Opinion
DOCKET NO. A-1160-12T2
05-07-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JAY R. GOLDBERG, Defendant-Appellant.
Brian P. Kennan, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Keenan, of counsel and on the brief). William Kyle Meighan, Assistant Prosecutor, argued the cause for respondent (Joseph Coronato, Ocean County Prosecutor, attorney; Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; Mr. Meighan, on the brief). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner, Haas and Currier. On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 11-09-01602. Brian P. Kennan, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Keenan, of counsel and on the brief). William Kyle Meighan, Assistant Prosecutor, argued the cause for respondent (Joseph Coronato, Ocean County Prosecutor, attorney; Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; Mr. Meighan, on the brief). Appellant filed a pro se supplemental brief. PER CURIAM
Tried before a jury on a six-count Ocean County indictment, defendant Jay R. Goldberg was convicted of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a, as a lesser-included offense of first-degree murder, N.J.S.A. 2C:11-3 (count one); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a(1) (count two); first-degree maintaining or operating a controlled dangerous substance (CDS) production facility, N.J.S.A. 2C:35-4 (count three); second-degree conspiracy to maintain or operate a CDS production facility, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-4 (count four); first-degree possession with intent to manufacture, distribute or dispense a CDS, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(10) (count five); and second-degree conspiracy to possess with intent to manufacture, distribute or dispense a CDS, N.J.S.A. 2C:5-2, N.J.S.A. 2C:35-5a(1), and N.J.S.A. 2C:35-5b(10) (count six).
A co-defendant, Ms. Blair, was charged in the counts three, four, five, and six of the same indictment. However, she was not tried with defendant.
At sentencing, the trial judge merged count two into count one, and counts four, five, and six into count three. On count one, the judge sentenced defendant to twenty years in prison, subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, and five years of parole supervision upon his release. The judge sentenced defendant to a concurrent ten-year term on count three, with a three-year, six-month period of parole ineligibility. The judge also imposed appropriate fines and penalties.
On appeal, defendant raises the following contentions:
POINT I
THE TRIAL JUDGE ERRED IN DECIDING TO DENY [DEFENDANT'S] MOTION TO SUPPRESS HIS STATEMENT TO THE POLICE IN VIOLATION OF HIS STATE AND FEDERAL RIGHTS TO COUNSEL.
POINT II
THE TRIAL JUDGE'S FAILURE TO INSTRUCT THE JURY ON THE UNRELIABLE NATURE OF THE ORAL STATEMENTS ALLEGED TO HAVE BEEN MADE BY [DEFENDANT] CONSTITUTES REVERSIBLE ERROR. (Not raised below).
POINT III
THE TRIAL JUDGE COMMITTED REVERSIBLE ERROR IN FAILING TO ADD PASSION PROVOCATION MANSLAUGHTER AS A LESSER-INCLUDED OFFENSE OF MURDER. (Not raised below).
POINT IV
THE NUMEROUS INSTANCES OF PROSECUTORIAL MISCONDUCT DURING SUMMATION DEPRIVED [DEFENDANT] OF A FAIR TRIAL. (Not raised below).
POINT V
THE TRIAL JUDGE ERRED IN FAILING TO FIND MITIGATING FACTORS THAT WERE SUPPORTED BY THE RECORD, IMPROPERLY FINDING AGGRAVATING FACTOR ONE, AND FAILING TO ADEQUATELY WEIGH AGGRAVATING AND MITIGATING FACTORS,
RESULTING IN A MANIFESTLY EXCESSIVE SENTENCE. (Not raised below).
Defendant submitted a two-page "pro se supplemental brief" which, contrary to Rule 2:6-2(a)(5), does not list any point headings. The submission merely contains unexplained, shorthand references to legal principles such as "due process[,]" "diminished capacity of cognitive mental activity[,]" and "self-defense[.]" We conclude that the "arguments" raised in this submission are without merit and do not warrant further discussion. R. 2:11-3(e)(2).
