ground nearby. Officer Hall unsuccessfully tried to revive Moss. By the time an emergency medical technician arrived, the handgun was gone. No 9 mm guns were recovered.
A.B. then left the scene. She was initially reluctant to speak to the police, but later that night identified defendant as the killer and gave a statement at the police station. G.F. initially gave a false statement, but later identified defendant as the killer. Defendant was arrested days later.
At trial, the State called A.B., G.F., Officer Hall, the medical examiner, and nine other witnesses. The defense called a witness who testified that, before the shots were fired, she heard a woman screaming that Moss should "put the gun down." Defendant did not testify. The defense was that A.B. and G.F. were lying and that there was no other evidence defendant was at the scene of the crime.
The jury found defendant guilty of first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2) (Count One); second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a) (Count Two); and second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (Count Three). The jury then convicted defendant of second-degree possession of a firearm by a convicted person, N.J.S.A. 2C:39-7(b)(1) (Count Four).
After denying defendant's motion for a new trial, Judge Cristen D'Arrigo sentenced him on the murder conviction to sixty years in prison with 85% without parole pursuant to N.J.S.A. 2C:43-7.2. The court merged Count Two with Count One, and imposed concurrent terms of ten years with five years of parole ineligibility on Counts Three and Four. Defendant now appeals.
II.
Defendant appeals his April 10, 2014 judgment of conviction, raising the following points:
I. THE TRIAL COURT ERRED IN DENYING APPELLANT A NEW TRIAL FOLLOWING THE DISCOVERY OF NEW EVIDENCE REGARDING THE CREDIBILITY AND LICENSURE OF THE MEDICAL EXAMINER WHO TESTIFIED AT TRIAL ON BEHALF OF THE STATE.
A. THE FAILURE OF THE STATE TO DETERMINE THE PROFESSIONAL STATUS OF THE MEDICAL EXAMINER AND TO PROVIDE THAT INFORMATION TO THE DEFENSE CRITICALLY IMPACTED CROSS-EXAMINATION OF THE WITNESS, BOTH AS TO HIS CREDIBILITY AND AS TO HIS LICENSURE
B. THE TRIAL COURT'S CONTINUED RELIANCE UPON THE MEDICAL EXAMINER'S OPINION, NOTWITHSTANDING THE INFORMATION PROVIDED POST-TRIAL, WAS MISPLACED AND CONSTITUTES REVERSIBLE ERROR.
II. APPELLANT WAS ENTITLED TO A NEW TRIAL IN LIGHT OF THE FACTUALLY-ESTABLISHED CONFLICTS OF INTEREST ON THE PART OF HIS LEAD TRIAL COUNSEL.
III. THE GUILTY VERDICTS IN THE CASE BEFORE THE COURT WERE SO CLEARLY AGAINST THE WEIGHT OF THE EVIDENCE THAT THERE WAS A MANIFEST DENIAL OF JUSTICE REQUIRING A NEW TRIAL.
IV. THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION FOR A NEW TRIAL IN LIGHT OF THE MANY REMARKS MADE BY THE SUMMATION, WHICH AMOUNTED TO PROSECUTORIAL MISCONDUCT.
V. THE SENTENCE IMPOSED BY THE TRIAL COURT WAS EXCESSIVE IN LIGHT OF THE AGGRAVATING AND MITIGATING FACTORS AND THE FINDING THAT ANTWINE RIVERA WAS A "PERSISTENT OFFENDER" TO WHICH AN EXTENDED TERM OF IMPRISONMENT SHOULD APPLY WAS ERRONEOUS.
Defendant's first five arguments challenge the denial of his motion for a new trial. We must hew to our standard of review. "[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). We find no abuse of discretion here.
III.
Initially, we address defendant's third point: that the verdict was against the weight of the evidence. A trial judge may not "set aside the verdict of the jury as against the weight of the evidence unless, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a manifest denial of justice under the law." R. 3:20-1. An appellate court "must weigh heavily the trial court's 'views of credibility of witnesses, their demeanor, and [its] general "feel of the case."'" State v. Carter, 91 N.J. 86, 96 (1982) (citations omitted).
As the trial court noted, the "main point" of defendant's challenge to the weight of the evidence was that A.B.'s testimony was not credible because she said Moss was shot in the back. To contradict her, defendant relied on the medical examiner's testimony that the cause of Moss's death was a gunshot wound to the chest, that the bullet entered through the right side of the chest, and that there was no exit wound. However, as the trial court reasonably explained, the testimony was reconcilable if Moss turned to the sound of gunfire.
