State v. Thomas

Full title: STATE OF NEW JERSEY, Plaintiff-Respondent, v. OMAR SHAHEER THOMAS…

Court: SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Date published: Apr 19, 2013

DOCKET NO. A-3347-08T4 (App. Div. Apr. 19, 2013)

Opinion

DOCKET NO. A-3347-08T4

04-19-2013

STATE OF NEW JERSEY, Plaintiff-Respondent, v. OMAR SHAHEER THOMAS, Defendant-Appellant.

Joseph E. Krakora, Public Defender, attorney for appellant (Michele A. Adubato, Designated Counsel, on the brief). Fredric M. Knapp, Acting Morris County Prosecutor, attorney for respondent (John K. McNamara, Jr., Erin Smith Wisloff, Peter J. Foy, III, Special Deputy Attorneys General/ Acting Assistant Prosecutors, on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

Before Judges Waugh and St. John.

On appeal from Superior Court of New Jersey, Law Division, Morris County, Indictment No. 04-02-0173.

Joseph E. Krakora, Public Defender, attorney for appellant (Michele A. Adubato, Designated Counsel, on the brief).

Fredric M. Knapp, Acting Morris County Prosecutor, attorney for respondent (John K. McNamara, Jr., Erin Smith Wisloff, Peter J. Foy, III, Special Deputy Attorneys General/ Acting Assistant Prosecutors, on the brief). PER CURIAM

Defendant Omar Shaheer Thomas appeals his conviction for the following offenses: count one, murder of Jeffrey Eresman, contrary to N.J.S.A. 2C:11-3(a)(1) and (2); count two, felony murder of Jeffrey Eresman, contrary to N.J.S.A. 2C:11-3(a)(3); count three, murder of Erik Rewoldt, contrary to N.J.S.A. 2C:11-3(a)(1) and (2); count four, felony murder of Erik Rewoldt, contrary to N.J.S.A. 2C:11-3(a)(3); count five, armed robbery, contrary to N.J.S.A. 2C:15-1(a)(1); count six, possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4(a); count seven, unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5(b); and count eight, use of a seventeen-year-old or younger in the commission of a crime, contrary to N.J.S.A. 2C:24-9(a).

I.

We derive the following factual and procedural history from the record on appeal.

A.

On Sunday, December 1, 2002, at approximately 11:36 a.m., the bodies of Erik Rewoldt and Jeffrey Eresman were discovered inside a computer-game retail store doing business as FuncoLand, located at 275 Route 10 (known as the Roxbury Mall), in Roxbury Township. Rewoldt died from a single gunshot wound to the head, while Eresman suffered two gunshot wounds to the head. All three bullets were .38-caliber ammunition and were fired from the same weapon.

Detectives determined that Eresman was to open FuncoLand at 10:30 a.m., and Rewoldt was to report to work at 11:00 a.m. Receipts indicated that three purchases were made after the store was opened by Eresman. A purchase occurred at 11:09 a.m. and a second purchase was made at 11:11 a.m. The final transaction receipt showed a Tekken II advance videotape game was sold at 11:12 a.m. A physical inventory of the store was undertaken on December 1, 2002. The inventory indicated that seventeen game systems were missing, with a total retail value of $1984.83. There were also 183 games missing, with a retail value of $10,032.94.

Videotape evidence showed defendant in the area of FuncoLand prior to the incident. Flyers were made from the image depicted on one of the videotapes, some of which were placed in newspapers. An individual called the Roxbury Township police department and identified the person in the flyer as defendant. Additionally, a confidential source provided information to the Newark Police Department that the flyer depicted defendant. This information was not provided to the jury.

Eyewitnesses also testified that they observed a blue car with a black door on the driver's side at the scene on December 1, 2002. Witnesses saw African-American males in the car. It was later determined that this car belonged to defendant's wife. A witness in the area at the time of the incident identified defendant as the person she saw in front of a neighboring store on December 1, 2002, at approximately 11:15 a.m. One of the customers in the store just prior to the killings identified defendant as the man she saw in FuncoLand on December 1, 2002, "with 90% certainty." A second customer, after being shown a photo array, stated, "this looks very close to the man I saw in the store." It was defendant's photograph.

Deputy Chief James Gannon of the Morris County Prosecutor's Office (MCPO) instructed police to stop, but not arrest, defendant on Monday, November 17, 2003, to obtain defendant's consent to voluntarily answer their questions. On November 17, officers located the defendant on the street near his home and asked him if he would answer some police questions, which he said he would. Defendant was taken to the Irvington Initiative at the State Police facility in Irvington. Lt. James Simonetti of the Roxbury Township Police Department and Mark Smith of the MCPO interviewed defendant at about 9:40 a.m. They advised him of his Miranda¹ rights, and he waived them.

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

Initially, defendant said he was in his car at the Roxbury Mall with "Rock," (Rahman Vaughn), and defendant's cousin, "Joey," (Craig Thomas, Jr.), when Rock and Joey robbed FuncoLand. Defendant said he drove them to the mall in a blue Ford Escort with a black door. After the robbery, Joey told him that Rock had shot the two guys inside the store. Police asked defendant to help them locate Rock and Joey and he agreed to do so. After the initial interview, defendant ate lunch and Simonetti informed him that he was no longer free to leave because he had admitted to participating in the robbery and homicide.

At 1:33 p.m., Simonetti and Smith conducted another interview of defendant. This interview was tape recorded. They again advised defendant of his Miranda rights and he waived them. Defendant described picking up Joey and Rock and driving to the Roxbury Mall. He stated they arrived at 8:00 a.m., expecting the stores to be open, but they were not. They then drove to McDonald's, ate breakfast, and he closed his eyes for a while. Defendant then described how they approached the stores. He and Joey went inside FuncoLand where he found three women inside the store. He stated he bought a game and then went to Marty's Shoe store. He said that Joey stayed at FuncoLand and, shortly thereafter, Rock joined Joey there. Defendant stated that he purchased shoes at Marty's and then went to his car. As he approached, Joey was standing by the car and told defendant that Rock had shot two guys in the store. Rock then approached the car carrying games. Defendant asserted that Rock told him that he did what he had to do. After that, defendant said he dropped Rock off in Newark and went to church with his wife.

Police showed defendant the flyer from the McDonald's surveillance camera and the sketch that a witness had helped police compile. He confirmed that the flyer was a picture of himself, but that the sketch did not depict him. Defendant also identified pictures of the victims, Eresman and Rewoldt.

Simonetti asked defendant if he had any problems while he had been in police custody. Defendant answered that he had no problem and that he had been treated fairly by the police.

Defendant prepared a statement, which he concluded reading at 2:33 p.m. He told police that he did not own a gun or use a gun. He also stated that he did not kill Eresman or Rewoldt and had no prior knowledge of what was going to transpire on December 1, 2002. After giving his statement, defendant cooperated with the police by accompanying them as they drove around attempting to locate Rock and Joey. During the trip, defendant suffered an asthmatic attack. Police gave him a bag to breathe into and, according to Simonetti, defendant said he was fine.

Defendant was returned to an interview room around 6:00 p.m. at which time he was given food and time to rest. At approximately 9:00 p.m. on November 17, 2003, defendant agreed to drive with the police and show them the route he had traveled on the morning of December 1, and what he had done at the Roxbury Mall. During this drive, the police video recorded defendant. The video recording began at 11:13 p.m. At 11:19 p.m., police stopped recording and drove to the Roxbury Mall. The tape resumed at 11:27 p.m. Defendant walked the police through what he maintained he had done on December 1, which was essentially the same story he had told police earlier in the day. He added that he went inside FuncoLand before the robbery and saw Rewoldt. Additionally, defendant said the gun that Rock had was "nickel plated, light 4-4."

At the end of the video, defendant again said that he had been treated fairly. At 11:56 p.m., the questioning concluded. Defendant was taken to the Roxbury police department and placed in a holding cell for the night. At that time, the police executed a search warrant on defendant's person and took all of his clothing, except his underwear. At approximately 2:00 a.m. on November 18, 2003, the police arrested Joey. Joey admitted that he was involved in the FuncoLand robbery with defendant and Rock, and stated that defendant shot Eresman and Rewoldt.

Early in the morning of November 18, police executed a search warrant at University Place, Irvington, where defendant had been staying, and Dewey Street, Newark, defendant's mother's address. At Dewey Street, police found a Play Station game system. At University Place, police found fifty-eight video games. At about 7:30 a.m. on November 18, Simonetti brought defendant some food and clothes to wear. Simonetti believed defendant had slept that night.

At 11:19 a.m. on November 18, after waiving his Miranda rights, defendant gave another statement to Simonetti and Smith. Police secretly video recorded this statement. Smith told defendant that the police had spoken to Joey and that Joey said defendant had "shot the guy in the back . . . then everybody went into a panic and all hell broke loose." Defendant denied that he shot anyone. Smith told defendant that if the gun went off accidentally that he should be honest about it and the police would "work with him." Smith also said "we know you shot the first shot in the back room." Defendant continued denying he had a gun. Simonetti said, "but you accidentally shot the guy the first time," and for the first time defendant answered, "yes."

Defendant's story then changed and he related that Joey fired the first shot at Eresman and then defendant accidentally fired the second shot at him. After those shots were fired, defendant said a couple came to the door and Rock told them that the store was closed. When Rewoldt arrived, Rock took the gun from defendant and shot Rewoldt. Simonetti and Smith continued to question defendant but his story stayed essentially the same.

The few times they discussed sentencing and the possibility of a plea bargain, defendant responded that, "I'm willing to take the best plea bargain ever with the prosecutor but I'm not going to be accountable for two things that I didn't do." Smith told defendant:

[w]ell, your Public Defender is going to -- when you get to County and they're going to get you a Public Defender. I guess that happens like within a day or two or whatever. And then that Public Defender will get in touch with the Prosecutor. His Defender will get in touch with the Prosecutor. His name's McNamara. And you know, they'll work it out.

On the afternoon of November 18, 2003, police apprehended Rock, who stated that defendant shot Eresman and Rewoldt. At 4:59 p.m., the judge issued arrest warrants for defendant, Rock and Joey. The police officers did not immediately execute the arrest warrant for defendant nor did they notify him of its issuance. Police transported defendant to the MCPO.

At approximately 8:00 p.m., defendant again waived his Miranda rights and agreed to speak with Simonetti and Gannon. The statement was not recorded. Gannon told defendant that Rock said that defendant had shot both victims. Defendant reiterated that Joey initially had the gun and shot Eresman. However, for the first time, defendant admitted that he had shot Rewoldt.

At 9:31 p.m., Simonetti and Gannon conducted a video recorded interview with defendant. Simonetti advised defendant of his Miranda rights and defendant waived them. Defendant was advised that he had been charged with felony murder, first-degree robbery, possession of a weapon for an unlawful purpose, and unlawful possession of a weapon. Defendant responded that he understood the charges, but then asked the difference between felony murder and murder. Gannon told him that felony murder was a murder during a felony, in this case robbery.

At 9:34 p.m., Simonetti again advised defendant of his Miranda rights and defendant once again waived them. After eliciting that defendant was capable of reading, writing, and understanding English, he was asked if he was under the care of a doctor. Defendant responded that he did receive care for asthma and that he had an asthma attack the previous evening when he was in the police car. He further stated he felt comfortable and was not under the influence of any drugs or alcohol.

Defendant then discussed the planning of the FuncoLand robbery with Rock and Joey. Defendant explained how they got a nickel plated revolver. He described how they planned the robbery, agreeing that Joey should go inside FuncoLand first and let Rock know if anyone was in there. Subsequently Rock would go inside, then Rock and Joey would rob the place and get away. They agreed to meet on December 1 around 7:00 a.m. The plan was for Rock and Joey to undertake the robbery of FuncoLand while defendant drove the car. Then, in exchange, Rock and Joey would help defendant rob Best Buy and defendant would pay them each $750 and a television.

Defendant related how on December 1, 2002, he picked up Rock and Joey and all three drove to the Roxbury Mall area, stopping first at McDonald's. Defendant described the clothes he was wearing and the robbery, but asserted that Joey shot Eresman. Defendant, however, admitted that when he saw that Eresman was still moving, he took the gun and shot him one more time. Defendant was concerned that Eresman would be able to identify him if Eresman survived. They then proceeded to put the game systems and games into garbage bags. A Caucasian man approached the front door, but Rock told him the store was closed and locked the door.

Then Rewoldt approached the store and unlocked the door with his keys. Defendant shot Rewoldt and immediately ran out the door. Defendant went to his car, made a U-turn, pulled up to the front door of FuncoLand, and Rock came out of the store with the robbery proceeds. Defendant stated that in total they stole about nine game systems and fifty to eighty games. Defendant said his statement was truthful and he was sorry for what happened.

B.

The State presented the charges against defendant to the grand jury as a capital case. In support of a death sentence, the grand jury found probable cause that defendant had committed the murders (1) during an armed robbery, (2) for the purpose of escaping detection, apprehension, trial, punishment or confinement for murder, and (3) while engaged in the commission of flight. However, effective December 2007, the Legislature repealed the death penalty. L. 2007, c. 204 (codified as N.J.S.A. 2C:11-3). Consequently, defendant was no longer subject to a death sentence if convicted of murder.

C.

Prior to trial, defendant filed a motion to suppress the statements he made to police. The motion judge heard nineteen days of testimony and arguments on the motion. Defendant asserted that he did not voluntarily and knowingly consent to questioning and did not waive his Miranda rights because the police had used deceptive interrogation methods and questioned him for roughly thirty-six hours.

The judge determined that, on November 17, 2003, defendant "agreed to go voluntarily" with the two officers to answer some questions. He was not handcuffed and was not advised he was under arrest. At the Initiative, the officers introduced defendant to Lt. Simonetti and Detective Mark Smith. Defendant was given his Miranda warnings by Simonetti prior to any discussion with him. Defendant agreed to waive his rights and to speak with the police. At that time, he was not told about a search warrant for his person, nor was he advised that he was under arrest. He also was not told that he was under arrest or that he was free to leave. The judge determined that

within a very short time after being given the Miranda warnings, and agreeing to speak, defendant admitted, in substance, to being outside of the store when it was robbed by people he identified to be Joey and Rock. He admitted driving away with Joey and Rock after they had admitted doing the robbery.

This conversation occurred around 10:35 a.m. The conversation was neither tape recorded nor videotaped. At that time, defendant was informed by Simonetti that he would be facing criminal charges for his involvement. He was not told of any specific charges nor were any specific charges at that time drawn up. During the time that defendant was being interviewed at the Initiative, the police were attempting to identify and locate Joey and Rock. Defendant never requested the assistance of an attorney nor expressed his unwillingness to speak with Simonetti or Smith.

The motion judge further determined that around 11:20 a.m., defendant was given food. At approximately 12:00 p.m., he was given the opportunity to use the bathroom. Then during an interview with Simonetti and Smith which occurred around 12:20 p.m., defendant drew a diagram and marked a map. Defendant also signed a paper containing photographs of the victims. He further indicated that he had gone to FuncoLand and had contact with Rewoldt, but maintained this was prior to December 1. At approximately 1:00 p.m., defendant stated to Detective Ricco that he had gone to FuncoLand on December 1 with his cousin and friend. Ricco did not separately administer Miranda warnings to defendant prior to that statement.

Between 1:30 p.m. and 1:55 p.m., defendant provided an audio statement to Simonetti and Smith. He acknowledged that he had received his Miranda warnings and also executed a new Miranda form. The statement concluded at 2:33 p.m. Defendant reiterated that he was not inside the store at the time of the robbery and homicides but was told by his cousin Joey that Rock had shot the individuals in the store. At approximately 3:19 p.m., defendant went with police officers in an effort to locate and identify Rock. At that time, defendant was handcuffed in the car with four officers. He was given access to a telephone and made efforts to locate and identify Joey and Rock. He was not again given Miranda warnings in the car. At some point during this trip, defendant expressed that he was having difficulty breathing. The police stopped the vehicle and gave him a paper bag at his request. Defendant apparently hyperventilated but did not ask for nor seek any medical attention. The statements that were made in the car were not tape recorded.

A detective was assigned to execute a search warrant on defendant's vehicle at approximately 4:25 p.m. At approximately 6:08 p.m., defendant was provided with a turkey sandwich, coleslaw, macaroni salad, and a can of soda, which he consumed. He was then given the opportunity to sleep and use the bathroom. At approximately 7:45 p.m., defendant was left alone and the lights were turned out so he could rest. Smith indicated that he observed defendant sleeping at some point between 7:45 and 8:10 p.m. At 8:10 p.m., defendant was given a dinner of chicken and rice, which he consumed. The lights were again turned off inside the office at approximately 8:30 p.m. so that defendant could rest. At about 9:18 p.m., defendant was transported from Irvington to Roxbury Township by Simonetti. During the trip, he was provided with coffee and a bowtie donut, which he consumed. As he was transported, defendant described the route that he, Joey, and Rock took to FuncoLand on December 1. He led the police to the McDonald's where he had gone prior to the robbery. In the McDonald's parking lot, defendant was again administered his Miranda warnings. He acknowledged that he understood them and agreed to waive them. A Miranda form was signed by defendant on the hood of Simonetti's vehicle. This was at approximately 11:00 p.m.

At roughly 11:13 p.m., defendant did a walk-through of his claimed version of the events of December 1. That walk-through was video recorded with a hand-held cam recorder at the McDonald's parking lot, and inside the FuncoLand store. During the course of the video walk-through, defendant stated for the first time that he had contact with Rewoldt inside FuncoLand. The walk-through ended at approximately midnight and defendant was brought to the Roxbury Township police department. During this time, search warrants were executed at his residences, which were at University Place, Irvington, and his former residence in East Orange, and his mother's residence at Dewey Street, Newark. Items from the robbery were recovered.

At approximately 1:00 a.m. on November 18, defendant was placed in a holding cell at the Roxbury Township police headquarters. At approximately 1:20 a.m., police removed defendant from the holding cell and executed a search warrant for his person. The search warrant had been issued on November 13. Defendant's clothing was collected, along with certain other items, and he was placed back in the holding cell by Patrolman Turko. Defendant was given a blanket and, although there was contradictory evidence, the judge found that defendant was not naked. At least once every half hour, defendant was observed, and the log noted that he appeared to be sleeping at various times between 3:47 and 5:10 a.m.

Defendant was then shown a photograph of a person who he identified as Rock. He signed the photograph and wrote on the photograph that "he was the shooter." He was not re-administered his Miranda warnings at that time. Defendant's cousin Joey was located and he was brought to the Initiative. Joey was interviewed and he stated in substance that it was defendant that shot and killed both Eresman and Rewoldt. Joey also identified Rahman Vaughn, defendant's co-defendant, as being the third-party involved, and stated that he was known as Rock. At about 7:55 a.m. defendant was brought breakfast and clothing to wear.

At approximately 11:00 a.m. on November 18, defendant was again administered his Miranda warnings and shown a number of photographs which he signed between 11:19 and 11:23 a.m. This interview was video recorded. At one point during the interview, defendant asked Smith what was going to happen to him. Smith indicated that at some point he would be brought to the Morris County jail as opposed to the Essex County jail. Smith also indicated that arrangements for a public defender could be made at the jail in something like a day or two. The judge found that "it was the detective who brought up the subject of the public defender and at no time did the defendant bring up the subject, I want a lawyer or I want to speak to a lawyer."

During this interview, defendant altered his version of the events. He now admitted that he had been in the store but that he, Joey and Rock each fired a shot. He stated that his cousin Joey fired the first shot into Eresman, that he fired the second shot into the head of Eresman, and that Rock shot Rewoldt. The judge further determined that "defendant never invoked his right to counsel during the video recorded interview, nor did he say anything that required clarification as to whether or not he was requesting counsel."

Defendant was given lunch, which he consumed during the recorded interview. He was given an opportunity to call his wife during a break at approximately 12:55 p.m. He also spoke with his brother, Kahlif, after the video recorded interview, at approximately 1:30 p.m. At approximately 2:56 p.m., Rock was apprehended in Newark and brought to the Morris County prosecutor's office. Rock was interviewed by detectives and initially denied that he had any information. Rock subsequently admitted being present inside the store when defendant shot and killed Rewoldt. He denied being inside the store when Eresman was killed.

At approximately 3:00 p.m., Joey, who was a juvenile at the time, was charged. At 4:59 p.m. on November 18, defendant was charged by complaint with two counts of murder, two counts of felony murder, robbery in the first-degree, possession of a weapon for an unlawful purpose, and unlawful possession of a weapon. Rock was charged with similar offenses shortly thereafter. Defendant was then transported from Roxbury Township to the Morris County Prosecutor's office where he was brought into the main conference room. At this point, he was in handcuffs. Defendant engaged in small talk with Detective Dangler until he was relieved by Lt. Paul at approximately 6:30 p.m. Defendant never expressed his desire to have an attorney present.

A public announcement of the arrest by the Morris County Prosecutor was scheduled for 7:00 p.m. on November 18. On the way to the announcement, the prosecutor had a brief conversation with defendant in the main conference room, but there was no testimony concerning this conversation. Prior to the public announcement, defendant was transported outside the administration and records building in the company of police officers to accommodate press photographs. This was described as a "perp walk." These events, the judge determined, in no way were coercive and "did not impact on the voluntariness of any statements [defendant] made."

At approximately 7:55 p.m., Simonetti went into the prosecutor's main conference room where defendant was being held, and confronted defendant about the discrepancies between his statement and Joey and Rock's statements. Simonetti indicated to defendant that he would like to give him another opportunity to explain what happened. Defendant agreed to speak with them. At that time, defendant was not handcuffed. At 7:58 p.m., Simonetti again administered Miranda warnings to defendant. Defendant once again indicated he understood his Miranda rights and he knowingly and voluntarily waived them at 8:02 p.m., and signed another Miranda form.

Before the interview commenced, defendant was informed he was being charged with the murders and other related crimes. He was interviewed for approximately one hour at which time he admitted his, Joey and Rock's complicity. He admitted that he shot Rewoldt. He also stated that Joey had the gun in his hand when the first shot was fired at Eresman and that defendant then took the gun from Joey and fired a second shot into Eresman's head from close range. Defendant agreed to give a videotape statement. Prior to the video statement, he was again administered his Miranda warnings and he stated he understood his rights and he knowingly voluntarily waived them. At 9:31 p.m. he signed another Miranda form. He did not ask for an attorney nor did he indicate that he wished to remain silent.

Defendant provided a videotape statement which began at 9:31 p.m. He admitted to shooting Rewoldt and firing the second shot into Eresman's head at close range. The videotape statement concluded at 10:45 p.m. The judge stated that "no police officers made any promises, nor made any threats, to induce defendant to speak." The judge did note that at a prior time a detective said something about speaking up for the defendant, "but no specific promises were made that might induce the defendant to speak." The judge determined that at the time of the video, defendant was twenty-six years old and had sufficient intellectual capabilities to comprehend and waive his Miranda rights. Defendant was a high school graduate; he had a valid driver's license; he could read and write English; and he had previous criminal involvement and was a Megan's Law registrant.

Defendant and Rock were placed together after the videotape statement at approximately 10:50 p.m. No statements made by defendant at that time were introduced. At approximately 11:15 p.m., defendant was transported to the Morris County correctional facility.

The judge noted that defendant's demeanor on the videotapes was inconsistent with any claim that defendant's statements were made under duress or the subject of any inappropriate action on behalf of the police. Initially, defendant's intentions seemed to be to minimize his involvement in the homicides and the robbery, and deflect blame on others, namely Joey and Rock. Defendant eventually confessed to more involvement, but only after he was confronted with the facts that had been related, not only by Joey, but by Rock, who clearly implicated defendant in the shooting of Rewoldt.

After making his factual findings, the judge outlined the applicable law. The judge noted defendant's Fifth Amendment rights and stated that the State must prove beyond a reasonable doubt that the statements made by defendant were voluntary and not the product of any official misconduct. The judge examined the totality of the circumstances, including: the characteristics of defendant; the circumstances of the interrogation; his age, education, and intelligence; whether he had previous encounters with law enforcement; whether he was afforded his constitutional rights; the length of detention; the period of time between the administration of the Miranda warnings and the volunteered statements; and whether the questioning was repeated, whether it was prolonged, and whether it involved physical or mental abuse. The judge further stated that in order to admit a statement made after a defendant has been formally charged by complaint, the police must advise a defendant of that fact.

The judge determined that defendant knowingly and intelligently waived his rights. He also found that defendant voluntarily went to the Initiative at the request of the police. He was told he was not being placed under arrest at that time. At some point, it was clear that defendant was in a custodial setting. The judge went through the numerous times defendant was advised of his Miranda rights. The judge stated that, "the manner and method of questioning do not support a reasonable claim that defendant's statements were the product of illegal coercion." The judge noted that defendant would provide a statement to the police when confronted with new facts. He was not subjected to prolonged badgering that would tend to overbear his will.

As to defendant's claim of an illegal arrest, the judge noted that a probable cause determination was made by a Superior Court judge at 4:59 p.m. on November 18. The probable cause determination was made within forty-eight hours of when defendant was approached on November 17.

The judge also noted that the length of detention came about as a result of unfolding of evidence in the form of Joey and Rock's statements which were different from the story told by defendant. Additional evidence was obtained as a result of the execution of the search warrants. The judge determined that the statements of Joey and Rock contradicted defendant's and provided good faith reasons for the police to re-interview defendant. The judge further found there were no inordinate delays that the State used to its advantage to wear down defendant, and that defendant was not subject to constant, prolonged interrogation. Defendant was given ample breaks between interviews. Defendant was fed on several occasions, provided opportunities to sleep, and was given an opportunity to call his spouse and his brother.

Defendant was advised of his constitutional rights and he waived them. He signed several waiver forms. The judge noted that defendant on the videotape appeared to be sober, alert, attentive, comprehensive, and devoid of any stress. He never requested an attorney. He never indicated that he was represented by counsel. He was not promised any reward for his cooperation and always appeared willing and sometimes eager to speak with the police.

As to the assertion by defendant that he was illegally arrested when he was first transported to the Initiative, the judge determined that defendant voluntarily agreed to speak with the police and to accompany them to the Initiative. Once he disclosed his knowledge of the murders and his role in driving the other two participants from the scene, he was told that he was not free to leave. The judge articulated that the questioning became "custodial" at that point, but that there was sufficient probable cause to detain defendant as a participant in illegal activity.

The judge further determined that police conduct was objectively reasonable:

Here, the probable cause facts that I noted became more obvious once the defendant admitted on the morning of the 17th that he drove the car away from the scene, after being told by one of the other participants that a murder and robbery had occurred. This intervening circumstances would thus break a chain — would be a break in a chain for any later statements.

The judge then noted that other elements, discovery of the proceeds of the robbery at a residence tied to defendant and the inculpatory statement of Joey, would affect the admissibility of the defendant's statements on November 18, as bearing on the need to re-question the defendant.

At the time of the initial interview, Simonetti and Smith immediately informed defendant that they wanted to speak with him regarding the robbery and homicides that occurred at the FuncoLand store on December 1, 2002. The judge found that once defendant admitted some involvement with the robbery, he was informed that criminal charges would be brought against him. The judge noted that the disclosure to defendant took place at approximately 10:35 a.m. on November 17.

The judge analyzed State v. A.G.D., 178 N.J. 56 (2003), and determined that there is no obligation to inform the suspect that there is a search warrant. The judge determined that defendant had all the information he was entitled to and needed to make a knowing, intelligent, and voluntary waiver of his Miranda rights.

Defendant was also informed of the specific charges prior to being interviewed by Simonetti and Gannon on the 18th at 8:02 p.m. in the prosecutor's office. He was again informed of the charges during his videotaped statement.

The judge determined that the State met its burden beyond a reasonable doubt and denied defendant's motion to suppress the statements made by defendant.

On April 9, 2007, defendant filed a motion for leave to appeal the denial of the motion to suppress. We denied his motion.

D.

In February 2008, jury selection began. It lasted until May 2008. During the selection process, defendant argued that the State improperly used a peremptory challenge to exclude an African-American juror because of his race. The trial judge found the claim baseless.

At trial, Rock testified for the State pursuant to a plea and a cooperation agreement. He stated that defendant had the revolver in his pocket just prior to the crime. Defendant told Rock to go to the shoe store next door and listen for a shot. Sometime later, defendant came into the shoe store and told him to go to Funcoland to help Joey. There, Rock saw the body of Eresman. Rock testified that, when Rewoldt entered the store, defendant shot him in the back of his head. Rock also stated that Joey never said he shot anyone and he never saw Joey with a gun. Joey did not testify. Witnesses identified defendant as being inside and outside Funcoland just prior to the homicides. Witnesses also identified defendant's automobile.

The jury returned its verdict on July 24, 2008, finding defendant guilty of all counts, with the exception of a verdict of not guilty for possession of prohibited ammunition. N.J.S.A. 2C:39-3(f).

E.

The trial judge sentenced defendant to two consecutive terms of life imprisonment without parole on counts one and three and merged counts two and four into counts one and three, respectively. On count five, the court imposed an eighteen-year term of imprisonment, subject to eighty-five percent parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and subject to five years of parole supervision, to run consecutive to the sentences on counts one and three. On count six, defendant received a six-year term of imprisonment with three years parole ineligibility, to run concurrent with the sentence on count one. On count seven, the court sentenced defendant to four-years imprisonment, with three years parole ineligibility, to run concurrent with the sentences on counts one and six. On count eight, defendant received a term of fifteen-years imprisonment, to run concurrent with the sentence on count one. Appropriate fines and penalties were also imposed.

II.

Defendant raises the following points for our consideration on appeal:

POINT I
ALL OF THE DEFENDANT'S STATEMENTS TO THE POLICE SHOULD HAVE BEEN SUPPRESSED.
A. DEFENDANT'S INITIAL DETENTION AND ARREST BY THE POLICE VIOLATED THE PROVISIONS OF THE UNITED STATES CONSTITUTION AND NEW JERSEY CONSTIUTION.
B. THE STATE'S FAILURE TO ADVISE THE DEFENDANT OF THE SEARCH WARRANT ISSUED FOR HIS PERSON AND HOME RENDERS ANY WAIVER OF HIS RIGHT TO REMAIN SILENT INVALID.
C. DEFENDANT'S REQUEST FOR COUNSEL DURING HIS INTERROGATION MANDATES THAT ANY STATEMENTS FOLLOWING THIS REQUEST MUST BE SUPPRESSED.
D. THE DOCTRINE OF THE FRUIT OF THE POISONOUS TREE MANDATES THAT ALL OF THE DEFENDANT'S STATEMENTS BE SUPPRESSED.
E. THE TOTALITY OF THE CIRCUMSTANCES ESTABLISHES THAT MR. THOMAS' STATEMENTS TO THE POLICE WERE NOT VOLUNTARY BEYOND A REASONABLE DOUBT AND SHOULD HAVE BEEN EXCLUDED FROM EVIDENCE.
POINT II
THE STATE'S EXERCISE OF A PREEMPTORY CHALLENGE TO EXERCISE THE ONLY AFRICAN-AMERICAN TO BE QUALIFIED AS A JUROR VIOLATED THE DEFENDANT'S RIGHT TO TRIAL BY JURY GUARANTEED BY BOTH THE UNITED STATES AND NEW JERSEY CONSTITUTIONS.
POINT III
THE ADMISSION OF OTHER CRIME EVIDENCE WAS ERROR WHICH MANDATES A NEW TRIAL.
POINT IV
THE TRIAL COURT ERRONEOUSLY INTERPRETED "THE RULE OF COMPLETENESS TO EXCLUDE RELEVANT AND MATERIAL EVIDENCE."
POINT V
CERTAIN CONDUCT BY THE COURT DEPRIVED MR. THOMAS OF A FAIR TRIAL.
POINT VI
THE STATE'S VIOLATION OF SEQUESTRATION ORDER DENIED THE DEFENDANT A FAIR TRIAL.
POINT VII
THE FAILURE OF THE COURT TO PROVIDE PROPER AND ACCURATE INSTRUCTIONS TO THE JURY DENIED DEFENDANT A FAIR TRIAL.
POINT VIII
FAILURE OF THE COURT TO INFORM THE DEFENSE OF EXCULPATORY INFORMATION VIOLATED THE RULES OF DISCOVERY AND BRADY V. MARYLAND.
POINT IX
THE DENIAL OF THE TWO DEFENSE MOTIONS FOR MISTRIAL WERE AN ABUSE OF DISCRETION BY THE COURT.
POINT X
THE CONVICTION FOR POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE SHOULD HAVE MERGED WITH THE SUBSTANTIVE OFFENSES.
POINT XI
THE SENTENCE IMPOSED ON DEFENDANT OF TWO CONSECUTIVE TERMS OF LIFE WITHOUT PAROLE (LWOP) WAS ILLEGAL AND MUST BE REDUCED.
POINT XII
THE AGGREGATE ERRORS DENIED DEFNEDANT A FAIR TRIAL (Not Raised Below).

A.

The Supreme Court has explained the standard of review applicable to an appellate court's consideration of a trial judge's fact-finding on a motion to suppress as follows:

[A]n appellate court reviewing a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are "supported by sufficient credible evidence in the record." [State v. Elders, 386 N.J. Super. 208, 228 (App. Div. 2006)] (citing State v. Locurto, 157 N.J. 463, 474 (1999)); see also State v.
Slockbower, 79 N.J. 1, 13 (1979) (concluding that "there was substantial credible evidence to support the findings of the motion judge that the . . . investigatory search [was] not based on probable cause"); State v. Alvarez, 238 N.J. Super. 560, 562-64 (App. Div. 1990) (stating that standard of review on appeal from motion to suppress is whether "the findings made by the judge could reasonably have been reached on sufficient credible evidence present in the record" (citing State v. Johnson, 42 N.J. 146, 164 (1964))).
An appellate court "should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Johnson, supra, 42 N.J. at 161. An appellate court should not disturb the trial court's findings merely because "it might have reached a different conclusion were it the trial tribunal" or because "the trial court decided all evidence or inference conflicts in favor of one side" in a close case. Id. at 162. A trial court's findings should be disturbed only if they are so clearly mistaken "that the interests of justice demand intervention and correction." Ibid. In those circumstances solely should an appellate court "appraise the record as if it were deciding the matter at inception and make its own findings and conclusions." Ibid.
[State v. Elders, 192 N.J. 224, 243-44 (2007).]

Appellate review of a motion judge's legal conclusions is plenary. State v. Harris, 181 N.J. 391, 420-21 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005); State v. Goodman, 415 N.J. Super. 210, 225 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011).

When a defendant challenges a statement made by him to the police, the State must prove beyond a reasonable doubt that the waiver of his or her Miranda rights "was knowing, intelligent, and voluntary in light of all the circumstances." State v. Presha, 163 N.J. 304, 313 (2000); accord State v. Knight, 183 N.J. 449, 461-62 (2005). Appellate courts will uphold the trial court's finding of admissibility under the "totality of the circumstances" as long as there was "sufficient credible evidence" to support it, even for statements given in police custody that amount to a confession. Knight, supra, 183 N.J. at 468.

In Miranda, the United States Supreme Court established prophylactic rules to protect the right assured by the Fifth and Fourteenth Amendments against self-incrimination during the "in-custody interrogation of persons suspected or accused of crime[.]" Supra, 384 U.S. at 467, 86 S. Ct. at 1624, 16 L. Ed. 2d at 719. The Miranda rules and requirements do not apply until the moment "when the individual is first subjected to police interrogation while in custody at the station or otherwise deprived of his freedom of action in any significant way." Id. at 477, 86 S. Ct. at 1629, 16 L. Ed. 2d at 725.

The scope of the New Jersey privilege against self-incrimination and the procedures that New Jersey law requires to protect it are generally consistent with those for the federal constitutional right against self-incrimination. Knight, supra, 183 N.J. at 461; State v. Burris, 145 N.J. 509, 520 (1996). Our inquiry is whether the defendant gave the statement after being arrested, or after otherwise suffering a limitation on his or her freedom to leave of "'the degree associated with a formal arrest.'" Stansbury v. California, 511 U.S. 318, 322, 114 S. Ct. 1526, 1529, 128 L. Ed. 2d 293, 298 (1994) (quoting California v. Beheler, 463 U.S. 1121, 1125, 103 S. Ct. 3517, 3520, 77 L. Ed. 2d 1275, 1279 (1983)).

Whether a defendant was in custody "'depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned.'" State v. O'Neal, 190 N.J. 601, 615-16 (2007) (quoting Stansbury, supra, 511 U.S. at 323, 114 S. Ct. at 1529, 128 L. Ed. 2d at 298). The determination is "fact-sensitive" and must be made on a case-by-case basis, State v. Stott, 171 N.J. 343, 364 (2002), by evaluating "the totality of the circumstances from the perspective of a reasonable person in [the] defendant's position," State v. Smith, 374 N.J. Super. 425, 435 (App. Div. 2005). Accord Yarborough v. Alvarado, 541 U.S. 652, 663, 124 S. Ct. 2140, 2149, 158 L. Ed. 2d 938, 950-51 (2004). It involves consideration of the length of the interrogation, its place and time, the nature of the questions, and the conduct of the interrogators. Smith, supra, 374 N.J. Super. at 431; State v. Coburn, 221 N.J. Super. 586, 595-96 (App. Div. 1987), certif. denied, 110 N.J. 300 (1988).

Among those objective factors, the "critical determinant" is whether there was "a significant deprivation of the suspect's freedom of action[.]" State v. P.Z., 152 N.J. 86, 103 (1997). "[C]ustody exists if the action of the interrogating officers and the surrounding circumstances, fairly construed, would reasonably lead a detainee to believe he could not leave freely." Coburn, supra, 221 N.J. Super. at 596. By contrast, an interrogation is investigatory rather than custodial if "the restriction on a defendant's freedom is not of such significance as to compel the conclusion that his liberty is restrained." State v. Smith, 307 N.J. Super. 1, 8-9 (App. Div. 1997), certif. denied, 153 N.J. 216 (1998).

For example, an interrogation conducted in a police station is not necessarily custodial. State v. Micheliche, 220 N.J. Super. 532, 536 (App. Div.), certif. denied, 109 N.J. 40 (1987); State v. Lutz, 165 N.J. Super. 278, 284 (App. Div. 1979). Miranda warnings are not required "simply because questioning takes place in a police building or because the person being questioned is a suspect in the case." Micheliche, supra, 220 N.J. Super. at 536. Accord Oregon v. Mathiason, 429 U.S. 492, 495, 97 S. Ct. 711, 714, 50 L. Ed. 2d 714, 719 (1977).

The "totality of the circumstances" of an interrogation or confession includes "such factors as 'the suspect's age, education and intelligence, advice as to constitutional rights, length of detention, whether the questioning was repeated and prolonged in nature and whether physical punishment or mental exhaustion was involved.'" Presha, supra, 163 N.J. at 313 (quoting State v. Miller, 76 N.J. 392, 402 (1978)). The suspect's prior interactions with the police may also be probative. Ibid.

"As a general rule, a confession obtained through custodial interrogation after an illegal arrest should be excluded unless the chain of causation between the illegal arrest and the confession is sufficiently attenuated so that the confession was 'sufficiently an act of free will to purge the primary taint.'" State v. Worlock, 117 N.J. 596, 621 (1990) (quoting Wong Sun v. United States, 371 U.S. 471, 486, 83 S. Ct. 407, 416-17, 9 L. Ed. 2d 441, 454 (1963)). Stated differently, "[s]tatements following an illegal arrest must be excluded from evidence only if they are causally related to the invasion of the suspect's rights." State v. Barry, 86 N.J. 80, 89, cert. denied, 454 U.S. 1017, 102 S. Ct. 553, 70 L. Ed. 2d 415 (1981). The determination of whether a confession is admissible is fact sensitive. Worlock, supra, 117 N.J. at 622.

The fruit of the poisonous tree doctrine provides that evidence obtained directly or indirectly from a violation of a defendant's State or Federal constitutional rights must be excluded from evidence unless the State can establish that it obtained the evidence from a source that was independent of the illegal conduct. State v. Johnson, 118 N.J. 639, 651-63 (1990).

"[T]he exclusionary rule will not apply when the connection between the unconstitutional police action and the evidence becomes so attenuated as to dissipate the taint from the unlawful conduct." State v. Badessa, 185 N.J. 303, 311 (2005) (citations and internal quotation marks omitted); see also Lee, supra, 190 N.J. at 278 (explaining the attenuation doctrine, "[i]n those circumstances, withholding from the finder of fact relevant evidence far removed from the constitutional breach is a cost not justified by the exclusionary rule"). Under both federal and state law, "the critical determination is whether the authorities have obtained the evidence by means that are sufficiently independent to dissipate the taint of their illegal conduct." State v. Johnson, 118 N.J. 639, 653 (1990).

In evaluating whether evidence is sufficiently attenuated from the taint of a constitutional violation, we look to three factors: "(1) the temporal proximity between the illegal conduct and the challenged evidence; (2) the presence of intervening circumstances; and (3) the flagrancy and purpose of the police misconduct." Ibid.; accord Brown v. Illinois, 422 U.S. 590, 603-04, 95 S. Ct. 2254, 2261-62, 45 L. Ed. 2d 416, 427 (1975).

The temporal proximity factor is the least determinative and often most ambiguous of the test. Worlock, supra, 117 N.J. at 623. This is so, because both closeness in time, and a long break in time, between the unlawful act and the police's obtaining the evidence may both weigh in favor of suppression. Ibid.; Williams, supra, 192 N.J. at 16. The second factor, intervening events, "can be the most important factor" because intervening events are objective indications of whether the causal connection between the unlawful arrest and the evidence has been broken. Worlock, supra, 117 N.J. at 623-24. Against the first two factors, the court considers the final factor, the flagrancy and purpose of the police misconduct. Id. at 624. The more egregious the police conduct, the more likely a court will grant a motion to suppress. Ibid.

i.

Defendant argues that his interview at the Initiative was preceded by an unlawful arrest which triggers an automatic suppression of any incriminating statements he may have given. We disagree.

There is sufficient credible evidence to support the judge's finding that defendant voluntarily accompanied the police to the Initiative, and that the police, at that time, had probable cause to question defendant. Second, the administration to defendant of multiple Miranda warnings are intervening factors. Worlock, supra, 117 N.J. at 622. Although the administration of those warnings is not always decisive, it is "'important . . . in determining whether the confession was obtained by exploitation of an illegal arrest.'" Ibid. (quoting Brown, supra, 422 U.S. at 603, 95 S. Ct. at 2261, 45 L. Ed. 2d at 427).

Based on the trial court's findings of fact, we are satisfied that the court properly determined that the statements were admissible.

ii.

Defendant further argues that in evaluating the totality of the circumstances, his interrogation over two days and the officers' promise to speak up for him, compels the suppression of his confession. We disagree.

Our Supreme Court examined whether a defendant was subject to substantial psychological pressure in State v. Cook, 179 N.J. 533 (2004). There, a twenty-four-year-old man was interrogated over a two-day period for his connection in the death of a fifteen-year-old girl. Id. at 542-46. The defendant was repeatedly read his Miranda rights, although the interrogation was frequently interrupted by breaks for the defendant to eat, sleep, smoke cigarettes, and compose himself after certain emotional outbursts. Id. at 543-45. Ultimately, the defendant admitted to killing the girl, which the police memorialized in a written statement. Id. at 545. At the defendant's Miranda hearing, the court found that the defendant had understood his Miranda warnings, and that he had knowingly and intelligently waived his rights. Id. at 546. We affirmed, as did the Supreme Court, which, upon analyzing whether the defendant's will was overborne, held that the trial court properly considered the totality of the circumstances, including both the characteristics of the defendant and the nature of the interrogation. Id. at 562-65.

"Promises made by law enforcement are . . . relevant [to a determination of voluntariness]: where a promise is likely to 'strip[] defendant of his capacity for self-determination' and actually induce the incriminating statement, it is not voluntary." State v. Fletcher, 380 N.J. Super. 80, 89 (App. Div. 2005) (quoting State v. Pillar, 359 N.J. Super. 249, 272-73 (App. Div.), certif. denied, 177 N.J. 572 (2003)) (internal quotations omitted).

We are satisfied that the police officers' promises to defendant to "speak up for him" with the prosecutors did not reach the level of overbearing defendant's will and coercing his confession. The officers' statements were clearly made in the context of their attempts to appear sympathetic and understanding to defendant. In the absence of "very substantial" psychological pressure by the officers, we cannot conclude that defendant's will was overborne. See Galloway, supra, 133 N.J. at 656.

Here, the trial judge's determination is consistent with the principles in Cook, Galloway, and Fletcher, and we discern no reason to overturn his decision on the basis asserted by defendant.

iii.

Defendant contends that the judge misapplied the governing principles of law under Miranda, as construed in A.G.D., supra, 178 N.J. 56, and State v. Nyhammer, 197 N.J. 383, cert. denied. _ U.S. _, 130 S. Ct. 65, 175 L. Ed. 2d 48 (2009). Based on these decisions, defendant argues the police were required to tell him that search warrants for his person, his automobile, his residence, and the residence of his mother were issued on November 13, 2003, and therefore he was a suspect. He argues that since he was never apprised of his status as a suspect, his statements were involuntary and should have been excluded.

In A.G.D., supra, 178 N.J. at 56, the Court considered a scenario in which the police had obtained a warrant to arrest the defendant for sexually abusing his daughter. Four days later, a detective went to the defendant's house and told him that the police wanted to discuss allegations of sexual abuse that had been asserted against him. Id. at 59. The detective did not tell the defendant of the existence of the arrest warrant, and he did not tell him that he was under arrest. Ibid. The defendant cooperated and accompanied the detective to the police station, where, after he was issued Miranda warnings, he gave an incriminating statement. Ibid.

The Court held that the statements had to be suppressed because the defendant's waiver of his right to remain silent, under the circumstances, was not knowing, intelligent, and voluntary. Id. at 68. The police had extracted the statement "[w]ithout advising the suspect of his true status when he does not otherwise know it." Ibid. Thus, the State could not sustain its burden that the suspect had exercised an informed waiver of rights, regardless of other factors that might support the admission of his confession. Ibid. The Court made clear its holding was "not to be construed as altering existing case law in respect of the manner in which the police conduct interrogations other than imposing the basic requirement to inform an interrogatee that a criminal complaint has been filed or issued." Id. at 68-69.

In Nyhammer, supra, 197 N.J. at 389, the police contacted the defendant by telephone and asked him to come down to the police station to discuss allegations that his uncle had sexually abused his grandniece. The detective, however, never told the defendant that the child had made accusations of abuse not only against the uncle, but also against the defendant himself. At the time of the police's call, no arrest warrant or criminal complaint against the defendant had been issued. Id. at 389-90. The defendant complied and went to the police station, where he was given Miranda warnings and interrogated. At that point, the police told him about the accusations the child had made against him, whereupon he admitted to inappropriate contact with her. Id. at 391.

The Court held the defendant's custodial statement was admissible, even though the police had not told him that he was a suspect when they brought him in for questioning. Id. at 405. The Court recognized the subjective nature of the label "suspect," observing that "[a] suspect to one police officer may be a person of interest to another officer." Id. at 405. The Court also contrasted "suspect" status to "the issuance of a criminal complaint and arrest warrant by a judge," which is "an objectively verifiable and distinctive step." Id. at 404. "[T]he defining event triggering the need to give Miranda warnings is custody, not police suspicions concerning an individual's possible role in a crime." Id. at 406. Moreover, the Court was satisfied that the defendant had a clear understanding of his rights and that coercive tactics by the police were absent "throughout the interrogation." Id. at 409.

Here, defendant does not contend that an arrest warrant or criminal complaint had been issued before the police initially questioned him. After administering his Miranda warnings and defendant agreeing to speak to them, the police advised him that, based on their investigation, he was involved in the FuncoLand incident. The police, therefore, did not mislead defendant.

The circumstances surrounding the Court's decision in A.G.D. are distinguishable from the circumstances here. Moreover, we find it was unnecessary for the police to have explicitly validated that defendant was a suspect. Under Nyhammer, the status of the interviewee as a suspect is only one of many factors to be analyzed for voluntariness, and is not a bright line for exclusion of custodial statements. As the Supreme Court stated, "[s]ignificantly, we are not aware of any case in any jurisdiction that commands that a person be informed of his suspect status in addition to his Miranda warnings or that requires automatic suppression of a statement in the absence of a suspect warning." Nyhammer, supra, 197 N.J. at 406.

iv.

Defendant contends that certain statements he made amounted to a request for counsel, which the police did not honor. As to defendant's assertion that he requested counsel, the trial judge noted that defendant made a general inquiry of Smith to ascertain if Smith knew what was going to happen to him. Smith told defendant that at some point he would be brought to the correctional facility in Morris County, as opposed to Essex County, that arrangements for a public defender could be made at the jail, and at one point, stated in a day or two.

The judge found that Smith was the one that brought up the subject of the public defender, that defendant did not bring it up, nor did defendant ask for a lawyer. The judge found that defendant merely echoed the information about the process that Smith described to him when he said, "who do I get when I get to the county, a public defender?" The judge determined that this statement did not have to be clarified. The judge also found that defendant's statement fell short of the type of statement which would trigger an obligation on the police to cease asking questions or clarify an ambiguity.

In State v. Alston, 204 N.J. 614, 619-625 (2011), our Supreme Court stated the legal principles applicable to our review. As initially articulated in Miranda, if the accused "indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning." Miranda, supra, 384 U.S. at 444-45, 86 S. Ct. at 1612, 16 L. Ed. 2d at 707. Once a request for counsel has been made, an interrogation may not continue until either counsel is made available or the suspect initiates further communication sufficient to waive the right to counsel. See Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S. Ct. 1880, 1884-85, 68 L. Ed. 2d 378, 386 (1981).

"[A] suspect need not be articulate, clear, or explicit in requesting counsel; any indication of a desire for counsel, however ambiguous, will trigger entitlement to counsel." State v. Reed, 133 N.J. 237, 253 (1993). "[I]f the words amount to even an ambiguous request for counsel, the questioning must cease, although clarification is permitted; if the statements are so ambiguous that they cannot be understood to be the assertion of a right, clarification is not only permitted but needed." Alston, supra, 204 N.J. at 624. However, officers may not use their obligation to clarify the suspect's meaning to ask "questions that 'operate to delay, confuse, or burden the suspect in his assertion of his rights.'" Id. at 623-624 (quoting State v. Johnson, 120 N.J. 263, 283 (1990)).

Not every reference to a lawyer will require a halt to questioning. In State v. Messino, 378 N.J. Super. 559 (App. Div.), certif. denied, 185 N.J. 297 (2005), the defendant effectively asked the officer for advice, asking "[d]o you think I need a lawyer?" Id. at 573. The officer told the defendant it was his responsibility to tell him he had a right to a lawyer but "that was his call." Ibid. We held that, unlike such statements as, "Maybe I should have an attorney," Maglio v. Jago, 580 F.2d 202, 203 (6th Cir. 1978), or "I had better talk to a lawyer," United States v. Clark, 499 F.2d 802, 805 (4th Cir. 1974), the defendant's request for advice was not an assertion of the right to counsel. Messino, supra, 378 N.J. Super. at 578.

In our review, we must consider the totality of the circumstances, "including all of the suspect's words and conduct." Diaz-Bridges, supra, 208 N.J. at 569. The trial judge did not find an equivocal invocation of the right to counsel that would have required further clarification before continuing the interrogation. The judge's findings differ from the facts of prior cases where an equivocal invocation of the right to counsel was found. See e.g., Chew, supra, 150 N.J. at 63 (suspect asking mother to call his lawyer in police presence was sufficient to invoke right to counsel); State v. Elmore, 205 N.J. Super. 373, 380 (App. Div. 1985) (suspect telling mother on phone and in police presence that she was not allowed a lawyer was sufficient to invoke right to counsel); State v. Dickens, 192 N.J. Super. 290, 297-98 (App. Div. 1983) (suspect who agreed to cooperate but also stated that his statement to police must be approved by his attorney invoked the right to counsel), certif. denied, 97 N.J. 697 (1984).

Defendant's understanding of his rights was clear and complete. The words defendant chose were not ambiguous assertions of any of those rights but instead were merely echoes of the information about the process that Smith described to him. In sum, we see no basis to disturb the trial judge's finding that defendant did not invoke his right to counsel at any time.

B.

Defendant contends the State violated his right to trial by fair and impartial jury when it used a peremptory challenge to remove an African-American juror, resulting in a jury which did not contain any African-Americans.

The Equal Protection Clause of the Fourteenth Amendment, Batson v. Kentucky, 476 U.S. 79, 84, 106 S. Ct. 1712, 1716, 90 L. Ed. 2d 69, 79 (1986), and Article I, Paragraphs 5, 9 and 10 of the New Jersey Constitution, forbid a State from exercising peremptory challenges on the basis of race. State v. Gilmore, 103 N.J. 508, 524 (1986). On August 4, 2008, we considered the principles that govern a trial court's consideration of a claim of the discriminatory use of peremptory challenges in light of recent decisions of the Supreme Court of the United States modifying the principles set forth in Gilmore. State v. Osorio, 402 N.J. Super. 93 (App. Div. 2008), aff'd, 199 N.J. 486 (2009). Our Supreme Court modified the Gilmore standard in State v. Osorio, 199 N.J. 486 (2009). The trial judge decided this issue on May 29, 2008, under the Gilmore standard. However, under either analysis the trial judge correctly decided this issue.

The Gilmore standard begins with a rebuttable presumption that the prosecutor exercised peremptory challenges on permissible grounds. Id. at 535. To rebut the presumption, the defendant "must establish that the potential jurors wholly or disproportionally excluded were members of a cognizable group within the meaning of the representative cross-section rule." Id. at 535-36.

Gilmore defines the "representative cross-section rule" in the context of the jury trial right, explaining that the "right to trial by an impartial jury, in our heterogeneous society where a defendant's 'peers' include members of many diverse groups, entails the right to trial by a jury drawn from a representative cross-section of the community." Gilmore, supra, 103 N.J. at 524, 511 A.2d 1150 (citing People v. Wheeler, 22 Cal. 3d 258, 148 Cal. Rptr. 890, 583 P.2d 748, 755 (Cal. 1978)).
[Osorio, supra, 199 N.J. at 502 n.4.]

As part of the first step, Gilmore requires the defendant to establish that "there is a substantial likelihood that the peremptory challenges . . . were based on assumptions about group bias rather than any indication of situation-specific bias." Supra, 103 N.J. at 536.

In Osorio, the Court lessened the defendant's burden, taking guidance from the decision in Johnson v. California, 545 U.S. 162, 170-72, 125 S. Ct. 2410, 2417-18, 162 L. Ed. 2d 129, 139-40 (2005). The Johnson Court held that a defendant need only present "evidence sufficient to draw an inference that discrimination has occurred" to rebut the presumption of constitutionality. Ibid. The Johnson Court explained that the defendant's burden of rebutting the presumption of constitutionality was not

intend[ed] . . . to be so onerous that a defendant would have to persuade the judge--on the basis of all of the facts, some of which are impossible for the defendant to know with certainty--that the challenge was more likely than not the product of purposeful discrimination.
[Supra, 545 U.S. at 170, 125 S. Ct. at 2417, 162 L. Ed. 2d at 139.]

Our Supreme Court in Osorio imported this change to the Gilmore standard. Osorio, supra, 199 N.J. at 502.

As now modified, that standard [on the defendant's burden] can be satisfied in various ways. Gilmore identifies several factors available to meet that burden, such as whether "'his opponent has struck most or all of the members of the identified group from the venire[;]'" whether the opponent "'has used a disproportionate number of his peremptories against the group[;]'" whether "'the jurors in question share only this one characteristic--their membership in the group--and that in all other respects they are as heterogeneous as the community as a whole[;]'" whether the opponent failed "'to engage these same jurors in more than desultory voir dire, or indeed to ask them any questions at all[;]'" and although "'the
defendant need not be a member of the excluded group in order to complain of a violation of the representative cross-section rule[,]'" whether "'he is, and especially if in addition his alleged victim is a member of the group to which the majority of the remaining jurors belong[.]'" Gilmore, supra, 103 N.J. at 536 (quoting Wheeler, supra, 148 Cal. Rptr. 890, 583 P.2d at 764). These factors later were collected and restated in Watkins, supra, 114 N.J. at 266 (explaining that Gilmore "suggested that trial courts consider the following factors: (1) that the prosecutor struck most or all of the members of the identified group from the venire; (2) that the prosecutor used a disproportionate number of his or her peremptories against the group; (3) that the prosecutor failed to ask or propose questions to the challenged jurors; (4) that other than their race, the challenged jurors are as heterogeneous as the community as a whole; and (5) that the challenged jurors, unlike the victims, are the same race as defendant").
[Osorio, supra, 199 N.J. at 503-04.]

If a defendant rebuts the presumption of constitutionality, the burden shifts to the State to articulate "'clear and reasonably specific' explanations of its 'legitimate reasons' for exercising each of the peremptory challenges." Gilmore, supra, 103 N.J. at 537 (quoting Texas Dep't of Comm. Affairs v. Burdine, 450 U.S. 248, 258, 101 S. Ct. 1089, 1096, 67 L. Ed. 2d 207, 218 (1981)). The reasons "need not rise to the level justifying challenges for cause." Ibid. And the State is still permitted to challenge potential jurors on the basis of a hunch. Id. at 538. "There is nothing ineffable or inscrutable about sound 'hunches.'" Ibid.

The trial court must then "judge the defendant's prima facie case against the prosecution's rebuttal to determine whether the defendant has carried the ultimate burden of proving, by a preponderance of the evidence, that the prosecution exercised its peremptory challenges on constitutionally-impermissible grounds of presumed group bias." Gilmore, supra, 103 N.J. at 539.

The Osorio Court, quoting State v. Clark, 316 N.J. Super. 462, 473-74 (App. Div. 1998) (citations and internal quotations omitted by the Osorio Court), appeal after remand, 324 N.J. Super. 558 (App. Div. 1999), certif. denied, 163 N.J. 10 (2000), said that the considerations relevant to the final step in the Gilmore analysis can be summarized as follows:

[O]nce a [party contesting a peremptory challenge] has made a prima facie showing of discriminatory use of peremptory challenges, the trial court must make specific findings with respect to the . . . proffered reasons for exercising any disputed challenges. The court must consider whether those reasons are reasonably relevant to the particular case on trial or its parties or witnesses. Moreover, it is essential that separate findings be made with respect to each disputed challenge.
If the court finds that the [party exercising the peremptory challenge] has presented neutral reasons for exercising
each disputed challenge, it must then determine whether the [contestant] has carried the ultimate burden of proving, by a preponderance of the evidence, that the [party exercising the peremptory challenge] exercised its peremptory challenges on constitutionally-impermissible grounds of presumed group bias. In making this determination, the court must consider whether the [the party exercising the peremptory challenge] has applied the proffered reasons for the exercise of the disputed challenges even-handedly to all prospective jurors. A nondiscriminatory reason for exercising a peremptory challenge which appears genuine and reasonable on its face may become suspect if the only prospective jurors with that characteristic who the [party exercising the peremptory challenge] has excused are members of a cognizable group.
In addition, the court must consider the overall pattern of the [party exercising the peremptory challenge]'s use of its peremptory challenges. Even if the reasons for each individual challenge appear sufficient when considered in isolation from the . . . other challenges, the use of a disproportionate number of peremptory challenges to remove members of a cognizable group may warrant a finding that those reasons are not genuine and reasonable.
Finally, the court must consider the composition of the jury ultimately selected to try the case. Although the presence on the jury of some members of the group alleged to have been improperly excluded does not relieve the trial court of the responsibility to ascertain if any prospective juror was peremptorily challenged on a discriminatory basis, this circumstance may be highly probative of the ultimate question whether the . . . proffered nondiscriminatory reasons for
exercising peremptory challenges are genuine and reasonable.
[Osorio, supra, 199 N.J. at 506.]

The prosecutor explained that the excused juror had indicated that he believed African-Americans were treated disparately in the criminal justice system. On the jury questionnaire, the excused juror did not answer a number of questions, thus he did not follow the court's instructions. The prosecutor noted that when asked by the judge if he read the questionnaire, the juror's his first words were, not really. The prosecutor was also concerned that the excused juror had been a corrections officer for twenty-seven years, having had contact on a daily basis with prisoners. Based on his experience with internal-affairs prison-issues, the prosecutor believed that prison guards tend to identify or tend to be more sympathetic with prisoners. The prosecutor also noted that after twenty-seven years as a senior corrections officer, the excused juror left his job without retiring which struck him as very unusual since he had a pension and did not wait to retire until the pension matured.

The trial judge determined there was no basis for a finding of a pattern of discrimination. Further, the prosecutor provided specific reasons for removing the juror in question, and the judge found no reason to doubt the veracity of those reasons.

We discern no reason to reverse the trial judge's decision that the State had established a race-neutral basis for the juror's removal from the jury.

C.

i.

Defendant contends that he was denied a fair trial because the court limited cross-examination of some witnesses and made a number of comments--which were actually jury charges--that suggested the court was biased against him and that harmed his defense.

It is a fundamental principle that a judge must convey neutrality throughout a trial. James v. City of E. Orange, 246 N.J. Super. 554, 563-64 (App. Div. 1991). He or she should not show bias or impartiality in favor of one litigant. Ibid. "A judge should be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge deals in an official capacity[.]" Id. at 564 (quoting Code of Judicial Conduct Canon 3A(3)).

Proper jury instructions are essential to a fair trial. State v. Green, 86 N.J. 281, 287 (1981). As most lay people do not understand legal jargon, the court must give the jury a "comprehensible explanation of the questions that the jury must determine, including the law of the case applicable to the facts that the jury may find." Ibid. The jury charge should include instruction on all "essential and fundamental issues and those dealing with substantially material points." Id. at 289.

Defendant contends that certain conduct by the trial judge deprived him of a fair trial. Defendant asserts that the judge's inappropriate conduct consisted of (1) comments made to the jury during the defense cross-examination of witnesses; (2) remarks to the jury justifying actions by the State following objections by the prosecutor; (3) the charge to the jury regarding defendant's opening; and (4) the limitation of cross-examination of certain witnesses. Defendant argues that the judge did not conduct the trial in a fair and impartial manner. As a result, defendant was prejudiced and a new trial should be granted.

Our thorough review of the trial record convinces us that the trial judge gave defense counsel ample opportunity to cross-examine the State's witnesses. The colloquy between the judge and counsel was conducted both at sidebar and before the jury. Although some of the comments could be interpreted as critical of defense counsel, the record reflects that throughout the trial the judge sustained objections made by defense counsel. The phrasing of the judge's rulings sustaining those objections neutralized any negative impression the jury may have obtained as a result of the judge's colloquies with defense counsel concerning evidential objections.

Moreover, in his limiting instructions, the judge specifically referred to facts injected in the record by both the prosecutor and defense counsel that might differ from the jury's recollection of the trial testimony. The judge correctly informed the jury that "very frequently attorneys put information in their question which is a useful way of eliciting -- a response from a witness. However, the information contained in the attorney's questions, that's not evidence. The evidence is the testimony of witnesses that respond to the questions." The judge gave a similar instruction another time in response to assumed facts not in the record.

Defendant also posits that another instruction to the jury, which occurred during cross-examination of the State's witness, Simonetti, demonstrated bias. Defense counsel asked a question which incorporated certain facts. The judge sustained the State's objection and correctly instructed the jury:

First of all, ladies and gentlemen, it's your recollection of what the testimony was from any of the witnesses. It's not the attorneys' recollection, it's not my recollection. It's your recollection as to what the testimony was and the weight and
meaning of that testimony is for you to determine.

We note that the judge's instructions used the term "attorneys" and did not single out "defense counsel" for any admonition.

While it is true, as argued by defendant, that the Code of Judicial Conduct requires that a judge "be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers and others with whom the judge deals in an official capacity," we are satisfied that the judge's comments during defendant's trial did not breach that standard and prejudice defendant. James, supra, 246 N.J. Super. at 564. We are equally satisfied that the judge's conduct was not biased in favor of the prosecutor.

ii.

Defendant argues that the court should have admitted into evidence all of the statements that he made while in police custody on November 17 and 18, 2003, under the rule of completeness. N.J.R.E. 106 provides: "When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which in fairness ought to be considered contemporaneously."

"The principle of fairness which is embodied in the doctrine of completeness is applicable to trial testimony as well as out-of-court statements which are offered into evidence." See Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment on N.J.R.E. 106 (2011). "Consequently, the completeness doctrine allows the reading of a second writing or statement where 'it is necessary to (1) explain the admitted portion, (2) place the admitted portion in context, (3) avoid misleading the trier of fact, or (4) insure a fair and impartial understanding.'" Alves v. Rosenberg, 400 N.J. Super. 553, 562 (App. Div. 2008) (quoting State v. Lozada, 257 N.J. Super. 260, 272 (App. Div.), certif. denied, 130 N.J. 595 (1992)). "The determination of whether fairness requires the inclusion of the exculpatory portion of the statement and whether that portion carries with it a likelihood of trustworthiness rests in the sound discretion of the trial judge." Lozada, supra, 257 N.J. Super. at 272.

The doctrine of completeness will not form a basis for admitting statements that are separate from the admitted statement because separate utterances, by definition, will not be part of the introduced statement and thus cannot be necessary to understand the parts of the admitted statement in context. James, supra, 144 N.J. at 554-55 (1996). The doctrine will also not form a basis to admit any self-serving parts of the statement, as self-serving statements are hearsay not within any exception. State v. Gomez, 246 N.J. Super. 209, 215-17 (App. Div. 1991).

On appeal, defendant makes a blanket statement that all of his statements to police should have been admitted into evidence to give the jury a complete understanding of the interrogation. He specifically argues that the jury should have heard his statement that he did not shoot anyone.

The court disagreed that defendant should be able to admit all of his statements under the rule of completeness because the statements the State had excluded were self-serving to defendant. Defendant could not use the rule of completeness to admit his hearsay statements and thus avoid having to testify to have the jury hear the evidence.

Further, the statement defendant made that he did not shoot anyone was not part of the interrogation; defendant made it voluntarily while he was being transported. It was also a self-serving statement, and "because of its self-serving nature, is presumed to be unreliable[.]" State v. Colon, 246 N.J. Super. 608, 613 (App. Div. 1991); accord State v. Gomez, 246 N.J. Super. 209, 216 (App. Div. 1991). The rule of completeness is not a catch-all that allows a defendant to admit his or her own self-serving hearsay testimony and avoid testifying.

Defendant further argues that under the rule of completeness the judge should have allowed him to cross-examine Rock on statements the police told Rock that Joey had made to them. The court did not allow defense counsel to ask these questions because they called for double hearsay. State v. Burris, 357 N.J. Super. 326, 332 (App. Div. 2002), certif. denied, 176 N.J. 279 (2003).

Defendant's contentions are plainly not within the orbit of the completeness doctrine. We find that the trial judge carefully analyzed the arguments presented to him and exercised principled discretion in keeping defendant's and other witnesses' hearsay statements at bay.

iii.

Defendant contends the judge erred in allowing the State to introduce other-crimes evidence. Specifically, he challenges introduction of his statements to police that he (A) had suggested to Rock and Joey that they rob a Best Buy, and (B) that he had possessed a gun.

Evidence Rule 404(b) prohibits the use of prior convictions or bad acts to prove a propensity to commit a crime:

Evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity,
intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.
[N.J.R.E. 404(b).]

Our Supreme Court has set forth a four-part test that must be satisfied for evidence of other crimes or bad acts to be admissible under N.J.R.E. 404(b):

1. The evidence of the other crime must be admissible as relevant to a material issue;
2. It must be similar in kind and reasonably close in time to the offense charged;
3. The evidence of the other crime must be clear and convincing; and
4. The probative value of the evidence must not be outweighed by its apparent prejudice.
[State v. Cofield, 127 N.J. 328, 338 (1992) (quoting Abraham P. Ordover, Balancing The Presumptions Of Guilt And Innocence: Rules 404(b), 608(b), And 609(a), 38 Emory L.J. 135, 160 (1989)) (footnote omitted by the Court).]

The fourth factor incorporates the N.J.R.E. 403 balancing test, which mandates that relevant evidence be excluded "when its 'probative value is so significantly outweighed by [its] inherently inflammatory potential as to have a probable capacity to divert the minds of the jurors from a reasonable and fair evaluation' of the issues in the case." State v. Koskovich, 168 N.J. 448, 486 (2001) (quoting State v. Thompson, 59 N.J. 396, 421 (1971), addition made by Koskovich Court).

In assessing the prejudicial effect of the evidence, a court must consider whether other evidence is available to prove the same point. State v. Covell, 157 N.J. 554, 569 (1999). If it is not, the proposed evidence's probative value is enhanced. Ibid.

If the court admits the evidence, it must instruct the jury on the proper use of the evidence.

[T]he court's instruction should be formulated carefully to explain precisely the permitted and prohibited purposes of the evidence, with sufficient reference to the factual context of the case to enable the jury to comprehend and appreciate the fine distinction to which it is required to adhere.
[Cofield, supra, 127 N.J. at 341 (internal quotations and citation omitted).]

Like any evidentiary ruling, an appellate court will review a N.J.R.E. 404(b) ruling under the abuse-of-discretion standard. Cofield, supra, 127 N.J. at 339-40.

A. The Best Buy Statement

The first statement that defendant challenges occurred when he told police that he, Rock, and Joey discussed "making a come up" on November 30, 2002. Defendant said:

And they threw a situation out there, you know, and I threw a situation out there.
The situation I threw out there I said, Best Buy. They said, What about Valley Fair? You know, Valley Fair, you know, it has games and stuff and what not and everything. And I said you make more money on plasma TVs. They go for seven, $8,000. And Best Buy --

Defendant was interrupted and asked what he meant by a "come up." Defendant said it was slang for "being broke." Defendant continued, stating that he knew someone who worked for Best Buy who could steal some televisions for him. Defendant would have to pay the person half the money received after selling the televisions, but the profit would be better than if they robbed FuncoLand.

The court found the statement admissible under N.J.R.E. 803(b)(5), and did not analyze whether the statement would be admissible under N.J.R.E. 404(b). Evidence Rule 803(b)(5) provides:

The following statements are not excluded by the hearsay rule:
. . . .
(b) Statement by party-opponent. A statement offered against a party which is:
. . . .
(5) a statement made at the time the party and the declarant were participating in a plan to commit a crime or civil wrong and the statement was made in furtherance of that plan.
[N.J.R.E. 803(b)(5).]

We disagree that the statement is admissible under N.J.R.E. 803(b)(5), as a co-conspirator's statement. Here, the statement is defendant's not a co-conspirator's. The statement offered against defendant was his own statement and would be admissible under N.J.R.E. 803(b)(1).

The court did not provide a limiting instruction on the proper use of this evidence until the final jury charge. In that charge, the court notified the jury that it could not infer from the statement that defendant had a propensity to commit crime or that he was a bad person and thus committed the crimes charged. The evidence was admitted to establish the nature and scope of defendant's relationship with Rock and Joey.

On appeal, defendant characterizes the Best Buy statement as other crimes evidence and contends that it was "totally unnecessary for the purposes for which it was purportedly offered" and was "grossly prejudicial" to defendant. We disagree.

Because the statement directly related to the motive for the FuncoLand robbery and defendant's significant involvement in planning it, the statement's probative value was not outweighed by its prejudicial value. The statement was admissible under N.J.R.E. 404(b) to show intent, preparation and plan.

In State v. Long, 173 N.J. 138, 164-65 (2002), the Court stated:

We acknowledge that the introduction of defendant's statements will likely create some prejudice, but the evidence regarding motive has extremely high probative value. That high probative value and the absence of any other source to establish motive must be weighed pragmatically against the reality that "[v]irtually any evidence of 'other crimes' will probably entail some risk of prejudice to a defendant." State v. Mazowski, 337 N.J. Super. 275, 287 (App. Div. 2001). Similarly, "[t]hat evidence is shrouded with unsavory implications is no reason for exclusion when it is a significant part of the proof. The unwholesome aspects, authored by defendant himself [or herself], if the evidence be believed, [is admissible if] inextricably entwined with the material facts." State v. West, 29 N.J. 327, 335 (1959).

Defendant challenges the court's failure to give a limiting instruction on the use of the Best Buy statement until the final jury charge. This argument is raised for the first time on appeal. The challenge is subject to the plain error rule and will be successful only if the admission of the testimony was "clearly capable of producing an unjust result." R. 2:10-2. Accord State v. Johnson, 287 N.J. Super. 247, 262 (App. Div.), certif. denied, 144 N.J. 587 (1996) (finding no plain error where the court failed to give any limiting instruction on the proper use of testimony regarding the defendant's other criminal acts).

We do not agree that the failure to immediately give the charge after the admission of the testimony is clearly capable of producing an unjust result.

B. The Gun Statement

Defendant challenges the following statement which the judge admitted into evidence: "My family owned guns and stuff like that, but, you know, I purchased one. It was a black .25. It looked like the same .25 that you recovered from my house, but it's a black one. The same model, same six shots and what not."

The judge allowed this statement in evidence because owning a weapon or purchasing a weapon, by itself, is not a crime or bad act. The judge did not analyze the evidence under N.J.R.E. 404(b) because he saw no need to do so; owning a gun is not a bad act. Because the judge did not believe that the statement was bad-acts evidence, he gave no limiting instruction to the jury.

On appeal, defendant argues that the statement was prejudicial and that it was unrelated to the crimes charged. For the first time on appeal, he claims the judge erred in failing to provide a limiting instruction.

We see no reason to disturb the judge's ruling admitting the statement. As the judge found, owning or purchasing a gun, by itself, is not a bad act or crime. Nothing in defendant's statement suggested that he did either illegally. While the judge could have provided a limiting instruction, failure to do so was not plain error.

iv.

Defendant contends that the State violated the rules of discovery and Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97, 10 L. Ed. 2d 215, 218 (1963), when the State failed to (a) tell defendant prior to or during trial that the State's witness, Ms. Kate Tschischik, had a copy of defendant's photo array and documents relating to the investigation, and (b) provide defendant discovery on the following prior to the Miranda hearing: (1) the August 2003 seizure of defendant's car so police could install the tracking device; (2) a statement defendant made to Morris County Prosecutor Rubinaccio just before defendant gave his final statement on November 18, 2003; (3) the "perp" walk; and (4) defendant and Rock passing each other on November 18, 2003, while in police custody.

Other than the information in Tschischik's possession, the contentions concerning the other purported Brady violations are without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2). We add only that all of that information was known to defendant because he was involved.

Additionally, defendant contends that the judge should have granted his motion for a mistrial because Tschischik had a copy of the photo array and defendant did not learn this until her cross-examination. All of the omitted materials were then promptly provided to defendant. In summation, defense counsel was able to discredit the credibility of Tschischik's in-court identification of defendant by reference to her possession of the photo array and defendant's photo. The judge also gave a curative supplemental charge on identification, instructing the jury to consider whether the witness was told that defendant was present in the courtroom or was given a copy of defendant's photograph prior to her testimony.

Defendant argues the court erred in denying his motion for a mistrial because these measures did not adequately counteract the prejudice caused by the State's discovery violations. We disagree.

A defendant has a constitutionally protected right to request and obtain from the prosecution evidence material to either his guilt or punishment. California v. Trombetta, 467 U.S. 479, 485, 104 S. Ct. 2528, 2532, 81 L. Ed. 2d 413, 420 (1984) (citation omitted). Our courts have also held that a defendant has a constitutionally protected privilege to obtain all evidence material to either his guilt or innocence. State v. Hollander, 201 N.J. Super. 453, 478 (App. Div.), certif. denied, 101 N.J. 335 (1985). The withholding of evidence favorable to a defendant constitutes a denial of due process and a denial of the right to a fair trial.

In Brady, supra, 373 U.S. at 87, 83 S. Ct. at 1196-97, 10 L. Ed. 2d at 218, the United States Supreme Court held that "the suppression by the prosecution of evidence favorable to an accused . . . violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Accord State v. Nelson, 155 N.J. 487, 497 (1998), cert. denied, 525 U.S. 1114, 119 S. Ct. 890, 142 L. Ed. 2d 788 (1999); State v. Russo, 333 N.J. Super. 119, 133-34 (App. Div. 2000). Such exculpatory evidence includes not only directly exculpatory evidence but also evidence that may impeach the credibility of a State's witness. Russo, supra, 333 N.J. Super. at 134. It includes any evidence contained in the prosecution's files, even if not directly known to the prosecutor. Nelson, supra, 155 N.J. at 498.

In order to establish a Brady violation, a defendant must show that: (1) the State suppressed evidence; (2) the evidence is favorable to the defense; and (3) the evidence is material. State v. Martini, 160 N.J. 248, 268 (1999). Evidence is material only "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different; a 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." Id. at 269 (citing United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383, 87 L. Ed. 2d 481, 494 (1985)).

Our Supreme Court has focused the analysis on determining whether the discovery violation undermined the essential fairness of the trial. State v. Carter, 69 N.J. 420, 433 (1976). The test is whether the evidence could induce reasonable doubt as to the verdict or would tend to exculpate defendant. Id. at 433-34. We applied and amplified this standard in State v. Parsons, 341 N.J. Super. 448, 455 (App. Div. 2001):

This is essentially the same standard that we have traditionally applied in determining whether a defense attorney's errors are so egregious as to amount to a Sixth Amendment violation. In applying this test where a conviction has followed a full trial, we assess the strength of the State's case, and determine whether introduction of the suppressed evidence would probably have changed the jury's verdict. While we have characterized that analytical process as somewhat "speculative," it is not too distant from the determination we are often required to make in deciding whether a trial judge's error was so harmful as to compel vitiation of a conviction.
[(Citations omitted).]

Mindful of these principles, we conclude the measures taken by the trial judge adequately protected defendant's right to a fair trial.

Additionally, defendant was aware of the information upon cross-examination of the witness and used it in summation. No denial of due process occurs when Brady material is disclosed in time for its effective use at trial by defense counsel. Martini, supra, 160 N.J. at 270 n.5; United States v. Higgs, 713 F.2d 39, 44 (3d. Cir. 1983), cert. denied, 464 U.S. 1048, 104 S. Ct. 725, 79 L. Ed. 2d 185 (1984).

In any event, the other evidence against defendant was overwhelming and there is not a reasonable probability that, had the withheld discovery been disclosed to defense earlier, the result of the proceeding would have been different.

v.

Defendant contends that he was denied a fair trial because the State violated the sequestration order when the prosecutor telephoned a defense witness prior to his testimony and questioned him about his police report and the testimony of another witness. We find defendant's contention to be without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).

We add the following comments. Evidence Rule 615 authorizes a court to enter an order sequestering witnesses upon request of either party. The purpose of the rule is to prevent witnesses from hearing other witnesses' testimony, with the hope that the witness will provide unbiased testimony based on his or her recollection alone. State v. DiModica, 40 N.J. 404, 413 (1963).

The judge did not find a violation of his order and we discern nothing in the record to contradict his decision.

D.

i.

Defendant challenges four parts of the court's final charge as denying him a fair trial. He claims that the court improperly (1) instructed that police had no duty to record all of his statements, (2) lessened the State's burden by referring to defendant's "guilt" or "innocence," (3) failed to charge on causation, and (4) refused to instruct that the jury could draw a negative inference from the State's failure to call Joey as a witness.

"[A]ccurate and understandable jury instructions in criminal cases are" vital to safeguard "a defendant's right to a fair trial[.]" State v. Tierney, 356 N.J. Super. 468, 482 (App. Div.), certif. denied, 176 N.J. 72 (2003).

The first contested instruction relates to assessing the credibility of the witnesses and defendant's out-of-court statements. The court instructed:

At the time the statements alleged to have been made to law enforcement on November 17th and November 18th, 2003, the police had no duty to record the statements of the defendant. Law enforcement had no duty to inform a person that a statement might be recorded. However, you may consider the failure to record the statement or the failure to inform the defendant he was going to be recorded in assessing whether the statements alleged to have been made to law enforcement are credible or reliable. It is your function to determine whether or not these statements were actually made by the defendant and, if made, whether the statement or statements or any portion of them are credible.
[(Emphasis added).]

The State contends that the court gave this instruction in response to defendant's arguing in his opening statement that police had failed to record all of his statements. The instruction was an accurate statement of the law at the time.² See Cook, supra, 179 N.J. at 559-60 (explaining that our laws did not require police to record interrogations, but created "a committee to study and make recommendations on the use of electronic recordation of custodial interrogations"). This instruction did not deny defendant a fair trial.

2 Rule 3:17, mandating the electronic recordation of specified custodial interrogations, including homicide investigations, was not adopted until 2005; it did not become effective until January 1, 2006, for homicide offenses, and until January 1, 2007, for other specified offenses. Thus, the mere failure to record defendant's interrogation does not render his confession inadmissible.
--------

A more troublesome instruction occurred when the judge was charging the jury on the State's burden of proof. The judge stated:

The burden of proof in this case is on the State and it never shifts. The burden of proof remains on the State throughout the whole trial of this case. No burden with respect to proof is imposed upon the defendant. He is not obliged to prove his innocence. With respect to each charge brought against the defendant, the fundamental rule is that unless the State has proved the crime charged and each of its essential elements beyond a reasonable doubt, the defendant is entitled to a verdict of not guilty.
You heard the opening statements. Mr. Glazer said that he would present proofs or present certain things that would lead to the conclusion that the defendant was not guilty. And the defense has introduced some evidence in that regard. If you believe that that evidence does prove that the defendant is innocent, you should of course bring in a verdict of not guilty. However, the facts that the defendant has attempted to prove his innocence does not shift the burden of proof. It doesn't shift to him on any issue. The State always has the burden of proof. That burden never shifts no matter what proofs the defendant offers.
Thus, if the defendant failed to prove his innocence in your view, and if your view also is that the State failed to prove his guilt beyond a reasonable doubt, you must bring in a verdict of not guilty. You may bring in a verdict of guilty on a charge
only if the State affirmatively proves the crime charged and each of its elements beyond a reasonable doubt.
[(Emphasis added).]

After the judge completed the entire final charge, the defendant moved for a mistrial on the ground that the judge's instruction improperly shifted the burden of proof to him.

The judge explained that he had no intention of implying to the jury that defendant had any burden of proof. The judge recharged the jury on the State's burden, again explaining that the State had the burden to prove each charge beyond a reasonable doubt and that defendant had no burden of proof. To avoid highlighting the problem, at defense counsel's request, the judge made no mention of what defense counsel had said in his opening statement.

On appeal, defendant argues that the judge erred in denying the motion for a mistrial because, in saying that defendant had promised to prove his innocence, the judge improperly placed a burden of proof on defendant.

The charge was inappropriate because the court used the terms guilt and innocence, but the error does not require a new trial. In State v. White, 360 N.J. Super. 406, 413 (App. Div. 2003), we instructed trial courts to avoid using terms "guilt and innocence" in the jury charge. We explained:

A jury is asked to consider the evidence and determine whether a defendant is guilty beyond a reasonable doubt. If the jury concludes that the State has not carried its burden of proof, it returns a verdict of not guilty. A verdict of not guilty is not synonymous with innocence; innocence connotes a person free from blame. A not guilty verdict simply means the jury found that the State did not carry its burden of proof. . . . The injection of the concept of innocence . . . may tend to reduce the State's burden of proof because of the starkly different choices presented to the jury. Therefore, the use of the term "guilt or innocence" should be avoided in the future.
[Ibid.]

But use of the phrase "guilt and innocence" in isolation will not warrant a new trial. Ibid. Accord State v. Vasquez, 374 N.J. Super. 252, 265 (App. Div. 2005) (agreeing with White that using the phrase "guilt or innocence" will not automatically require a reversal). Here, the judge used the terms guilt and innocence only in this part of the charge, and the balance of the charge and the recharge clearly conveyed the State's burden of proof and did not suggest that defendant had to prove his innocence, or that the jury should return a guilty verdict if it found that defendant failed to prove his innocence. Although the instruction was improper, it does not require a new trial.

Defendant also argues that the judge erred by failing to give the charge on causation of Eresman's death. "'[T]he prejudicial effect of an omitted instruction must be evaluated in light of the totality of the circumstances--including all the instructions to the jury, [and] the arguments of counsel.'" State v. Adams, 194 N.J. 186, 207 (2008) (second alteration in original) (quoting State v. Marshall, 123 N.J. 1, 145 (1991), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993)). When the causal relationship between a defendant's conduct and the actual result is in issue, the jury must be given the opportunity, under proper instruction, to consider alternative theories regarding causation. State v. Eldridge, 388 N.J. Super. 485, 498 (App. Div. 2006) (discussing State v. Martin, 119 N.J. 2, 16-17 (1990)), certif. denied, 189 N.J. 650 (2007).

"[A] charge must adequately set forth all elements of the offense charged, State v. Green, 86 N.J. 281, 288 (1981)." State v. Smith, 210 N.J. Super. 43, 54 (App. Div. 1986), certif. denied, 105 N.J. 582 (1986). "Causation is an essential element for jury determination" in a homicide case, State v. Whitted, 232 N.J. Super. 384, 391 (App, Div. 1989). Our courts have found error in the omission of a charge explaining the requirements of causation as defined in N.J.S.A. 2C:2-3 when the evidence raises a question about causation. See, e.g., Martin, supra, 119 N.J. at 16-17; Whitted, supra, 232 N.J. Super. at 391-92; Smith, supra, 210 N.J. Super. at 53-57. Tn contrast, when the evidence does not raise a dispute about "the causal relationship between conduct and result" and the defense is a complete denial rather than a challenge to the causal connection, we have concluded that an instruction on causation under N.J.S.A. 2C:2-3 is not necessary. State v. Mujahid, 252 N.J. Super. 100, 113 (App. Div. 1991), certif. denied, 127 N.J. 561 (1992).

In this case, defendant claims that because there was evidence that Joey fired one of the two shots into Eresman's head, there was a question about who fired the fatal shot. That question was adequately addressed by the judge's instruction. When the judge instructed the jury on the murder charge, he stated, on several occasions that defendant could not be convicted of murder unless the State proved beyond a reasonable doubt that "defendant, either purposely or knowingly, caused the victim's death or serious bodily injury resulting in death." Similar charges were repeated in relation to reckless and aggravated manslaughter. Under these circumstances, we perceive no reasonable basis to conclude that it was error to omit an additional instruction on causation. The instruction given permitted a finding of guilt on one basis-that defendant purposely or knowingly fired the fatal shot that killed the victim.

Defendant argues that the judge erred when he refused to instruct that the jury could draw a negative inference from the State's failure to call Joey as a witness. We find defendant's contention to be without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2). However, we note, "[f]or an inference to be drawn from the nonproduction of a witness it must appear that the person was within the power of the party to produce and that his testimony would have been superior to that already utilized in respect to the fact to be proved." State v. Clawans, 38 N.J. 162, 171 (1962). Joey was available as a witness to both parties and the failure to produce a witness who is available for either party to call precludes the raising of an inference against either. Ibid.

ii.

We concur with defendant's argument that count six of the indictment charging him with possession of a weapon for an unlawful purpose should merge with his conviction for count five, the substantive offense of robbery.

In State v. Diaz, 144 N.J. 628, 639 (1996), the Supreme Court adopted the following test for merger of the offense of possession of a weapon for an unlawful purpose as set forth in State v. Williams, 213 N.J. Super. 30, 36 (App. Div. 1986), certif. denied, 107 N.J. 104 (1987):

To avoid merger of possession of a weapon for an unlawful purpose, four factors must be present: (1) the defendant must have been charged in the indictment with possession of the weapon with a broader unlawful purpose, either generally or specifically, than using the weapon to kill or assault the victim of the greater offense, (2) the evidence must support a finding that the defendant had a broader unlawful purpose, (3) the judge must have instructed the jury of the difference between possession with the specific unlawful purpose of using the weapon against the victim of the greater offense and a broader unlawful purpose and (4) the verdict must express the jury's conclusion that the defendant had a broader unlawful purpose. There may be cases where merger is necessary despite the presence of these four factors.

Count six of the indictment charged defendant with possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4(a). The judge charged the jury that the State must prove that: ". . . defendant's unlawful purpose in possessing the firearm was to commit the crime of robbery or to effectuate flight thereon."

We conclude that none of the four factors identified in Williams, supra, has been met here. 213 N.J. Super. at 36. The trial judge instructed the jury that the "unlawful purpose" element of the offense related to "the crime of robbery." Thus, the verdict expressed the jury's conclusion that defendant had possessed the gun with no "broader unlawful purpose," ibid., than to commit the crime of robbery as charged in count five.

"Under those circumstances, the use of the firearm to commit the substantive offense . . . provides the factual underpinning for drawing an inference that the firearm was possessed for an unlawful purpose." Diaz, supra, 144 N.J. at 636. In these circumstances, we hold that the judge should have merged count six with count five, the robbery charge. The judgment of conviction should be amended accordingly.

E.

Defendant argues that the imposition of two consecutive terms of life without parole (LWOP) violates the Ex Post Facto Clauses of the United States and New Jersey Constitutions, U.S. Const. art. I, § 10, cl. 1; N.J. Const. art. IV, § 7, ¶ 3, are illegal and must be reduced. We disagree.

We first summarize the law in effect at the time defendant murdered Eresman and Rewoldt on December 1, 2002, and when he was indicted in 2003. At that time, defendant was subject to the death penalty if the State could prove the knowing or purposeful homicide by his own conduct and one of the aggravating factors contained in N.J.S.A. 2C:11-3(c)(4), which included the factor that "[t]he murder was committed while the defendant was engaged in the commission of, or an attempt to commit, or flight after committing or attempting to commit . . . robbery[.]" N.J.S.A. 2C:11-3(c)(4)(g). The death penalty could be imposed if the jury determined aggravating factors outweighed any mitigating factors. N.J.S.A. 2C:11-3(c)(3)(a); State v Bey, 112 N.J. 123, 158-59 (1988). Under N.J.S.A. 2C:11-3(b)(4), if the jury found the existence of one or more aggravating factors, but that such factors did not outweigh the mitigating factors found to exist or the jury was unable to reach a unanimous verdict as to the weight of the factors, the defendant was to be sentenced to a term of life imprisonment without parole. See State v. Fortin, 400 N.J. Super. 434, 440 (App. Div. 2008).

Before defendant's trial, the homicide statute was amended to abolish capital punishment on December 17, 2007. The amendment provided for life imprisonment without parole in all murder cases that would have been eligible for the death penalty upon the finding of one or more enumerated aggravating factors. Following amendment, the murder statute, N.J.S.A. 2C:11-3, read in pertinent part as follows:

a. [C]riminal homicide constitutes murder when:
(1) The actor purposely causes death or serious bodily injury resulting in death; or
(2) The actor knowingly causes death or serious bodily injury resulting in death;
. . . .
b.
. . . .
(4) Any person convicted under subsection a.(1) or (2) who committed the homicidal act by his own conduct . . . shall be sentenced by the court to life imprisonment without eligibility for parole, which sentence shall be served in a maximum security prison, if a jury finds beyond a reasonable doubt that any of the following aggravating factors exist:
. . . .
(g) The murder was committed while the defendant was engaged in the commission of, or an attempt to commit, or flight after committing or attempting to commit murder, robbery, sexual assault, arson, burglary, kidnapping, carjacking or the crime of contempt in violation of subsection b. of N.J.S.A 2C:29-9;

Therefore, the facts that provided a basis for the death penalty under the statute in effect at the time of the murders and for life imprisonment without parole following the amendment were the same: the knowing or purposeful homicide by defendant's own conduct while defendant was engaged in the commission of, or an attempt to commit, or flight after committing or attempting to commit robbery. It is undisputed that count five of the indictment provided defendant notice of the aggravating factor the State intended to rely upon in seeking the death penalty, that defendant had committed the murders (1) during an armed robbery, (2) for the purpose of escaping detection, apprehension, trial, punishment or confinement for murder, and (3) while engaged in the commission of flight.

Defendant does not argue that the State failed to present evidence of this aggravating factor to the grand jury. Therefore, the indictment provided adequate notice of the factor the State would rely upon and was supported by evidence presented to the grand jury regarding that aggravating factor. See State v. Fortin, 178 N.J. 540, 655-56 (2004). We are satisfied that, under the circumstances, it was not necessary for the State to supersede the indictment to substitute citations to identical aggravating factors to afford defendant necessary constitutional protections.

As a result of legislation enacted in 2000, persons convicted of murder, who were eligible for the death penalty under subsection (c) of the statute, but not sentenced to death, could be sentenced to a term of life imprisonment without parole under certain circumstances. L. 2000, c. 88, (codified at N.J.S.A. 2C:11-3(b)(4)).

In State v. Baylor, 423 N.J. Super. 578 (App. Div. 2011), certif. denied, 210 N.J. 263 (2012), we observed that the law in effect at the time of Baylor's crimes, as is the fact in this case, provided for the imposition of life without parole "if the jury finds at least one aggravating factor, regardless of whether there were any mitigating factors or whether those mitigating factors outweighed the aggravating factor or factors." Id. at 598 (citing Cannel, New Jersey Criminal Code Annotated, comment 4 on N.J.S.A. 2C:11-3 (2006)). We concluded that the imposition of life sentences without parole did not, therefore, violate the Ex Post Factor Clauses of the United States and New Jersey Constitutions. Id. at 598.

Here, the jury found defendant guilty of purposely and knowingly committing the murders of Eresman and Rewoldt by his own conduct and also found him guilty of armed robbery, contrary to N.J.S.A. 2C:15-1(a)(1), which is a relevant aggravating factor. Because the criteria for the imposition of a life sentence without parole pursuant to the statute in effect at the time of the murders was satisfied, there was no ex post facto violation.

Defendant contends that a sentence of LWOP could only have been imposed after a separate penalty phase hearing in which the jury found an aggravating factor. The United States Supreme Court supported the requirement for a jury determination under certain circumstances, holding:

Any fact that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable doubt . . . It is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. It is equally clear that such facts must be established by proof beyond a reasonable doubt.
[Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63, 147 L. Ed. 2d 435, 455 (2000).]

Defendant asserts that the failure of the court to conduct a separate penalty phase proceeding and the jury to find in a separate proceeding an aggravating factor beyond a reasonable doubt during that proceeding precludes the imposition of a LWOP sentence. We disagree.

Defendant was found guilty of armed robbery which is an aggravating factor for purposes of the imposition of the LWOP sentence. Since the offense was submitted to a jury and proven beyond a reasonable doubt, the State is not obligated to prove the offense a second time in a separate penalty proceeding. See State v. Johnson, 37 6 N.J. Super. 163 (App. Div.), certif. denied, 183 N.J. 592 (2005); see also R. 3:19-1.

III.

We have carefully considered the remaining issues and sub-issues raised by defendant, and conclude that they lack sufficient merit to justify discussion in this opinion. R. 2:11-3(e)(2).

Affirmed. Remanded for merger of count six of the indictment charging defendant with possession of a weapon for an unlawful purpose with his conviction for count five, the substantive offense of robbery.

I hereby certify that the foregoing is a true copy of the original on file in my office.

CLERK OF THE APPELLATE DIVISION