After reviewing the record in light of the contentions advanced on appeal, we affirm.
I.
We derive the following facts from the record. Defendant lived next door to co-defendant Blair and her boyfriend, Shahinian. In September or October 2008, Shahinian agreed to build a deck on the back of defendant's house. Defendant smoked marijuana on a daily basis and, during the building project, he told Shahinian he wanted to learn how to grow it himself because he was "running out of money to buy marijuana." Shahinian agreed to help, and defendant hired him to outfit a marijuana "grow room" in defendant's basement. After the room was set up, Blair showed defendant how to "clone" the plants. In late March or early April 2009, a workman went into defendant's basement with Shahinian to fix the heater. The workman testified that Shahinian had keys to the glass siding door at the rear of the basement. While he was working on the heater, the workman observed that the room was full of marijuana plants.
Blair testified that, in early April 2009, she argued with Shahinian about his drinking and told him he needed to move into the basement of her house. He did so. Blair continued to live in the main part of the home with her brother, who was confined to his bed due to an illness.
Blair also testified that defendant and Shahinian had a falling out around this time. A few days prior to April 21, 2009, defendant told Blair to "keep your fucking boyfriend away from me when he's drunk or I'll shoot him." Blair told defendant, "if you shoot [Shahinian,] you're going to go to jail. And he said, no, I won't, it will be self-defense."
On April 19, 2009, defendant called Blair and asked her to tell Shahinian that he no longer needed Shahinian's help with the marijuana plants because he had harvested them himself. Defendant told Blair he had also smoked some of the marijuana. After Blair relayed this information to Shahinian, he told her that defendant still owed him money for his work building the deck and the grow room. Shahinian was also concerned that defendant was going to smoke the marijuana instead of selling it to get the money he owed him. Blair believed that defendant wanted Shahinian to remove the remaining plants from the basement and put them in "an inexpensive rental property somewhere."
Either later that day or the next, Blair heard loud music coming from her basement and, upon investigating, found that Shahinian had moved dozens of marijuana plants there. She told Shahinian he needed to remove the plants or she would call the police. Shahinian refused.
On April 21, 2009, Blair returned home from work around 5:45 p.m. and found that Shahinian was "very drunk. Drunker than I had ever seen him." Blair left her home for about two hours. When she returned, Blair saw that Shahinian had lined up a sledge hammer, crowbar, and shovel "on the landing." He told Blair to "pick your weapon." Blair put the tools away in the garage and, when she saw that Shahinian had his truck keys in his hand, she took them from him without any difficulty. Blair testified that Shahinian was "very upset and he was screaming, you know, I'm going to fuck something up tonight. I'm going to kill somebody tonight." Blair was used to these outbursts and told Shahinian to calm down.
Blair left and drove to a friend's house, but when the friend told her she was getting ready for bed, Blair returned home around 9:00 p.m. She saw defendant outside walking his dogs. Defendant told Blair, "you've got to get rid of him. You know, he's been drinking all day." Blair waited in her car until she saw the light go off in her garage. She went inside her house and let her brother know she was home. Blair then told Shahinian he needed to leave the next morning. Blair went into her bedroom and Shahinian went downstairs.
Blair went to bed around 10:00 p.m. Before she fell asleep, Blair heard Shahinian in the kitchen getting ice. Blair testified that Shahinian then came to her room and "very quietly, he put his arm through the door and he very gently closed the door. And I was relieved, because I thought, well, he's not angry any more, he's calmed down and he'll just go to sleep. And then I went to sleep." At about 11:22 p.m., Shahinian called Blair, but she did not wake up in time to answer it. Shahinian left a voicemail on Blair's cell phone, but she did not return the call. Blair then went back to sleep.
Blair was later awakened by the sound of "two loud pops." She "sat up in bed" and, a few seconds later, she "heard three other loud pops, the same sound, closer together." Blair got out of bed and saw lights on in defendant's house. She then went back to sleep.
Sometime later, defendant called "yelling in the phone and he was saying, I shot [Shahinian]. I shot [Shahinian]. He attacked me. You know, you've got to believe me." Blair put the phone down and went to tell her brother, who told Blair to call defendant back. She tried a couple of times, but got no answer. A few minutes later, defendant was pounding on her front door, screaming that she had to help him. At her brother's insistence, Blair did not open the door, but yelled for defendant to call an ambulance or the police. Defendant then left.
At 12:41 p.m., defendant called 911 from outside his home, and told the operator he had shot Shahinian because "[h]e attacked me and hit me in the face." Defendant then said, "I had to. I had no choice. I have a permit for the weapon and everything." Defendant also told the operator that Shahinian broke into his house and "kept comin[g] at me." Defendant stated he "ordered [Shahinian] to leave several times [but] he just kept coming." Defendant claimed the incident happened "three or four minutes" before he called 911.
At some point, Blair went outside while defendant was still on the phone with the 911 operator. When defendant saw her, he instructed her to tell the operator that Shahinian had earlier said that he "was going to kill somebody tonight." Blair did as defendant asked.
The police arrived at defendant's home shortly before 1:00 a.m. They found Shahinian dead in the living room, face down. The body "was cool to the touch[.]" The police found defendant's gun on the dresser in his bedroom. A subsequent autopsy revealed that the victim had been shot five times from a distance of at least one or two feet away. The medical examiner could not establish a time of death. Shahinian's blood alcohol content was "0.288 percent," which the medical examiner opined was "quite high[,]" meaning that Shahinian "was quite intoxicated."
The police noticed there were signs of a forced entry to the outside basement door of defendant's home and damage to the interior basement door. The police also observed loose marijuana on the basement staircase and also near a sliding door at the rear of the basement that led outside. The police found a box of marijuana in defendant's back yard and plastic bags of the drug at various places inside the home. The police found the remains of the grow room in the basement, together with a number of marijuana plants. They also seized approximately seventy-five plants found in Blair's basement.
At approximately 4:45 a.m., two detectives interviewed defendant at the police station. After waiving his Miranda rights, defendant stated Blair told him around 9:00 p.m. that the victim was "so drunk he's dangerous" and that he was going to kill somebody that night.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Defendant said that, at approximately 10:00 or 10:30 p.m., he heard "thumping" coming from his living room and went to investigate. When he went to the living room, defendant stated the victim "[came] storming at me and shove[d] me" into the bedroom. Defendant "went into a panic" and remembered he had a handgun about twenty feet away on his dresser. Because he thought the victim might find the gun, defendant ran to the dresser to get it, falling twice on the carpet before retrieving the weapon. The victim allegedly said, "You want to kill me. Kill me with it."
Defendant told the detectives he knew "the law in the state" and that he had to "give them a warning" before shooting someone. He stated he "warned" the victim "three times[,]" and then shot the victim in the chest because "he started swinging like he was gonna kill me. What choice did I have." The victim then "staggered" into the living room, where "he collapsed." Defendant acknowledged he may have shot the victim several times in the back, either while he was falling or after he was already on the ground.
Although he indicated that the shooting occurred around 10:00 or 10:30 p.m., defendant told the detectives he was not completely sure of the timeline. After shooting the victim, defendant first called his estranged wife and then Blair. The call to Blair occurred approximately twenty-five minutes before his call to 911. Defendant admitted he attempted to get rid of the marijuana in his home. Defendant was arrested following the interview.
While in jail awaiting trial, defendant talked to two inmates, MacKay and Brown, about the shooting. MacKay testified defendant told him that he had been growing marijuana in his basement with the victim and Blair, and they planned to sell it in Philadelphia. However, a detective moved into a house across the street and defendant and the victim thereafter agreed to move the operation into Blair's home.
According to MacKay, defendant said that on the night of the shooting, the victim was drunk. Defendant told him to get the rest of the plants and growing equipment out of his basement. While defendant was "removing the stuff," the two men argued about the money defendant owed the victim for the deck and his work setting up the grow room. The victim was also upset because defendant had "snipped some of the buds from the plants" for his personal use.
Defendant went upstairs and the victim followed. Defendant told MacKay the argument became "more heated" and then "grabbed a firearm that he had on his night stand." Defendant shot the victim twice in the chest and defendant chased after him, shooting him two more times in the back. After the victim was on the ground, defendant told MacKay, he shot him once more in the back.
After calling his wife and Blair, defendant told MacKay he met Blair in front of her house, and the two friends "were trying to decide what to do about it." After rejecting a plan to dump "the body in the Pinelands or in a pond or something like that[,]" they decided to "say that it was self-defense." Defendant then made some "jimmie marks" on the door of the basement to make it look like the victim "was there burglarizing the house. That he had broken in."
Defendant told the other inmate, Brown, that he was growing marijuana with the victim and Blair in his basement. The victim became upset when he found that defendant had "trimmed the plants down[,]" which "ruined" them. The victim said he would take down the "growing facility" in defendant's basement. Defendant told the victim that, once he finished this project, he should come to defendant's bedroom to "talk about compensation" for his work.
When the victim later went to defendant's bedroom, defendant told Brown the discussion turned into a verbal argument about money. When the victim refused to leave, defendant ran to get his gun and shot the victim once in the chest. Defendant then shot the victim three times in the back. Because defendant "wanted to make sure that the gentleman was dead[,]" he shot the victim once more in the back after he was lying on the ground.
Defendant confided to Brown that he initially planned to use his boat to dispose of the victim's body in the ocean, and also considered "dumping it where nobody would find it" in the Pine Barrens. After speaking to Blair, however, he decided to call the police and claim the shooting occurred in self-defense.
Defendant did not testify on his own behalf, but he called three witnesses. The victim's former girlfriend stated that the victim had a drinking problem and "was aggressive a lot of the time." A private investigator testified that he visited defendant in jail near the end of April 2009, and took photographs of defendant's left knee, which was bruised, and of scratches and abrasions on his left leg and arm. Finally, defendant's brother-in-law testified that, in November 2008, Blair met with him and defendant in defendant's house. Blair said she "wanted to start growing pot in the house." After Blair left, the brother-in-law told defendant "it was a really bad idea." However, defendant "went along with it[.]"
II.
In Point I, defendant argues the trial judge erred in denying his motion to suppress the statement he made to the police on the morning of the shooting. He asserts he invoked his right to counsel at the beginning of the interview when he wondered whether he should retain an attorney and asked the officers what would happen if he did so. We disagree.
At the beginning of the interview, Detective Long told defendant he was going to read the Miranda warnings and that if defendant had any questions, he could ask the detectives. Defendant stated, "I can't get a lawyer in the middle of the night like this. . . . Even if I agreed to questioning, you know[.]" Long told defendant to permit him to finish reading the warnings before any further discussion occurred.
Detective Long led the interview, and was accompanied by Detective Mancine.
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After reading the Miranda warnings, Long asked, "Do you understand that?" and defendant replied, "I understand it perfectly." When Long asked defendant if he wished to speak to the detectives, defendant stated he was "a little scared without a lawyer." Long told defendant that all he was "asking you to do if you talk to us is to tell me the truth" and "[i]t's up to you."
Defendant asked Long to begin asking him questions so he could see if he felt like responding. Long told defendant that he just wanted to know whether defendant wanted to speak to the detectives and advised him that "if at any point and time during our conversation you wish to speak to an attorney[,] you may request one and at that point and time we will terminate the interview. And again[,] it's up to you."
Defendant asked Long what would happen if he "said[,] I want to talk to an attorney right now." Long told him the detectives would "terminate the interview and the interview will be at an end." Long asked defendant if he wanted him to re-read the Miranda warnings. Defendant replied, "No[.] I understand what you said." Defendant asked for "a moment to think about it before I make a decision." Long again told defendant, "you have the right to speak with an attorney if you, if you choose. Then that's fine." Long then read the waiver portion of the Miranda form to defendant, who acknowledged he understood his rights.
Long told defendant he could not give him any legal advice. When defendant said it was a "very difficult" decision "to make right now[,]" Long explained that "if you're indicating that you would like to speak with a lawyer then I, I have to terminate the interview." Defendant then told Long he would sign the Miranda waiver and he did so.
Nevertheless, Long again read defendant the warnings. In response, defendant stated, "[c]an you assign an attorney to me right now? Is somebody available? That's all I'm saying." Once again, Long advised him that he had the option of speaking to the detectives or terminating the interview by requesting an attorney. Defendant stated he wanted to speak with the detectives.
The interview continued for approximately thirty more minutes. When Long began questioning defendant about the long time gap between when he said the shooting occurred and when he called the police, defendant said he no longer wished to speak to the detectives and Long immediately terminated the interview.
After reviewing the recorded interview and hearing oral argument at the suppression hearing, the judge rendered a thorough written opinion denying defendant's motion to suppress the statement. The judge stated:
I find that the defendant was clearly read his Miranda rights and that he signed the appropriate waiver form. From a review of the video[-]taped statement, I find the defendant was thinking clearly and responding intelligently to questions. Detective Long was completely professional and in no way was he attempting to be misleading or devious. He attempted to be clear with the defendant even when the defendant continually interrupted the detective's questioning. It is apparent that the defendant was attempting to put forth his own theory of self-defense despite
the fact that the detective was initially asking questions unrelated to the actual events. In the overall review of the video, the detective clearly attempted to and did explain the Miranda rights to the defendant, which the defendant definitely waived.
The judge rejected defendant's contention that he invoked his right to counsel by asking the detectives whether he should retain an attorney at the beginning of the interview. Citing the Supreme Court's decision in State v. Alston, 204 N.J. 614 (2011), the judge found that defendant's questions about retaining an attorney were ambiguous and Long properly advised defendant that "he could not give him legal advice while simultaneously trying to clarify his rights." The judge noted that Long continually told defendant that he had the right to consult with an attorney and that, if he asked to do so, the detectives would immediately terminate the interview. Long also re-read the Miranda warnings to defendant after he clearly stated he wished to speak to the detectives. Thus, the judge concluded that defendant's "statement was voluntary and not the product of coercion or official misconduct."
In reviewing a motion to suppress a recorded statement, we "must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007) (internal quotation marks omitted). However, the trial court's application of the law to the factual findings is not given the same deference. State v. Handy, 206 N.J. 39, 45 (2011).
When a defendant challenges a statement made during a police interrogation, the State must prove beyond a reasonable doubt that the waiver of the defendant's Miranda rights "was knowing, intelligent, and voluntary in light of all the circumstances." State v. Presha, 163 N.J. 304, 313 (2000). If an individual "indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning." Miranda, supra, 384 U.S. at 444-45, 86 S. Ct. at 1612, 16 L. Ed. 2d at 707.
Our Supreme Court has held that "a suspect need not be articulate, clear, or explicit in requesting counsel; any indication of a desire for counsel, however ambiguous, will trigger entitlement to counsel." State v. Reed, 133 N.J. 237, 253 (1993). To determine whether an individual has invoked his or her right to counsel, our courts employ a "totality of the circumstances approach that focuses on the reasonable interpretation of [the] defendant's words and behaviors." State v. Diaz-Bridges, 208 N.J. 544, 564 (2012).
Should a suspect's "words amount to even an ambiguous request for counsel, the questioning must cease, although clarification is permitted; if the statements are so ambiguous that they cannot be understood to be the assertion of a right, clarification is not only permitted but needed." Alston, supra, 204 N.J. at 624. In responding to an ambiguous statement, the officer must limit himself or herself to clarification, "not questions that operate to[] delay, confuse, or burden the suspect in his assertion of his rights." State v. Johnson, 120 N.J. 263, 283 (1990) (internal quotation marks omitted).
Moreover, under the totality of the circumstances approach, not every equivocal reference to an attorney is an invocation of the right to counsel requiring the cessation of police interrogation. For example, in Alston, the Court held that the defendant's statement "'should I not have a lawyer?'" was not an assertion of his right to counsel, but rather a request for advice from the investigating officer. Alston, supra, 204 N.J. at 626. The officer responded by asking the defendant if he wanted a lawyer, to which the defendant replied "no" while continuing to pose hypotheticals concerning the mechanics of obtaining counsel. Ibid. The Court determined that: (1) the defendant had a clear understanding of his right to counsel; (2) his requests and queries were not assertions of that right; and (3) the officer's responses adequately clarified the defendant's requests. Id. at 628.
Conversely, we found an equivocal request for counsel barred further questioning where the defendant indicated he would give a statement provided that it would be approved by his attorney. State v. Dickens, 192 N.J. Super. 290, 297-98 (App. Div. 1983), certif. denied, 97 N.J. 697 (1984). See also State v. Wright, 97 N.J. 113, 119 (1984) (holding that the defendant's statement that he would not "'sign any more deeds [or waivers] without a lawyer present'" was an invocation of his right to counsel).
In this case, sufficient credible evidence in the record supports the trial judge's denial of defendant's motion to suppress. While defendant asked several hypothetical questions about the mechanics of requesting an attorney, he continually stated he did not wish to consult with an attorney and, instead, wanted to give a statement to the detectives. Long never pressured defendant to waive his Miranda rights, and patiently explained over the course of the conversation that defendant had the option of speaking with the detectives or terminating the interview. He also told defendant several times that the interview would immediately cease if he exercised his right to consult with an attorney.
Under the totality of these circumstances, we discern no basis for disturbing the trial judge's conclusion that defendant waived his rights knowingly, intelligently, and voluntarily. Alston, supra, 204 N.J. at 623.
III.
In Point II, defendant contends the trial judge committed plain error by failing to give a Kociolek charge. State v. Kociolek, 23 N.J. 400 (1957). The Kociolek charge pertains to the reliability of an inculpatory statement made by a defendant to any witness. Id. at 421-23. As explained in Kociolek, the jury should be instructed to "'receive, weigh and consider such evidence with caution,' in view of the generally recognized risk of inaccuracy and error in communication and recollection of verbal utterances and misconstruction by the hearer." Id. at 421.
Defendant's attorney did not ask the judge to give the jury a Kociolek charge, and the judge did not do so sua sponte. However, defendant contends that the judge's failure to give the charge concerning the testimony provided by Blair, MacKay, and Brown was plain error because the jurors had inadequate guidance on how to assess defendant's alleged statements to these individuals about what happened on the night of the shooting. We are not persuaded by defendant's argument.
Although our Supreme Court has directed the Kociolek charge to be given whether or not specifically requested by a defendant, it has also determined that the failure to give this charge is not plain error per se. State v. Jordan, 147 N.J. 409, 428 (1997) (noting it would be "a rare case where failure to give a Kociolek charge alone is sufficient to constitute reversible error"). We have held that "[w]here such a charge has not been given, its absence must be viewed within the factual context of the case and the charge as a whole to determine whether its omission was capable of producing an unjust result." State v. Crumb, 307 N.J. Super. 204, 251 (App. Div. 1997) (finding "no reported case in which a failure to include a Kociolek charge has been regarded as plain error"), certif. denied, 153 N.J. 215 (1998).
Here, defense counsel thoroughly cross-examined Blair, MacKay, and Brown on defendant's alleged statements to them, and made strong arguments concerning their lack of credibility in summation. While the judge did not give a Kociolek charge, he carefully instructed the jurors on how to assess the credibility of the witnesses, and told them they could consider MacKay and Brown's prior convictions in making that assessment. The judge also advised the jurors that, because Blair was a "cooperating co-defendant[,]" her testimony should "be given careful scrutiny." In addition, the judge gave a "false in one, false in all" charge, and told the jurors that if "any witness . . . willfully or knowingly testified falsely to any material facts in this case with intent to deceive[,]" the jurors could "give such weight to his or her testimony as you may deem it is entitled. You may believe some of it or you may, in your discretion, disregard all of it."
Given these defense arguments and the judge's extensive credibility instructions, we conclude that "the critical issue of the reliability of defendant's incriminating statements [to Blair, MacKay, and Brown] was thoroughly and sufficiently placed before the jury." State v. Feaster, 156 N.J. 1, 73 (1998), cert. denied, 532 U.S. 932, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001). Thus, the judge's failure to give a Kociolek instruction was not plain error. Id. at 72-73 (finding no plain error even though the defendant's incriminating oral statements were "at the heart of the State's case against defendant").
IV.
In Point III, defendant contends the judge erred by failing to sua sponte charge the jury on the lesser-included offense of passion provocation manslaughter. Generally, a trial court "shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense." N.J.S.A. 2C:1-8e. Here, defense counsel did not request a charge of passion provocation manslaughter. "An unrequested charge on a lesser[-]included offense must be given only where the facts in evidence 'clearly indicate' the appropriateness of that charge." State v. Savage, 172 N.J. 374, 397 (2002) (quoting State v. Choice, 98 N.J. 295, 298 (1985)). A trial court should consider the evidence in the light most favorable to the defendant when making this determination. State v. Mauricio, 117 N.J. 402, 412 (1990). Applying this standard, we see no error.
For passion provocation manslaughter to be charged, there must be (1) reasonable and adequate provocation; (2) a lack of time for the defendant to cool off between the provocation and the act; (3) actual provocation of the defendant; and (4) the defendant must not have cooled off before committing the act. State v. Galicia, 210 N.J. 364, 379-380 (2012). A trial court is required to instruct a jury on passion provocation if the evidence supports the first two elements, which are objective. Id. at 380. The jury then decides the last two, subjective, elements. Ibid.
In asserting he was provoked by passion to shoot the victim, defendant primarily relies upon the testimony of Brown and MacKay. Brown testified that defendant told him that an "argument had taken place" between defendant and the victim shortly before the shooting, and that things had "gotten verbal between the two of them." MacKay testified defendant told him the argument became "heated" and that defendant "grabbed a firearm that he had on his night stand" as the victim approached him. In addition, defendant told the police in his interview that the victim pushed him and he fell to the floor in the bedroom before getting up to retrieve his gun. Defendant's contention lacks merit.
There are insufficient facts in the record to show defendant was reasonably or adequately provoked. An "adequate provocation" is one in which the "'loss of self-control is a reasonable reaction' to the provocation." State v. Docaj, 407 N.J. Super. 352, 366 (App. Div.), certif. denied, 200 N.J. 370 (2009). Generally, "words alone" will not satisfy the adequate provocation requirement. State v. Crisantos, 102 N.J. 265, 273-74, 283-84 (1986) (holding that an instruction of passion provocation manslaughter was not warranted where the victim used racial slurs and profanity). Thus, the victim's expression of anger toward defendant was insufficient to warrant a passion provocation instruction.
Mutual combat may constitute adequate provocation when (1) the "contest [is] waged on equal terms and no unfair advantage [is] taken of the [victim]"; (2) a defendant formed the intent to cause serious harm "in the heat of the encounter"; and (3) if the fight reaches a level of "actual physical contact" or serious threat "sufficient to arouse the passions" of a reasonable person. Id. at 274, 275 n.8. Here, the possibility of mutual combat was not an adequate provocation because defendant was the only one that was armed. Moreover, after defendant retreated to get his gun from his dresser, he returned to confront the victim and told him to leave. When the victim refused, defendant shot him in the chest before shooting him three more times in the back. Defendant then shot the victim a final time in the back at close range "to make sure the gentleman was dead." Thus, we conclude the facts do not "clearly indicate" the charge of passion provocation manslaughter and therefore, even if such a charge had been requested, there was no rational basis to charge it.
V.
Next, in Point IV, defendant argues that the prosecutor's remarks during summation denied him a fair trial. We disagree.
Prosecutorial misconduct is not a basis for reversal unless the conduct was so egregious that it deprived the defendant of a fair trial. State v. DiFrisco, 137 N.J. 434, 474 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996). Considerable leeway is afforded to prosecutors in presenting their arguments at trial "as long as their comments are reasonably related to the scope of the evidence presented." State v. Frost, 158 N.J. 76, 82 (1999). When, as here, defendant fails to object to the prosecutor's comments at trial, the allegedly "improper remarks . . . will not be deemed prejudicial." State v. Timmendequas, 161 N.J. 515, 576 (1999).
Defendant asserts the prosecutor improperly drew the jury's attention to the lengthy gap between the time defendant told the police he went to bed, and the time he placed the 911 call at 12:41 a.m. Defendant argues that, although he told the police he went to bed at about 10:00 p.m. or 10:30 p.m., and the shooting occurred shortly thereafter, he also stated he was unsure of the time. The evidence also showed that Blair received a call from the victim's phone at 11:22 p.m., and, therefore, defendant contends the State should not have implied defendant lied about the time line.
No misconduct occurred in this case. The prosecutor's remarks were based squarely on defendant's statements to the police. Moreover, the remarks about the time gap were in direct response to defense counsel's attack on the State's timeline in his summation.
Defendant next contends it was unfairly prejudicial for the prosecutor to assert that the victim was too intoxicated to have been the aggressor in the incident. Again, we disagree. There was ample evidence in the record to support the prosecutor's argument that the victim was "[h]ighly intoxicated" on the night defendant shot him. The prosecutor's remark that, due to the victim's intoxication, "[t]here is no way that he could be violent in that way, aggressive in the manner that [defendant] was saying, that he was coming after him being attacked[,]" was a reasonable inference drawn from the evidence in the record.
Defendant also argues the prosecutor "improperly bolstered the credibility of" MacKay and Brown. However, in his summation, defense counsel attacked the credibility of these witnesses by asserting they only testified for the State in exchange for favorable plea agreements. Viewed in this context, there was nothing improper in the prosecutor's responsive argument that both witnesses were credible.
VI.
Finally, in Point V, defendant argues that his sentence was excessive. We disagree.
Trial judges have broad sentencing discretion as long as the sentence is based on competent credible evidence and fits within the statutory framework. State v. Dalziel, 182 N.J. 494, 500 (2005). Judges must identify and consider "any relevant aggravating and mitigating factors" that "'are called to the court's attention[,]'" and "explain how they arrived at a particular sentence." State v. Case, 220 N.J. 49, 64-65 (2014) (quoting State v. Blackmon, 202 N.J. 283, 297 (2010)). "Appellate review of sentencing is deferential," and we therefore avoid substituting our judgment for the judgment of the trial court. Id. at 65; State v. O'Donnell, 117 N.J. 210, 215 (1989); State v. Roth, 95 N.J. 334, 365 (1984).
Applying these standards here, we are satisfied the judge did not abuse his discretion in imposing an aggregate twenty-year term. The judge made findings of fact concerning aggravating and mitigating factors that were based on competent and reasonably credible evidence in the record, and applied the correct sentencing guidelines enunciated in the Code. The sentence does not shock our judicial conscience and we perceive no basis for disturbing it. O'Donnell, supra, 117 N.J. at 215-16; State v. Jarbath, 114 N.J. 394, 401 (1989).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION