Opinion
DOCKET NO. A-6339-11T4
08-27-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. SEAN D. HARRIS, a/k/a TWIZ TWITTER, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Karen Truncale, Assistant Deputy Public Defender, of counsel and on the brief). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Monica do Outeiro, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz, Espinosa and St. John. On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 09-12-2438. Joseph E. Krakora, Public Defender, attorney for appellant (Karen Truncale, Assistant Deputy Public Defender, of counsel and on the brief). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Monica do Outeiro, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant appeals from his conviction for first-degree murder, N.J.S.A. 2C:11-3(a)(1), (2), and sentence. We affirm.
We summarize the facts relevant to the issues presented on appeal.
On the evening of June 7, 1997, nineteen-year-old Andre Williams left the apartment in Asbury Park he shared with his girlfriend, T.C. They planned to meet later at a Lost Boys concert. However, Williams did not arrive at the concert and never returned to the apartment.
His badly decomposed body was found in a park by a Neptune Township public works employee on June 12, 1997. T.C. responded to a press release describing the body and Williams was identified through his fingerprints.
The initial investigation did not prove fruitful and the case was "administratively closed" in January 1998. From time to time in the years that followed, arrestees were questioned about Williams's murder. Detective Scott Samis of the Monmouth County Prosecutor's Office was assigned to the Drug Enforcement Administration (DEA). In 2004, Samis worked on a "Mobile Enforcement Team" investigating narcotics cases in the Asbury Park area. In connection with his investigations, Samis heard rumors about the Williams murder. Rumors turned to actionable information in June 2005, when Wayne Davis, who was incarcerated at the time, wrote to the Monmouth County Prosecutor's Office stating he had some information regarding the death of Williams. Davis provided some names and information.
Ultimately, the persons identified as participating in the murder were defendant, whose street name was Tweet or Tweeter, Alphonso Edwards, Jr., Darren Sims, Cedric Smith, Jason Turner, Antonio Grant and Philip Wylie. Along with Davis, they grew up together in Asbury Park and called themselves Dirty Dwellers. At the time of the killing, Turner was sixteen, Grant was eighteen, Edwards was nineteen, Sims was twenty-one, Wylie was twenty-three, Smith was twenty-five, and defendant was twenty-four. Although Williams hung out with them once in a while, he was not a regular.
In May and June 2006, initial proffer sessions were conducted with Grant and Sims, who were among five people arrested on federal charges one year earlier as part of an investigation in which Samis was involved. In those initial interviews, both Sims and Grant denied any knowledge about the Williams murder.
Alphonso Edwards, Jr. was in jail that summer along with his father, Alphonso Edwards, Sr. After learning a DEA agent asked Grant about the Williams homicide, Edwards confided in his father that he was present when "they jumped" Williams. Edwards, Sr. testified his son was crying as he told him what happened. He said they taped Williams to a chair, started beating him with brass knuckles, burning him with cigarette butts and that Tweeter took a knife and started stabbing him. Edwards, Sr. told his son to tell the police what happened before "one of the guys put the weight on him." His son said he was afraid and refused.
We will refer to Alphonso Edwards, Jr. as Edwards and to his father as Edwards, Sr.
A few days later, Edwards, Sr. told his attorney he wanted to see someone from the Prosecutor's Office to disclose what his son told him. Believing his son had not committed the murder but might be charged with it, Edwards, Sr., provided the police with names of participants he learned from his son, including defendant's street name, "Tweeter."
Edwards, Sims, Smith, Turner, Grant, and Wylie (the "six co-defendant witnesses") all testified at defendant's trial. Although there were some inconsistencies in the accounts they gave approximately fifteen years after the murder, their testimony corroborated each other in the salient facts: that they tortured and killed Williams with defendant and followed his directions.
On the night of the murder, defendant, Williams and the six co-defendant witnesses were together at defendant's apartment in Asbury Park. Williams and Wylie began to argue, which led to a physical fight. At first, the others watched but did not intervene while Wylie beat Williams. Defendant joined Wylie in beating Williams, who was no longer fighting back. Defendant ordered Edwards to lock the door to the apartment. Defendant accused Williams of being responsible for two robberies and, pointing a gun at his head, tried to get Williams to confess. Edwards knew Williams had nothing to do with the robbery of defendant's apartment, but knew defendant had made up his mind and was not going to listen to him or anyone else. When Williams asked for a cigarette, defendant allowed him to have it and remarked it would be the last cigarette he smoked. Defendant ordered the six co-defendant witnesses to tie Williams's hands and feet and to "fuck him up." They tortured Williams, burning him with cigarettes and lighters, strangling him with a cord around the neck, taking turns choking him, and hanging Williams from a pipe in the ceiling until the pipe broke and water came flooding into the apartment.
Williams was yelling and pleading for his life. Defendant told Williams he was going to die that night.
Edwards testified he did not leave because "[i]t wasn't no leaving. Once you was in that apartment you wasn't going anywhere." However, Sims took sixteen-year-old Turner and nineteen-year-old Edwards into the bathroom after Williams had been burned on his head, chest and feet to check to see if they were alright.
After Williams stopped breathing, defendant told Edwards to get a sheet from the back room. Williams's body was wrapped in the sheet. Defendant ordered Sims to back defendant's black Audi up to the porch. Williams's body was placed into the trunk. Defendant directed Edwards, Turner, Grant and Smith to clean up the apartment. Defendant left with Wylie and Smith to go to the park where Williams's body was dumped in high grass. Defendant was the last of them to return to the car and told the others he "made sure that [Williams] wasn't coming back."
Back at the apartment, defendant told the six co-defendant witnesses to say they had been at the Lost Boys concert at the time of the killing. He also told them to surrender their clothes and shoes.
Each of the six co-defendant witnesses testified they participated in the killing because they were afraid of defendant and did not want to end up like Williams. Defendant had power, money, and influence, and the other Dirty Dwellers looked up to him and wanted to be around him. Edwards said he did not try to stop the killing out of fear he would be the next person "there getting strangled." Edwards did not want to "seem like the weak link" to defendant and have him "start to second-guess me." Similarly, Smith stated he followed defendant's orders to participate because he felt that "my life would be on the line also" if he did not go along.
Grant felt that he had to participate because everyone else was doing so and, if he did not, he might be "laying with" Williams. Wylie testified defendant "can get pretty rough when you piss him off." He did not want to make defendant angry and "didn't want what was going on to [Williams] to happen to me." Turner testified that if he had tried to help Williams, "I probably would have been tied up with him."
Sims cited defendant's power and influence as a reason for his fear of him. When asked why he took defendant's orders even though he was physically larger than defendant, he explained, "we looked up to him." He testified he "could have been with [Williams] if I tried to stop it. Who knows what could have happened to me by just trying to stop what was going on."
Defendant told everyone not to tell anyone else about the killing. However, after Davis was released from jail at about 11:00 p.m. the night of Williams's murder, Wylie revealed what had occurred. Defendant was very angry after learning that Wylie told Davis about the killing. He cursed at Wylie, scaring him, and told Davis he had better keep quiet about it.
After his arrest on drug charges in March 2009, Edwards volunteered that he wanted "to help himself." Although he initially minimized his own involvement, Edwards provided the Monmouth County Prosecutor's Office with details about the Williams murder, implicating himself, defendant and the other co-defendant witnesses. In the days that followed, Smith, Turner, Sims and Grant also provided details of the killing although they also minimized their own culpability. Defendant and the six co-defendant witnesses were arrested and charged in the murder in May 2009.
Five of the six co-defendant witnesses pled guilty to aggravated manslaughter and Turner pled guilty to reckless manslaughter. Their plea agreements required them to give truthful testimony. Each of the six co-defendant witnesses had substantial criminal records, primarily for drug offenses. Edwards, Grant, Sims and Turner were serving sentences on unrelated charges at the time of trial.
Following a review of the original autopsy records, photographs and tissue samples, Dr. Frederick DiCarlo of the Monmouth County medical examiner's office performed an independent analysis and determined that the manner of death was homicide, the result of blunt trauma injuries of the head and stab wounds of the neck and abdomen.
The pathologist who performed the original autopsy was deceased. He had opined the cause and manner of death could not be determined, although he noted that it was not a natural death and homicide was a strong possibility.
Defendant did not testify at trial. He was convicted of first-degree murder, N.J.S.A. 2C:11-3a(1), (2).
The prosecutor successfully moved to have defendant sentenced to an extended term as a persistent offender. The trial judge sentenced defendant to a term of imprisonment for forty-five years, with a parole ineligibility period of thirty-five years, and imposed appropriate fines and penalties.
On appeal, defendant raises the following issues for our consideration:
POINT I
THE PROSECUTOR'S COMMENTS IN SUMMATION SO FAR EXCEEDED THE BOUNDS OF PROPRIETY THAT A MISTRIAL SHOULD HAVE BEEN GRANTED.
POINT II
THE ENTIRE TESTIMONY OF ALPHONSO EDWARDS, SR. CONSTITUTED INADMISSIBLE HEARSAY AND SHOULD HAVE BEEN DISALLOWED. (NOT RAISED BELOW).
POINT III
THE PROSECUTOR IMPROPERLY QUESTIONED A COOPERATING WITNESS ABOUT HIS FEAR OF THE DEFENDANT, THUS INTERJECTING THAT THE DEFENDANT HAD BAD CHARACTER AND A PROPENSITY FOR VIOLENCE.
POINT IV
THE PROSECUTOR USED THE "TRUTHFUL TESTIMONY" REQUIREMENT OF THE PLEA BARGAIN TO BOLSTER THE CO-DEFENDANTS' CREDIBILITY; THE CONDUCT CONSTITUTED IMPERMISSIBLE "VOUCHING." (NOT RAISED BELOW).
POINT V
THE COURT DOUBLE COUNTED THE DEFENDANT'S PRIOR RECORD AND RELIED UPON IMPROPER CRITERIA IN DETERMINING THE DEFENDANT'S SENTENCE OF 45 YEARS, 35 YEARS TO BE SERVED BEFORE PAROLE.
After reviewing these arguments in light of the record and applicable legal principles, we conclude that none have merit.
I.
In Point I, defendant argues that the comments made by the prosecutor during summation were so prejudicial as to warrant the mistrial requested and a reversal of his conviction. We disagree.
Prosecutors are "expected to make vigorous and forceful closing arguments" in summation and the courts "afford prosecutors considerable leeway in closing arguments so long as their comments are reasonably related to the scope of the evidence presented." State v. Timmendequas, 161 N.J. 515, 587 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). "Nevertheless, the primary duty of a prosecutor is not to obtain convictions but to see that justice is done," and so, the prosecutor must "refrain from improper methods calculated to produce a wrongful conviction." Ibid. (citation and internal quotation marks omitted); see also State v. Smith, 167 N.J. 158, 177 (2001) (noting that, because a prosecutor's "comments during opening and closing carry the full authority of the State," the court "cannot sit idly by and condone prosecutorial excesses" (citation and internal quotation marks omitted)).
Some context is necessary for the consideration of this argument. The theme of the vigorously presented defense summation was that the State's case amounted to a "fix" in which the prosecution fabricated a case against defendant, using the testimony of "profound, incredible liars" who had been "fed" information to produce the lies desired by the State. The prosecutor began his summation shortly after 3:00 p.m. on one day and concluded the following day. All the comments complained of were made during the first day of his summation. The next morning, before the prosecutor resumed his summation, the trial judge, sua sponte, chastised both counsel for expressing their personal beliefs regarding the credibility of witnesses. It was at this point that defense counsel objected to comments made by the prosecutor during summation and moved for a mistrial. Although no curative instruction was given, none was requested, either following the objections or for the final charge to the jury. However, in the final charge, the jury was instructed that the summations of counsel had no evidential value.
Defendant contends that the prosecutor's comments were unduly prejudicial because they included: "an inflammatory plea to the jurors' passions and sympathy," the prosecutor's statement that he took "exception" to defense counsel's suggestion that the State targeted and railroaded defendant, and an improper denigration of the defense.
Defendant also contends the prosecutor improperly commented upon the credibility of witnesses but has not identified any comments in the record that he challenges on this ground. This court is not obliged to search the record or the law to substantiate a defendant's argument where proper citations are not provided. State v. Hild, 148 N.J. Super. 294, 296 (App. Div. 1977). See also Spinks v. Twp. of Clinton, 402 N.J. Super. 465, 474 (App. Div. 2008) (noting that parties have the responsibility to refer the appellate court to specific parts of the record to support their argument and "[t]hey may not discharge that duty by inviting us to search through the record ourselves"), certif. denied, 197 N.J. 476 (2009). In addition, defendant contends certain remarks made by the prosecutor "clearly suggested that the State had some superior knowledge which implicated the defendant and that that was why he was on trial." The remarks identified do not support that characterization.
After his conviction, defendant made a motion for a new trial based in part on the prosecutor's comments during summation. The judge set forth his reasons for denying the motion in a written opinion. The judge held that the challenged comments were either proper or, in the case of taking "exception" to the defense summation, were "invited" by accusations made in the defense summation.
In determining whether comments in summation require reversal, an appellate court "must take into account the tenor of the trial and the degree of responsiveness of both counsel and the court to improprieties when they occurred." State v. Marshall, 123 N.J. 1, 153 ( 1991 ), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993).
Whether particular prosecutorial efforts can be tolerated as vigorous advocacy or must be condemned as misconduct is often a difficult determination to make. In every instance, the performance must be evaluated in the context of the entire trial, the issues presented, and the general approaches employed.
[State v. Negron, 355 N.J. Super. 556, 576 (App. Div. 2002).]
Even where prosecutorial misconduct has occurred, "in order to justify reversal, the misconduct must have been 'so egregious that it deprived the defendant of a fair trial.'" Smith, supra, 167 N.J. at 181 (quoting State v. Frost, 158 N.J. 76, 83 (1999)). This means "'the prosecutor's conduct must have been clearly and unmistakably improper, and must have substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his defense.'" State v. Wakefield, 190 N.J. 397, 438 (2007) (quoting State v. Papasavvas, 163 N.J. 565, 625 (2000)), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008). Thus, "even if the prosecutor's comments could be termed questionable," a new trial is not warranted unless the comments are "sufficiently severe" to show a clear potential for prejudice. Id. at 440.
A.
In arguing the prosecutor made "an inflammatory plea to the jurors' passions and sympathy," defendant identifies the following: (1) the prosecutor's statement, "all the hopes and dreams of a 19-year-old teenager were taken away. 5,325 days ago a son, a brother, a live-in boyfriend and a friend was taken from this earth," and (2) the reference to defendant as a "major drug dealer" with "power" and "a lot of money."
Prosecutors have "considerable leeway in closing arguments so long as their comments are reasonably related to the scope of the evidence presented." Timmendequas, supra, 161 N.J. at 587. Plainly, the references to the relationships of the victim were supported by evidence in the record. Although the "hopes and dreams" of the victim bordered on the melodramatic, this was not a theme of the summation, which focused upon the evidence presented to the jury. The references to defendant having "power" and "money" were also supported by the evidence and related to the incentive for the six co-defendant witnesses to follow defendant's orders to participate in the killing despite their professed reluctance to do so. The description of defendant as a "major drug dealer" comported with evidence provided by the co-defendant witnesses, some of which was elicited by the defense. Each of the six co-defendant witnesses had prior convictions for drug offenses that were discussed in detail during their testimony. Edwards testified that defendant "was the most powerful person out of all of us." Davis also referenced a time shortly prior to the killing when defendant was not present because he was in jail. During his cross-examination of Turner, defense counsel read a statement made by a police detective questioning Turner that defendant was selling drugs and was "kind of a bigger guy in town." The trial judge properly instructed the jury that it could not use any of this information in determining defendant's guilt on the murder charge. Within this context, a single reference to defendant as a "major drug dealer" lacked the capacity to improperly influence the jurors or cause them to disregard the judge's instructions.
Next, defendant challenges the prosecutor's comment that he took "absolute exception" to the defense attorney's statement "that the Monmouth County Prosecutor's Office, including myself, have a vendetta against Sean Harris," and that this assertion was "offensive." In delivering this portion of his summation, the prosecutor addressed defendant directly, stating, "The reason why . . . we are here is because you had something to do with it. That's the reason why we're here." Defendant states that in this and a later statement directed to him, the prosecutor was loud, pointed at him and was "in [his] face."
In reviewing these comments, we "'must not only weigh the impact of the prosecutor's remarks, but must also take into account defense counsel's opening salvo.'" State v. Engel, 249 N.J. Super. 336, 379 (App. Div.) (quoting United States v. Young, 470 U.S. 1, 12, 105 S. Ct. 1038, 1045, 84 L. Ed. 2d 1, 11 (1985)), certif. denied, 130 N.J. 393 (1991). "[C]riminal trials provoke strong feelings and . . . 'rhetorical excesses . . . invariably attend litigation.' Such excesses, however, do not always justify reversing a jury's verdict." State v. Smith, 212 N.J. 365, 409 (2012) (quoting State v. Williams, 113 N.J. 393, 456 (1988)), cert. denied, ___ U.S. ___, 133 S. Ct. 1504, 185 L. Ed. 2d 558 (2013). "[T]he issue is not the State's license to make improper arguments, but whether the prosecutor's invited response, taken in context, unfairly prejudiced defendant[]." Engel, supra, 249 N.J. Super. at 379.
Depicting his argument as an "indictment" of the prosecution, the defense attorney's attacks were both aggressive and personal. He repeatedly accused the prosecution of pursuing a goal of convicting defendant through suborned perjury and ignoring facts that disproved defendant's guilt.
Defense counsel's summation stressed the theme that the "only evidence" presented by the State was from "six of maybe the most profound, incredible liars ever to grace the witness stand in a courtroom." According to defense counsel, their testimony was the result of coercion by the police, which he illustrated by a "video chart" shown to the jury entitled "The Fix." Typical of the comments made in the defense summation was the following:
This is really more of an indictment of our whole criminal justice system. I mean, I honestly thought at times we were looking at some kind of military-type state where we drag people in, force them to say certain things and ignore everything else that contradicts it.
Defense counsel repeatedly alleged that (1) the State had "created" the case against defendant, (2) the six co-defendant witnesses only said defendant was the primary actor in the murder because that story was "fed" to them by the police, (3) the witnesses stuck to the story at trial because if they didn't "perform" as required, then their plea deals would not "kick in," and (4) the police were not interested in the truth but only in "railroading" defendant.
Significantly, the trial judge did not find the prosecutor's comment prejudicial under the circumstances. In denying the motion for a mistrial, the judge noted the excesses of the defense:
[I]t's inconceivable to me why a defense counsel would get up and say to a jury that their theory of the case is the fix, meaning, and a clear implication being particularly since this assistant prosecutor shows up on the tapes as being involved in the proffer sessions, and being present, along with the detectives when the various accomplices as it
were [sic] interviewed during the proffer session and were filmed, and is clearly seen on there, that this case was a fix. That means in no uncertain terms that the charge was made in the summation by the defense counsel that the Prosecutor's office was engaged in criminal conduct.
Fixing a case means that you are tampering with witnesses. It was suggested that they overlooked evidence; that they mistreated the evidence; that they mishandled the evidence; that they lost the evidence. All on purpose to fix this case against their client which implied criminal conduct. That the witnesses were tampered with and the evidence was tampered with. And to expect an assistant prosecutor to sit there silently when such harsh accusations are leveled is inconceivable that they wouldn't expect that an attorney would respond and simply say that that charge of fixing the case is not warranted, and that's what happened.
In his written opinion denying the defense motion for a new trial, the trial judge elaborated further:
A video chart was displayed by the defense counsel to the jury in summation. It was entitled "The Fix." To the average juror, the inference of this chart is clear: it was meant to suggest that the prosecutor tampered with the witnesses in order to convict this defendant. It is unrealistic for the defendant to suggest criminal behavior on behalf of the assistant prosecutor, without expecting a response to these allegations.
Evaluating the prosecutor's remarks here "in the context of the entire trial, the issues presented, and the general approaches employed," Negron, supra, 355 N.J. Super. at 576, we do not find they "substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his defense." Wakefield, supra, 190 N.J. at 438 (citation and internal quotation marks omitted).
B.
Defendant also argues that the prosecutor improperly denigrated the defense by (1) characterizing the defense theory as "let's throw it against the wall and see what sticks," (2) suggesting that defense counsel ought to have asked Davis directly if he was involved in the murder, and (3) criticizing the defense for wasting the jurors' time. This argument also lacks merit.
A prosecutor may not "cast unjustified aspersions" on defense counsel. Smith, supra, 167 N.J. at 177; Frost, supra, 158 N.J. at 86; accord State v. Adams, 320 N.J. Super. 360, 370 (App. Div.) (noting that ad hominem attacks on defense counsel are inappropriate), certif. denied, 161 N.J. 333 (1999). However, not every remark critical of defense counsel amounts to error, much less reversible error. See, e.g., Wakefield, supra, 190 N.J. at 447.
The trial judge found no prejudice in the prosecutor's characterization of the defense theory as "let's throw it against the wall and see what sticks." As the trial judge observed, this comment was made as part of an argument that the defense attempted to divert attention from the evidence to its attacks upon investigators and suggestions that Davis was responsible, even though he was incarcerated at the time of the murder. We also find no prejudice here.
Defendant argues the prosecutor "improperly shifted the burden of proof to the defendant" by pointing out that defense counsel had not asked Davis questions regarding his potential culpability during cross-examination. However, as the trial judge noted, defense counsel identified Davis in his opening statement as a person with a motive to kill the victim. The State called Davis as a witness and asked him if he had committed the murder. It was not an unfair comment to highlight the fact that defense counsel had opened the door to considering Davis guilty in his opening statement and had not pursued that line in his cross-examination. Moreover, not only did the judge properly instruct the jury as to the State's burden of proof, but the prosecutor himself revisited the issue after the defense motion for a mistrial and said to the jury in the second part of his summation:
Then we have Wayne Davis. Wayne Davis called by the State. And I want to make it abundantly clear, it is the State's job to prove this case beyond a reasonable doubt. It's never the defense job to prove a thing, not a thing. It's the State's job to prove this case beyond a reasonable doubt.
Defendant also contends the prosecutor denigrated the defense by referring to counsel's lengthy cross-examinations and summation. It bears noting that defense counsel apologized to the jury several times, admitting he could "sense it from everyone, it gets frustrating after a while listening to this stuff over and over again," that "some of it's boring and some of it's tedious," but maintaining, "[i]t has to be done this way."
This argument was presented to the trial judge in support of defendant's motion for a new trial. In his written opinion, the trial judge acknowledged that the prosecutor criticized the time spent by the defense in exploring inconsistencies, but stated the comment was taken out of context when characterized as charging the defense wasted the jurors' time. The judge stated the prosecutor's focus on the time spent by the defense was simply part of the State's overall argument that the jury should focus on the "larger details" that the six co-defendant witnesses all agreed on and not the "minor inconsistencies" occurring in testimony given fourteen years after the event. We agree.
Whether a particular comment by counsel is prejudicial, requires a curative instruction, or renders the trial unfair "are matters 'peculiarly within the competence of the trial judge.'" State v. Yough, 208 N.J. 385, 397 (2011) (quoting State v. Winter, 96 N.J. 640, 646-47 (1984)). Granting a mistrial "is an extraordinary remedy to be exercised only when necessary 'to prevent an obvious failure of justice.'" Ibid. (quoting State v. Harvey, 151 N.J. 117, 205 (1997), cert. denied, 528 U.S. 1085, 120 S. Ct. 811, 145 L. Ed. 2d 683 (2000)). "For that reason, an appellate court should not reverse a trial court's denial of a mistrial motion absent a 'clear showing' that 'the defendant suffered actual harm' or that the court otherwise 'abused its discretion.'" Ibid. (quoting State v. Labrutto, 114 N.J. 187, 207 (1989)).
Here, the trial judge rendered a thoughtful appraisal of defendant's objections to the prosecutor's comments. He noted that defense counsel's failure to timely object was "a factor that any court should consider when determining if the prosecutor's actions were so egregious as to warrant a mistrial or now a new trial." Having the advantage of witnessing both summations firsthand following the testimony at trial, he concluded defendant was not prejudiced by the comments. We discern no abuse of discretion in the denial of defendant's motion for a mistrial.
II.
For the first time on appeal, defendant argues that the testimony of Edwards, Sr. was inadmissible hearsay that the trial judge should have excluded. "The jurisdiction of appellate courts rightly is bounded by the proofs and objections critically explored on the record before the trial court by the parties themselves." State v. Robinson, 200 N.J. 1, 19 (2009). Because defendant did not object to this testimony at trial, our review is limited to "a search for plain error, Rule 2:10-2. . . ." State v. Nesbitt, 185 N.J. 504, 516 (2006).
Defendant argues that the sole purpose of having Edwards, Sr. testify was to bolster the credibility of his son and that in a case such as this one where witness credibility is a critical factor, such bolstering was plain error. We disagree.
The defense theory that the six co-defendant witnesses all falsely inculpated defendant at the State's behest was laid out in counsel's opening statement. Defense counsel suggested that the six co-defendant witnesses learned the "State wanted Sean Harris" when they were interviewed in 2006 and that Edwards did not admit any personal information at the time "because in 2006 [the police] don't have any leverage on him." He further called the statement Edwards gave the police in 2009 "the first of many versions," (emphasis added), that the police gave him motivation to blame defendant, and that Edwards complied by giving police the story they wanted to hear rather revealing what actually occurred. In short, the defense theory was to discredit Edwards by contending his testimony was the product of recent fabrication to secure a more favorable disposition for himself.
N.J.R.E. 803(a)(2), which follows Fed. R. Evid. 801(d)(1)(B), provides that a statement is not excluded by the hearsay rule if it was
previously made by a person who is a witness at a trial or hearing, provided it would have been admissible if made by the declarant while testifying and the statement . . . is consistent with the witness' testimony and is offered to rebut an express or implied charge against the witness of recent fabrication or improper influence or motive . . . .
If the requirements of this rule are satisfied, the prior statement is admissible as substantive evidence. State v. Torres, 313 N.J. Super. 129, 159 (App. Div.), certif. denied, 156 N.J. 425 (1998).
Edwards, Sr. testified regarding his son's disclosure to him when they were both in jail in 2006, a period in time before Edwards had a motive to fabricate evidence against defendant. Edwards, Sr. stated his son confided in him that he had witnessed defendant and others beat and kill Williams in 1997, he heard a DEA agent questioned Grant about the homicide and he was afraid he would be implicated. Edwards, Sr. repeated this information, which was consistent with Edwards's testimony at trial, to the police.
Thus, Edwards, Sr. provided evidence that the "first version" of the murder given by his son was his disclosure in jail, well before he made any statement to the police. The facts Edwards revealed to his father were consistent with his trial testimony and made before he had a motive to falsely inculpate defendant. Because the charge of improper motive was made, this was not a case in which the testimony was presented merely to bolster Edwards's credibility. See Neno v. Clinton, 167 N.J. 573, 580-81 (2001) (noting that prior statements were not admissible where "there was no charge of improper influence or motive in this case"); Palmisano v. Pear, 306 N.J. Super. 395, 402 (App. Div. 1997).
Defendant argues that the exception does not apply because Edwards, Sr. testified before his son and therefore before Edwards's credibility was attacked on cross-examination. However, it was clear from the opening statement that such an attack had been made and would be pursued. In addition to the usual inference that the absence of a timely objection reflects counsel's contemporaneous appraisal that no prejudice flowed from the evidence, the lack of an objection here also signals the fact that this defense theory was not abandoned. Under these circumstances, there was no error, let alone plain error, in permitting this testimony before Edwards testified.
III.
Each of the six co-defendant witnesses testified they feared immediate physical reprisals if they tried to stop the violence or failed to follow defendant's orders. Defendant does not argue that such testimony was irrelevant or inadmissible. He singles out testimony given by Wylie as improperly suggesting defendant had a bad character and a propensity for violence, although that testimony is not materially different from that given by other witnesses that defendant has not challenged on appeal.
We summarize the testimony cited as prejudicial.
During his direct examination, Wylie was asked to explain why he remained in fear of defendant. He replied, "Because he's a very well-known person out there in the street. He has a lot of money and he probably could get things done." Defense counsel objected; the court sustained the objection. There was no request to strike the testimony or to give a curative instruction.
Although he does not specifically allege the testimony was admitted in error, defendant mentions in a footnote that Edwards and Sims also testified that "the defendant was a person with money and power clearly suggesting an inference . . . that defendant was a notorious criminal." There was no objection to this testimony.
There was no objection to any of the following testimony now complained of on appeal. During cross-examination, defense counsel questioned Wylie about discrepancies between the initial statement he gave to police in 2009 and his testimony at trial. On redirect examination, the prosecutor asked him about his thought processes when he was first questioned:
Q. Back when you gave your initial statement on March 21st of 2009, were you distancing yourself from Harris?
A. Yes.
Q. Phil, you need to explain why that is.
A. I was distancing myself only because I was scared. I didn't want to be around nobody, basically.
Questioned further as to why he did not want to be around defendant, Wylie stated he "didn't want to end up like Andre Williams." The prosecutor challenged this statement, noting that Wylie had lived out on the streets for twelve years after the murder. Wylie explained, "Because in the beginning when I let [Davis] know about the situation that happened, he got upset about that, so I tried to distance myself from him." He stated defendant had an angry look on his face; he had seen defendant be mad before and it made him feel scared.
The next testimony complained of occurred after Wylie whispered to the judge that he wanted to withdraw his guilty plea. The trial was interrupted so Wylie could confer with counsel. When the trial resumed, the prosecutor asked Wylie what he had said to the judge. He said he wanted to take back his plea and explained he did so
[b]ecause I was scared . . . . Scared of everything. Scared of what could happen to my family, by me telling what's going on right
now. Telling what happened. Scared for myself. I was just, I'm nervous. I'm scared.
Again, there was no objection to any of this testimony.
On re-cross-examination, defense counsel confronted Wylie about this testimony, stating, "You just knew to say you were scared . . . . You know to come in here and say you were scared." Wylie replied, "I was scared. I'm still scared." On the heels of this exchange, the prosecutor commenced further redirect examination, asking if any of the other co-defendant witnesses had ordered him to do anything on the night of the murder. Wylie answered no as to each of the others and that all six of them were scared. The prosecutor then asked, "Just explain why six people would be afraid of one." Defense counsel objected to this question. The trial judge overruled the objection. Wylie then testified,
Like I said, everybody knew how Harris could get when he gets mad, and nobody wanted to make him mad. And even though what was going on at that particular time, I would say nobody wanted that to happen to them neither.
This is the only evidentiary ruling challenged on appeal. All of defendant's other arguments concern allegations of plain error because there was no objection at trial and no request for a curative instruction or for the court to strike the testimony complained of.
We grant substantial deference to the trial judge's discretion on evidentiary rulings unless it is a clear error of judgment or so wide of the mark that a manifest denial of justice results. See, e.g., State v. Koedatich, 112 N.J. 225, 313 (1988), cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989); State v. Carter, 91 N.J. 86, 106 (1982). As the trial judge observed in overruling counsel's objection, the subject of Wylie's stated fear was probed during cross-examination. Defense counsel insinuated that the claimed fear was not genuine but rather expressed because Wylie "knew" what he was supposed to say. We discern no abuse of discretion in permitting this testimony.
Defendant's remaining challenges all concern allegations of plain error. Defense counsel vigorously attacked Wylie's credibility, including the veracity of his claimed fear of defendant. Wylie's explanation for his fear at the time of the murder, after defendant learned he had disclosed the murder to Davis and at trial, was relevant to an evaluation of Wylie's credibility, role in the murder and recalcitrance to reveal the facts of the murder.
We are satisfied the alleged error in admitting the testimony from Wylie that was not objected to at trial did not have the clear capacity to produce an unjust result. R. 2:10-2.
IV.
The six co-defendant witnesses entered into plea agreements that required them to give "truthful testimony" at trial. This aspect of their agreement was the subject of questioning by both the prosecutor and defense counsel. Defendant now contends that it was plain error to permit the prosecutor to do so because such testimony "was calculated to bolster the credibility of the prosecution witnesses" and amounted to improper "vouching" for those witnesses. We disagree.
The State is permitted to require truthful testimony as a condition of a defendant's agreement to give truthful testimony as the State's witness. State v. Long, 119 N.J. 439, 488-89 (1990); State v. Murphy, 376 N.J. Super. 114, 122-24 (App Div. 2005). The issues that arise from a cooperating witness's testimony are well-recognized:
The State has legitimate concerns that the credibility of the witness is compromised; the defendant has concerns that the witness will testify in accordance with the witness's personal interests rather than what actually occurred and that the jury will perceive that the evidence of a co-defendant's guilt is substantive evidence of the involvement of the defendant in the offense charged.
[Murphy, supra, 376 N.J. Super. at 122.]
Defendant used the witnesses' plea agreements to his advantage in challenging their credibility and in furtherance of his theory that they had a strong motive to lie in order to obtain and retain deals for themselves.
Defendant has cited no authority that precludes the State from introducing evidence that the plea agreement required truthful testimony. Federal courts addressing the issue have held that testimony regarding a requirement in a plea agreement to provide truthful testimony, without more, does not constitute improper vouching. See, e.g., United States v. Griffin, 194 F.3d 808, 824 (7th Cir. 1999) (finding it was not improper vouching for prosecutor to elicit testimony from witness that his plea agreement required him to tell the truth), cert. denied, 529 U.S. 1044, 120 S. Ct. 1546, 146 L. Ed. 2d 358 (2000); United States v. Necoechea, 986 F.2d 1273, 1278-79 (9th Cir. 1993) (holding that it was not vouching for a prosecutor to ask witness if it was part of her plea agreement that she "testify truthfully and cooperate" because it did not "imply a guaranty" of the witness's truthfulness, "refer to extra-record facts, or reflect a personal opinion" (internal quotation marks omitted)); United States v. Jones, 468 F.3d 704 (10th Cir. 2006) (concluding Government did not improperly vouch for truthfulness of its witnesses by introducing plea agreements into evidence that conditioned a lower sentence on witnesses "continu[ing] to cooperate with the United States in an honest and truthful manner").
The six co-defendant witnesses were asked a few fact-specific questions regarding the negotiated plea terms to which they had agreed, and the questions were not asked in a way that suggested personal endorsement or outside knowledge by the prosecutor. Contrary to defendant's argument, we note the prosecutor did not suggest "that the promise of truthful testimony contained . . . any assurance that [the witnesses'] testimony was truthful." State v. Brown, 138 N.J. 481, 546 (1994). The prosecutor mentioned the plea agreements but not the truthful-testimony condition in opening and closing statements. Although he has challenged other comments made in summation, defendant has identified no comments by the prosecutor that expressed a personal belief in the truthfulness of the witnesses' testimony.
Finally, we reject defendant's argument that the trial judge failed to give the jury appropriate instructions about this testimony. Both before and after the evidence was presented, the judge properly instructed that the jury was the sole arbiter of credibility. Moreover, the judge stated the six plea agreements could only be considered regarding the credibility of the witnesses, and further cautioned that witnesses who testified pursuant to a plea agreement be given "careful scrutiny":
The law requires that the testimony of each such witness be given careful scrutiny. In weighing that witness's testimony, therefore, you may consider whether he has a special
interest in the outcome of this case, and whether his testimony was influenced by the hope or expectation of any favorable treatment, reward, or any feelings of revenge or reprisal. You may recall that there was some testimony that none of these witnesses have yet been sentenced.
We are satisfied that the evidence complained of did not constitute plain error.
V.
In sentencing defendant, the trial judge applied aggravating factors (1), (3), (6) and (9), N.J.S.A. 2C:44-1(a)(1),(3),(6), (9), and found no mitigating factors. Defendant does not argue that there was an inadequate factual basis for any of these factors or that the court failed to find a mitigating factor that was supported by the record. Although he suggests that the trial judge could have exercised his discretion to decline to sentence him as a persistent offender, he does not dispute that his criminal record met the statutory requirements for him to be sentenced as a persistent offender. See N.J.S.A. 2C:44-3(a). He contends the trial judge committed reversible error because he (1) "double counted" defendant's prior record by using it for both the persistent offender analysis and the determination as to the appropriate term to impose, (2) criticized defendant for offering no defense, and (3) set the sentence based on defendant's life expectancy. We find no merit in these arguments.
The trial judge did not mention aggravating factor (6) at the sentencing hearing, but it is listed in the judgment of conviction. --------
"Appellate review of sentencing decisions is relatively narrow and is governed by an abuse of discretion standard." State v. Blackmon, 202 N.J. 283, 297 (2010) (citing State v. Jarbath, 114 N.J. 394, 401 (1989)). When reviewing the imposition of a sentence, the appellate court must "consider whether the trial court has made findings of fact that are grounded in competent, reasonably credible evidence and whether 'the factfinder [has] appl[ied] correct legal principles in exercising its discretion.'" Ibid. (quoting State v. Roth, 95 N.J. 334, 363 (1984)). An appellate court may not substitute its judgment for that of the sentencing court, and the Supreme Court has commented that "our trial judges 'need fear no second-guessing' when they exercise their discretion in accordance with the statutory mandates and the principles we have established." Ibid. (quoting Roth, supra, 95 N.J. at 365). A sentence should be reversed only when the application of the facts to the law "has resulted in a clear error of judgment" or the sentence "shocks the judicial conscience." Ibid. (citation and internal quotation marks omitted).
Defendant argues that since the aggravating factors found by the judge were "weighted down by [his] prior record," and his prior record was used to justify the imposition of an extended term, the result was "tantamount to double counting factor (6) and giving it undue weight qualitatively."
In State v. Dunbar, 108 N.J. 80, 91 (1987), the Court described the sentencing process after a decision has been made that an extended term is appropriate:
Once the decision to impose an extended term has been made, the court should then return its focus primarily to the offense. [T]he conduct that is the occasion for the sentence controls the severity of the sentence . . . . [D]epending on the balance of the aggravating and mitigating factors, the court adjusts the base term of the sentence. The defendant's prior record of conviction has been taken into account in deciding whether to impose an extended term and presumably would not have the same qualitative weight in grading the range of the extended sentence. But other aspects of the defendant's record, which are not among the minimal conditions for determining persistent offender status, such as a juvenile record, parole or probation records, and overall response to prior attempts at rehabilitation, will be relevant factors in adjusting the base extended term. Nonetheless, the primary focus will be on the conduct that occasions the sentence.
[Id. at 91-92 (emphasis added) (citations and internal quotation marks omitted).]
Clearly, the Court did not instruct that a sentencing judge is precluded from giving any weight to a defendant's criminal record after determining an extended term is appropriate. At most, the Court stated that care must be given in assessing the weight to be given to the convictions for the predicate offenses. There is no prohibition against considering the other aspects of a defendant's criminal record "which are not among the minimal conditions for determining persistent offender status," and the Court explicitly noted that factors such as a defendant's probation history and "overall response to prior attempts at rehabilitation" remained relevant factors in sentencing. Id. at 92.
The trial judge appropriately determined that defendant met the statutory criteria for an extended sentence and then weighed the aggravating and mitigating factors to determine what sentence was appropriate. The aggravating factors were based on the horrific details of the torture and killing of Williams, defendant's extensive juvenile and adult criminal record, and defendant's decision to pursue a life of crime despite his obvious intelligence and leadership skills.
Next, defendant argues that "the court criticized the defendant for not offering a defense for his actions such as an alibi," and "the court faulted the defendant for not expressing remorse or offering an explanation for his whereabouts on the day of the murder." The trial judge began his remarks by noting that defendant "was convicted after a lengthy jury trial of first-degree murder and insists upon his innocence." The judge also remarked that defendant "shows no remorse for that and offers no explanation as to how these events occurred and no explanation as to his whereabouts."
Although a defendant's remorse might properly be considered in determining an appropriate sentence, failures to show remorse or offer a defense are not among the enumerated aggravating factors and falsely suggest the defendant had some burden to challenge the evidence against him. A review of the trial judge's comments at sentencing shows he did not rely upon these facts to find the aggravating factors which, defendant does not dispute, are adequately supported by the record. Therefore, we find no prejudice in these passing comments.
Finally, defendant argues the trial judge should not have considered defendant's life expectancy in setting the equivalent of a life sentence and that doing so was somehow importing an improper aggravating factor. We disagree.
The judge sentenced defendant to an extended term for murder under N.J.S.A. 2C:43-7(a)(6), which provides that the sentence may be "for a specific term of years which shall be fixed by the court between 35 years and life imprisonment, of which the defendant shall serve 35 years before being eligible for parole[.]" After noting the life expectancy tables reflected a life expectancy for defendant of approximately forty-one years, the judge sentenced defendant to forty-five years incarceration. Because this sentence falls within the range of sentences established by statute and does not shock the judicial conscience, the reference to defendant's life expectancy is of no consequence.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION