Opinion
DOCKET NO. A-0666-11T2
09-11-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. TRAVIS BURRIS, a/k/a HAJIEM SUMLER, a/k/a TRAVIS E. BURRIS, Defendant-Appellant.
Jay L. Wilensky, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Wilensky, of counsel and on the brief). Jane C. Schuster, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Ms. Schuster, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sapp-Peterson, Lihotz and Hoffman. On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-10-03262. Jay L. Wilensky, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Wilensky, of counsel and on the brief). Jane C. Schuster, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Ms. Schuster, of counsel and on the brief). PER CURIAM
Tried by a jury, defendant Travis Burris appeals from his conviction of first-degree murder, first-degree attempted murder, and various related charges stemming from two shootings, a day apart, in March of 2006. We affirm defendant's conviction and sentence, but we remand to the Law Division to amend defendant's period of parole ineligibility.
The ten-count indictment included the following charges: second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count one); third-degree unlawful possession of a weapon (handgun), N.J.S.A. 2C:39-5(b) (count two); second-degree possession of a weapon (firearm) for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count three); first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2) (count four); third-degree unlawful possession of weapon (handgun), N.J.S.A. 2C:39-5(b) (count five); second-degree possession of a weapon (firearm) for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count six); and first-degree attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3 (counts seven and eight); third-degree unlawful possession of a weapon (handgun), N.J.S.A. 2C:39-5(b) (count nine); and second-degree unlawful use of a body vest, N.J.S.A. 2C:39-13 (count ten).
I.
These facts are derived from the trial record. On the afternoon of March 22, 2006, D.E. was shot in the face as he was backing his car out of his driveway in Newark. D.E. was not the intended target of the shooting, but he did observe the shooter, and later identified defendant in a photo array. After the shooting, police recovered several shell casings and bullet fragments from the scene.
The following evening, D.E. provided a statement to the police regarding the shooting, as well as the shooter's description. He described his assailant as having a "goatee," "dreads," and "a bandana tied to his waist."
On the morning of March 24, 2006, D.E. met with the police again and identified defendant from an array of six photographs. Both at the time he was first shown the pictures and at trial, D.E. explained he was a "[h]undred percent" sure he had identified the man who shot him in the face. D.E. also testified that at first, he believed he was the target, but he later learned that defendant was trying to shoot at two other individuals who were seen on the sidewalk.
The following evening, March 23, 2006, L.C. was walking with her two sons, K.C. and D.C., in Newark when she was shot and killed; K.C. was also shot, suffering injuries to his arm and chest. The police recovered forty-five caliber shell casings and one bullet fragment from the scene. Both K.C. and D.C. identified defendant as the shooter from photographs presented to them.
D.C. testified at trial regarding the events surrounding this incident. He acknowledged he was a Crip gang member who knew defendant, "from the area," as a Brick City Brim Blood gang member named "July." D.C. explained that three days prior to the shooting, on March 20, 2006, defendant approached him for the first time and asked, "[Y]ou know what zone you in? You know where you at, what territory?" As defendant came toward D.C., he made threatening gang sign gestures with his hands. D.C. stated defendant "threw out B's, that mean[t] he was banging in his set and when he thr[e]w up C K, that mean[t] . . . kill a Crip."
D.C. explained that two days later, on March 22, 2006, defendant approached him in the store located on South 20th Street. Defendant informed D.C. that "one of [his] Crip homies came around there and robbed them[.]" D.C. responded that he did not have anything to do with a robbery and that just because he was a Crip "don't mean that [he] own[ed] every Crip that's in Newark or Irvington, East Orange, whatever." At that time, D.C. believed defendant "was gonna do something," but he did not anticipate that defendant would later shoot at him. D.C. testified that the events that occurred the following day, on March 23, 2006, had to do with these prior altercations with defendant.
K.C. testified at trial that after hearing the first shot, he heard his mother scream for help. As he went towards her, he was shot in the left arm and rib; K.C. discovered that his mother had been shot in the neck. Both D.C. and K.C. testified that after the shooting stopped, they witnessed defendant flee the scene. L.C. and K.C. were subsequently taken to the hospital, where L.C. died as a result of her gunshot wound.
After the second shooting, police obtained an arrest warrant for defendant, and then recovered a gun at the residence where defendant was staying when he was arrested. Police sent the gun to the ballistics lab; the gun matched the shell casings previously seized from the scenes of the two shootings. The evidence indicated defendant had the gun for about two and one-half weeks prior to the date of the shootings. Defendant also admitted the gun was his.
Before trial, defendant moved to suppress the forty-five caliber handgun seized from the apartment where he was staying. He also moved to suppress two pages of incriminating writings seized from his prison cell. The trial court denied both motions, as well as defendant's motion for severance of the trial of the two shootings.
Following an eleven-day trial before Judge Michael L. Ravin, the jury returned a verdict finding defendant guilty on all counts on July 29, 2008. On October 3, 2008, Judge Ravin imposed an aggregate sentence of life imprisonment with 117-and-one-half years of parole ineligibility.,
Specifically, Judge Ravin imposed the following sentence: count one, ten years in prison, with an eight-and-one-half year parole disqualifier under the No Early Release Act (NERA) to run consecutive to the sentences imposed on count four, seven and eight but consecutive to counts two, five, nine, and ten; count two, five years in prison, with a two-and-one-half-year discretionary parole disqualifier to run concurrent to all other sentences; count three, to merge with count one; count four, life in prison, with a seventy-five-year parole ineligibility under NERA to run consecutive to the sentences imposed on count one, seven, and eight, but concurrent to the sentences imposed on counts two, five, nine and ten, count five, five years in prison with a two-and-one-half-year discretionary parole disqualifier; count six, to merge with count four; count seven, twenty years in prison, with a seventeen-year parole ineligibility under NERA, as well as five-years parole supervision upon release, to run consecutive to the sentences imposed on counts, one, four and eight, but concurrent to the sentences imposed under counts, two, five, nine and ten; count eight, twenty years in prison, with a seventeen-year parole ineligibility under NERA to run consecutive to the sentences imposed on counts one, four, and seven, but concurrent to the sentences imposed on counts two, five, nine, and ten; count nine, five years in prison with a two-and-one-half-year discretionary parole disqualifier to run concurrent to all other sentences; and count ten, ten years in prison to run concurrent to all other sentences.
In its brief, the State notes "[t]he correct period of parole ineligibility for life in prison for murder under NERA is [63.75] years" and indicates no objection to a limited remand to amend the judgment of conviction on this point.
On September 30, 2011, defendant filed a notice of appeal. He raises the following issues:
I. THE TRIAL COURT ERRED, HIGHLY PREJUDICIALLY, IN DENYING SEVERANCE OF CHARGES PERTAINING TO [THE] TWO SEPARATE SHOOTINGS.
II. THE TRIAL COURT IMPROPERLY ADMITTED A LEGAL WRITING SEIZED FROM THE DEFENDANT'S JAIL CELL, TO DEFENDANT'S GREAT PREJUDICE. U.S. CONST., AMENDS. IV, XIV; N.J. CONST., ART. 1, PARS. 7, 10.
III. THE STATE ELICITED HEARSAY EVIDENCE THAT A PERSON WITH THE DEFENDANT'S NAME HAD
BEEN INVOLVED IN THE CRIME, IN CLEAR VIOLATION OF THE BANKSTON RULE, AND THE COURT'S AMELIORATION COULD NOT HAVE BEEN ADEQUATE, NECESSITATING REVERSAL. U.S. CONST., AMENDS. VI, XIV; N.J. CONST. (1947), ART. 1, PAR. 10.
IV. THE GUN INTRODUCED BY THE STATE WAS SEIZED UNLAWFULLY, AND THE TRIAL COURT ACCORDINGLY ERRED IN DENYING SUPPRESSION. U.S. CONST., AMENDS. IV, XIV; N.J. CONST. (1947), ART. 1, PAR. 7.
V. THE STATE COMMITTED PREJUDICIAL MISCONDUCT, NECESSITATING REVERSAL. U.S. CONST., AMEND. XIV; N.J. CONST. (1947), ART. 1, PARS. 9, 10. (Partially Raised Below).
VI. THE TRIAL COURT IMPOSED AN EXCESSIVE SENTENCE, NECESSITATING REDUCTION.
II.
A. Defendant's Motion to Sever
We first address the issue of severance. Defendant contends the trial judge abused his discretion in denying his pretrial motion to sever the counts related to the March 22 shooting from the March 23 shooting, necessitating reversal.
In the motion, defense counsel requested the court sever counts one, two, three and ten from the remaining counts. Counsel requested a separate trial of those counts pertaining to the March 22 shooting of D.E. from the March 23 shootings involving L.C., K.C. and D.C., as well as charges for the possession of a weapon and body vest found approximately two weeks after the shootings. Defendant contends the fact that he was charged in another shooting, on a different date and at a different location, as well as the fact that ballistics evidence connected both shootings to the gun seized from the apartment where he was staying, could not satisfy the rigorous standard for proof of identity. He states that although he admitted ownership of the gun at the time of arrest, he did not specify when he came to own it. By not ordering severance, defendant argues the prosecutor was granted leave to present the two shootings as a gang-related shooting spree. While defendant concedes the first three prongs of the Cofield test were satisfied, he argues the court erred in its conclusion the fourth prong was satisfied, and, therefore, mistakenly denied his severance motion.
State v. Cofield, 127 N.J. 328 (1992).
Although there is preference for joinder, Rule 3:15-2(b) vests a trial court judge with the discretion to grant or deny a motion to sever counts of an indictment. State v. Oliver, 133 N.J. 141, 150 (1993). Thus, the decision of the trial court can be reversed only if the appellate court finds an abuse of discretion. State v. Mance, 300 N.J. Super. 37, 53 (App. Div. 1999). Additionally, the court's decision to deny defendant's motion is entitled to great deference on appeal. Ibid.
In Cofield, the Supreme Court set out the following four-part test for determining the admissibility of other-crime evidence under N.J.R.E. 404(b):
(1) The evidence of the other crime must be admissible as relevant to a material issue;
(2) It must be similar in kind and reasonably close in time to the offense charged;
(3) The evidence of the other crime must be clear and convincing; and
(4) The probative value of the evidence must not be outweighed by its apparent prejudice.
[Id. at 338.]
Here, the trial court denied severance, finding that "all four prongs of the Cofield test were satisfied," and that the probative value of proof of "other crimes" evidence outweighed its prejudicial effect. The judge found the evidence from the first shooting was relevant to defendant's possession of the gun and intent, two material issues in dispute. See State v. Rose, 206 N.J. 141, 159 (2011) ("The evidence must . . . bear on a material issue in dispute, such as motive, intent, or an element of the charged offense[.]"). The judge further found the intent evidence was similar in kind and close in time, because the offenses "occurred within a [twenty-four-]hour period within one block of each other." With respect to prong four, which defendant disputes, we conclude the record supports the judge's finding that the probative value of the evidence was not outweighed by its apparent prejudice. Not only was defendant in possession of the gun used in both shootings at the time of his arrest, there were unequivocal eyewitness identifications verifying that defendant was the shooter in both incidents. The challenged evidence was highly probative as to defendant's possession of the weapon at the time of both shootings. Accordingly, although the evidence concerning defendant's possession of the murder weapon may have been viewed as prejudicial, it was not unduly prejudicial. Thus, we conclude the motion judge did not mistakenly exercise her discretion in denying the severance motion.
B. Defendant's Motions to Suppress
The scope of review of a judge's fact-findings on the suppression of evidence is limited. We do "not weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence." State v. Barone, 147 N.J. 599, 615 (1997). We only determine "whether the findings made could reasonably have been reached on sufficient credible evidence present in the record." State v. Johnson, 42 N.J. 146, 162 (1964). A reviewing court is not in a good position to judge credibility and should not make new credibility findings. State v. Locurto, 157 N.J. 463, 474 (1999). It is only where the court is "thoroughly satisfied that the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction . . . [that it will] appraise the record as if it were deciding the matter at inception and make its own findings and conclusions." Johnson, supra, 42 N.J. at 162. Whether the facts found by the trial court are sufficient to satisfy the applicable legal standard is a question of law subject to plenary review on appeal. State v. Cleveland, 371 N.J. Super. 286, 295 (App. Div.), certif. denied, 182 N.J. 148 (2004).
1. Seizure of the Gun at the Time of Defendant's Arrest
On December 11, 2007, the court held a pretrial suppression hearing with respect to the gun seized at the time of defendant's arrest. Specifically, Captain John Melody of the Essex County Prosecutor's Office testified regarding the circumstances under which he discovered the gun.
Captain Melody stated his office received a tip from a confidential informant (CI) that defendant and two other individuals were within a particular apartment on Chestnut Street. The CI also explained that defendant "was in possession of a forty-five caliber handgun." Captain Melody was aware that defendant had an outstanding arrest warrant from the March 23, 2006 homicide.
On April 14, 2006, Captain Melody, along with several officers from the Newark Homicide Squad, executed the arrest warrant at the apartment. Captain Melody and two of the officers did a formal knock and announce, and subsequently heard a male voice inside the apartment say, "Cops, get out." The officers then forced entry into the apartment by kicking in the door. The officers discovered two individuals fleeing into a rear bedroom, and Captain Melody and one officer quickly apprehended them. Another officer detained defendant, who was hiding in the closet towards the front of the residence. Captain Melody then related, "Once we had them secured and handcuffed, . . . I noticed that the bed was pushed aside, I saw the weapon in plain view."
On appeal, defendant argues the evidence of the gun should have been suppressed because the State failed to prove the gun was, in fact, in plain view. The United States Constitution and New Jersey Constitution guarantee the right of people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures. U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7. "Warrantless searches are presumed invalid," and the State has the burden to prove that a warrantless search falls within a recognized exception to the warrant requirement. State v. Pena-Flores, 198 N.J. 6, 18 (2009); State v. Wilson, 178 N.J. 7, 12 (2003).
The United States Supreme Court has enumerated the exceptions to the requirement of a warrant before searching or seizing an item or person. State v. Hill, 115 N.J. 169, 173-74 (1989). Among those exceptions is "plain view," which allows an officer to seize without a warrant any evidence or contraband of a crime in plain view. State v. Demeter, 124 N.J. 374, 380-82 (1991). There are three elements that the State must prove to satisfy the plain view exception. State v. Johnson, 171 N.J. 192, 206 (2002). First, the officer must be lawfully in the area from which the officer viewed the evidence. Ibid. Second, the officer must not know in advance where the evidence is located, nor have any intent to seize the evidence before viewing it. Id. at 206-07. Finally, the officer must have probable cause to believe that the item is associated with criminal activity. Id. at 207.
Here, the motion judge made succinct findings and conclusions of law on the record. First, the judge determined that Captain Melody was lawfully in the apartment where the gun was found, based on defendant's outstanding arrest warrant. Second, the judge stated:
I find that the evidence[,] . . . the discovery was inadvertent[,] as Captain Melody testified[,] as he was arresting the individual and . . . in the course of doing that[,] he jumped onto the bed and after he secured the person . . . he then saw the weapon in plain view[,] so I find that it [was] inadvertent.
Lastly, with respect to prong three, the judge stated that "Captain Melody testified that he recognized it as a weapon based upon his experience and so I find that the State has met its burden." A police officer may seize evidence in plain view if it is immediately apparent the object viewed is "evidence of a crime, contraband, or otherwise subject to seizure." Johnson, supra, 171 N.J. at 206-07. A handgun does not constitute an intrinsically innocent object. See Demeter, supra, 124 N.J. at 382-83. Because the record clearly supports the motion judge's conclusion that the plain view exception applied to the seizure of the gun, defendant's motion was properly denied.
2. Seizure of Writings from Defendant's Jail Cell
We next address defendant's motion to suppress two pages of hand-written notes seized from his jail cell. On May 29, 2008, while held in the Essex County jail, defendant was found with a handcuff key in his possession. According to Internal Affairs Sergeant John Ferrante, defendant had given the key to one of the correctional officers. Thereafter, prison officers searched defendant's cell and seized all of his possessions, including a shank, a cup with gang insignia, and various papers.
Sgt. Ferrante reviewed the paperwork and discovered handwriting, on the back of a police report, which discussed defendant's intention to escape from prison, as well as information about a homicide. Sgt. Ferrante contacted the prosecutor's office about the letter.
On June 6, 2008, Sgt. Ferrante read defendant his Miranda rights and then questioned him regarding his possession of the handcuff key and what he was planning to do with the item. Defendant later received an administrative disciplinary charge for the possession of the key and the other contraband found in his cell.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
In a pretrial hearing on July 22, 2008, the court heard defense counsel's argument that the writing was inadmissible because it was subject to attorney-client privilege, unauthentic, and irrelevant. The court was not persuaded by these arguments. When defense counsel refused to personally certify that the document was a confidential attorney-client communication, the judge found "[t]here's no evidence [in] this record that [the] communication was made in confidence between a lawyer and his client in the course of the professional relationship[.]" The judge extensively discussed the reasons why this document did not qualify as attorney-client privilege, referencing the tone, tenor, and language used therein. The judge remarked:
I really think that even the suggestion that that document was made in confidence between a lawyer and his client in the course of their professional relationship, that it was expressed by the defendant in his capacity as a client, while seeking or receiving legal advice or services from an attorney, I find it preposterous.
The judge also determined that the writing was "absolutely relevant, unquestionably relevant and material" to a number of trial issues and corroborated the police officers' accounts of defendant's arrest. Lastly, the judge concluded the following circumstantial evidence compelled the conclusion the document was authentic::
I find as fact . . . , it's undisputed that the police found this writing in his cell, a cell in which he was the only person utilizing. Secondly, [it] was found on the back of the discovery for his case, I find that as fact. It [is] undisputed. Thirdly, . . . it contains information that only the defendant would know. I make that finding as well.
The court later agreed with counsel to redact certain portions of the writing before it was read to the jury. Both the court and defense counsel also directly questioned defendant regarding the redacted version of the writing. Specifically, defense counsel asked, "[A]re you on board, in agreement with me and this strategy that . . . if your writing goes in, then the report on which it's written should go in also, subject to the redactions that we've agreed upon?" Defendant replied, "Hundred percent." The court followed up with the question, "You have no questions of any kind concerning the admissibility of it, or the strategy that you are defending this case with?" Defendant replied, "No."
On appeal, defendant concedes that attorney-client privilege, as argued by his trial counsel, does not provide a basis for exclusion. Rather, for the first time on appeal, defendant contends that the evidence should have been excluded because: (1) its seizure violated his constitutional rights; (2) the writing exposed his un-communicated and personal thoughts; and (3) the information contained in the writing was both cumulative and prejudicial under N.J.R.E. 403. The State argues that these claims lack merit, primarily because the documents were properly removed from his cell and reviewed based on legitimate institutional safety concerns.
In support of his claim of improper seizure, defendant relies on two cases, Hudson v. Palmer, 468 U.S. 517, 104 S. Ct. 3194, 82 L. Ed. 2d 393 (1984), and State v. Jackson, 321 N.J. Super. 365 (Law Div. 1999). These cases are readily distinguishable; as such, defendant's reliance on them is misplaced.
In Hudson v. Palmer, the United States Supreme Court stated that "the Fourth Amendment's proscription against unreasonable searches is inapplicable in a prison cell," applies with equal controlling force to seizures because "[p]rison officials must be free to seize from cells any articles which, in their view, disserve legitimate institutional interests." Hudson, supra, 468 U.S. at 528 n.8, 104 S. Ct. at 3201 n.8, 82 L. Ed. 2d at 404 n.8. The Court further stated, "we are satisfied that society would insist that the prisoner's expectation of privacy always yield to what must be considered the paramount interest in institutional security. We believe that it is accepted by our society that '[l]oss of freedom of choice and privacy are inherent incidents of confinement.'" Id. at 528, 104 S. Ct. at 3201, 82 L. Ed. 2d at 404 (quoting Bell v. Wolfish, 441 U.S. 520, 537, 99 S. Ct. 1861, 1873, 60 L. Ed. 2d 447, 467 (1979)).
Nevertheless, the Court recognized that prisoners "retain those First Amendment rights of speech 'not inconsistent with [their] status as . . . [prisoners] or with the legitimate penological objectives of the corrections system.'" Id. at 523, 528, 104 S. Ct. at 3198, 82 L. Ed. 2d at 451 (alteration in original) (quoting Pell v. Procunier, 417 U.S. 817, 822, 94 S. Ct. 2800, 2804, 41 L. Ed. 495, 502 (1974)). The Court explained that the aggrieved prisoner is not without his rights, only under different theories:
Our holding that respondent does not have a reasonable expectation of privacy enabling him to invoke the protections of the Fourth Amendment does not mean that he is without a remedy for calculated harassment unrelated to prison needs. Nor does it mean that prison attendants can ride roughshod over inmates' property rights with impunity. The Eighth Amendment always stands as a protection against "cruel and unusual punishments." By the same token, there are adequate state tort and common-law remedies available to respondent to redress the alleged destruction of his personal property.Important to the case under review, however, the Court specifically held "the Fourth Amendment has no applicability to a prison cell." Id. at 536, 104 S. Ct. at 3205, 82 L. Ed. 2d at 409. The Court's recognition that an inmate may utilize state tort and common-law remedies to redress calculated harassment unrelated to prison needs fails to provide defendant with any basis for seeking reversal of his convictions.
[Id. at 530, 104 S. Ct. at 3202, 82 L. Ed. 2d at 405.]
In State v. Jackson, supra, 321 N.J. Super. at 367, the court held that correctional staff had conducted an illegal, pretextual search of the defendant's jail dormitory at the prosecutor's specific request, as they attempted to recover incriminating letters and writings. Although the court acknowledged that surveillance in prisons is paramount since "weapons, drugs and other contraband present a serious danger to institutional order within the prison environment[,]" it found that "[t]he search of [defendant's] dormitory area . . . was not remotely connected to any institutional security concerns." Id. at 373, 380.
As the State notes, defendant never challenged the lawfulness of the physical search of his cell, which was conducted after he gave the handcuff key to correctional staff. The subsequent search yielded not only the writing, but a shank and a cup with a gang inscription. Based on the circumstances, the correctional staff had legitimate concerns regarding institutional safety and probable cause to read the papers in defendant's cell, which also revealed that defendant was planning to escape. See, e.g., Jenkins v. N.J. Dep't of Corr., 412 N.J. Super. 243, 252-54 (App. Div. 2010) (holding three handwritten letters discovered during a search were properly seized and reviewed under prison regulations since they appeared to be related to prohibited gang activity). The motion judge noted that the fact that the statement was written on the back of a police report was of no moment.
Due to the paramount concern for institutional safety at the time defendant' s cell was searched and the writing discovered, we conclude defendant's newly asserted claim of a privacy violation clearly lacks substantive merit. The court did not mistakenly exercise its discretion in denying defendant's motion to suppress the writing seized from his jail cell.
C. Defendant's Claim of Bankston Error
In State v. Bankston, 63 N.J. 263 (1973), the Supreme Court stated:
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 (internal citations and quotation marks omitted).]
We review a claim of erroneous admission of hearsay, in violation of Bankston, supra, under the harmless error standard:
The test of whether an error is harmless depends upon some degree of possibility that
it led to an unjust verdict. The possibility must be real, one sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached.
[Id. at 273 (citing State v. Macon, 57 N.J. 325, 335-36 (1971)); see also R. 2:10-2.]
Defendant claims that the State improperly elicited testimony that the detectives had received information that the shooter's name was "Travis," in violation of Bankston. Arguing the trial court's curative jury instruction could not have possibly remedied the consequent prejudice, he contends the judge erroneously denied his counsel's request for a mistrial, warranting reversal.
Detective Miguel Arroyo of the Newark Police Department testified regarding the photo array he showed to D.C., as well as his discussion with the victim. His trial testimony on this point follows:
[PROSECUTOR]: Now what happens, or what description did you put into the computer system?
[DETECTIVE ARROYO]: He gave me a description, five-seven or five-eight, a hundred [fifty-five] pounds, shoulder length dreads, black male. I kind of expanded the parameters. I usually do, [because] people are not too good with height and weight. So I believe I went from five-seven to five-nine, 140 to 155. Ah, I put black male, dreads into the computer.
[PROSECUTOR]: Did you expand the parameters in any other way?
[DETECTIVE ARROYO]: Yes. I put the name in of Travis.
[PROSECUTOR]: Now, when . . . you entered that name, was [D.C.] aware of that?
[DETECTIVE ARROYO]: No.
[PROSECUTOR]: And what happened after you entered that information into the computer?
[DETECTIVE ARROYO]: Seven photos came up on the -- actually, seven photos came up, but you could only see six.
At that point, defense counsel requested a sidebar and engaged in an extensive colloquy with the judge:
[DEFENSE COUNSEL]: The officer . . . just testified that he put in -- he expanded the parameters and he put in the name Travis, at all times prior where we are right now in terms of the chronology of what's going on,
[D.C.] indicated he only knew my client by the name of July. . . . [T]he name Travis was not even in the mix.
. . . [T]his is the first time I'm hearing this officer put the name Travis into the -- into his parameters. I'd like the [c]ourt to excuse the jury so we may have a [Rule] 104 hearing to determine where this officer got the name Travis, [because] I think it's . . . problematic for me that he would announce to the jury that he put the name Travis, or I think the jury's understanding that [D.C.] is the first person that told the police about the name July, and now this officer's putting in Travis.
I was not aware that . . . he was [going to] say Travis as a name, that he put -- as one of the parameters, I think . . . at the motion to suppress [hearing] that we had regarding the same issue and that was not the testimony of this officer.
[PROSECUTOR]: Actually, it was, and I have a transcript. We had a motion previously. It was a Wade hearing and the detective indicated at that time . . . .
. . . .
. . . Take a look at that, if you can tell me if that refreshes your recollection as to the individual's first name? Yes, it does. What is it? Travis. We went into great detail about that. . . .
THE COURT: One moment.
Let's do issue one at a time. [Defense counsel] said today on the witness stand from this officer is the first time that he heard --
[PROSECUTOR]: Right.
THE COURT: -- that the word Travis was given to him.
. . . .
[DEFENSE COUNSEL]: The first time that I was advised that the officer inputted the name Travis . . . as one of the parameters that was used in the description that was given. Maybe that name came through some anonymous phone call, but he never indicated he put it in the computer --
[PROSECUTOR]: Yes, he did.
[DEFENSE COUNSEL]: It's not in the transcript.
[PROSECUTOR]: Yes, it is.
THE COURT: Where does it say that?
. . . .
[PROSECUTOR]: First of all, so when you showed [D.C.] these photos now -- Page 92 . . . . What did you do? Put them in the computer, I received --
. . . .
I received a call from Investigator Charles Hancock. He told me he had an anonymous call, the first time, someone gave him a first name of the individual he gave me. Do you recall that name?
He goes on to indicate if you look at it, it refreshes your recollection, yes. What is it Travis[?] So you get a call from Investigator Hancock -- by the way, do you recall where he worked? The Homicide Squad in Essex County. He gave me the first name. He tells me anonymous phone calls, gives me the first name, gives me the parameters, gives the person involving description — [D.C.] involved in this crime . . . . I hit enter with the information that was supplied to me by Investigator Hancock.
THE COURT: Number one, there's no -- I don't find any discovery violation, number one. Number two, there's no need for a [Rule] 104 hearing. Number [three], to the extent that [defense counsel] is able to, his testimony is inconsistent with something that -- some other evidence, [defense
counsel] can go into that on cross-examination.
[DEFENSE COUNSEL]: Thank you.
. . . .
[PROSECUTOR]: The information came from an anonymous call. I'm not going to go into that.
THE COURT: Then don't.
[PROSECUTOR]: Okay.
United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).
The judge returned to the record and overruled defendant's purported objection. Shortly thereafter, the judge sent the jury back into the jury room to further discuss this issue with counsel. The judge also excused Detective Arroyo. A second discussion with counsel occurred:
THE COURT: This is why I brought the proceedings on my own to a screeching halt. The record will reflect as a preface, the following: Number one, the defense was, in fact, aware that the police had the information of Travis at the time [D.C.] viewed the Mug Master -- the computer photo, that's number one.
Number two, the officer testified that he put the name Travis into the parameters and testified further, as I recall in front of the jury, that [D.C.] was not aware of the parameters that the detective was putting into the computer. I recall that being the testimony. . . .
. . . .
. . . . [H]ere's the situation. The word Travis was put in the computer based on
anonymous information and if the jury is not gonna hear the reasons why they put Travis into the computer, but they heard Travis was put in, they're not gonna hear why and the implication may be that it was from a third person? You know, a third person who's not here to be cross-examined or anything like that?
Then it runs near, maybe not at, but near the line of cases which say that if there's [going to] be an attribution of guilt from some third person, [who is] not available to be cross-examined or anything like that, then it is . . . problematic.
The State argued Detective Arroyo's testimony regarding the name, "Travis," went to the detective's overall state of mind. Defense counsel then argued:
For the purposes of his testimony, the parameters that were provided to him by [D.C.] were sufficient, and he expanded upon it. The name Travis was . . . [t]otally unnecessary to be presented before this jury.
. . . .
I think we're at a juncture here my only [recourse] is to ask the [c]ourt to declare a mistrial because the Prosecutor should have been aware of the problems with that officer testifying . . . before this jury about the inclusion of the name Travis and the parameters in it -- and I submit to the [c]ourt, it was wholly unnecessary. The Prosecutor would have been able to accomplish all that she hoped to accomplish in terms of information being -- parameters being put in the computer for a presentation between [D.C.].
I [was not going to] open the door that the name Travis was also brought in. . . . [T]he Prosecutor brings it in to my attention that it's in the transcript; clearly, it was in the transcript but I had no expectation that that name would have been brought up before the jury in the way it was, . . . in as much as I knew it was received by . . . anonymous information and even if -- as part of the police investigation it was really [D.C.] who gave the name July, and then they figured out July is Travis Burris. I think we're definitely at a juncture where the [c]ourt has to seriously consider a mistrial based on that, [because] it's the key.
The prosecutor countered by explaining the testimony was part of the "identification procedure" and therefore did not violate the Confrontation Clause. She also disagreed that the testimony would leave a negative impression with the jury.
After a brief recess, the judge made the following ruling:
Number one, having listened to [the Prosecutor], I'm not of the mind that [she] intentionally attempted to admit inadmissible evidence, that's number one. Number two, obviously, in this case the witness detective did not tell the jury: Somebody told me that the person that killed the victim's mother was Travis. The detective did not say: He received information received from which he put the name Travis into the parameters. He simply said he put Travis in, the word Travis. He expanded the parameters, put the name Travis in and thus far, has not given any explanation as to why he did that.
Reasonable people might find if there were no other testimony about that? That the police received information that Travis
was responsible for this killing. The jury, some would argue, could make that inference at this very point, if they're not told anything else about anonymous information, etcetera. That would be an impermissible inference . . . for the jury to infer that some unknown, undisclosed third person who's not available for confrontation said to the police: Travis did it.
It comes so close to that line of cases, not Bankston but the progeny of Bankston. I don't think that what has happened here rises to the level of mistrial, not by a long, long shot. But what I am prepared to do, unless perhaps I'm convinced otherwise or [defense counsel] tells me that for some strategic reason he doesn't want me to do it, to tell the jury to disregard the officer's statement that he put Travis, the name Travis, into the parameters. And to tell them the usual, they can't use it in their deliberations for any purpose.
I am prepared to do that and if someone said that I'm making an error, because perhaps I am, well I would only say to that if I'm making an error, I'm making the error on the side of protecting the defendant's right to a fair trial.
That is what I'm prepared to do. Motion for mistrial, denied.
Both defense counsel and the State subsequently agreed the court should instruct the jury to disregard the "additional parameter of Travis." When the jury returned to courtroom, the judge immediately gave the following instruction:
With respect to the specific testimony by Detective Arroyo to the effect he put into the computer the additional parameter of
Travis[.] That specific testimony is to be disregarded by you. It is stricken from the record. Meaning, in your deliberations, you cannot consider that testimony for any purposes, in any manner, at any time.
"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.'" Bankston, supra, 63 N.J. at 268. "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." Ibid. "Moreover, the admission of such testimony violates the accused's Sixth Amendment right to be confronted by witnesses against him." Id. at 269.
Of course, a specific hearsay statement is not required in order to create an impermissible inference of guilt. State v. Irving, 114 N.J. 427, 446 (1989); State v. Torres, 313 N.J. Super. 129, 157 (App. Div.), certif. denied, 156 N.J. 425 (1998). "When the logical implication to be drawn from [a witness's] 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." Bankston, supra, 63 N.J. at 271. It is the creation of the inference, not the specificity of the statements made, that determines whether the hearsay rule was violated. Irving, supra, 114 N.J. at 447.
"The principle distilled from Bankston and its progeny is that testimony relating [to] inculpatory information supplied by a codefendant or other non-testifying witness identifying the defendant as the perpetrator of a crime deprives the accused of his or her constitutional rights." State v. Farthing, 331 N.J. Super. 58, 75 (App. Div.), certif. denied, 165 N.J. 530 (2000). "The common thread that runs through [the Bankston cases] 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); see also State v. Kemp, 195 N.J. 136, 154-55 (2008). "The question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction." Bankston, supra, 63 N.J. at 273.
Defendant relies on three cases in support of his position for reversal: State v. Thomas, 168 N.J. 10 (App. Div. 1979), State v. Bankston, supra, 63 N.J. 263; and State v. Branch, 182 N.J. 338 (2005). In State v. Thomas, 168 N.J. Super. 10, 15 (App. Div. 1979), we reversed the defendant's conviction, finding that a prosecutor's step-by-step questioning of the detective's investigation, based on interviews with witnesses, was contrary to the hearsay rule and violated the defendant's right to confront the witnesses against him. The court found:
The inescapable inference from [the detective's] testimony is that an informer had given him defendant's name. As a result, the jury was led to believe that an unidentified informer, who was not present in court and not subjected to cross-examination, had told [the detective] that defendant committed a crime. This testimony was inadmissible hearsay and violated defendant's right of confrontation.
[Ibid.]
Later, the Supreme Court, in State v. Bankston, further refined the principles discussed in Thomas. In that case, several detectives entered a tavern and found sixteen glassine envelopes of heroin on the bar under a pair of gloves near where the defendant had been seated. Bankston, supra, 62 N.J. at 265. The defendant was arrested based on this discovery. Ibid. At trial, the court allowed one of detectives to testify that the defendant fit the description of the person for whom the officers were looking. Id. at 266-67. The Supreme Court reversed the defendant's conviction because the detective's hearsay testimony led to the "inescapable inference" that the detective received information from an unknown source implicating the defendant in the crime. Id. at 271.
The Court held that "[w]hen 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 Court further determined that the "jury was led to believe that an unidentified informer, who was not present in court and subjected to cross-examination," told the police that the defendant was involved in a crime. Ibid. The Court explained that on the particularized facts of that case, there would have been no violation of the hearsay rule had the detective testified that he entered the tavern "upon information received," for the purpose of dispelling any notion that he was acting in an arbitrary manner. Id. at 268. That formulation, given those facts, would not have cast unfair suspicion on the defendant. Id. at 272. Bankston made clear that both the Confrontation Clause and the hearsay rule are violated when, at trial, a police officer conveys, directly or by inference, information from a non-testifying declarant to incriminate the defendant in the crime charged. Id. at 268-69.
In 2005, in State v. Branch, the Supreme Court addressed the limits of a police officer's trial testimony about the administration of a photo array. Branch, supra, 182 N.J. at 342. The defendant had been convicted of burglary and robbery based primarily on the identification evidence of two witnesses. Id. at 346-47. At trial, "a police detective testified that he included [the] defendant's picture in a photographic array because he had developed defendant as a suspect 'based on information received.'" Id. at 342. The jury learned nothing more about that source of information and was left with the impression that the detective had some other knowledge implicating the defendant in the crime. Id. at 348.
The Court found that "[t]here was no legitimate need or reason for [the detective] to tell the jury why he placed [the] defendant's picture in the photographic array. The only relevant evidence was the identification itself." Ibid. Instead, the jury heard irrelevant, "gratuitous hearsay testimony" that violated the defendant's right to confrontation and the rules of evidence. Ibid. As a result, the Court reversed his conviction. Id. at 354.
These cases demonstrate that improper hearsay testimony clearly violates a defendant's rights when the jury can infer that he or she is guilty of the offense and that the police had special knowledge of the accused's involvement. Following that reasoning, it is clear that Arroyo's testimony here violated these well-established principles, because the detective testified that he placed the name Travis into the computer database. The name, "Travis," had been supplied by a CI, unbeknownst to either the jury or the victim, D.C., who spoke with Arroyo. Rather, D.C. previously testified that he only knew defendant as "July." Therefore, the "Travis" reference violated those protections afforded to defendant by the Confrontation Clause and the New Jersey Rules of Evidence.
On the other hand, Thomas and Branch can be distinguished, because in the case under review, the trial judge provided a curative instruction shortly after the improper testimony. Recognizing the problem, the court remedied any potential Bankston claims by immediately addressing the issue, hearing counsel's arguments and then providing a strong curative instruction. Generally, "[p]rompt and effective" instructions have the ability to neutralize prejudice engendered by an inappropriate comment or piece of testimony. State v Wakefield, 190 N.J. 397, 440 (2007), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008).
However, in Bankston, supra, 63 N.J. 267-68, while the trial court instructed the jury "to disregard those remarks of the prosecutor pertaining to any other type of investigation or description[,]" the Supreme Court affirmed this court's holding that the instruction "did not, with sufficient clarity and force, relate to the objectionable references so as to remove them from the minds of the jury." Here, the judge pointedly referenced the "Travis" testimony and instructed the jury that this reference was "to be disregarded." The judge then elaborated on his instruction by further stating, "[m]eaning, in your deliberations, you cannot consider that testimony for any purpose, in any manner, at any time." We are satisfied that, unlike Bankston, the instruction here "remove[d] the prejudicial effect of that testimony from the minds of the jury." Bankston, supra, 63 N.J. at 272.
Moreover, the decision to grant a mistrial rests within the sound discretion of the trial court. State v. Harvey, 151 N.J. 117, 205 (1997). The grant of a mistrial is an extraordinary remedy that should be exercised only to prevent manifest injustice. State v. Ribalta, 277 N.J. Super. 277, 291 (App. Div. 1994), certif. denied, 139 N.J. 442 (1995). In addition,
[t]he decision on whether inadmissible evidence is of such a nature as to be susceptible of being cured by a cautionary or limiting instruction, or instead requires the more severe response of a mistrial, is one that is peculiarly within the competence of the trial judge, who has the feel of the case and is best equipped to gauge the effect of a prejudicial comment on the jury in the overall setting.
[State v. Winter, 96 N.J. 640, 646-47 (1984).]
Here, Judge Ravin clearly stated that he did not "think that what . . . happened here [rose] to the level of mistrial, not by a long, long shot." Judge Ravin, instead, assessed the circumstances of the case and determined that defendant's interests would be served just as well with a curative instruction to disregard that portion of the testimony. Based on these circumstances, we defer to the judge's decision to "cure" the error with an instruction, rather than grant defense counsel's request for a mistrial after several days of extensive testimony.
D. Defendant's Claim of Prosecutorial Misconduct
Defendant contends the prosecutor's opening and closing statements were prejudicial to his right to a fair trial and constituted reversible error. When reviewing such claims, we determine whether prosecutorial misconduct occurred and, if it did, we evaluate "the severity of the misconduct and its prejudicial effect on the defendant's right to 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).
Prosecutorial "misconduct does not warrant reversal unless it is 'so egregious that it deprived the defendant of a fair trial.'" State v. Jackson, 211 N.J. 394, 409 (2012) (quoting State v. Frost, 158 N.J. 76, 83 (1999)). In assessing the impact of prosecutorial misconduct, we "consider the tenor of the trial and the responsiveness of counsel and the court to the improprieties when they occurred." Timmendequas, supra, 161 N.J. at 575.
In determining whether prosecutorial misconduct has occurred, our Supreme Court has noted, "New Jersey courts have commented repeatedly on the special role filled by those entrusted with the responsibility to represent the State in criminal matters, observing that the primary duty of a prosecutor is not to obtain convictions but to see that justice is done." State v. Smith, 212 N.J. 365, 402-03 (2012). "'If fairness and justice are forgotten in the pursuit of a guilty verdict, the integrity and authority of our criminal justice system is challenged.'" Id. at 403 (quoting State v. Goode, 278 N.J. Super. 85, 91-92 (App. Div. 1994)).
Nevertheless, the duty to achieve justice does not forbid a prosecutor from presenting the State's case in a "vigorous and forceful" manner. State v. Ramseur, 106 N.J. 123, 320 (1987) (citation and internal quotation marks omitted). "[A] prosecutor cannot be expected to present the State's case in a manner appropriate to a lecture hall." State v. Johnson, 31 N.J. 489, 510-11 (1960). The prosecutor may argue the case "graphically and forcefully," Smith, supra, 212 N.J. at 403 (citation and internal quotation marks omitted); however, the prosecutor must not lose sight of the obligation to "conscientiously and ethically undertak[e] the difficult task of maintaining the precarious balance between promoting justice and achieving a conviction, ensuring that at all times his or her remarks and actions [are] consistent with his or her duty to ensure that justice is achieved." Jackson, supra, 211 N.J. at 408 (alterations in original) (internal quotation marks omitted).
For those reasons, during the various phases of a trial, "'jurisprudence requires that prosecutors act in accordance with certain fundamental principles of fairness.'" State v. Echols, 199 N.J. 344, 359 (2009) (quoting State v. Wakefield, 190 N.J. 397, 436 (2007)). When making opening statements, "prosecutors should limit comments . . . to the facts [they] intend[] in good faith to prove by competent evidence[.]" Id. at 360 (alterations in original) (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 and not 'anticipate' their 'final argument.'" 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)). Prosecutors are prohibited from including in their opening statements the following: inflammatory comments that suggest a defendant is dangerous, see Echols, supra, 199 N.J. at 359-60; comments suggesting they know of reasons beyond the evidence why the jury should reach a certain verdict, see Wakefield, supra, 190 N.J. at 438-39; and inflammatory comments to generate sympathy for the victim or animosity toward the defendant, see W.L., supra, 292 N.J. Super. at 108.
1. State's Opening Statement
Defendant first argues the prosecutor's opening statements constituted "inflammatory rhetoric." Specifically, he refers to the prosecutor's statement that as L.C. walked with her family members, she "did not know at the time it would be the last walk they would share together." Defendant also cites several other portions of the opening, where the prosecutor stated that defendant had "murder on his mind," the victim's "life was brutally cut short," and that defendant was "taking care of himself."
At the time, defense counsel objected to the prosecutor's emotional delivery, but did not request a mistrial. The judge overruled the objection.
We do not find the prosecutor's comments were so egregious that defendant was denied a fair trial. Previewing the trial testimony, the prosecutor appropriately laid out for the jury what she expected to prove. It appears from her opening statements, the prosecutor attempted to vividly illustrate to the jury the circumstances regarding these crimes. The references to L.C.'s "last walk" with her family and the circumstances of her death were extensively discussed in her sons' testimony. Also, defendant's intent behind those crimes, i.e., he was "taking care of himself," were addressed by these same witnesses, as well as other testimony and evidence. Moreover, the trial court directly informed the jury during the preliminary instructions that the attorneys' comments were not evidence, thus serving as a timely and effective limiting instruction. Wakefield, supra, 190 N.J. at 440 (finding that prompt and effective instructions have the ability to neutralize prejudice engendered by an inappropriate comment or piece of testimony). Therefore, we conclude these statements did not prejudice defendant in a manner that denied him a fair trial.
2. State's Summation
Next, defendant asserts the prosecutor made inflammatory and false statements in her summation that were prejudicial. Specifically, defendant contends the prosecutor "sought to inflame the jury" by highlighting the differing accounts of defendant's and victims' actions following the shooting. Defendant especially notes the prosecutor's targeted comment with respect to the way altercations are handled in Newark and Essex County. Defense counsel did not object at any time during the prosecutor's closing argument.
During summation, prosecutors "must confine their comments to evidence revealed during the trial and reasonable inferences to be drawn from that evidence." State v. Reddish, 181 N.J. 553, 641 (2004) (citation and internal quotation marks omitted). "[S]o long as [they] confine[] [themselves] to the facts and reasonable inferences, what [they] say[] in discussing them, by way of comment, denunciation or appeal, will afford no ground for reversal." Johnson, supra, 31 N.J. at 510.
When making a closing argument, a prosecutor may not do any of the following: "make inaccurate legal or factual assertions[,]" Frost, supra, 158 N.J. at 85; make an argument knowing it to be at least arguably contrary to facts or evidence the court has ruled inadmissible, State v. Ross, 249 N.J. Super. 246, 250 (App. Div.), certif. denied, 126 N.J. 389 (1991); "express a personal belief or opinion as to the truthfulness of his or her own witness's testimony[,]" or suggest a "police witness will suffer penalties if a jury is unconvinced by their testimony," State v. Staples, 263 N.J. Super. 602, 605 (App. Div. 1993); "cast unjustified aspersions on defense counsel or the defense," State v. Acker, 265 N.J. Super. 351, 356 (App. Div.) (internal quotation marks omitted), certif. denied, 134 N.J. 485 (1993); or "warn[] a jury about not doing its job . . . ." Id. at 357.
Akin to the opening statement, we conclude the prosecutor's closing remarks were not so egregious that defendant was deprived of a fair trial. The prosecutor set out the facts discussed during trial, including defendant's gang affiliation, ballistics evidence, witness testimony, and connected them with requisite elements of the criminal charges. Because we conclude the prosecutor made no unduly prejudicial remarks in his closing, we discern no basis for reversal.
We further determine the court's final instructions were sufficient to remove any possible prejudice. See State v. Papasavvas, 163 N.J. 565, 614 (2000). The judge informed the jury:
Arguments, statements, remarks, openings and summations of the attorneys are not evidence. They must not be treated as evidence. Although the attorneys may point out what they think [is] important in this case, you must rely solely upon your understanding and recommendation [sic] of the evidence that was admitted during trial. . . . Any comments by the two attorneys are not controlling.
As the Court stated in Frost, supra, 158 N.J. at 76, "[g]enerally, if no objection was made to the improper remarks, the remarks will not be deemed prejudicial. The failure to object suggests that defense counsel did not believe the remarks were prejudicial at the time they were made." (internal citation omitted). Accordingly, we conclude defendant was not deprived of a fair trial.
E. Defendant's Excessive Sentence Claim
Finally, defendant claims the life sentence imposed with 117-and-one-half years of parole ineligibility is excessive. We review a judge's sentencing decision under an abuse of discretion standard. State v. Blackmon, 202 N.J. 283, 297 (2010). Our review of a sentence is also limited. State v. Miller, 205 N.J. 109, 127 (2011). This court's 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.. This court must: (1) "require that an exercise of discretion be based upon findings of fact that are grounded in competent, reasonably credible evidence[;]" (2) "require that the factfinder apply correct legal principles in exercising its discretion[;]" and (3) "modify sentences [only] when the application of the facts to the law is such a clear error of judgment that it shocks the judicial conscience." State v. Roth, 95 N.J. 334, 363-64 (1984). If a sentencing court properly identifies and balances the factors and their existence is supported by sufficient credible evidence in the record, the appellate court should affirm the sentence. State v. Cassaday, 198 N.J. 165, 180-81 (2009).
Defendant argues that his sentence, which included four consecutive sentences, was improper. Relying on State v. Carey, 168 N.J. 413 (2001), defendant contends that where there are multiple victims, only two sentences can be run consecutively. The State disagrees, arguing the sentencing judge carefully followed the Yarbough guidelines and defendant's sentence should not be disturbed. The State further notes that the Carey Court "stress[ed] that the Yarbough guidelines are just that -- guidelines." Id. at 427.
State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).
With respect to the imposition of consecutive, rather than concurrent, sentences, the Court in Yarbough, set forth the guidelines that a trial court must consider. Yarbough, supra, 100 N.J. at 643-44. The record here clearly indicates that Judge Ravin extensively considered these factors in determining defendant's sentence.
Defendant's reliance on Carey is misguided. In that case, the Court specifically stated:
When a trial court is faced with the decision whether to impose consecutive or concurrent sentences, the court must determine whether the Yarbough factor underThe Court added that the principle of consecutive sentences "resonates most clearly in cases in which a perpetrator intentionally targets multiple victims[.]" Id. at 429.
consideration renders the collective group of offenses distinctively worse than the group of offenses would be were that circumstance not present. Indeed, there are some cases that are so extreme and so extraordinary that deviation from the guidelines may be warranted. Crimes involving multiple deaths or victims who have sustained serious bodily injuries represent especially suitable circumstances for the imposition of consecutive sentences.
[Carey, supra, 168 N.J. at 428 (internal citations and quotation marks omitted).]
Accordingly, we affirm the sentencing judge's decision to impose consecutive sentences for the aggravated assault of D.E. (count one), the murder of L.C. (count four), and the two attempted murders of K.C. and D.C. (counts seven and eight). In line with Carey, "in order to facilitate sentencing under Yarbough . . . , the multiple-victims factor is entitled to great weight and should ordinarily result in the imposition of at least two consecutive terms when multiple deaths or serious bodily injuries have been inflicted upon multiple victims by the defendant." Id. at 429-30. Here, the judge appropriately found that the counts constituted separate, heinous offenses that should not merge and, thus, we discern no basis to disturb Judge Ravin's well-reasoned determination.
"There shall be no overall outer limit on the cumulation of consecutive sentences for multiple offenses." N.J.S.A. 2C:44-5.
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Next, defendant posits his sentence is "unduly harsh and severe." He states his lack of remorse was improperly considered by the court during sentencing and, at the time, he was deeply immersed in the gang milieu. The State counters that the sentence imposed by the court was supported by substantial credible evidence in the record and should be affirmed.
Judge Ravin applied aggravating factors one (the nature and circumstances of the offense), N.J.S.A. 2C:44-1(a)(1); three (the risk of re-offense), N.J.S.A. 2C:44-1(a)(3); five (substantial likelihood of organized criminal activity), N.J.S.A. 2C:44-1(a)(5); six (defendant's prior record), N.J.S.A. 2C:44-1(a)(6); and nine (need to deter), N.J.S.A. 2C:44-1(a)(7). With respect to aggravating factor one, Judge Ravin stated:
The offense of the murder[,] the attempted murder, two counts of that and the aggravated assault were committed in what I would describe as heinous, cruel or a depraved way. Why is that? Because it was in front of children. You killed their mother.
Additionally, opening fire on a public street where people live in neighborhoods, where children play . . . . I would consider that quite depraved. It shows absolutely no regard for life. None.
The judge further explained:
As far as number three, the risk that will commit another offense. I would say it's a for[e]gone conclusion. . . .
You've been arrested nine times. You have been convicted three times. . . . There's simply no evidence to detract from [the] reasonable proposition that you will offend again.
With regard to factor five, the judge noted, "it seems that these crimes or the motivation for these crimes were due in very large part as a result of the organized criminal activity." The judge also found aggravating factor six because defendant had "a lot of juvenile convictions" as well as an adult record; however, the judge did not give much weight to this factor since the adult record was "certainly not severe." As to factor nine, the judge noted defendant's lack of remorse and that he has had the benefit of probation, which did not deter him, as well as the need to deter the "lawless gangsters" who think "the streets belong to them." The judge found no applicable mitigating factors, noting, "I have considered every single mitigating factor. I find none of them."
"[A]n appellate court should not second-guess a trial court's finding of sufficient facts to support an aggravating or mitigating factor if that finding is supported by substantial evidence in the record." State v. O'Donnell, 117 N.J. 210, 216 (1989). Moreover, a finding that defendant has no remorse is not improper. See State v. Rice, 425 N.J. Super. 375, 382 (App. Div. 2012).
Judge Ravin properly identified and analyzed the applicable factors, and his reasoning is well-supported by sufficient credible evidence in the record. We conclude the sentence imposed here is not manifestly excessive or unduly punitive, does not represent an abuse of the court's sentencing discretion, and does not shock the judicial conscience. O'Donnell, supra, 117 N.J. at 215-16; Roth, supra, 95 N.J. at 363-65.
Affirmed and remanded to the trial court for entry of a corrected judgment of conviction reflecting the correct time period of parole ineligibility on defendant's murder conviction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION