Opinion
DOCKET NO. A-5576-13T2
12-08-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ANDRES ROJAS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michele A. Adubato, Designated Counsel, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Meredith L. Balo, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Alvarez and Higbee. On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 12-06-0480. Joseph E. Krakora, Public Defender, attorney for appellant (Michele A. Adubato, Designated Counsel, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Meredith L. Balo, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Tried by a jury, defendant Andres Rojas was convicted of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count one); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count two); and aggravated assault of Y.M., N.J.S.A. 2C:12-1(b)(4) (count four). After a testimonial hearing, defendant's motion for a new trial and judgment notwithstanding the verdict was denied.
Defendant was acquitted of count three, aggravated assault of Luis Maldonado, N.J.S.A. 2C:12-1(b)(4).
On March 26, 2014, defendant was sentenced to a five-year term of imprisonment with three years of parole ineligibility on count one, concurrent to a five-year term with three years of parole ineligibility on count two. Count four was merged with count one. He was assessed appropriate fines and penalties. Defendant appeals and we affirm the judgment of conviction.
The underlying incident was a carryover from a disagreement that erupted at a birthday party when defendant was asked to leave. The victim of that confrontation, Luis Maldonado, asked a friend, Joseph Miranda, to give him a ride to the home of another friend, Stalin Fernandez. On the way there, the two men picked up Allen Orellana, and arrived at Fernandez's home at approximately 1:30 a.m. on September 19, 2012. After a few minutes of casual conversation with a group including Liliana Naranjo and Y.M., a car approached the house traveling in the wrong direction down a one-way street. The car made a U-turn and parked, and defendant, who was driving, and his friends Juan Carlos Carmilema-Arequipa (Juan) and Jose Carmilema-Arequipa (Jose) exited the car. Juan, also referred to as John, and Jose approached the house armed with knives and shower rods.
In a written statement Y.M. made to police that night, presented to the jury after a Gross hearing, Y.M. said she walked towards defendant and told him "[t]o chill out." He then pulled a gun out of his left pocket, pointed it towards her chest, and said "back up." Y.M. did so, turned around, and cried out to the others that defendant had a gun.
Defendant and his friends began to run towards Maldonado, Orellana, and Miranda. In her statement, Y.M. also said that while defendant was standing about two feet away from her, the gun was only about two fingers-width from her chest. She could not discern if it was a real weapon, nor the color, nor more particularly describe it. Y.M. thought it looked gold or yellowish, but did not "get a good look at it."
At trial, Y.M. said both that she could not remember the item that defendant drew from his pocket because she did not see it, and that "[t]he first thing that popped in [her] head was a gun." On cross-examination, Y.M. repeated that she was not sure if she had seen a gun, but said she had because she felt pressured by the police officer who took the statement.
At the post-verdict new trial hearing, Y.M. claimed that some of the young men waiting with her at the police station, whom she refused to identify, "brainwashed" her into believing she had seen a gun even though she had not. She also said she had been tricked by the prosecutor, who assured her that defendant "was in good hands" and would come home after the trial even if she cooperated with the State. Y.M. seemed to be saying that she thought the prosecutor represented defendant.
At the hearing, Y.M. flatly denied that defendant had a gun with him on the night in question, or that she was lying to protect him. She also insisted that she thought that if she did not testify at trial consistent with her statement that she would be prosecuted.
Y.M. confirmed her earlier trial testimony that she had received anonymous threatening phone calls regarding her statement to police. She reiterated that during the course of the calls not only was she threatened personally, she was told that her family would be killed. On cross-examination, she acknowledged that she cried during the trial while describing pressure from the community regarding her testimony, and that defendant was like a big brother to her.
Y.M. denied being pressured after the verdict even though she had testified at trial and defendant had been convicted. When this incident occurred, Y.M. was sixteen. When she testified she was eighteen, and nineteen at the time of the hearing. She said that although she lied in her statement to police, and she lied at trial, she was not lying on the day of the hearing. Y.M. said she saw nothing in defendant's hands on the night of the incident, and was not near enough to have made any such observations.
Maldonado also gave a statement to police on the night of the incident that was presented to the jury after a Gross hearing. He told the authorities that he saw, from a distance of about twenty-five to thirty feet away, that defendant had a "shiny and silver . . . automatic" handgun when he exited the car. Maldonado described defendant "pull[ing] the thing back and load[ing] it fast." He also said that defendant "charged the gun," by which he meant defendant loaded it, and that defendant "pull[ed] the top of the gun back and ma[de] that noise."
During the trial, Maldonado denied his prior statement regarding defendant's possession of a weapon was truthful. He said he did not even remember making it; he was a friend of defendant and did not want to be in court. Maldonado acknowledged that he was struck during the course of the evening's first altercation with defendant and was assaulted by defendant's friends. He suggested it was possible that if he previously said he saw something shiny in defendant's hands, it might have been car keys or something along those lines.
Maldonado's statement included a description of defendant walking towards the group gathered in front of the house, while yelling and pointing a gun. Maldonado told the officers in his statement that defendant had said, while pointing the gun, "now do something" and then "charged" the gun. Defendant and his friends "started running towards us and they had weapons, like, knives, sticks, pipes, and we started running." Fernandez, Orellana, and Naranjo also testified on behalf of the State regarding the confrontation. They confirmed that they heard Y.M. say defendant had a gun and that they fled in response, but denied seeing a firearm.
Plainfield Police Officer Melissa Howell was dispatched to the scene at approximately 1:30 a.m. Upon arrival, she saw a car in the middle of the street backing up, and she activated her lights. The car stopped, and defendant, Juan, Jose, and Brian Soria, exited the vehicle. Other officers arrived shortly thereafter.
When Howell spoke to defendant, he said that his friend Jose had been assaulted earlier in the evening, and that he and his friends had driven to the house to speak to the assailant's parents. As Howell explained at trial, because she did not believe defendant, she continued to investigate.
Howell spoke to the people standing on the porch, who reported that defendant had a gun, although no weapon was found on his person. She said that Y.M., Maldonado, and Orellana identified defendant as the person "brandishing the handgun." Howell searched the car, which was impounded and searched again, and no gun was found. No gun was ever recovered from the scene although the officers did find kitchen knives, a machete, and a white metal curtain rod.
Prior to trial, defendant unsuccessfully challenged the indictment based on the theory that the necessary statutory elements were not established by the proofs presented to the grand jury. When he denied the motion, the judge reasoned that the statute did not require proof that the handgun was operable, and that the detective's testimony regarding Y.M. and Maldonado's sworn statements regarding the gun sufficed. The fact the indictment issued based on hearsay was irrelevant.
Also before trial, defendant sought to bar mention of other weapons at the scene, arguing that the weapons possessed by others were not relevant to defendant's possession of a gun, and that such testimony was highly prejudicial. The prosecutor responded that he wished to introduce the testimony, among other reasons, to establish the lack of credibility of defendant's explanation for his presence at the scene. The judge agreed he would draft an instruction advising the jury that the testimony was being admitted solely for impeachment, and that the jury was not to consider the testimony for any other reason. He denied the State's application to admit the evidence for other purposes.
Naranjo, Fernandez's mother Maria Vargas, and E.M. also testified at the hearing. In addition to recanting her statements regarding defendant's possession of a gun on the night of the incident, Y.M. stated that she said defendant had a gun just to stop the fight. Naranjo testified, consistently with her trial testimony, that she told the authorities that she never saw a gun in defendant's hands. E.M. testified that although she saw everyone brawling, she never saw defendant with a gun and said so to police that night.
The judge denied defendant's motion for a new trial after the testimonial hearing because the evidence was not newly discovered as required under State v. Carter, 85 N.J. 300 (1981). He also held that the State presented sufficient evidence for the conviction, and that the conviction did not constitute a manifest denial of justice. The judge concluded that Y.M. and E.M.'s testimony was not credible, and that Vargas's testimony, in which she said that she did not see a gun and actually tried to physically restrain defendant, was cumulative and would not have changed the jury's verdict.
During the hearing, defendant brought out that E.M.'s phone number and address were incorrectly noted in the discovery packet. He argued he was entitled to a new trial based on the error, alleging it established a violation of the State's discovery obligations under Brady. Brady v. Md., 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1962).
The judge denied defendant's new trial motion in part because he failed to meet the third prong of Carter, mainly, that the evidence "be of the sort that would probably change the jury's verdict if a new trial were conducted or if a new trial were granted." Since he did not find the recanting witness, Y.M., to be credible, her testimony would not have had an effect on the outcome. The judge said: "[Y.M.'s] demeanor, her mannerisms . . . . [h]er testimony just doesn't have the ring of truthfulness to it at all . . . . So certainly her testimony would not change the jury's verdict if a new trial were conducted."
The judge did not believe Vargas's testimony that she actually approached defendant, grabbed him by the elbows, began speaking to him but never saw a gun. Although on other points he found her credible, on this fact he did not.
With regard to Naranjo, the judge found her incredible, to the extent she contradicted her trial testimony. Naranjo insisted that she could see everything that night, yet also stated she was helping Y.M. break up the fight between Maldonado and Juan. Naranjo claimed that there were no weapons involved at all, only punches being thrown, which was inconsistent with everyone's testimony. Based on her demeanor, he concluded that she was "attempting to assist" defendant.
The judge opined that the State had presented proof beyond a reasonable doubt, referring to the statements given to police on the night of the incident. He noted that the recovery of the weapon was not a prerequisite to conviction citing to State v. Gantt, 101 N.J. 573 (1986).
With regard to the Brady violation, defendant knew that when she called 911, Naranjo did not report that defendant had a gun. Her trial testimony was consistent, and it was undisputed that no gun was mentioned during the 911 call. Thus, since her trial testimony and the 911 tape did not vary from the interview summary, no harm resulted from the fact the State did not turn it over.
As to E.M.'s testimony, the judge found it incredible. Had she testified in front of the jury, it would not have made a difference to the outcome. Accordingly, he denied the motion for a new trial.
On appeal, defendant raises the following issues:
POINT I
THE DEFENDANT'S MOTION TO DISMISS THE INDICTMENT SHOULD HAVE BEEN GRANTED.
POINT II
ADMISSION OF IRRELEVANT AND IMMATERIAL EVIDENCE REGARDING THREATS TO [Y.M.] WERE CONTRARY TO N.J.R.E. 403 AND DEPRIVED DEFENDANT OF A FAIR TRIAL. (Not raised below)
POINT III
THE TESTIMONY OF P.O. HOWELL EXPRESSING AN OPINION ABOUT THE CREDIBILITY OF DEFENDANT'S STATEMENT WAS IMPERMISSIBLE OPINION TESTIMONY WHICH REQUIRES REVERSAL OF DEFENDANT'S CONVICTION. (Not raised below)
POINT IV
CERTAIN COMMENTS BY THE PROSECUTOR IN HIS OPENING AND HIS SUMMATION WERE IN DIRECT VIOLATION OF A COURT RULING, WERE GROSSLY PREJUDICIAL AND DEPRIVED DEFENDANT OF A FAIR TRIAL.
POINT V
THE SUPPRESSION OF EXCULPATORY EVIDENCE BY THE STATE VIOLATED BRADY V. MARYLAND.
POINT VI
FAILURE OF THE COURT TO GIVE A HAMPTON CHARGE REGARDING THE STATEMENT BY DEFENDANT WAS ERROR. (Not raised below)
POINT VII
THE DEFENDANT'S MOTION FOR NEW TRIAL SHOULD HAVE BEEN GRANTED.
POINT VIII
THE AGGREGATE ERRORS DENIED DEFENDANT A FAIR TRIAL. (Not raised below)
I.
Defendant argues that his motion to dismiss the indictment should have been granted because the State did not present sufficient evidence to establish that the weapon in question was actually a firearm. The grand jurors were presented solely with Y.M. and Maldonado's statements. At this juncture, however, it is too late for defendant to revisit the insufficiency of the proofs presented to the grand jury.
A guilty verdict renders error in the grand jury process harmless. State v. Simon, 421 N.J. Super. 547, 551 (App. Div. 2011); State v. Cook, 330 N.J. Super. 395, 411 (App. Div.), certif. denied, 165 N.J. 486 (2000). "[T]he petit jury's subsequent guilty verdict means not only that there was probable cause to believe . . . defendant [] [was] guilty as charged, but also that [he was] in fact guilty as charged beyond a reasonable doubt." U.S. v. Mechanik, 475 U.S. 66, 70, 106 S. Ct. 938, 941-42, 89 L. Ed. 2d 50, 56 (1986). Therefore, we do not discuss the issue further.
II.
Next, defendant argues that evidence regarding threats made to Y.M. violated N.J.R.E. 403 and deprived him of a fair trial. We apply the plain error standard because no objection was made at the time of admission. See R. 2:10-2. This means any alleged error in the trial court will be overlooked unless it is the sort "clearly capable of producing an unjust result." Ibid.; State v. Green, 318 N.J. Super. 361, 373 (App. Div. 1999), aff'd, 163 N.J. 140 (2000).
Additionally, we grant "'substantial deference to a trial [judge's] evidentiary rulings.'" State v. Goodman, 415 N.J. Super. 210, 224 (App. Div. 2010) (quoting State v. Morton, 155 N.J. 383, 453 (1998)), certif. denied, 205 N.J. 78 (2011). Evidentiary rulings are reviewed under an abuse of discretion standard. Ibid. Unless an abuse of discretion is demonstrated, the decision to admit or exclude will stand unless it was "'so wide of the mark that a manifest denial of justice resulted.'" Id. at 225 (quoting State v. Carter, 91 N.J. 86, 106 (1982)).
When the witness was first testifying regarding the threats, the judge called the attorneys to a sidebar. Despite the absence of any objection by defense counsel, the judge issued the following instruction:
Ladies and gentlemen of the jury, evidence, including a witness's statement, or testimony prior to this trial showing that at a prior time a witness has said something which is inconsistent with the witness's testimony at the trial, may be considered by you for the purpose of judging the witness's
credibility. It may also be considered by you as substantive evidence, that is proof -- as proof of the truth of what is stated in the prior contradictory statement.The prosecutor proffered the evidence to explain to the jury the differences in Y.M.'s statements from the night she was initially interviewed to her trial testimony. The instruction was in line with the court's ruling that her statement to police was admissible both for impeachment and substantively.
Now evidence has been presented showing that at a prior time this witness -- who just stepped down from the stand -- has said something, or has failed to say something, which is inconsistent with the witness's testimony at the trial. This evidence may be considered by you as substantive evidence, or proof of the truth of the prior contradictory statement, or omitted statement. However, before deciding whether the prior inconsistent or omitted statement reflects the truth, in all fairness you will want to consider all of the circumstances under which the statement, or failure to disclosure, occurred. You may consider the extent of the inconsistency, or omission, and the importance or lack of importance of the inconsistent or omission, on the overall testimony of the witness, as bearing on her credibility.
You may consider such factors as where and when the prior statement or omission occurred and the reasons, if any, therefore.
[See Model Jury Charge (Criminal), "Prior Contradictory Statements of Witnesses (Not Defendant)" (2013).]
Relevant evidence is "evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401. The threats made by persons in the community were probative in that they might explain the reason Y.M.'s narrative changed from the night of the incident to the day of trial. And her credibility, like that of any witness, is always consequential. See N.J.R.E. 607; State v. Parker, 216 N.J. 408, 417-18 (2014).
Threats made to witnesses introduced to explain discrepancy or contradictions in a witness's testimony are generally admissible. State v. Pierro, 253 N.J. Super. 280, 286 (App. Div.), certif. denied, 127 N.J. 564 (1992). Thus admission was not error as the probative value outweighed any prejudice, and the evidence did not deprive defendant of a fair trial. Neither did the prosecutor's comments on the subject.
Defendant also contends that the State implied he was behind the threats. We disagree. Neither the witness nor the prosecutor even suggested that the threats came from defendant. Rather, the threats were attributed to anonymous persons in "the community." This point also lacks merit.
III.
At trial, Howell explained that after her arrival at the scene, defendant told her that his friend Jose had been assaulted earlier in the evening, and that he and his friends were there "to speak with the suspect's parents . . . " She said that although Jose appeared to have lacerations under his eye and on his arm and hand, she did not believe that that defendant was at the assailant's home merely to speak to his parents at 1:30 a.m. on a Sunday morning. As a result, she continued to investigate. She then was asked "[a]fter hearing that story what did you think?" Her response was "[t]hat it wasn't true." Nothing further was said on the subject.
Howell's comments were brief and focused. Her view regarding the truthfulness of the statement is supported by common sense given the 911 call and her own observations once at the scene. It did not relate to the statutory elements the State had to prove. Finally, the testimony explained the reason she continued her investigation.
The cases defendant relies upon in support of his argument that Howell's testimony was prejudicial and requires reversal are readily distinguishable. All involve experts opining before a jury that the defendant was a liar as a general character trait, or had committed the offenses. For example, in State v. Vandeweaghe, 177 N.J. 229 (2003), an expert opined that the defendant was a liar whose personality disorder enabled him to lie successfully. Id. at 239. In State v. Pasterick, 285 N.J. Super. 607, 617-20 (App. Div. 1995), a psychiatrist testified that defendant was a chronic liar and compulsive gambler. In State v. Papasavvas, 163 N.J. 565, 612-14 (2000), the expert went so far as to describe the defendant as a person with an antisocial personality disorder who deliberately murdered and sexually assaulted his victim. Id. at 611. He went on to say that the defendant "knew exactly what he was doing." Ibid. Defendant's contention lacks inherent merit or support in prior decisions. Since defendant did not object to the statement's admission, we apply the plain error standard of review. No plain error resulted from Howell's testimony.
IV.
The judge ruled prior to trial that the fact defendant's friends were carrying weapons would be admitted solely to refute his explanation for his presence. We do not entirely understand the basis for the decision, which was not fully explained. Ordinarily, accurate descriptions of events, such as the continuing armed confrontation in this case, are presented to juries. The notion that the eyewitnesses could have described this incident while excluding mention of knives and shower rods possessed by defendant's cohorts seems unlikely.
In actuality, the transcript reflects that the witnesses did refer to defendant's companions as armed, and that they specifically described the weapons. Since they were describing what they observed, it appears to us to be unobjectionable.
The prosecutor in his opening said that defendant came armed with a gun while his cohorts came armed with sticks and knives. He also said that defendant and his friends approached the officer and told her that Jose had been assaulted earlier that evening, and that they were only there to speak to the parents of the person who assaulted him. The prosecutor told the jury that the evidence would demonstrate "that was a lie."
The prosecutor also said the men "came to finish what they started" and "they brought weapons" with which to do it. That statement is not improper even if viewed through the lens of the judge's ruling — that the evidence would be admitted to refute defendant's statement to Howell. In any event, as an element of the offense of possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a), the State was required to prove defendant's unlawful purpose. Thus, although we do not agree that the evidence should have been excluded, even within the confines of the ruling, the prosecutor's statements were not prejudicial.
In summation, the prosecutor said that when the officers arrived at the scene, they were obliged to attempt to secure the crime scene and the four suspects. He added that Jose and Juan were armed with a curtain rod and a knife, and that other weapons were recovered by the police, including sticks and knives. Those comments were no more prejudicial than his comments in his opening. This was proper summation that went to the heart of the State's theory of the case. It bears noting with regard to any claimed prejudice, which we do not agree exists, that the weapons brought by the other men were not firearms.
V.
Defendant further argues that reversal is mandated because the State failed to disclose that E.M. had informed police that she did not see defendant with a gun. Clearly, E.M.'s statement was exculpatory. Equally clearly, it was merely cumulative. She would have been one more eyewitness — including the putative pointing victims — who would have denied that defendant had a gun.
In order to establish a violation of Brady, defendant must show that "(1) the prosecutor failed to disclose the evidence, (2) the evidence was of a favorable character to the defendant, and (3) the evidence was material." State v. J.J., 397 N.J. Super. 91, 101 (App. Div.) (quoting State v. Parsons, 341 N.J. Super. 448, 454 (App. Div. 2001)), appeal dismissed 196 N.J. 459 (2008). "Evidence is material 'if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.'" Ibid. (quoting U.S. v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383, 87 L. Ed. 2d 481, 494 (1985)).
The prosecutor did not dispute he failed to disclose this information, although insisting the oversight was innocent. E.M.'s name was on a witness list, but Vargas's address and phone number were incorrectly designated as E.M.'s address and phone number. Had an effort been made to contact E.M., defendant would have learned her correct address and phone number, as she was Vargas's friend.
Of the six eyewitnesses who testified on behalf of the State, none said they saw defendant with a weapon. Thus E.M.'s testimony was simply not material as defined in J.J. Even if her information and correct number and address had been disclosed to defendant, and had she been called to testify, the outcome would have been the same. See J.J., supra, 397 N.J. Super. at 101. Thus no Brady violation occurred.
VI.
The trial court did not give a Hampton charge to the jury. Defendant contends this error warrants a new trial.
State v. Hampton, 61 N.J. 250 (1972). --------
Failure to give a Hampton charge is reversible error if its omission is clearly capable of producing an unjust result. State v. Jordan, 147 N.J. 409, 425-26 (1997). Here, defendant's explanation for his presence at the scene was simply not so consequential that the failure to give a Hampton charge can be reasonably considered to have had any impact on the outcome, much less to have been prejudicial. The argument lacks sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(2).
VII.
Next, defendant argues that his motion for a new trial should have been granted based on Vargas's and E.M.'s testimony at the hearing. Such motions are addressed "to the sound discretion of the trial court, and [the] determination will not be reversed on appeal unless there has been a clear abuse of this discretion." State v. Sanducci, 167 N.J. Super. 503, 508 (App. Div.), certif. denied, 82 N.J. 263 (1979). "'[A] motion for a new trial is addressed to the sound discretion of the trial judge, and the exercise of that discretion will not be interfered with on appeal unless a clear abuse has been shown.'" State v. Armour, 446 N.J. Super. 295, 306 (App. Div. 2016) (quoting State v. Russo, 333 N.J. Super. 119, 137 (App. Div. 2000)). Convictions are not set aside unless it "clearly and convincingly appears that there was a manifest denial of justice under the law." R. 2:20-1.
In this case, defendant contends first that the evidence was insufficient for a conviction. The trial judge found to the contrary that there was sufficient evidence to permit the jury "to conclude that the defendant was in possession of a handgun." We agree that the two statements given to police on the night of the incident describing defendant as in possession of a handgun, and pointing it to within two inches of Y.M., is adequate to meet the statutory elements of the offenses. Within the context of threats made to Y.M., and the social connections between the eyewitnesses and defendant, the jury could reasonably have decided the State proved its case beyond a reasonable doubt based on the statement. This point does not warrant further discussion in a written opinion. R. 2:11-3(e)(2).
Additionally, defendant states that a new trial should be granted because of the newly discovered evidence, namely, the exculpatory testimony given by Vargas and E.M. In State v. Carter, the Court set forth the elements that a defendant must meet in order to prevail on a new trial motion. The newly discovered evidence must be (1) material, meaning not merely cumulative, impeaching, or contradictory; (2) the evidence must have been discovered after the trial and not discoverable by reasonable diligence beforehand; and (3) the evidence must be of the type that would probably change the jury's verdict at a new trial. State v. Carter, 85 N.J. 300, 314 (1981). The evidence defendant developed does not meet the Carter standard.
Defendant was aware of Vargas's presence at the scene as the incident occurred at her home. Although E.M.'s address and phone number were incorrect in the discovery packet, given the relationship between her and Vargas, had an inquiry been made, E.M.'s correct contact information would have been readily discovered. Therefore, the evidence was discoverable by reasonable diligence before the trial.
The most important point, however, is that Vargas's and E.M.'s testimony would not have changed the jury's verdict. Their statements were cumulative. Moreover, if after hearing six witnesses say that defendant did not have a gun, the jury chose to believe the statements only two had given the night of the incident, Vargas's and E.M.'s testimony would not have resulted in acquittal. See State v. Ways, 180 N.J. 171, 188-89 (2004).
VIII.
Finally, defendant argues that the cumulative effect of the errors warrant reversal. When cumulative errors make a verdict unfair, a new trial is required. See State v. Orecchio, 16 N.J. 125, 129 (1954). This rule applies even if no individual error warrants reversal. Id. at 134. Here, however, none of defendant's points on appeal establish actual errors.
Before any cumulative effect can warrant reversal, at least some of the arguments must have some merit. In this case, we simply do not agree that there were errors which made the trial unfair. See State v. Wakefield, 190 N.J. 397, 538 (2007), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2007). Therefore, this argument must also fail.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION