The opinion of the court was delivered by: Pollock, J.
On appeal from the Superior Court, Law Division, Burlington County.
Defendant, Robert Morton, appeals directly from his conviction of purposeful-or-knowing murder by his own conduct and related offenses. R. 2:2-1(a)(3). The capital conviction arose from the robbery and stabbing murder on February 23, 1993, of Michael Eck, a gas station attendant. The jury sentenced defendant to death. We affirm.
In two separate events during the night of February 23-24, 1993, two assailants attacked Toby Chrostowski and Michael Eck. Chrostowski, who was stabbed once in the chest, survived. Eck, who sustained a total of 24 stab wounds, died.
At approximately 10:20 p.m. on February 23, Chrostowski drove his BMW automobile into the parking lot of the Playhouse, a go-go bar in Burlington Township. Chrostowski, who had arranged to meet a co-worker, Brian Land, parked in front of Land's car. He noticed two men staring at him from a Ford Escort parked next to Land's car. Chrostowski exited his car and walked toward the bar. His path required him to pass between Land's car and the Ford.
As Chrostowski walked between the cars, the driver of the Ford stepped into Chrostowski's path. At the same time, the passenger walked around the car and approached Chrostowski from behind. Chrostowski tried to walk past the driver. He felt a sharp pain in his chest, but continued into the bar. On entering the bar, Chrostowski discovered that he was bleeding from a stab wound.
He described his attackers as black males, both of whom were wearing jackets. The shorter of the two men was wearing gold-framed glasses and a "different" kind of hat. Chrostowski's descriptions matched those of two men who had just been ejected from the Playhouse for unruly behavior. Chrostowski did not know which of the two men had stabbed him.
In the early morning of February 24, approximately two hours after the Chrostowski stabbing, James Sireci, a limousine driver, was buying gas at the Amoco station in Delran. The attendant pumping gas was Michael Eck. Sireci saw a maroon Ford Escort pull into the station and stop by an air pump. No one, however, left the Ford. After paying Eck, Sireci noticed that the Ford was backing toward his limousine. Because the Ford almost hit the limousine, Sireci stared at the occupants. The driver was a dark-complexion male with a mustache, who was wearing a black wool cap with a rolled-up brim. The passenger was a light-complexion black male with closely cropped hair. Sireci then drove from the station.
Soon after, a 9-1-1 emergency dispatcher received a call from a public phone located at the Delran Amoco. The caller, who was gasping for breath, twice said "Delanco Amoco," but nothing else. By chance, Officer Charles Reynolds of the Delran Township Police Department, who had just completed his shift, arrived at the Delran Amoco to purchase cigarettes. On entering the attendant's office, he saw Michael Eck lying face up on the floor. The telephone was dangling off its hook. As Officer Reynolds knelt besides him, Eck said that he had been stabbed in the arm, groin, and chest. Eck's shirt and pants were torn and stained with blood. Although Eck was having difficulty breathing, he told Officer Reynolds that he had been stabbed by two young black men. The men were driving a "Gremlin" style vehicle which appeared under the station's fluorescent lights to be tan in color.
At approximately 12:25 a.m., emergency medical technicians arrived at the Delran Amoco. They gave Eck oxygen and applied pressure bandages to his stab wounds. They transported Eck to Memorial Hospital, where he died. The immediate cause of his death was a stab wound to his heart.
At approximately 1:05 a.m. on February 24, Officer William Zielinski went to the emergency room of the Rancocas Valley Hospital in response to a call regarding a patient with a knife wound. The patient was defendant. As Officer Zielinski entered the hospital, he passed Alonzo Bryant, who was leaving. Despite the sub-freezing temperature, Bryant was not wearing a coat.
Inside the hospital, Nurse Armstrong explained that defendant had arrived with Bryant and was suffering from a spiral laceration on his left index finger. Although Bryant had told her that a broken bottle caused the cut, Nurse Armstrong recognized it as a knife wound. She believed that defendant was lying and suspected his injury was related to the stabbing of Chrostowski, whom she had treated earlier in the evening.
Officer Zielinski interviewed defendant, whom he described as a short, stocky, black male wearing gold-rimmed glasses and a short-sleeved shirt. Defendant was not wearing a coat. He said that a stranger had injured him at a bar in Trenton, but did not know the name or location of the bar. Defendant also declined Officer Zielinski's offer to pursue further legal action against his assailant. Officer David Barnes, who arrived at the hospital to serve as a backup, described defendant's demeanor as curt and evasive. When Detective Dean Potts of the Delran Police Department arrived, defendant repeated that he had been injured by an unknown assailant at an unnamed Trenton bar.
Defendant left the hospital accompanied by two women. Detective Potts followed them in his patrol car as they left on foot. Defendant wore only a short-sleeved shirt. On noticing that a police car was following them, defendant and his companions began to run. Detective Potts followed them until they entered a Burlington apartment complex.
In the afternoon of February 24, Frances Robinson and Paula Palmo-Reeves, who were exotic dancers at the Playhouse, along with their manager and a Playhouse bouncer, met with a police sketch artist. The purpose of the meeting was to obtain a description of the two men who had been ejected from the bar just before Chrostowski's stabbing. The two women described one man as a short, stocky, black male who wore gold-rimmed glasses and a fishing-style Raiders hat. The other man was a taller, thinner black male, whose conduct had caused both men to be ejected from the bar.
Later that evening, Robinson was driving on Route 130 with her boyfriend, Brian Land, when she noticed defendant driving along side in his maroon Ford Escort. She recognized defendant as the short, stocky male who had been in the Playhouse the previous night. Defendant again was wearing gold-rimmed glasses and his Raiders fishing hat. Land called the police on his car phone, and Robinson described defendant and his car. Robinson also gave the police a partial license plate number and said that defendant had turned off Route 130 into the Edgewater Park McDonald's Restaurant.
Patrolman Robert Hess of the Edgewater Park Police Department went to McDonald's at 12:25 a.m. on February 25. He discovered that defendant's car was not listed in the police department's mobile data terminal information database, indicating that the car was either unregistered or stolen. While inspecting the car, defendant emerged from McDonald's wearing an employee uniform. When asked by Patrolman Hess for his name and address, defendant gave his name as Robert Moore, gave his aunt's phone number and address as his own, and admitted that he owned the car. Patrolman Hess reported the information to the Burlington City Police Department.
On that same morning, Beverly Cuffie called the Willingboro police to report that her daughter, Vicky Williams, knew something about the Amoco station robbery. Officer David Barnes went to Cuffie's apartment to interview Williams. Also present was Bernard Harper, who was both Williams's boyfriend and Bryant's brother. Williams explained that Bryant's girlfriend, Annie Edwards, had called her with information about the robbery. According to Williams, Edwards said that, in the early morning of February 24, Bryant and defendant arrived at her apartment. They told her that they had robbed a gas station and stabbed the attendant. Harper explained that he too knew of defendant's and Bryant's activities. He went to the police station and gave a taped statement.
In the statement, Harper related that at 9:00 p.m. on February 23, defendant and Bryant drove him to Williams's apartment. At the time, defendant was wearing glasses and a Raiders fishing hat. Additionally, defendant and Bryant were wearing green surgical gloves, and both possessed knives. Bryant told Harper that he planned to "get somebody, kill somebody and get some money." Defendant and Bryant drove Harper to Williams's house and then to his aunt's house. Harper did not see either of them again until early the next morning when they returned to his aunt's house. At that time, defendant had blood on his jacket and a cut on his left hand. Bryant took defendant to Rancocas Valley Hospital. Sometime thereafter, Bryant called Harper to tell him that the police were interviewing defendant at the hospital, and to ask if the police had come to his aunt's house looking for them. When Harper saw Bryant later that day, Bryant said that he had done something that he did not want to talk about. Bryant then gave Harper twenty-five dollars from a "knot" of bills in Bryant's pocket.
Police also obtained statements from Annie Edwards, Bryant's girlfriend, and Carolyn Bennett, Edward's roommate. The two women explained that defendant and Bryant arrived at their apartment sometime after midnight on February 24. At the time, defendant was wearing a Raiders fishing hat and a blood-stained jacket. Defendant and Bryant went to the bathroom to treat a cut on defendant's finger. Thereafter, Bryant took four cartons of cigarettes from his jacket. He asked Edwards to count a blood-stained wad of money, which totaled approximately $200.
Sometime thereafter, Bryant returned to the apartment alone. He explained that he and defendant had robbed the Amoco station. While Bryant beat the victim, defendant stabbed him. At Bryant's request, the two women went to the hospital, where they observed defendant speaking with police officers.
When returning from the hospital, defendant told the women that he had cut his finger in a bar fight. The women, however, told defendant that Bryant had already told them about the gas station robbery. Defendant then admitted that he had cut himself when his knife folded back on his finger as he was stabbing Eck. Defendant related that he had stabbed Eck as Bryant beat him. Demonstrating how he had stabbed Eck, defendant said that he believed that they had killed Eck. He boasted that "there was one less cracker that he would have to worry about." The women understood the word "cracker" to mean a white person.
Back at the apartment, defendant and Bryant spoke of their plan to "hit either a bank or another gas station." They laughed and joked as they described Eck's murder. Bryant told the women that defendant had stabbed Eck in the genitals, a statement defendant did not deny. According to Bryant, Eck called him "nigger" while being beaten and stabbed. Finally, Bryant said defendant had stabbed Eck with his knife. Bryant then disposed of defendant's knife by throwing it somewhere between Cinnaminson and Willingboro. While at the house, Bryant placed defendant's bloody jacket in the washing machine.
Based on this information, Police Captain Michael King decided to arrest defendant and Bryant for the murder of Michael Eck. At 11:00 a.m. on February 25, the Burlington Police stopped defendant as he was driving his Ford Escort. After arresting defendant, the police towed away defendant's car.
At the Prosecutor's Office, Captain King advised defendant of his Miranda rights and asked him to read and sign a warning card. See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). After answering questions regarding his unregistered car, defendant stated his belief that the officers were interviewing him for something more than a motor vehicle offense. Specifically, defendant stated, "You think I killed somebody in Delran? This is just a cut on my hand." Until that point, no one had mentioned Eck's murder. Defendant answered questions regarding his friendship with Bryant, but maintained that he was not involved in the Amoco robbery. Because of this assertion, Captain King informed defendant he was ending the interview. As Captain King prepared to leave, defendant grabbed King's arm and said, "I know you want to get to the nitty-gritty. I was there with Alonzo in Delran when he did what he did. I know it was a bad move. I know I'm done. I'm going to jail." Defendant then agreed to make a tape-recorded statement regarding the events of February 23 and 24.
1. Defendant's First Statement
In his first statement, defendant acknowledged the attacks on both Chrostowski and Eck, but identified Bryant as the aggressor. In this statement, defendant explained that on leaving the "Doll House" bar and entering his car, Bryant decided to "roll" Chrostowski, who had just parked his BMW near defendant's car. As defendant opened his door, Bryant walked around the car and stabbed Chrostowski. When asked why he had opened his door, defendant explained, "I was going to be an accessory to that bad boy . . . even though I knew it was wrong." After stabbing Chrostowski, Bryant and defendant were distracted by the sound of sirens. Defendant and Bryant then went to an unnamed club in Trenton, where defendant got into an altercation with another patron. Next, they proceeded to Francine's, a Cherry Hill nightclub. On arrival, however, Bryant decided not to enter the club.
After leaving Francine's, they approached the Delran Amoco station. Bryant instructed defendant to pull into the station. Defendant agreed because he needed gas. Defendant saw a limousine parked at one of the three rows of gas pumps, and decided to park his car by the air pump to put air in his tire. After placing air in his tire, defendant drove to the gas pumps, at which point the attendant came to assist him. Bryant immediately jumped out of the car and began stabbing the attendant. Defendant claimed he had tried to stop Bryant by grabbing Bryant's knife, thereby cutting his own finger. The attendant begged Bryant to stop, and told them that they could take anything they wanted. Bryant, however, continued to stab the attendant "like a pinata" to make sure he was penetrating the attendant's thick winter coat. Bryant later explained to defendant that he killed the attendant because he did not want to leave any witnesses. After stabbing the attendant, Bryant went into the station building and took some cartons of cigarettes.
2. Defendant's Second Statement
After reviewing his first statement, defendant said, "This is not coming out right. The jury will never believe me. . . . This sounds bad. I did enough lying to cover it up. I'm tired of lying." Officer King agreed with defendant that the first statement was incredible. To demonstrate his agreement, King cut up a blank tape, which defendant believed to be the tape of his statement. Defendant then proceeded to make a second statement, which Officers King and Stefanoni again recorded. The material facts of defendant's second statement are as follows:
Early in the evening, Bryant asked defendant if he was "down on doing something," which involved not just going out, but "getting paid," which meant committing robberies. Defendant suggested that they wear surgical gloves so as not to leave any fingerprints. Defendant and Bryant unsuccessfully tried to purchase guns from neighborhood drug dealers. Instead, each armed himself with a knife. Defendant described his knife as "a regular seven-inch knife." Their plan was to go to the parking lots of some bars and clubs and rob wealthy-looking patrons as they left their cars.
Defendant stated, "I knew what I was getting into. . . . One indication of the night being a murderous night was when 'Lonzo cut a guy . . . ." This statement was made in reference to the Chrostowski stabbing. Defendant explained that he and Bryant were in his car outside of the "Doll House" when they decided to "roll" Chrostowski. Defendant blamed himself for Chrostowski's escape, stating that he did not open his door in time to completely block Chrostowski's path. Although defendant said he "didn't touch" Chrostowski, he "sure to hell made up for that on that old man [Eck]."
Defendant and Bryant then decided to "hit" Francine's, a Cherry Hill nightclub. They targeted that club because of its wealthy clientele. A valet parking system at Francine's, however, foiled their plan. As defendant said he explained to Bryant, "We can't roll nobody here because we will have to kill a whole lot of motherfuckers . . . you cannot do that with these motherfuckin' little fuckin' knives we got."
After leaving Francine's and returning to Burlington on Route 130, Bryant told defendant to pull into the Delran Amoco. Once there, they waited by the air pump until a limousine departed. When Eck approached their car, defendant and Bryant attacked him. Defendant stated:
Alonzo was out there before me. Alonzo had took the guy and was in there. . . . While he was getting cartons of cigarettes, I was stabbin' the man, too. And I can't give no accurate account who got the most stabs in and all that shit. This is only 'cause we was stabbing the guy. . . . I'm a fuckin' killer. I did it. I'm sorry but that don't bring the man back and due process get what I deserve. . . . Who am the fuck am I to take a man out that ain't did nuttin'.
While stabbing Eck, defendant's knife closed, penetrated his glove, and cut his left index finger.
Defendant repeated that, during the attack, Eck offered no resistance. Eck begged defendant and Bryant to leave him alone and told them to take all they wanted. When asked why he and Bryant continued to stab Eck, defendant stated:
You know what I wanted to do? Like I was telling you before, yeah. Don't have no witnesses around. Not torture him, dismiss him off . . . off the planet. . . . We're acting like . . . how can you put it? Somebody is working for an Italian family. They got a contract out and you gotta get . . . kill a person. Like it's a bid. It's like it's a job. Like you have a job and everything to do. It's a job. That's how we actin'. Like this is all businesslike. Like emotional, it isn't that. Just taking somebody out. . . . No emotion.
After the attack, Bryant took a wad of money from Eck's front pocket, went into the station building, and took several cartons of cigarettes. Defendant, however, did not take anything. Defendant explained, "While [Alonzo] was in there, I didn't motherfuckin' take the money or nuttin'. I wasn't concerned about money. You know what I was concerned about? Huh? Making sure he's dead. Stabbed. . . . Because I didn't wanna motherfuckin' witness."
Defendant and Bryant left the gas station and went to Annie Edwards's house. Somewhere between Delran and Willingboro, defendant threw the surgical gloves from the car window. After arriving at Edward's house, defendant and Bryant bragged about the robbery. Bryant described how he had stabbed Eck in the genitals. Because defendant was still bleeding, Bryant took him to see Bryant's aunt, a nurse, at her apartment. On her suggestion, Bryant took defendant to the hospital. At some point during the evening, Bryant discarded defendant's knife. Defendant was annoyed that Bryant had thrown away defendant's knife, but cleaned and kept his own knife.
E. The Recovery of the Surgical Gloves:
On February 27, 1993, two days after defendant was interviewed, Lieutenant Patrick Edwardson of the Burlington County Police Department found two latex gloves on the shoulder of Route 130. The next day police recovered two more gloves along side Route 130, approximately one-tenth of a mile from the scene of the murder.
Detective Edward Perrino of the Delran Township Police Department photographed the gloves and placed them in evidence envelopes. He took the gloves to the Delran Police Department, entered their recovery in an evidence log, and placed them in a locked evidence cabinet. On March 1, 1993, Detective Perrino delivered the gloves to Investigator James Bucks of the Burlington County Prosecutor's Office. Bucks stored the gloves in a locked evidence vault, which was protected by an alarm. Two days later, Bucks delivered the gloves to the Federal Bureau of Investigation lab in Washington, D.C. for DNA testing and fingerprint analysis. There, Special Agent John Mertens performed a DNA test on the gloves. The FBI then returned the gloves to the prosecutor's office by registered mail, in accordance with standard FBI procedure.
The test revealed that the DNA of the blood found on one of the gloves matched that of a blood sample taken from defendant. Based on the tests results, Mertens determined the probability that the blood on the glove was defendant's exceeded ninety-nine percent. During the same test, Mertens determined that the blood was not Bryant's. The glove, moreover, contained a cut on the inside of the index finger, matching the cut defendant received on his left index finger during the Eck stabbing. Mertens testified that the slit in the glove was not a result of the DNA testing. Additional DNA tests disclosed that Eck's blood caused other stains on the gloves. In sum, the test revealed the presence of defendant's and Eck's blood, but not Bryant's blood, on the gloves.
On September 16, 1993, a Burlington County grand jury indicted defendant, in connection with the Eck stabbing, of purposeful murder by his own conduct, N.J.S.A. 2C:11-3a(1)&(2); felony murder, N.J.S.A. 2C:11-3a(3); first-degree robbery, N.J.S.A. 2C:15-1; and armed robbery, N.J.S.A. 2C:15-1a(1). In connection with the Chrostowski stabbing, the grand jury indicted defendant on charges of attempted murder, N.J.S.A. 2C:5-1 & 2C:11-3; armed robbery, N.J.S.A. 2C:15-1a(1); first-degree robbery, N.J.S.A. 2C:15-1; second-degree aggravated assault, N.J.S.A. 2C:12-1b(1); and third-degree aggravated assault, N.J.S.A. 2C:12-1b(2). Alonzo Bryant was similarly charged.
The Burlington County prosecutor's office served on defendant a notice of aggravating factors, alleging that the murder involved torture, depravity of mind, or an aggravated assault, N.J.S.A. 2C:11-3c(4)(c); the murder was committed for the purpose of escaping detection or apprehension for another offense, N.J.S.A. 2C:11-3c(4)(f); and that the murder took place in the course of a robbery, N.J.S.A. 2C:11-3c(4)(g).
Before trial, the court ruled on several motions. Without defendant present, the court denied motions to adjourn the proceedings to allow defendant to attend, to close the pretrial proceedings to the public, to dismiss the death counts, to dismiss the indictment, to exclude the victim's family from the proceedings, and to sever the counts of the indictment pertaining to the Chrostowski incident. In subsequent proceedings, the court denied defendant's request to compel the State to turn over the original tapes of defendant's statements so that defendant could test their authenticity. The court ordered redaction of the tapes, which it admitted into evidence at trial. The court denied defendant's motion to suppress his statements made at the time of arrest and before making the taped statements. The court held that the DNA evidence, which had been obtained from the recovered surgical gloves, was admissible.
From March 19, 1996 to May 31, 1996, the court impaneled a jury. The guilt phase took place from June 10, 1996 through June 26, 1996, at the Conclusion of which the jury convicted defendant of all counts except for the attempted murder charge, on which it deadlocked.
Defendant, who had absented himself from part of the jury voir dire and during the guilt-phase deliberations, received the court's permission to be absent from the penalty-phase proceedings, which commenced on June 27, 1996. On July 1, 1996, the jury sentenced defendant to death for the purposeful and knowing murder by his own conduct of Michael Eck.
The jury found that the State had proven the "escape detection or apprehension," N.J.S.A. 2C:11-3c(4)(f), and "murder in the course of robbery," N.J.S.A. 2C:11-3c(4)(g), aggravating factors. It failed to determine by unanimous vote the existence of the "torture or depravity" aggravating factor, N.J.S.A. 2C:11-3c(4)(c), with ten jurors finding its existence and two jurors not finding its existence. By non-unanimous votes, the jury found five mitigating factors. One juror concluded that defendant would probably die in prison; three jurors found that defendant was Doris Morton's only child; seven jurors found that defendant had no prior criminal record; ten jurors found that defendant would not have committed the offense but for Bryant; and ten jurors concluded that defendant would not have participated in the offenses were it not for Bryant. The jurors concluded that the aggravating factors outweighed the mitigating factors. Defendant refused to be present in the courtroom for the announcement of the penalty-phase verdict.
In addition to his death sentence, defendant was sentenced to an aggregate non-capital sentence of forty years imprisonment with twenty years of parole ineligibility.
Defendant appealed, and the State cross-appealed.
In the Law Division, defendant challenged the authenticity of his two taped statements. The first statement, he contended, was inaccurate and incomplete. He denied making the second statement.
During discovery, the State provided the defense with transcripts of the statements and copies of the tapes. Before trial, defendant moved for production of the original tapes to test their authenticity. His contention was that he needed the original tapes, not just copies, for testing. In support of this contention, defendant submitted an affidavit from Thomas J. Owen, an audio and voice identification expert. The defense offered to permit the State, if the original tapes were damaged, to admit copies at trial. Apart from a statement that "defendant submits that the tapes are not accurate and that they have been 'doctored,'" defendant offered no facts supporting his allegation of tampering and fabrication. The trial court, finding no rational basis to warrant testing, denied defendant's request. Indeed, the court characterized the defense motion as "solely a fishing expedition."
Defendant then moved to suppress the tapes. At the suppression hearing, defendant testified. He stated that the first tape omitted some of his answers and included others that he had not given. He denied making the second taped statement and claimed that it was a complete fabrication. After defendant testified, counsel renewed his motion for access to the original tapes. The court held, however, that the evidence did not support defendant's allegations of tampering. In reaching that holding, the court found defendant's testimony to be incredible.
During the guilt phase, the State admitted in evidence portions of the tapes. At the request of defense counsel, the trial court ordered the redaction of certain statements. The redacted portions of the tapes included defendant's statements that he wanted to die for his participation in the stabbing, his desire to kill anyone he encountered in prison, his threat that he would kill again, and his response regarding a stabbing incident occurring two months before Eck's murder. During summation, the State replayed a portion of defendant's redacted second statement.
The court rejected a defense request for an instruction that it had denied defendant's motion for the production of the original tapes. Before the guilt-phase summations, the prosecutor moved to preclude defense counsel from arguing that the State should have tested the tapes. In response, defense counsel represented that he would not mention on summation that the tapes had not been subject to authenticity testing.
Despite his representation, defense counsel in summation stated that the State could have sent the tapes to the FBI for testing, but had failed to do so. In response to the prosecutor's objection, the court provided the prosecutor with two options. First, the court offered to instruct the jury to disregard the challenged part of the defense summation. Alternatively, the court offered to permit the prosecutor to argue that defendant could have obtained the tapes to test their authenticity by submitting sufficient facts to establish "a rational basis for that kind of testing." The court reasoned that, although it had denied defendant's motion for access to the original tapes, defendant could have obtained the tapes if he had presented an adequate factual basis.
The prosecutor chose to respond to defense counsel's statements. Defendant now argues that the court's failure to inform the jury that it had denied his request for the original tapes, in conjunction with the prosecutor's summation, denied him a fair trial and due process.
We hold that the trial court did not err in denying defendant's motion to obtain the original tapes for authenticity testing. Under the Rules of Court, defendant is entitled to "records of statements or confessions, signed or unsigned, by the defendant or copies thereof." R. 3:13-3(c)(2). By producing copies of the tapes and transcripts, the State met its burden of production. Ibid; see State v. Russo, 127 N.J. Super. 286, 289 (App. Div. 1974) (holding State need not provide defendant with transcripts of tapes at its expense); State v. Braeunig, 122 N.J. Super. 319, 328-32 (App. Div. 1973) (holding defendant is entitled to access to tapes for purpose of transcribing contents therein); see also State v. Cook, 43 N.J. 560, 565 (1965) ("[T]he ordinary procedure has been to give defendants copies of their own statements as a matter of course . . . ."). Absent any showing of a factual basis supporting defendant's allegations of tampering and falsification, the State need not have turned over the original tapes for testing.
Because we conclude that the State met its burden of production, we reject defendant's assertion that the prosecutor's failure to turn over the tapes constituted a violation of the rule of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). A Brady violation occurs when a prosecutor fails to turn over material, exculpatory evidence to the defendant. See State v. Marshall, 148 N.J. 89, 189 (1997) (Marshall III); State v. Knight, 145 N.J. 233, 246 (1996). Defendant argues that, by refusing to turn over the original tapes, the prosecution violated Brady. Brady's focus, however, is on the nondisclosure of exculpatory evidence, not on challenges to the evidence's authenticity. See Brady, supra, 373 U.S. at 87, 83 S. Ct. at 1196-97 (finding constitutional violation in prosecutor's failure to notify defendant of existence of co-defendant's inculpatory statement); see also Kyles v. Whitley, 514 U.S. 419, 437-38, 115 S. Ct. 1555, 1567-68, 131 L. Ed. 2d 490 (1995) (finding Brady violation when prosecutor failed to inform defendant of existence of exculpatory evidence).
The prosecution met its burden of disclosure by providing defendant with copies and transcripts of the taped confessions. Moreover, neither of these confessions were exculpatory. See State v. DiFrisco, 118 N.J. 253, 260 (1990) (DiFrisco I) (finding no Brady violation where undisclosed evidence was not exculpatory). Defendant's argument, that the original tapes, if altered, would constitute exculpatory evidence under Brady, is too attenuated. His challenge is directed at the authenticity, not the disclosure, of evidence. As such, defendant must provide more than mere unfounded allegations of tampering to compel the prosecutor to turn over the original tapes for testing.
At the hearing on defendant's motion for production of the original tapes, the trial court found no factual basis supporting defendant's allegation that the tapes were altered or defective. Consequently, the court denied defendant's motion for production. Additionally, the court, after hearing defendant's allegations regarding the tapes at a suppression hearing, concluded that "his testimony in that regard [was] simply not credible." We do not perceive any reason to depart from traditional appellate deference to the trial court's assessment of the credibility of witnesses. State v. Barone, 147 N.J. 599, 615 (1997).
Defendant's allegations, moreover, consist of nothing more than bald assertions, which do not justify granting his request for possession of the original tapes. Cf. State v. Young, 242 N.J. Super. 467 (App. Div. 1990) (refusing to require production of breathalyzer test ampules as part of discovery when there was no basis to believe such production would materially assist defendant's case). Captain King and Officer Stefanoni, who were present during the taping of the statements, denied defendant's claims that the tapes had been doctored and falsified. At trial, moreover, both Williams and Bennett identified defendant's voice on both tapes. The trial court properly concluded that the jury could consider this evidence in making its determination regarding the authenticity of the tapes. See State v. Gallagher, 286 N.J. Super. 1, 18-19 (App. Div. 1995), certif. denied, 146 N.J. 569 (1996); N.J.R.E. 701; see also U.S. v. Magna, 118 F.3d 1173, 1209 (7th Cir. 1997) (noting witness's identification of defendant's voice permissible when witness had previous opportunity to hear defendant's voice, albeit not necessarily during the commission of the crime), cert. denied, ___ U.S. ___, 118 S. Ct. 1104, 140 L. Ed. 2d 158 (1998); People v. Buchanan, 588 N.Y.S.2d 933 (Sup. Ct. 1992) (holding lay witness who knew defendant for fourteen years was competent to testify that defendant's voice was that on inculpatory recording). Defendant's unsubstantiated allegations did not provide grounds for the court to exercise its "inherent power to order discovery when Justice so requires." See Marshall III, supra, 148 N.J. at 269 (quotation omitted). Nor did those allegations outweigh the State's interest in preserving the evidence. See State ex rel. W.C., 85 N.J. 218, 224 (1981) ("Whether discovery should be expanded involves exercising judicial discretion or, put another way, balancing the beneficial effects of discovery against its disadvantages."). Thus, the court did not err in refusing to permit defendant access to the original tapes.
Defendant asserts, however, that he needed the original tapes to analyze their magnetic image. Such an analysis, according to defendant, could reveal whether the interrogating officers had stopped and started the tapes, a procedure that could have resulted in adding statements to or deleting them from the tapes.
Defendant's argument concerning the second taped statement is more succinct. He asserts that it is a complete fabrication. He does not indicate, however, how a magnetic-imaging analysis would support his argument. If, as defendant alleges, the tape is a complete fabrication, a magnetic-imagining analysis would not reveal omissions suggestive of tampering. Thus, the most relevant information regarding the second tape would be evidence tending to prove that the voice on that tape is not defendant's.
The State produced four witnesses: Captain King, Officer, Stefanoni, Vicky Williams, and Carolyn Bennett, who identified defendant's voice on the second tape. Because defendant testified, moreover, the jury could make its own comparison of defendant's voice with that on the tape. If the jury, after such a comparison, believed that defendant had not made the second taped statement, it was free to disregard that statement. Cf. Brown v. State, 903 S.W.2d 160, 163 (Ark. 1995) (noting jury's ability to listen to tape and assess credibility of in-court voice identification). Against that background, defendant's discovery request emerges as nothing more than an "unfocused, haphazard search for evidence." State v. D.R.H., 127 N.J. 249, 256 (1992).
Finally, although defendant's taped statements provided compelling evidence of his guilt, they were not the only evidence inculpating him in Eck's murder. Two witnesses, Williams and Bennett, testified that defendant had admitted to stabbing Eck to death. In addition, James Sireci placed defendant at the scene of the murder minutes before its occurrence. DNA tests revealed a 99.9994% probability that the blood found on the latex glove recovered by the police was that of defendant.
That independent evidence of defendant's guilt distinguishes State v. Thomas, 245 N.J. Super. 428 (App. Div. 1991), appeal dismissed, 130 N.J. 588 (1992), on which defendant relies. In Thomas, the Appellate Division reversed the Law Division and granted the defendant's request for access to a rape kit for DNA testing. 245 N.J. Super. at 432. Because of advances in DNA testing during the pendency of the appeal, the Appellate Division concluded that the test could definitively establish defendant's guilt or innocence. Id. at 436. Underlying Thomas was the Court's recognition of the special circumstances of scientific advances in DNA testing. Here, defendant does not suggest any such special circumstances. On the record before us, nothing supports his allegation of tampering. Even if testing revealed evidence of tampering, moreover, the test results would not conclusively prove defendant's innocence. Accordingly, we agree with the trial court's ruling that defendant did not provide a sufficient factual basis to justify access to the original tapes. If, however, defendant can make a sufficient showing, he may renew his request in a petition for post-conviction relief.
B. Prosecutor's Summation
We turn now to the issue of the propriety of the prosecutor's summation. In conducting our review, we consider the summation within the context of the trial as a whole. State v. Ramseur, 106 N.J. 123, 323 (1987).
At trial, defendant's strategy was to identify Bryant as the aggressor in both attacks. Defendant's taped statements, however, indicated that he was also an aggressor. Defendant claimed that the State had fabricated and falsified the tapes. On cross-examination of the State's witnesses, defense counsel elicited testimony suggesting how the tapes could have been altered. Additionally, the defense elicited testimony from Captain King to the effect that if King believed someone had tampered with the tapes, he would have submitted them to the FBI for testing. Through this testimony, defendant sought to generate the inference that the tapes could have been altered. Implicitly, defendant contends that the State could have done more to verify the authenticity of the tapes. Defendant, however, never has offered any evidence that justifies submission of the tapes for testing. In the absence of test results, however, defendant tried to raise the specter of tampering.
During summation, defense counsel departed from his representation that he would not delve into the State's refusal to test the tapes. The summation succeeded in casting a pall of tampering over the redacted tapes. Defense counsel stated:
How was the first tape edited, how was the second tape prepared? There are questions you have to contemplate as you deliberate. But as you deliberate, remember there were two tape recorders in that room, both under the sole control of Captain King and Detective Stefanoni. And you know that tapes can be edited and tampered with, and Captain King even indicated to you that if he had an audio tape which he thought was tampered with, he would forward it to the Federal Bureau of Investigation.
And again, Captain King did testify if he had an audio tape which he believed had been edited or tampered with in any way, that he would forward it to the Federal Bureau of Investigation for inspection.
And, finally, remember that the Technical Service Unit of Burlington County Prosecutor's office can redact tapes. In fact, that is what was actually done with [the tapes]. You have been given only bits and pieces of what actually happened, and what was said from the time Robert Morton was arrested at 11:09 a.m. on February 25, to almost 10 p.m. that evening. Whose fault is that?
Robert Morton can only provide you with his testimony, since he was under the complete control of Captain King. But why didn't Captain King choose to provide you with a complete record of what happened, rather choose by design or scheme only to provide part of the information?
By arguing to the jury that the State should have tested the authenticity of the tapes, defense counsel contravened his representation to the court. Contrary to defendant's assertion, the redaction of the tapes, which the court ordered to eliminate information prejudicial to defendant, did not constitute tampering.
The trial court acted within its discretion in offering the alternative of either issuing a curative instruction or allowing the prosecutor to address the issue in summation. See State v. Perry, 65 N.J. 45, 48 (1974) (holding prosecutor's response in summation to "heavy handed statements" made by defense counsel in summation did not constitute prejudicial error); State v. Jenkins, 299 N.J. Super. 61, 68-69 (App. Div. 1997) (holding prosecutor's comments on defendant's post-arrest silence were justified in response to defendant's direct-examination testimony and defense counsel's summation); State v. Johnson, 287 N.J. Super. 247, 266 (App. Div.) ("A prosecutor may respond to an issue or argument raised by defense counsel."), certif. denied, 144 N.J. 587 (1996); State v. Engel, 249 N.J. Super. 336, 379 (App. Div.) (holding prosecutor's forceful statements in defense of integrity of investigation not error when made in response to defense counsel's summation comments describing State's case as a "big lie," "a disgrace," and "an outrage"), certif. denied, 130 N.J. 393 (1991).
In his summation, the prosecutor responded:
Now, you heard the suggestion raised by Defense Counsel if the prosecution wanted to demonstrate the authenticity of the contents of [the tape] they could have sent it to the FBI or to some other expert, in an attempt to obtain a scientific as to whether the tape is or is not genuine. One thing you may not be aware of as laymen is that's not the exclusive province or ability of the prosecution. Both sides exchange to a limited degree information prior to trial.
Both sides exchange information prior to trial. You've seen Defense Counsel cross-examining witnesses with copies of police reports that they've obviously been provided with by the prosecution. That is called discovery.
Both sides also have the subpoena power. Robert Morton is the one who got on the witness stand and testified to you it's not his voice on the statement, and the contents of that statement are not genuine. If the defense wanted you to hear any evidence, any opinion, if there even would be such information, they had every bit as much opportunity as the prosecution did to present any evidence, conduct any inspections, or do any examinations of the tape they wanted to attempt to demonstrate that to you. It wasn't done; you've heard no such evidence.
You also heard a very logical explanation from Captain King, he was questioned about that on cross-examination, ["]I could have the contents of the tape examined if I thought it wasn't genuine.["] King and Stefanoni believed the tape was a genuine, fluent tape, was genuine, it was the recording that they made in their presence. If the defense wanted to pursue any other line of argument or attack upon that statement, they had the opportunity to do so. That's all I'm going to say about it.
That tape is genuine. It's a taped confession from Robert Morton. And with regard to the second statement, and his description of this crime, and how he committed it, the evidence shows that it's the truth. So, we close the book on that chapter and move on.
The summation suggested that because defendant could have subpoenaed the tapes, he had access to them. In making that suggestion, however, the prosecutor failed to explain that defendant could have obtained the tape only by making an adequate factual showing. To this extent, the statement was both incomplete and inaccurate.
In response, defendant requested a jury instruction that the court had twice rejected his request for access to the original tapes. The court denied the request. If the court had granted the request, the jury might have concluded that the tapes were genuine. Such an instruction could have redounded to defendant's detriment. Cf. State v. Bowman, 165 N.J. Super. 531, 537 (App. Div. 1979) (holding prosecutor's statement to jury on summation that the trial Judge had previously found defendant's confessions to be voluntary constituted reversible error). We conclude that the denial of defendant's requested instruction did not prejudice him.
In addition, we hold that the prosecutor's statement, when considered in the context of the entire trial, did not constitute reversible error. See State v. Feaster, ___ N.J. ___, ___ (1998) ("[P]rosecutorial misconduct will not serve as the basis for reversal unless it was so egregious as to work a deprivation of a defendant's right to a fair trial."); State v. Marshall, 123 N.J. 1, 163 (1991) (Marshall I) (holding improper closing statement by prosecutor not requiring reversal of defendant's conviction and death sentence), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993); Johnson, supra, 287 N.J. Super. at 265 ("Prosecutorial misconduct must be clear and unmistakable and must substantially prejudice the defendant's fundamental right to have the jury fairly evaluate the merits of his defense.") (citation omitted). When compared with cases in which closing statements have constituted reversible error, the prosecutor's statement in this case was not nearly so egregious. See, e.g., State v. Rose, 112 N.J. 454, 518-34 (1988) (finding reversible error in prosecutor's summation in which he argued that the defense expert's testimony was fabricated, extolled the jury to "send a message" by sentencing defendant to death, stated, without evidentiary support, that defendant extorted food from other inmates while in prison, and instructed the jury that it was legally required to impose the death penalty); Jenkins, supra, 299 N.J. Super. at 69 (holding prosecutor's statements in summation of her personal opinions regarding defendant's credibility to be reversible error); State v. W.L., 292 N.J. Super. 100, 110-111 (App. Div. 1996) (finding reversible error in prosecutor's statements that were "calculated to arouse sympathy for the victim and hate and anger against the defendant" and that described the jury charge as "boring, confusing, and ridiculous"); State v. Acker, 265 N.J. Super. 351, 356 (App. Div.) (finding reversible error in prosecutor's statements characterizing defense counsel as "outrageous, remarkable, absolutely preposterous and absolutely outrageous," instructing jury that its function was to protect young victims of alleged sexual offenses as a group, and arguing without basis that defendant was intoxicated at the time of the alleged offense), certif. denied, 134 N.J. 485 (1993); State v. Bruce, 72 N.J. Super. 247 (App. Div. 1961) (holding prosecutor's summation in which he called defendants "animals" and "brutes" reversible error where such statements were not part of any testimony).
Defendant has not included in the record any evidence of tampering or falsification. Nor has he identified any audible breaks or sounds suggesting that Officers King and Stefanoni selectively started and stopped the tapes. In sum, defendant has not offered any evidence, other than his own testimony, that it was not his voice on the second tape. By contrast, the State has introduced testimony identifying defendant's voice as that on both tapes. It has also introduced significant evidence of defendant's guilt independent of the tapes. In light of those facts, we find that the prosecutor's statements in summation did not constitute reversible error.
A. Tailoring the Charge to the Facts:
Defendant argues that the trial court insufficiently tailored the charge to the facts of the case, thereby denying him a fair trial. Specifically, defendant argues that "the court barely discussed the application of the facts to the law, and failed entirely to give any guidance to the jury that took into account the defendant's version of the events." Our examination leads us to conclude however that the charge as a whole did not contain reversible error.
Because defendant objects to the charge for the first time on appeal, we review the objection under the plain error standard. R. 2:10-2; see State v. Afanador, 151 N.J. 41, 54 (1997); State v. Gartland, 149 N.J. 456, 473 (1997). Under that standard, defendant has the burden of proving that the error was clear and obvious and that it affected his substantial rights. State v. Chew, 150 N.J. 30, 82 (1997); see also United States v. Olano, 507 U.S. 725, 734, 113 S. Ct. 1770, 1778, 123 L. Ed. 2d 508 (1993) ("It is the defendant rather than the Government who bears the burden of persuasion with respect to prejudice.").
During the charge, the trial court used an overhead projector and handouts to delineate the elements of the various offenses. In addition, the court distributed a verdict sheet that provided further guidance to the jury.
Defendant contends that specific portions of the charge demonstrate the court's failure to tailor the charge to account for his theory of the case. Our review of the charge as a whole, however, leads us to the opposite Conclusion. The trial court specifically instructed the jury, consistent with defendant's theory of the case, that mere presence at the scene of the crime was insufficient to find defendant guilty of murder. In addition, during the instructions on accomplice liability and conspiracy, the court informed the jury of the legal significance of a determination that Bryant, rather than defendant, committed the actual murder. At times, the court wove the facts into the charge, and charged the jury that its comments on the facts were not binding on the jury. In sum, the charge neither presented a biased account of the facts nor foreclosed the jury's consideration of defendant's theory of the case. See Gartland, supra, 149 N.J. at 474; State v. Bryant, 288 N.J. Super. 27, 37 (App. Div.), certif. denied, 144 N.J. 589 (1996).
Additionally, the facts were not so complex or confusing as to require an intricate Discussion in the charge. See State v. Biegenwald, 106 N.J. 13, 44-45 (1987) (Biegenwald I). Defendant's "mere presence" defense did not require the jury to distinguish among several possible mental states of the accused. Cf. State v. Martin, 119 N.J. 2, 18 (1990) (noting that, for "nettlesome proposition[s]" like causation, criminal knowledge, or intent, a Discussion of the facts should be woven into the charge); State v. Concepcion, 111 N.J. 373, 380 (1988) (holding, in case involving a determination of several degrees of intent, that a thorough Discussion of the facts should have been woven into the charge). When measured by the plain error standard, even cases involving more complex determinations do not necessarily require an intricate explication of the facts. See Gartland, supra, 149 N.J. at 474 (holding no plain error in failing to weave facts into charge when charge did not foreclose jury's consideration of facts favorable to defendant and did not confuse or mislead jury in its deliberations). Compare State v. Delibero, 149 N.J. 90, 106 (1997) (holding no plain error in jury instruction that was not erroneous, but simply "capable of being improved"), with Afanador, supra, 151 N.J. at 56 (holding incorrect jury instruction to be plain error).
In summation, moreover, defense counsel forcefully argued that defendant was merely present, but had not participated in the stabbings. The argument of counsel, although not a substitute for a correct charge, can mitigate the prejudicial effect of an erroneous charge. See Marshall I, supra, 123 N.J. at 145. In sum, the jury was aware of defendant's theory of the case, and the charge provided the jury with an opportunity to accept or reject that theory.
B. The Own-Conduct Instruction:
Defendant also challenges the adequacy of the "own-conduct" instruction. He argues that the instruction permitted the jury to decide that defendant by his own conduct had killed Eck, even if the jury could not agree that defendant had delivered one of the fatal stab wounds. According to the defendant, the instruction precluded the jury from reaching a non-unanimous own-conduct determination, which would have resulted in a sentence of life imprisonment with a thirty-year parole disqualifier rather than death. See N.J.S.A. 2C:11-3b(1). Defendant also argues that the court erred in failing to inform the jury that, if defendant was not found guilty of death-eligible murder, he would be subject to the severe penalty of life imprisonment with a thirty-year parole disqualifier.
As a result of this Court's opinion last term in State v. Cooper, 151 N.J. 326 (1997), the trial court was not required to inform the jury that, absent a death-eligible conviction, defendant would be subject to a term of life imprisonment with a 30-year parole disqualifier. Id. at 377-78. Defendant's case, moreover, was tried before our decision in Cooper. Consequently, the trial court was not obligated to follow Cooper's prospective direction that in the future courts should inform the guilt-phase jury of the "severe prison sentence" to which the defendant would be subject if found guilty of non-capital murder. Id. at 378-79.
Nor did the court err by failing to require the jury to find, as a prerequisite to the own-conduct determination, that defendant had inflicted one of the fatal blows. See State v. Gerald, 113 N.J. 40, 97 (1988) (overruled on other grounds by constitutional amendment). The court's instruction on the own-conduct determination stated in part:
In this case, the phrase "by his own conduct" means either that, one, Robert Morton struck the knife blow which killed Mr. Eck, or two, that Robert Morton, along with Alonzo Bryant, inflicted stab wounds upon Michael Eck, and that when he did so it was Robert Morton's purpose that Michael Eck should die from the wounds, or he was aware that it was practically certain that Michael Eck would die from the knife wounds.
Under this instruction, the jury, without deciding that defendant had struck the fatal blow, could find that he had killed by his own conduct if it decided that both defendant and Bryant inflicted knife wounds on Eck. As we stated in Gerald, supra:
[T]he focus on the actions of the defendant, as required by the "own conduct" language, does not necessitate a specific finding that the defendant's actions standing alone caused the victim's death. The relevant inquiry is whether or not the defendant actively and directly participated in the homicidal act, i.e., in the infliction of the injuries from which the victim died. The critical elements are ...