PER CURIAM.
Defendant appeals from his convictions for first-degree murder,
A judge and jury tried this case for eight days, from May 23, 2012 to June 1, 2012. The State produced testimony from several police officers and investigators, a forensic ballistics expert, a medical examiner, a county computer examiner, a state trooper, and three individuals,
The victim and his lover checked into a hotel and stayed in a room for several hours. Defendant and his girlfriend checked into the same hotel. Defendant brought a loaded gun with him to the hotel. Defendant was the victim's drug dealer and had known him since the late 1990s. A few days before the murder, defendant confronted someone who shot his cousin. Defendant believed that the person he confronted was friends with the victim.
Defendant left his hotel room to buy food at the vending machine. At the same time, the victim was standing near the vending machine. Defendant's girlfriend then heard gun shots, exited the hotel, hid in some bushes, and called 9-1-1. Meanwhile, the victim's lover left their room in search of her companion. In the hallway, she observed blood on the wall, bullet holes in the glass doors, and noted numerous police officers at the scene.
A police officer located the victim just beyond the hotel lobby on the floor in a pool of blood. The officer detected no signs of life. He continued searching the scene, saw shell casings at the far end of the hallway, and then spotted the victim's lover. She identified the victim and the police then removed her from the hotel. While outside the hotel, the police talked to defendant's girlfriend, who did not mention the shooting of the victim.
Defendant ran to a nearby parking lot after the shooting and called his former girlfriend. She arrived at the lot, picked him up, and then drove him to her house. The former girlfriend discarded defendant's clothing and boots, and then provided clothing for him to wear. She drove him to a friend's house and never saw him again.
The police continued with their investigation at the crime scene and discovered that a hotel surveillance camera recorded defendant chasing the victim down the hallway. Another camera captured defendant's girlfriend running out of the hotel and dropping her purse. In the hallway, the police discovered nine-millimeter cartridge casings, and the day after the murder, they located a gun in the hotel parking lot.
The State's ballistics expert testified that the recovered firearm was a nine-millimeter semi-automatic pistol. The expert tested the gun and casings and opined that five shots were fired from the gun. The medical examiner verified that the victim's wounds were caused by one of the bullets.
The police were unable to immediately apprehend defendant. About two months after the murder, police spotted defendant as a passenger in a vehicle. They arrested defendant and subsequently seized a bag from the driver. When defendant arrived at police headquarters, he identified the bag as his, stated that it contained a large amount of cash, and gave the police permission to search it. A police videotape showed defendant consenting to the search of the bag and the police removing $3600 in cash, as well as clothing and prepaid cell phone cards.
At trial, defendant claimed self-defense, testifying that he feared for his life because he had previously confronted the shooter of his cousin. Defendant believed that the victim and the shooter of defendant's cousin knew each other, and defendant testified that the victim had a reputation for being a killer. On direct examination, defendant also testified about his own convictions and general violence in his neighborhood, including murders relating to drugs and other wrongdoings.
Defendant testified that he saw the victim standing near the vending machine and observed the victim holding the barrel of a gun. Defendant stated that he directed the victim to "chill," and after that, he noticed the victim pull a gun out of his pocket.
Defendant admitted that he fled the scene of the murder and went to Pittsburgh, Pennsylvania. From there, he took a bus to Baltimore, Maryland; North Carolina; Texas; and New York before returning to New Jersey. On direct examination, defendant testified that he left New Jersey to avoid the police and because he was afraid for his life.
The jury found defendant guilty of murder, the weapons offenses, and hindering prosecution, and the judge imposed an aggregate sentence of thirty-five years in prison with thirty-years of parole ineligibility.
On appeal, defendant raises the following points:
Defendant raises the following additional arguments in a pro se supplemental brief:
We begin by addressing defendant's contention that the State violated
The State is under a continuing obligation to provide discovery pursuant to
We review discovery violations using an abuse of discretion standard.
As to the defendant's girlfriend's trial preparation with the investigator, defendant maintains that the State failed to produce a summary of what she told him, which included defendant met the victim before the murder and the victim drove a red car.
On direct examination, the defendant's girlfriend testified without objection that a few months before the murder, she drove defendant to a parking lot where the victim was waiting for him in a red Honda. She concluded that defendant and the victim were friends. On cross-examination, defense counsel learned that the defendant's girlfriend had told the investigator this information, and defense counsel used that information to impeach the defendant's girlfriend's credibility by questioning her as to the color of the Honda.
The judge conducted a
A prosecutor is obligated to produce "transcripts of all electronically recorded . . . witness statements. . . ."
As for the videotape, the State produced to defense counsel a transcript of defendant's consent to search the bag and, as the State contends, provided to defense counsel the videotape of the officer removing the items from the bag. Defendant argues that he did not receive the tape until immediately prior to trial in violation of the thirty day requirement in
Defendant contends that the judge erred by admitting into evidence testimony about the cash the police found in the bag.
We review evidentiary rulings of the trial court for abuse of discretion.
The State introduced evidence that the police removed $3600 in cash from defendant's bag as evidence of consciousness of guilt. It is well-established that certain conduct after the commission of a crime may indicate a defendant's consciousness of guilt.
Here, defendant fled from the hotel; called his former girlfriend, who discarded his clothing and boots and gave him different clothes to use; traveled to five states before returning to New Jersey; admitted at trial that part of the reason for leaving was to avoid the police; used cellular phones that could not be traced; and admitted that the bag and money were his. The judge properly charged the jury on how to interpret the consciousness of guilt evidence, including burden of proof and defendant's explanation that he left the scene because he was fearful for his life. Thus, we conclude the judge properly exercised his discretionary authority and his decision to admit the evidence did not amount to "a clear error of judgment."
We reject defendant's argument that the judge erroneously charged the jury on self-defense. Defendant maintains that the judge erred in declining his request to charge the jury that "there is no obligation to retreat unless retreat can be effected `with complete safety,' and . . . with knowledge that retreat can be so effected." It is undisputed that "[a]ppropriate and proper charges to a jury are essential for a fair trial."
Here, the judge charged the jury in accordance with the model charge, and correctly outlined the limitations on use of deadly force, stating:
Applying the governing standards, and looking at the charge as a whole, we conclude there was no error.
Defendant contends that the judge's response to several jury questions during deliberations prejudiced his right to a fair trial.
The jury asked if they could see a diagram of the hotel hallways, which had not been introduced into evidence. The assistant prosecutor and defense counsel agreed, however, that the jury should not see it. The judge then responded "no" to the question without objection. Relying on the doctrine of invited error, defendant is precluded from now arguing prejudice.
The jury asked whether there "[were] any documents in evidence besides witness testimony confirming [defendant]'s stay [in the hotel a night before the murder]." Defendant argues that such evidence was relevant to his claim of self-defense. Defendant speculated that the hard drive of the hotel videotape might prove that he had stayed in the hotel the night before the murder. The judge correctly answered the jury's question in the negative because the State did not introduce into evidence any document showing defendant in the hotel the night before the murder.
Defendant argues for the first time that the judge should have reopened the case to explore whether there was videotape footage of the hotel the night before the murder, and if so, whether it showed defendant checking into the hotel at that time. We decline to consider such a belated argument. It is well-settled that "appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such presentation is available unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest."
The hard drive containing video surveillance of the hotel was available to defendant prior to trial. The State used the hard drive at trial solely to establish chain of custody for the admission into evidence the surveillance footage of various portions of the hotel only on the night of the murder. It would be improper to reopen the case during deliberations to show the jury surveillance footage of the hotel that was not seen by defense counsel and not shown to the jury during the trial, especially because defense counsel admitted he had not confirmed whether there was any footage of the hotel the night before the murder. To his credit, he conceded that he was speculating that it might show defendant checking into the hotel. Nevertheless, the assertion remained conjecture. Under these circumstances, no basis to reopen the trial is presented.
A second note from the jury requested the judge to give them an example of passion provocation. The State and defense counsel agreed the judge should not provide such an example. The judge then re-charged the jury, without objection, on the elements of purposeful or knowing murder and of passion/provocation manslaughter. The judge also stated to the jury, without objection, that whether provocation is adequate or inadequate "essentially amounts to whether loss of self-control is a reasonable reaction under the circumstances," explaining:
We conclude there was no error, let alone plain error, with the way in which the judge handled the jury's question.
Finally, defendant contends for the first time that the judge failed to follow-up on the jury's request to replay the footage captured on the hotel surveillance. The jury originally asked to see a "real time" video without any lobby coverage. The hotel surveillance cameras showed different parts of the hotel that night: the lobby; defendant chasing the victim; the police arriving at the hotel; defendant exiting with his girlfriend; and the victim's lover going down the hallway. The judge conferenced with counsel, decided which part of the surveillance video to show the jury, replayed the tape, and no further inquiry arose. If the jury wanted to see more than what was shown in response to its question, then they could have made an additional request. We conclude there was no error.
Defendant contends that the judge imposed an excessive sentence because the judge failed to find mitigating factor number four,
Our review of sentencing determinations is limited.
We are "bound to affirm a sentence, even if [we] would have arrived at a different result, as long as the trial court properly identifie[d] and balance[d] aggravating and mitigating factors that [were] supported by competent credible evidence in the record."
Mitigating factor number four is inapplicable. Defendant fired his gun at the victim, and the surveillance video shows defendant chasing the victim down the hall. There is no reason to second-guess the trial court's application of the sentencing factors, nor any reason to conclude that the thirty-five year prison sentence "shocks the judicial conscience."
After carefully considering the record and the briefs, we conclude that defendant's remaining arguments are "without sufficient merit to warrant discussion in a written opinion."
Defendant argues that the assistant prosecutor improperly referenced in summation "what we all stand for is to have a society that's free from shootings. . . . [Y]our verdict when you find [defendant] guilty of murder will make that clear." Defense counsel did not object to this fleeting comment. Thus, we apply the plain error doctrine.
"Prosecutors are afforded considerable leeway in closing arguments as long as their comments are reasonably related to the scope of the evidence presented."
It is well-established that prosecutors are allowed to make a "`vigorous and forceful presentation of the State's case[.]'"
We further emphasize that failing to object during summation not only "`deprive[d] the court of an opportunity to take curative action[,]'" but shows that defense counsel did not find the comments to be prejudicial.
And finally, we reject defendant's contention raised for the first time, that the assistant prosecutor purportedly implied during cross-examination that defendant was a violent person and lived in a violent community. On direct examination, defendant testified that someone shot his cousin a few weeks before the murder; defendant carried a loaded gun because he was afraid people from his neighborhood were out to get him; the victim was a killer; the victim participated in more than one shooting in the community; and defendant lived in a violent community, giving violent details about other shootings, beatings, and murders. On cross-examination, the assistant prosecutor attempted to undermine defendant's self-defense defense by properly questioning defendant about his testimony on direct examination. In other words, the assistant prosecutor did not raise the subject of an unsafe community, defendant did so purportedly to support his claim of self-defense.
Affirmed.