In any event, we agree with the trial court that there was ample evidence of defendant's guilt. The "trier of fact could rationally have found beyond a reasonable doubt that the essential elements of the crime were present." Id. at 96; accord State v. Herrera, 385 N.J. Super. 486, 492 (App. Div. 2006).
IV.
By contrast, defendant's first point attacks the medical examiner's credibility. The medical examiner was employed as the Southern Regional Medical Examiner for the State's Department of Criminal Justice (DCJ). After the January 24, 2014 verdicts, the Cumberland County Prosecutor's Office (CCPO) sent defendant's current counsel a letter on March 19, 2014, stating that the DCJ had advised the CCPO on March 13, 2014, that the medical examiner had resigned on February 18, 2014. The medical examiner resigned rather than be terminated due to the discovery of misrepresentations and non-disclosures on his employment application, including that: the medical board had asked him to voluntarily surrender his license to practice medicine, but "he still holds his license"; other States had asked him to voluntarily surrender his license to practice medicine; and he had surrendered his license to practice medicine in New Mexico based on a settlement in a malpractice matter.
The CCPO's letter said it conveyed this information pursuant to its obligations under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). Defendant contends that the State violated Brady, and that the information was newly-discovered evidence warranting a new trial.
"In order to establish a Brady violation, the defendant must show that: (1) the prosecution suppressed evidence; (2) the evidence is favorable to the defense; and (3) the evidence is material." State v. Martini, 160 N.J. 248, 268 (1999). "[E]vidence is 'material' if there is a 'reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.'" Id. at 269 (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383, 87 L. Ed. 2d 481, 494 (1985)).
"[T]he test to be satisfied under a newly discovered evidence approach is more stringent." State v. Carter, 85 N.J. 300, 314 (1981).
Evidence is newly discovered and sufficient to warrant the grant of a new trial when it is "(1) material to the issue and not merely cumulative or impeaching or contradictory; (2) discovered since the trial and not discoverable by reasonable diligence beforehand; and (3) of the sort that would probably change the jury's verdict if a new trial were granted."
[State v. Nash, 212 N.J. 518, 549 (2013) (quoting Carter, supra, 85 N.J. at 314).]
We note that the information did not itself show the medical examiner's testimony was inaccurate. Rather, the information furnished impeachment material. A prosecution's Brady "obligation extends as well to impeachment evidence," and impeachment "evidence that would have the probable effect of raising a reasonable doubt as to the defendant's guilt would not be considered merely cumulative, impeaching, or contradictory" under the standard for newly-discovered evidence. Id. at 544, 549 (quoting State v. Ways, 180 N.J. 171, 189 (2004)). Nonetheless, under that standard and the Brady standard, defendant must show at least a reasonable probability that the verdict would be more favorable to him if he used the impeachment material. Defendant cannot make that showing.
At trial, defendant relied on the medical examiner's testimony. The defense did not object to the medical examiner's qualifications or his testimony. Defense counsel's cross-examination primarily had the medical examiner repeat his conclusion that Moss was shot in his chest, not in his back, as A.B. claimed. In summation, defense counsel repeatedly relied on the medical examiner's conclusion to show A.B. was not credible. Thus, using the impeachment material would have harmed the defense by discrediting the medical examiner, on whom defendant was relying.
Defendant's only objection was to the phrasing of a question by the prosecutor, which he then rephrased.
By contrast, the prosecutor's summation did not discuss any of the medical examiner's brief testimony.
The defense continued to rely on the medical examiner's testimony at the April 7, 2014 hearing on his motion for a new trial. Even though defendant's current counsel had sent the trial court the CCPO's letter, noting it "would have provided a basis for cross-examination," counsel barely mentioned the letter at the hearing, instead relying on the medical examiner's testimony as "[c]entral to [his] argument" about the weight of the evidence.
At the motion hearing, defendant noted the medical examiner's additional testimony that "based on the appearance of that wound," the gun was not within two feet of Moss. However, that additional testimony was inconsequential. Defendant did not object to it at trial, and neither side mentioned it in their summations. Moreover, there was no testimony defendant or anyone else was within two feet of Moss when he was shot. Further, as the trial court pointed out, there was no dispute that Moss was killed with a .45 caliber bullet, and the shell casings found near his body were all 9 mm (.354 caliber).
Thus, defendant has not shown a reasonable probability the result would have been different had he possessed the information to impeach the medical examiner. The trial court found the information would not "have made any difference" in the verdict. "[T]he trial court's 'weighing of the evidence merits deference . . . in measuring the effect of a non-disclosure on the course of [the] trial.'" State v. Marshall, 148 N.J. 89, 186 (citation omitted), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997).
Accordingly, we need not reach the other elements of the standard for newly-discovered evidence, or the Brady standard, including whether the DCJ knew of the medical examiner's misrepresentations or non-disclosures at the time of his January 15, 2014 testimony, and whether such knowledge could be imputed to the CCPO. We also need not consider whether defendant waived a Brady claim.
V.
Defendant next claims that both of his lawyers at trial had conflicts of interest. "A criminal defense attorney must not be hindered by conflicts of interest that could compromise his or her duty to a client[.]" State v. Miller, 216 N.J. 40, 63 (2013), cert. denied, ___ U.S. ___, 134 S. Ct. 1329, 188 L. Ed. 2d 339 (2014). "Attorneys who practice law in New Jersey are required to comply with strict ethical rules concerning actual or possible conflicts of interests." State v. Loyal, 164 N.J. 418, 428 (2000). Absent a waiver, "a lawyer shall not represent a client if the representation involves a concurrent conflict of interest." R.P.C. 1.7(a).
A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client, or a third person or by a personal interest of the lawyer.
[Ibid.]Also, "[a] lawyer who has represented a client in a matter shall not thereafter represent another client in the same or a substantially related matter in which that client's interests are materially adverse to the interests of the former client unless the former client gives informed consent confirmed in writing." R.P.C. 1.9(a).
Under the Sixth Amendment, "'prejudice is presumed when counsel is burdened by an actual conflict of interest,' although in such a case [courts] do require the defendant to show that the conflict adversely affected his counsel's performance." Smith v. Robbins, 528 U.S. 259, 287, 120 S. Ct. 746, 765, 145 L. Ed. 2d 756, 781 (2000) (quoting Strickland v. Washington, 466 U.S. 668, 692, 104 S. Ct. 2052, 2067, 80 L. Ed. 2d 674, 696 (1984)); United States v. Cronic, 466 U.S. 648, 662 n.31, 104 S. Ct. 2039, 2048 n.31, 80 L. Ed. 2d 657, 670 n.31 (1984). New Jersey courts similarly confine the presumption of prejudice to "counsel having an actual conflict of interest." State v. Savage, 120 N.J. 594, 616 (1990); see also Miller, supra, 216 N.J. at 61-62 (finding "no authority in this Court for the expansion of the presumption of prejudice beyond the narrow parameters set in Cronic").
Our Supreme Court has "limited the per se conflict on constitutional grounds to cases in which 'a private attorney, or any lawyer associated with that attorney, is involved in simultaneous dual representations of codefendants.'" State v. Cottle, 194 N.J. 449, 467 (2008) (citation and footnote omitted). "In all other cases, 'the potential or actual conflict of interest must be evaluated and, if significant, a great likelihood of prejudice must be shown in that particular case to establish constitutionally defective representation of counsel.'" Id. at 467-68 (citation omitted).
A.
In his motion for a new trial, defendant claimed his lead trial counsel had a conflict of interest because of his representation of Leroy H. Ford, Jr. The motion attached police reports showing that about twenty-one hours after the shooting, the police received an anonymous tip that defendant was in a silver Acura. Officer Daniel Ayars pulled over the Acura. Ford fled from the Acura and discarded a handgun. Ayars arrested Ford, recovered the .380 caliber handgun loaded with .38 caliber ammunition, and charged Ford with two weapons offenses and resisting arrest.
On the last day of testimony in defendant's trial, lead trial counsel attempted to call Officer Ayars as a witness. In doing so, lead trial counsel argued that Ford's gun might be "a similarly situated gun as the gun in this case," and stated that he "represented [Ford] in that case." Because Ayars had not been previously identified as a witness, the trial court ordered a hearing under N.J.R.E. 104 on whether Ayars would be permitted to testify. Before the hearing was to start, lead trial counsel announced the defense no longer wished to call Ayars. In any event, the court indicated it would not have been inclined to permit Ayars to testify.
In the new trial motion, current defense counsel attached an unsworn and uncertified "Affidavit" signed by defendant. Defendant's unsworn statement claimed that he asked lead trial counsel to call Ford as a witness, that the judge was willing to hold a "104 hearing" regarding the relevance of Ford's testimony, that lead trial counsel withdrew the request to call Ford, and that lead trial counsel told defendant he was currently representing Ford and "it would be a conflict of interest" to call Ford. Defendant's unsworn statement also asserted that Ford was with A.B. on the night she gave her statement to the police, that "[i]t is my understanding that a .380 pistol can fire a 9 mm round," and that Ford's presence in the silver car with the .380 caliber pistol caused defendant to "believe Mr. Ford may have been involved in the shooting and could have potentially exculpated" him. However, current defense counsel had not interviewed Ford and did not know what Ford would say.
The trial court denied the motion for a new trial, stating "the issue of conflict is not ripe here." We agree. First, neither this court nor the trial court could properly consider defendant's unsworn statement. "If a motion is based on facts not appearing of record or not judicially noticeable," a party must submit "affidavits made on personal knowledge, setting forth only facts which are admissible in evidence to which the affiant is competent to testify[.]" R. 1:6-6. Such an affidavit must be under oath, or contain the certification in Rule 1:4-4(b). Because defendant's unsworn statement "failed to include the verification required for certifications in lieu of oath," it "had no evidentiary value." Pascack Cmty. Bank v. Universal Funding, LLP, 419 N.J. Super. 279, 288 (App. Div. 2011).
Moreover, defendant's unsworn statement apparently confused Ford with Officer Ayars; made assertions about Ford's shooting-related activities that were outside defendant's personal knowledge; and offered defendant's unsupported "understanding" about .380 caliber guns. "Personal knowledge, the mandate of the rule, clearly excludes facts based merely on 'information and belief.'" Pressler & Verniero, Current N.J. Court Rules, comment 1 on R. 1:6-6 (2016).
Second, setting aside defendant's unsworn statement, the record does not show a conflict of interest, even considering the police reports. Defendant has not shown that lead trial counsel was still representing Ford at the time of defendant's trial in January 2014. Regardless, lead trial counsel did request to call Officer Ayars, and the record does not indicate why the defense withdrew that request. It is unclear that Ayars's testimony would have any relevance to this case, other than showing that the anonymous tipster inaccurately reported defendant was in the silver Acura. See State v. Jimenez, 175 N.J. 475, 479, 493 (2003) (finding "no actual conflict of interest" in counsel's representation of a suspect "who was questioned during the investigation but found to have no connection with the murder"). Ford's possession of a handgun hardly connects him to this shooting. See id. at 490-91. Finally, as the trial court noted, no claim has been made that a .380 pistol could have fired the .45 caliber bullet that killed Moss. The trial court properly rejected defendant's claim that lead trial counsel had a conflict of interest.
We take judicial notice under N.J.R.E. 201(b)(4) that Ford's trial ended in conviction on October 16, 2013; Ford was represented by new counsel on appeal; and it is unclear who was representing him in his new trial motion, denied on February 7, 2014. See State v. Ford, No. A-4459-13 (App. Div. Feb. 16, 2016) (slip op. at 1, 3, 8).
Our ruling is without prejudice to the raising of that conflict claim in an appropriate proceeding with the requisite supporting affidavits. See State v. Cummings, 321 N.J. Super. 154, 170-71 (App. Div.), certif. denied, 162 N.J. 199 (1999).
B.
At trial, defendant had a second lawyer, who described herself as the "second-chair." Though second-chair counsel sometimes spoke at sidebar, lead trial counsel handled the opening, the examination of the witnesses, and the summation.
In the motion for a new trial, defendant's current counsel asserted that second-chair counsel "apparently represented" Moss before his death in two Municipal Court cases and in an outstanding indictable case. No supporting evidence for this claim appears in our record. Assertions of counsel are "not evidential and will not be considered" under Rule 1:6-6. Albrecht v. Corr. Med. Servs., 422 N.J. Super. 265, 267 n.1 (App. Div. 2011).
In any event, the trial court observed second-chair counsel "was an eleventh-hour addition to the trial team," brought in by defendant due to their personal relationship from having a child together. Given second-chair counsel's limited involvement, the court found no reason to overturn the jury's verdicts. The court also noted that both defendant and second-chair counsel "would have been and should have been aware of" the alleged conflict, and that defendant could not himself create a conflict to undo the result of the trial.
Defendant cites State ex rel. S.G., 175 N.J. 132 (2003). There, our Supreme Court prevented a law firm from undertaking the "simultaneous representation" of an accused murderer when it was still "the attorney of record" for the murder victim on narcotics charges, "resulting in a prohibited actual conflict." Id. at 134-35. The Court emphasized that "the charges against [the victim] remained pending for three weeks after his death, during which time the firm undertook the defense of his alleged killer. That rendered the representation of the two interests simultaneous." Id. at 141. The firm's simultaneous "dual representation of clients with patently adverse interests caused a conflict of interest that was direct and actual." Ibid.
By contrast, there is no reason to believe that the alleged indictable matter was still pending against Moss twenty months after his death when second-chair counsel made her "eleventh-hour" appearance in January 2014. Because she never simultaneously "served as the attorney of record for the accused defendant and the victim," there was no "direct and actual conflict," and S.G. is not controlling here. Id. at 134, 141.
The Court in S.G. made clear that it was not addressing "successive representation of clients with adverse interests where the possibility of breach of client confidences becomes a focus of the conflict analysis." Id. at 141. Here, it is undisputed that Moss's alleged Municipal Court matters and indictable offense were not "in the same or a substantially related matter," R.P.C. 1.9(a), and those matters were not shown to give second-chair counsel any client confidences relevant to the prosecution of defendant. Thus, defendant has not shown the requisite "great likelihood of prejudice." Cottle, supra, 194 N.J. at 467.
Finally, "[i]t also bears mentioning again that defendant ha[d] the benefit of representation by two lawyers," and that the trial was conducted by lead trial counsel, not by second-chair counsel. Jimenez, supra, 175 N.J. at 492. That "further safeguard[ed] defendant['s] interests." State v. Davis, 366 N.J. Super. 30, 41 (App. Div. 2004).
VI.
Defendant next asserts he should have received a new trial based on eighteen prosecutorial questions and arguments. "'Prosecutors are afforded considerable leeway in closing arguments as long as their comments are reasonably related to the scope of the evidence presented.'" State v. R.B., 183 N.J. 308, 332 (2005) (citation omitted). "'[T]o justify reversal, the prosecutor's conduct must have been "clearly and unmistakably improper,"'" and "'so egregious as to deprive defendant of a fair trial.'" State v. Wakefield, 190 N.J. 397, 437-38 (2007) (citations omitted), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008).
"[I]n reviewing the trial record to determine whether the conduct of the prosecutor exceeded these bounds, [courts] must consider several factors, including whether 'timely and proper objections' were raised." State v. Smith, 212 N.J. 365, 403 (2012) (citation omitted), cert. denied, ___ U.S. ___, 133 S. Ct. 1504, 185 L. Ed. 2d 558 (2013). Defendant did not object to any of the comments. "Generally, if no objection was made to the improper remarks, the remarks will not be deemed prejudicial." State v. Timmendequas, 161 N.J. 515, 576 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). Also, defendant "must demonstrate plain error to prevail." Ibid.
"'Defendant's belated effort to raise that issue on motion for a new trial does not entitle him to avoid the plain error standard of review.'" State v. Patterson, 435 N.J. Super. 498, 509 (App. Div. 2014) (citation omitted). --------
Defendant has not satisfied his burden to show reversible error. Most of the comments were "'based on the evidence in the case and the reasonable inferences from that evidence.'" State v. T.J.M., 220 N.J. 220, 236 (2015) (citation omitted). Some of the comments were "prompted by comments in the summation of defense counsel." Smith, supra, 212 N.J. at 404. However, other comments warrant further discussion.
Defendant complains the prosecutor asked A.B. and G.F.: "Why are you here today telling the truth?" However, those questions were preceded by questions eliciting that these witnesses had not been entirely forthcoming with law enforcement initially, or promised anything by the prosecution. Defendant also protests a leading question to G.F., but fails to show the same answer would not have been given if defendant had objected and the prosecutor had rephrased the question. The questions were not reversible error.
Defendant cites summation comments in which the prosecutor referred to his own views. "A prosecutor may not express a personal belief or opinion as to the truthfulness of his or her witness's testimony." State v. Staples, 263 N.J. Super. 602, 605 (App. Div. 1993). However, when the prosecutor argued to the jurors that "I didn't hear" A.B. testify to anything untruthful, he immediately added: "It's a credibility issue for you guys to decide." When he began to voice "my perspective," he promptly changed tack and added "I submit," which is a proper "'method of prefacing an argument and does not by itself constitute vouching.'" State v. Cagno, 409 N.J. Super. 552, 604 (App. Div. 2009) (citation omitted), aff'd, 211 N.J. 488 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 877, 184 L. Ed. 2d 687 (2013).
The prosecutor also commented: "When I asked detective, after detective, after detective, after patrol person in the 18 months since this homicide happened . . . , did any other name ever come up as a person who" shot Moss, the answer was "[z]ero in 18 months." The State notes the prosecutor at trial elicited such testimony from a patrol officer and a detective, but that leaves his comment either an exaggeration or an extra-record assertion. However, after the prosecutor's summation, the trial court repeatedly instructed the jury that remarks by counsel "are not evidence." "We presume the jury followed the court's instructions." Smith, supra, 212 N.J. at 409.
In any event, it is "'"fair to infer from the failure to object below that in the context of the trial the error was actually of no moment."'" State v. Ingram, 196 N.J. 23, 42 (2008) (citations omitted). Moreover, the trial court did not see the prosecutor's remarks as "rising to that level, even if there were individual assertions during the closing." Such an observation from the judge who witnessed the trial is entitled to deference. Thus, any "references to the prosecutor's personal beliefs," though improper, "were not of such a nature as to deprive defendant of a fair trial." State v. Chew, 150 N.J. 30, 83-84 ( 1997), cert. denied, 528 U.S. 1052, 120 S. Ct. 593, 145 L. Ed. 2d 493 (1999). Defendant has failed to show that denial of a new trial was a clear abuse of discretion.
VII.
Finally, defendant challenges his sentence. Because he had prior convictions for unlawful possession of an assault rifle, and for possession of drugs with intent to distribute, he was "a persistent offender," N.J.S.A. 2C:44-3(a), on whom the court "may" impose an extended term. N.J.S.A. 2C:44-3.
Defendant argues the trial court did not understand the extended term was discretionary. To the contrary, the court acknowledged it was uncontested that the minimum statutory predicates for subjecting defendant to an extended term had been met, making defendant subject to an extended term. The court recognized it had to decide "whether or not [it] should impose an extended term." After hearing arguments from both sides on whether an extended term was "equitable," the court considered the aggravating and mitigating circumstances. See State v. Pierce, 188 N.J. 155, 168 (2006) ("whether the court chooses to use the full [extended] range of sentences opened up to the court is a function of the court's assessment of the aggravating and mitigating factors").
The trial court considered defendant's commission of the murder, and his prior record including two Municipal Court convictions, two ordinance violations, five delinquency adjudications, and two diversions. The court found that there was a substantial "risk that the defendant will commit another offense," and that "defendant's prior criminal record" and "[t]he need for deterring the defendant and others from violating the law" also carried substantial weight. N.J.S.A. 2C:44-1(a)(3), (6), (9). The court found these three aggravating factors substantially outweighed the sole mitigating factor, that Moss "induced or facilitated" the offense by looking for defendant while armed, N.J.S.A. 2C:44-1(b)(5). The court gave that factor slight weight because Moss was walking away when defendant revealed himself and murdered Moss.
The trial court reiterated that defendant was "extended term eligible pursuant to 2C:44-3(a)," and then found that an "extended term is required in this case." The context shows the court meant an extended term sentence was warranted by the circumstances in this case. There is no reason to believe the court was unaware that imposing a "discretionary extended term" under N.J.S.A. 2C:44-3 is discretionary, as courts have long and repeatedly held. See, e.g., State v. Robinson, 217 N.J. 594, 607 (2014); Pierce, supra, 188 N.J. at 159; State v. Maguire, 84 N.J. 508, 526 (1980).
Moreover, we find no "abuse of discretion" in the trial court's imposition of the sentence here. Pierce, supra, 188 N.J. at 169. "It is well-established that appellate courts review the trial court's 'sentencing determination under a deferential standard of review.'" State v. Grate, 220 N.J. 317, 337 (2015) (citation omitted). Defendant's remaining arguments are without sufficient merit to warrant discussion. R. 2:11-3(e)(2).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION