Opinion
DOCKET NO. A-1177-13T2
04-29-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. RYAN L. HODGE a/k/a RON TON, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Rochelle Watson, Assistant Deputy Public Defender, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Claudia Joy DeMitro, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez, Ostrer, and Manahan. On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 10-02-0630. Joseph E. Krakora, Public Defender, attorney for appellant (Rochelle Watson, Assistant Deputy Public Defender, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Claudia Joy DeMitro, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Tried by a jury, defendant Ryan L. Hodge was convicted of the lesser-included offense of second-degree passion/provocation manslaughter, N.J.S.A. 2C:11-4(b)(2); second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b); and third-degree endangering an injured victim, N.J.S.A. 2C:12-1.2(a). On June 27, 2013, he was sentenced to an aggregate thirteen-year term of imprisonment: a four-year term for the endangering, followed by a consecutive nine-year term for the manslaughter. The consecutive nine-year term was subject to eighty-five percent parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2(a). A nine-year term, subject to three years of parole ineligibility, was imposed on the unlawful possession of a weapon offense to be served concurrent to the manslaughter sentence. Defendant appeals and we affirm.
The jury acquitted defendant of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a). --------
Defendant, as well as three eyewitnesses, testified during the trial. We glean the following from the trial record.
On April 24, 2009, defendant, who was then sixteen, was chatting with K.M. in an alley. Defendant had been romantically interested in K.M. The victim, Tyson Maddox, who was also romantically interested in K.M., drove past. Maddox's friend was in the passenger's seat of the car. As Maddox passed defendant, defendant allegedly made disparaging comments; this fact was disputed at trial. Maddox stopped the car, and confronted defendant.
At trial, defendant said he weighed only 140 or 145 pounds at the time, while the victim was athletic and weighed nearly 300 pounds. Defendant testified that when Maddox approached him, Maddox held a screwdriver in his hand and tried to stab him in the face.
No eyewitnesses saw Maddox holding a weapon. Investigators did find a screwdriver at the scene underneath the victim's vehicle.
The two men were seen grappling; defendant said Maddox punched him in the face. Defendant then drew a loaded .38 caliber handgun and shot Maddox five times. When asked to explain the reason he carried a loaded handgun on his person, defendant responded he carried the weapon "for protection . . . . [from] anything, you know, that could possibly happen, you know. We are talking about Camden, aren't we?"
After the shooting, defendant ran from the scene. He said he discarded the weapon on the way because it "had no more use[,]" since "[i]t had no more bullets." He also discarded his sweatshirt as he fled. Defendant hid for nearly two weeks at his cousin's home because he "was scared of retaliation . . . [from] the victim's family or friends."
When initially arrested, defendant denied even knowing Maddox. He claimed he did so because he was under the impression that the defense of self-defense did not exist in New Jersey. The arresting officers told him that the defense existed in this state, but he refused to accept their assurances. It was not until his attorney advised him that the defense was available that he explained the circumstances behind the shooting. Defendant reiterated on cross-examination that he shot the victim because he "believed [he] would be killed."
K.M. testified that she tried to intercede when the two men began to fight, but that defendant shook her off. After the first shots, Maddox stumbled back and collapsed on the ground. Defendant then stood over him and shot him two more times before running away. As he ran, she saw Maddox lying on the ground gasping for air.
Maddox fell face down, but was turned onto his back by paramedics administering aid. One of the investigators at the scene described seeing the victim's exposed chest with telemetry patches attached.
The forensic pathologist opined that the victim was likely alive when each gunshot wound was inflicted, given the nature of the resulting bleeding and bruising. He also said the victim survived until he reached the hospital.
Throughout the trial, all the eyewitnesses, including defendant, referred to the "code of the street." One eyewitness, acquainted with both defendant and the victim, said that after his testimony, he would be labeled as a snitch. K.M. recalled that after the shooting, her grandfather yelled at her to get inside the house, which she did. K.M. acknowledged that when first interviewed by police, she did not talk to them. Defense counsel extensively cross-examined K.M. and the two other eyewitnesses regarding their reluctance to speak to police.
At trial, the luncheon hour interrupted defendant's cross-examination. Defendant's attorney asked the judge, because he did not "want to violate any rules," if he could talk to his client during the recess. The judge and counsel then engaged in the following colloquy:
Although you're his attorney he's now a testifying witness, so you certainly cannot talk about his testimony. If he has certain legal questions for you . . .
[Defense counsel]: Okay.
THE COURT: You certainly are . . . any questions regarding his defense, that's something different. But you cannot discuss his testimony as to what route he should take, what should he say or what shouldn't he say. I'm sure you're not inferring that at all, [defense counsel].
[Defense counsel]: I'm assuming he's going to have questions. I didn't want to violate any sequestration order of the Court.
THE COURT: He certainly cannot present questions to his attorney such as how should I . . .
[Defense counsel]: You don't want me to talk to him about factual matters.
[Prosecutor]: Honestly, I think he should have to wait until the conclusion of cross exam. I'm sure there's going to be redirect and he should have an opportunity once I'm finished with him. But the witness is in the middle of his cross-examination.
[Defense counsel]: I'm only asking because I don't want to violate any order.
THE COURT: When I think about it, because otherwise it could open some doors, when I sit back and I digest the fact that he is a witness on the stand, you are his attorney, once he completes his testimony certainly he can talk to his attorney more. He has already discussed it - - he already discussed with his attorney as to whether or not he wanted to testify. And I'm satisfied that he made a knowing and voluntary decision to take the stand. Therefore, any other discussions should take place after his testimony is complete. Okay.
[Defense counsel]: Okay. Thank you.
THE COURT: You're correct. Thank you. Okay.
In summation, defense counsel suggested that the eyewitnesses, including K.M., had been dishonest. He drew the jurors' attention to the fact that K.M. gave conflicting statements, as did one other eyewitness, regarding whether defendant said anything disparaging to the victim before he stopped his car and confronted defendant. Counsel focused on the defense of self-defense, and supported the theory by stressing that Maddox left his car in order to fight defendant. He reminded the jury of the investigators' discovery of a screwdriver in the street. He pointed out the inconsistencies in the eyewitness descriptions of the event, and suggested that all of them, including K.M., were biased against defendant.
In her summation, the prosecutor acknowledged that the witnesses did not volunteer statements, but placed their reluctance in the context of "the code of the street." She went on to say:
What [a witness] said was when you're a witness to a murder you fear for your life and you don't want to be called a snitch. The code of the street is that you don't talk, you don't talk to the police, you don't stand out there and discuss it with your friends, you don't talk about it with your family, you don't talk about it with your neighbors or your coworkers. It's silence.
And even the defendant knows that. When the officers told him that witnesses were saying he killed Tyson Maddox, he admitted his response was, oh, well, they're going to have to come to court.
Your common sense and what you saw and heard from witnesses on the stand should tell you it is a difficult thing to be a witness to a crime of violence, especially a murder, especially in the neighborhood where you live, where you grew up, where everybody knows you, where you know the defendant,
where the defendant knows you, where you know all the people who sit behind him and they know you as well. They know where you live, they know where your family lives because you all live together.
In the United States the criminal justice system . . . requires that we have public trials. That means a witness has to come into an open courtroom and take the stand so that every person who is in the room can see them. And in case they don't know you, what's the first question a witness is asked, state your name for the record, please. And in case anybody missed it, you have to spell it after that. That's just the way it goes.
We ask people to walk into a room and point their finger at a man who committed murder. I call them witnesses. But out on the street back when they're home they're called snitches.
Counsel asked a lot of questions of all the witnesses about why they didn't stay, why they didn't talk to the police, why they didn't call 9-1-1 immediately if they loved [Maddox] so much . . . . But that's not what people do. It's not what the drug dealers do, it's not what good hard-working people do.
What people do is they take a couple of steps back and they go in their houses and they shut their doors and they turn off the lights and that's that.
. . . .
Last Wednesday . . . [the victim's family] sat in the courtroom marking the fourth anniversary of his murder . . . . Justice has been a very long time coming in this case, but based on all the evidence you've heard and saw during this trial the
time is now. You should find the defendant guilty of murder and of every other count in the indictment.
During her final charge, the judge read the jury the model charge for endangering. Model Jury Charge (Criminal), "Endangering Injured Victim" (2005).
On appeal, defendant raises the following points:
POINT I
THE SEQUESTRATION ORDER PROHIBITING DEFENDANT FROM SPEAKING WITH HIS ATTORNEY DURING AN HOUR AND THIRTY-FIVE MINUTE TRIAL RECESS DEPRIVED HIM OF HIS SIXTH AMENDMENT RIGHT TO COUNSEL.
POINT II
THE CONVICTION FOR ENDANGERING AN INJURED VICTIM MUST BE REVERSED BECAUSE (A) THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT THE VICTIM WAS ALIVE AFTER SUSTAINING FIVE GUNSHOT WOUNDS, INCLUDING ONE TO THE HEART; (B) THE JURY INSTRUCTION WAS INADEQUATE; AND (C) THE STATUTE VIOLATES THE PROHIBITION AGAINST MULTIPLE PUNISHMENTS FOR THE SAME OFFENSE.
A. The State Failed To Prove Beyond A Reasonable Doubt That The Victim Was Alive After Sustaining Five Gunshot Wounds; Including One To The Heart.
B. The Jury Instruction Was Inadequate.
C. The Statute Violates The Prohibition Against Multiple Punishments For The Same Offense.
POINT III
PROSECUTORIAL MISCONDUCT CONSISTING OF BOLSTERING THE STATE'S WITNESSES' CREDIBILITY BY SUGGESTING THAT THEY FACED REPRISAL BY TESTIFYING AND APPEALING TO THE
JURORS' EMOTIONS, DEPRIVED DEFENDANT OF A FAIR TRIAL.
POINT IV
DEFENDANT'S NINE-YEAR SENTENCE, BASED ON AGGRAVATING FACTORS THREE AND NINE, FOR A PASSION/PROVOCATION MANSLAUGHTER THAT OCCURRED WHEN HE WAS SIXTEEN YEARS OLD IS MANIFESTLY EXCESSIVE. AND THE TRIAL JUDGE ERRED IN ORDERING THE MORE RESTRICTIVE TERM TO BE SERVED CONSECUTIVELY TO THE LESS RESTRICTIVE TERM.
I.
Defendant contends the sequestration order prohibiting him from speaking to his attorney over the one hour and thirty-five minute lunch recess deprived him of his constitutional right to counsel. Although banning counsel from speaking to a defendant amid testimony is a practice fraught with peril, in this instance, we conclude it did not deprive defendant of his constitutional right to counsel.
The Sixth Amendment right to counsel is incorporated to the states through the Fourteenth Amendment. State v. Fusco, 93 N.J. 578, 583 (1983). The Sixth Amendment guarantees the right to counsel for defense in a criminal prosecution and that protection is substantially mirrored in New Jersey's Constitution. N.J. Const. art. I, ¶ 10. While the right is fundamental, it must be balanced against the truth-seeking function of a trial. See Perry v. Leeke, 488 U.S. 272, 281-82, 109 S. Ct. 594, 600-01, 102 L. Ed. 624, 634-35 (1989).
In Geders v. United States, the United States Supreme Court held that a sequestration order prohibiting a defendant from conferring with his attorney during an overnight recess violated his Sixth Amendment right to counsel. 425 U.S. 80, 91, 96 S. Ct. 1330, 1337, 47 L. Ed. 2d 592, 601 (1976). The Court reasoned that sequestration orders have different effects and impacts on defendants versus non-party witnesses.
While a non-party witness would have little reason to confer with trial counsel, a defendant might need to consult with his attorney for any number of valid reasons. Id. at 88, 96 S. Ct. at 1335, 47 L. Ed. 2d at 599. Furthermore, the purpose of sequestration — to prevent the testifying witness to be influenced by evidence or testimony at trial — is not particularly well served by sequestering a defendant in light of his right to be present at trial, and his right to confer with his attorney throughout. Ibid.
The Geders Court noted that an overnight recess was commonly used as an opportunity for a defendant to confer with his counsel over issues of strategy, obtain information made relevant by the day's trial, and generally review the day's events. Ibid. An attorney's role is to provide a "guiding hand" to an ill-equipped defendant in a criminal prosecution brought against him. Id. at 89, 96 S. Ct. at 1335, 47 L. Ed. 2d at 599.
Subsequently in Fusco, supra, 93 N.J. at 586-87, the New Jersey Supreme Court held that overnight restriction of a defendant's right to counsel, whether "a blatant restriction [or] a restriction limited only to testimony[,]" constituted a deprivation of the right to counsel, and reversible error. The Fusco Court substantially adopted the reasoning of the United States Supreme Court in Geders. Id. at 584-87. Citing Justice Marshall's concurrence in Geders, the New Jersey Supreme Court agreed that it would be "difficult to conceive of any circumstances that would justify a court's limiting the attorney's opportunity to serve his client because of a fear that he may disserve the system by violating ethical standards." Id. at 585 (quoting Geders, supra, 425 U.S. at 93, 96 S. Ct. at 1337, 47 L. Ed. 2d at 602 (Marshall, J. concurring)).
Furthermore, the right to confer with counsel is "most crucial" while a defendant is "in the midst of, or about to begin, testimony on cross-examination." Id. at 586. However, the holding was explicitly limited: no decision was made as to "whether such restrictions would be reversible error if the recess w[as] for a period shorter than overnight or if defendant had not objected to the restriction." Id. at 590.
After the decision in Fusco, the United States Supreme Court held that Geders did not apply to a fifteen-minute recess between a defendant's direct and cross-examinations. Perry, supra, 488 U.S. at 280-81, 109 S. Ct. at 600, 102 L. Ed. 2d at 633-34. The Court reasoned that a defendant would not normally have a right to interrupt his testimony to speak with his attorney. See id. at 282, 109 S. Ct. at 601, 102 L. Ed. 2d at 635. Permitting a defendant to confer with counsel after direct examination but before cross-examination would "[grant] the witness an opportunity to regroup and regain a poise and sense of strategy that the unaided witness would not possess," and raised the potential for "coaching" the witness. Ibid. It was proper to presume that only the testimony would be discussed in such a short recess, and a defendant has no constitutional right to discuss his testimony while it was in process. Id. at 284, 109 S. Ct. at 601-02, 102 L.Ed. 2d at 635-36.
Although Fusco is the most recent New Jersey Supreme Court precedent on the issue, we have subsequently applied the Perry holding. In State v. Carroll, cross-examination of the defendant was interrupted by a short adjournment in which the trial judge told him that he was "not to discuss [his] testimony with no one [sic] until [his] testimony is finished. With no one." 256 N.J. Super. 575, 591 (App Div.), certif. denied, 130 N.J. 18 (1992). We concluded this was not a violation of the defendant's right to counsel because the recess was very short, there was no objection, and it was "not even clear that the judge intended or that the parties understood that the instruction would prevent the defendant from consulting with his counsel." Id. at 592. Whether the parties understood it that way or not, we found the United States Supreme Court's holding in Perry was applicable; therefore, the defendant's right to counsel was not violated. Id. at 593.
A year later, we applied the Perry holding again in State v. Vergilio, 261 N.J. Super. 648 (App. Div.), certif. denied, 133 N.J. 443 (1993). While the appeal was decided on other issues, we observed that prohibiting a defendant from speaking with his attorney during the twenty minute break that interrupted his cross-examination did not violate his right to counsel. Id. at 657. Thus while the New Jersey Supreme Court had yet to rule on facts similar to Perry, we have adopted the Carroll rule. Ibid.
Here, defendant contends the right to counsel afforded by state law is more extensive than that guaranteed by the United States Constitution. He argues since Fusco is the most recent New Jersey Supreme Court pronouncement on the issue, the United States Supreme Court's decision in Perry is inapplicable.
We nonetheless apply the Perry rule, as we conclude, given the facts, that the sequestration order withstands constitutional muster. Assuming the judge intended to bar counsel from talking to defendant at all over the luncheon recess, the break was during cross-examination and relatively brief.
Avoiding discussions between counsel and defendant during defendant's cross-examination over the luncheon recess would not impact trial strategy any more than if there had not been a luncheon recess at all. Clearly, defendant would not have been permitted to confer with his attorney while testifying. If he had testified continuously, the effect would not have been any different from what occurred here. Defendant's attorney did not express any need to confer, requested by defendant or for some other reason, regarding any matters whatsoever. Thus, this sequestration order did nothing more than maintain a "hold" on the proceedings until they could be resumed. The sequestration order, limited to these facts, was therefore constitutionally permissible. See Carroll, supra, 256 N.J. Super. at 592-93.
II.
Defendant also contends his conviction for endangering an injured victim must be reversed, arguing that the State failed to prove beyond a reasonable doubt that the victim was alive when defendant left the scene. Endangering an injured victim requires a person to harm another and "leave[] the scene of the injury knowing or reasonably believing that the injured person is physically helpless, mentally incapacitated or otherwise unable to care for himself." N.J.S.A. 2C:12-1.2. Thus the State is required to introduce evidence that the victim was alive when defendant left. See State v. Moon, 396 N.J. Super. 109, 117 (App. Div. 2007), certif. denied, 193 N.J. 586 (2008).
Defendant's contention that the State failed to meet its burden of proof is belied by the evidence in the record that the victim was alive when defendant fled the scene. K.M.'s testimony that Maddox was gasping for air after defendant ran away was unrefuted. The paramedics who arrived at the scene turned the victim over, attempting to render treatment. Additionally, the medical examiner testified that the bleeding and bruising surrounding the gunshot wounds indicated that the victim was alive when each shot was fired. He also said that Maddox "made it" to the hospital and did not succumb to his injuries until there.
Defendant made a motion to acquit at the close of the State's case. See R. 3:18-1. He contended that the State had not demonstrated, viewing the evidence in the light most favorable to the State and giving the State the benefit of all reasonable inferences, that a reasonable jury could find defendant guilty beyond a reasonable doubt of endangering an injured victim. See State v. Reyes, 50 N.J. 454, 458-59 (1967). We do not agree.
Applying that standard, the proofs here sufficed. See State v. Spivey, 179 N.J. 229, 236 (2004) (quoting State v. Moffa, 42 N.J. 258, 263 (1964)). We are therefore satisfied that in light of the evidence the State proffered, the denial of the Reyes motion was proper.
Defendant also objects to the model jury charge, Model Jury Charge (Criminal), "Endangering Injured Victim" (2005), claiming that it is fatally flawed because it does not explicitly instruct the jury to find that the victim was alive when a defendant leaves. Jury charges are considered as a whole. We determine whether "the jury was misinformed as to the controlling law . . . . whether the charge in its entirety was ambiguous or misleading." State v. R.B., 183 N.J. 308, 324 (2005) (quoting State v. Hipplewith, 33 N.J. 300, 317 (1960)).
In this case, where defendant did not object to the charge, we review the instruction for plain error. State v. Nero, 195 N.J. 397, 407 (2008). It must prejudicially affect the substantial rights of the defendant and have the clear capacity to bring about an unjust result. Ibid.
Contrary to defendant's reading, the model jury charge does not suggest that an injured victim can be dead at the time of the assailant's departure from the scene. Although a person who is dead is obviously unconscious and helpless, "[t]he statutory terms used to define the condition of the victim . . . are not commonly used to describe the condition of persons who are dead. That is not the 'fair import' of those terms." Moon, supra, 396 N.J. Super. at 116. The use of the language in the model charge is therefore not improper.
The statute also requires that the injured person be "physically helpless, mentally incapacitated or otherwise unable to care for himself" when the assailant leaves the scene. N.J.S.A. 2C:12-1.2. The model charge defines "physically helpless" as a "condition in which a person is unconscious, unable to flee, or physically unable to summon assistance." Model Jury Charge (Criminal), "Endangering Injured Victim" (2005). Mentally incapacitated means a "condition in which a person is rendered temporarily or permanently incapable of understanding or controlling" his conduct. Ibid. Thus we conclude the instruction sufficiently clarifies that the victim had to be alive when defendant left. The instruction is neither misleading nor ambiguous.
Defendant also contends that because a person who commits passion/provocation manslaughter would almost always leave the scene of his crime, any conviction for endangering constitutes impermissible multiple punishments for the same offense. This argument is based on a factual premise outside the record; in essence, speculation. Moreover, the argument obscures the issue. The question is whether one act is being punished multiple times, not whether certain distinct bad acts have a tendency to be committed together.
It is undisputed that in our criminal justice system, a person cannot receive multiple punishments for a single wrongful act. State v. Davis, 68 N.J. 69, 77 (1975). A court reviewing a claim of multiple punishment must first determine whether the elements of the crimes are the same and whether the Legislature intended to create separate offenses. State v. Miller, 108 N.J. 112, 116 (1987).
Endangering an injured victim requires that a person cause bodily injury to another and "leave[] the scene of the injury knowing or reasonably believing that the injured person is physically helpless, mentally incapacitated or otherwise unable to care for himself." N.J.S.A. 2C:12-1.2. On the other hand, a person is guilty of passion/provocation manslaughter when he or she commits a murder in the "heat of passion" in the "presence of reasonable provocation[.]" State v. Robinson, 136 N.J. 476, 482 (1994).
Even if we accept defendant's factual premise for the sake of argument, the statutes criminalize two distinct acts. Passion/provocation manslaughter criminalizes the unlawful killing of another in the heat of passion under reasonable provocation. Ibid. Endangering an injured victim criminalizes the act of causing a person physical harm and leaving the injured victim. N.J.S.A. 2C:12-1.2.
And it is noteworthy that the endangering statute actually includes a provision that states: "[n]othing herein shall be deemed to preclude, if the evidence so warrants, an indictment and conviction for murder, manslaughter, assault or any other offense." Ibid. That provision demonstrates the legislative intent to create a separate offense. The passion/provocation manslaughter and endangering statutes clearly punish separate offenses, requiring separate elements, and therefore do not constitute impermissible multiple punishments for one action.
III.
Defendant contends that the prosecutor's summation improperly bolstered the credibility of the State's witnesses by suggesting that they were courageous by testifying at all, implying that they appeared in spite of potential intimidation or retaliation by defendant. He also objects to the prosecutor's comment that the fourth anniversary of the victim's death had recently passed. He argues that the comment was an inappropriate appeal to jurors' emotions.
Allegations of prosecutorial misconduct require reversal only if the misconduct is "so egregious that it deprived the defendant of a fair trial." State v. Jackson, 211 N.J. 394, 409 (2012) (quoting State v. Frost, 158 N.J. 76, 83 (1999)). A reviewing court should consider "whether defense counsel made a timely and proper objection, whether the remark was withdrawn promptly, and whether the court ordered the remarks stricken from the record and instructed the jury to disregard them." State v. Ramseur, 106 N.J. 123, 322-23 (1987).
A prosecutor has a duty to "conscientiously and ethically undertak[e] the difficult task of maintaining the precarious balance between promoting justice and achieving a conviction[.]" Jackson, supra, 211 N.J. at 408 (alteration in original) (quoting State v. Williams, 113 N.J. 393, 447-48 (1988)). While permitted to make a "vigorous and forceful presentation of the State's case[,]" the prosecutor is limited to "commenting on the evidence and to drawing any reasonable inferences supported by the proofs[.]" State v. Dixon, 125 N.J. 223, 259 (1991) (quoting State v. Bucanis, 26 N.J. 45, 56, cert. denied, 357 U.S. 910, 78 S. Ct. 1157, 2 L.Ed. 2d 1160 (1958)).
However, prosecutors may respond when the credibility of their witnesses are attacked by the defense. State v. Hawk, 327 N.J. Super. 276, 284 (App. Div. 2000). Prosecutors also have "considerable leeway in [their] closing arguments as long as their comments are reasonably related to the scope of the evidence presented." Frost, supra, 158 N.J. at 82.
Throughout the trial, in order to impeach their credibility, defense counsel highlighted the fact that a number of the State's witnesses failed to volunteer information to the police. He even suggested in summation that their failure to come forward established a conspiracy to testify against defendant, or at least a bias against him. Counsel drew attention to differences between the witnesses' trial testimony and earlier statements, both while cross-examining them and in summation.
As a result, the prosecutor permissibly referred to the "code of the street." Several witnesses mentioned the "code of the street" in their testimony. Even defendant testified about the subject when he claimed he fled from the scene and hid at his cousin's home because he was afraid of retaliation by the victim's family. The prosecutor's discussion regarding the fact the witnesses could face retaliation for being a "snitch" was therefore not improper. The argument was not that defendant might improperly intimidate witnesses but that others might:
it is a difficult thing to be a witness to a crime of violence, especially a murder, especially in the neighborhood where you live, where you grew up, where everybody knows you, where you know the defendant, where the defendant knows you, where you know all the people who sit behind him and they know you as well. They know where you live, they know where your family lives because you all live together.As she said, "what people do is they take a couple of steps back and they go in their houses and they shut their doors and they turn off their lights and that's that." The "code of the street" was a theme throughout the trial. It was therefore the proper subject of comment by the prosecutor. The comments did not deprive defendant of a fair trial.
Nor do we consider the prosecutor's statement regarding the anniversary of the victim's death, considered in context, to be so improper to require reversal. A prosecutor's "duty is to prove the State's case based on the evidence and not to play on the passions of the jury or trigger emotional flashpoints, deflecting attention from the hard facts on which the State's case must rise or fall." State v. Blackney, 189 N.J. 88, 96 (2006). The prosecution should not make "inflammatory and highly emotional" arguments "possessing the capacity to anger and arouse the jury." State v. Marshall, 123 N.J. 1, 161 (1991), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L.Ed. 2d 1059 (1992).
Here, the reference to the victim's family, the anniversary of his death, and that "[j]ustice has been a very long time coming" did not relate to elements of the charged offenses and were not relevant. Although defense counsel did object, he ultimately declined the curative instruction he was offered based on his judgment that it would only highlight the point. But the point was made within the context of a drawn-out and delayed trial investigation. The statement alone was not sufficient to deprive defendant of his right to a fair trial. See State v. Hightower, 120 N.J. 378, 411-12 (1990) (holding that prosecutor's summation stating that the victim would have been twenty-seven years old on that day was improper but not sufficient to warrant reversal in light of the rest of the summation which was "largely devoted to a fair review of the evidence"). The prosecutor's comment was not so egregious as to have prevented the jury from a fair evaluation of the evidence.
IV.
Finally, defendant challenges the imposition of a nine-year sentence for manslaughter in light of his young age, and further claims it was error for him to be sentenced to a more restrictive term consecutive to the less restrictive.
It is not an illegal sentence to structure terms of imprisonment in the manner done in this case. See State v. Ellis, 346 N.J. Super. 583, 597 (App. Div.), aff'd o.b., 174 N.J. 535 (2002). The ordering of such a sentence, however, is "akin to the discretionary imposition of an additional period of parole ineligibility." Ibid. Here the court made specific findings, and in reaching her decision, considered the sentencing criteria found in State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L.Ed. 2d 308 (1986).
Appellate review of sentencing decisions is governed by the abuse of discretion standard. State v. Blackmon, 202 N.J. 283, 297 (2010). Pursuant to N.J.S.A. 2C:44-1, a trial court must consider statutory aggravating and mitigating factors. State v. Bieniek, 200 N.J. 601, 608 (2010). After a proper balancing of the relevant factors, "the trial court may impose a term within the permissible range for the offense." Ibid. However, the trial court must explain the reasons underlying the findings. R. 3:21-4(g).
In reviewing a sentence, "[a]n appellate court is not to substitute its assessment of aggravating and mitigating factors for that of the trial court." Bieniek, supra, 200 N.J. at 608. A remand for resentencing may be ordered if the trial court's assessment of statutory factors is unsupported by the record. Ibid. Moreover, a sentence can be reversed as manifestly excessive if application of the sentence to the facts "shocks the judicial conscience." State v. Roth, 95 N.J. 334, 364-65 (1984).
The judge explained her decision to find aggravating factor three, based on defendant's extensive juvenile history. She found aggravating factor nine, the need for deterrence, to have specific applicability in light of defendant's statements about carrying a loaded handgun for "protection." She further found factor nine had great weight because of the need to deter the public from carrying weapons. The record did not support any mitigating factor.
In all, the judge's sentence reflected thoughtful consideration of defendant's testimony regarding his habit of carrying a weapon and his conduct in shooting the victim. We see no abuse of discretion; rather, we see a proper balancing of relevant factors, and the imposition of terms within permissible ranges.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION