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State v. Castro

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 3, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JEFFREY CASTRO, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Essex County, Indictment No. 03-01-0422.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 31, 2007

Before Judges Wefing, Yannotti and Messano.

Defendant Jeffrey Castro was charged as a juvenile with the murder of Julio Torres. After a waiver hearing in the Family Part, defendant was indicted by the Essex County grand jury of murder, in violation of N.J.S.A. 2C:11-3a (Count One); unlawful possession of a handgun, in violation of N.J.S.A. 2C:39-5b (Count Two); and possession of a handgun for an unlawful purpose, in violation of N.J.S.A. 2C:39-4a (Count Three). At trial, the lesser included offenses of aggravated manslaughter, in violation of N.J.S.A. 2C:11-4a, reckless manslaughter, in violation of N.J.S.A. 2C:11-4b(1), and passion-provocation manslaughter, in violation of N.J.S.A. 2C:11-4b(2) were submitted to the jury. Defendant was acquitted of murder and possession of a handgun for an unlawful purpose; the jury found him guilty of aggravated manslaughter and unlawful possession of the handgun. On the aggravated manslaughter count, the judge sentenced defendant to a term of twenty-four years, eighty-five percent of which was to be served without parole; on the firearm count, he was sentenced to a concurrent term of five years imprisonment.

Defendant raises three issues on appeal.

POINT I

REPEATED, EGREGIOUS MISCONDUCT BY THE PROSECUTOR DEPRIVED THE DEFENDANT OF HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL. U.S. CONST. AMEND. VI, XIV; N.J. CONST. ART. I, §§ 1, 10. (PARTIALLY RAISED BELOW)

A. The prosecutor disparaged defense counsel and the defendant in many ways, including suggesting that defendant had tailored his testimony after hearing the witnesses testify against him.

B. The prosecutor used defendant's silence to impugn his self-defense claim.

C. The prosecutor elicited expert testimony that fingerprints could not be taken from shell casings, but [the witness] was not qualified to testify as a fingerprint or ballistics expert.

POINT II

THE ADMISSION OF EVIDENCE THAT DEFENDANT LAUGHED WHEN VIEWING AUTOPSY PHOTOGRAPHS DENIED DEFENDANT A FAIR TRIAL.

POINT III

THE SENTENCE WAS EXCESSIVE, AND A REMAND IS REQUIRED PURSUANT TO STATE V. NATALE, 184 N.J. 458 (2005).

We have carefully considered these issues in light of the trial record and appropriate legal standards. We affirm defendant's conviction, but remand the matter for re-sentencing in accordance with Natale.

I.

Defendant admitted that he shot and killed Torres who was nineteen-years old and known in the neighborhood where both lived as "King Face," a reference to the victim's status as a high-ranking member of the Latin Kings gang. The essential issue at trial was whether defendant acted in self-defense.

Shortly after midnight, on January 26, 2002, defendant, seventeen-years old at the time, accompanied his boyhood friend Alexis Semidey, to the Flamboyan Manor Nightclub in Newark. Both had smoked marijuana earlier in the evening and Semidey testified the bar was crowded with people. He and defendant went into the backroom to shoot pool and have some drinks. Semidey saw Torres, who he knew was the "second crown" or leader of the Latin Kings, in the backroom with other people he knew to be gang members. Soon, Torres and defendant were exchanging "hard looks," and arguing with each other. A bouncer separated the men as they headed toward the front door of the club.

Semidey saw Torres punch defendant in the face and heard him threaten to kill defendant. As Semidey, Torres, other gang members, defendant and a small crowd of onlookers pushed through the front door onto the sidewalk, defendant pulled a gun. Torres began to run away, defendant fired a shot in his direction which struck Torres in his back, and he immediately collapsed in the street. Semidey then saw defendant walk over to Torres and fire several more shots into his body as he said, "That's what you get for playing me out." Semidey testified Torres had no weapon.

Semidey and defendant ran back to Semidey's apartment. Dahlia Morfia, Semidey's girlfriend, testified she was present when the two returned from the nightclub. She confirmed that defendant was carrying a black and chrome gun and said he had "just mercked" someone, which is gang slang for having murdered someone. Defendant left with Semidey's sister. Morfia and Semidey went into hiding until February 1 when they decided to tell their stories to the Newark police.

Luis Cancel, an off-duty Newark police officer and his girlfriend, Doris Torres (no relation to the victim), testified they were just arriving at the entrance to the Flamboyan Manor, when a small, raucous crowd pushed through the front door of the nightclub and onto the sidewalk. Cancel saw the silhouette of a dark colored gun held in the air. Cancel heard two shots followed by several rapid rounds he immediately identified as 9 mm. gunfire. Cancel could not identify who was the shooter. He saw some individuals run up to the victim as he lay on the ground and then saw two of those men jump into a black Maxima that was driving slowly down the street. As the Maxima sped away, Cancel ran to his car and called for backup.

Doris Torres's testimony confirmed much of Cancel's account. She, too, could not identify the shooter, though she confirmed that the victim was shot several times as he lay on the ground. Delores Torres did not see the victim with a gun but acknowledged she could not see his hands.

Investigator John Cosgrove, a crime scene investigator for the Essex County Prosecutor's Office, arrived at the scene, took pictures, and gathered evidence. He testified that he recovered four spent shell casings and one bullet in the immediate vicinity of the victim's body. He also found two spent shell casings in closer proximity to the front door of the Flamboyan Manor. On cross-examination, defense counsel asked Cosgrove whether he had ever "take[n] any fingerprints of (sic) the shell casings." Cosgrove replied he did not. On re-direct examination, without objection, Cosgrove explained that shell casings are never analyzed for fingerprints because: 1) they are small; and 2) any print on the casing would evaporate because of the release of hot gases during the firing of the weapon and ejection of the shell.

Sal Russomanno, a ballistics expert with the Newark Police Department, also testified. He stated that the six shell casings and five spent bullets recovered from the scene and the victim's body were all fired from the same 9 mm. semi-automatic or automatic weapon.

Investigator Richard Gregory, who was at the time with the Essex County Prosecutor's Office Homicide Unit, was the primary investigator assigned to the homicide investigation. On March 21, 2002, when defendant voluntarily surrendered to the police, Gregory took a formal statement from him.

In his statement, defendant claimed Torres had pulled a gun on him as they exited the Flamboyan Manor. Defendant asserted that he then pulled out his gun, Torres ran and he shot Torres first. Defendant saw Torres fall, and then he "ran up to him and continued shooting him to make sure he didn't get up." Defendant claimed that he ran after dropping his gun next to Torre's body. Defendant purchased the 9 mm. gun on the street in his neighborhood about a week before the shooting for $300. When asked why he decided to turn himself in, defendant answered, "Just to get it over with and I was told you guys would . . . start the trial without me present and I would get the maximum penalty."

Dr. Lyla Perez, the Essex County Medical Examiner, testified that Torres sustained a total of six gunshot wounds to his back, forehead, left eye, upper right lip, right cheek, and left forearm. She opined that the shot to his back was the first shot that struck him and it severed his spinal cord, immediately paralyzing Torres from the waist down. The multiple gun shot wounds to his head were the cause of Torres's death and were inflicted at very close range. The gunshot wound to Torres's forearm was essentially a contact wound and was likely defensive in nature. With the conclusion of the medical examiner's testimony, the State rested.

The defense case began with the testimony of Enrique Zayas, who was in the bar on the night of the shooting. Zayas testified that there came a time when a large crowd of people rushed toward the front of the bar. Zayas saw a handgun being waived around in the air by a man wearing a "gray skullie" on his head. Through other witnesses, it was established that defendant was probably bare-headed that night, and definitely was not wearing a "gray skullie." Zayas did not leave the bar and did not know what occurred on the street outside. After defendant testified, Pedro Flores was called as a defense witness. He testified that Torres was a member of the Latin Kings gang and had a reputation for violence in the community.*fn1

Defendant's testimony largely mirrored the description of the night's events contained in his formal statement to the police with some additional details. Defendant knew Torres as "King Face," and knew he was a leader of the Latin Kings. Defendant claimed Torres always "carrie[d] a gun," was in "charge of a lot of drug dealing," and had threatened defendant's friends in the past. These details were not contained in defendant's statement to the police.

Defendant now also claimed a second friend of Torres had a gun, though he acknowledged he never told that to the police. As he exited the Flamboyan Manor, defendant ran and Torres and the other man pursued him. He heard Torres say "Bust him," and he turned to see Torres pointing a gun in his direction. Defendant testified he shot first and Torres went down. Defendant claimed that while lying on the ground, Torres pointed his weapon toward defendant and threatened to kill him. This also was a fact that defendant did not tell the police when he gave his statement. Defendant shot Torres several more times before fleeing with Semidey.

II.

In Points I(a) and (b), defendant contends that the alleged misconduct of the assistant prosecutor throughout the trial was sufficiently egregious as to warrant a new trial.

"Prosecutors occupy a unique position in the criminal justice system and their primary duty is not to obtain convictions, but to see that justice is done." State v. Zola, 112 N.J. 384, 426 (1988), cert. denied, 489 U.S. 1022, 109 S.Ct. 1146, 103 L.Ed. 2d 205 (1989); State v. Ramseur, 106 N.J. 123, 320 (1987). Prosecutorial misconduct, however, provides no basis for reversal of a defendant's conviction unless it was so egregious that it deprived the defendant of a fair trial. State v. DiFrisco, 137 N.J. 434, 474 (1994), cert. denied, 516 U.S. 1129, 116 S.Ct. 949, 133 L.Ed. 2d 873 (1996); Ramseur, supra, 106 N.J. at 322. The prosecutor's conduct must constitute a clear infraction and substantially prejudice the defendant's fundamental right to have the jury fairly evaluate the merits of his or her defense in order to warrant a reversal. State v. Roach, 146 N.J. 208, 219, cert. denied, 519 U.S. 1021, 117 S.Ct. 540, 136 L.Ed. 2d 424 (1996). During summation, a prosecutor is duty bound to confine his or her comments to the facts revealed during trial and the reasonable inferences to be drawn from that evidence, State v. Acker, 265 N.J. Super. 351, 357 (App. Div.), certif. denied, 134 N.J. 485 (1993), though not every departure from this requirement mandates reversal. State v. Johnson, 216 N.J. Super. 588, 614 (App. Div.), certif. denied, 107 N.J. 647 (1987).

In evaluating whether prosecutorial misconduct warrants reversal, we also consider "whether defense counsel made a timely and proper objection, whether the remark was withdrawn promptly, and whether the [judge] ordered the remarks stricken from the record and instructed the jury to disregard them." State v. Marshall, 123 N.J. 1, 153 (1991), (quoting Ramseur, supra, 106 N.J. at 322-23), cert. denied, 507 U.S. 929, 113 S.Ct. 1306, 122 L.Ed. 2d 694 (1993). With these general principles in mind, we consider defendant's allegations of prosecutorial misconduct in this case.

A.

Defendant contends that the prosecutor's repeated references during cross-examination and summation, to his alleged failure to provide exculpatory details of the events in his statement to the police were improper and violated his right against self-incrimination. State v. Muhammad, 182 N.J. 551, 565-66 (2005); State v. Lyle, 73 N.J. 403, 410-11 (1977). We consider this specific claim of prosecutorial misconduct first.

Most recently, our Supreme Court decided a trio of cases in which it re-examined its holding in Muhammad. State v. Brown, 190 N.J. 144 (2007); State v. Elkwisni, 190 N.J. 169 (2007); State v. Tucker, 190 N.J. 183 (2007). Tucker presents a fact pattern most similar to the one at hand.

In Tucker, defendant provided a series of statements to the police both before and after he was administered his Miranda*fn2 warnings and charged with his mother's murder. Tucker, supra, 190 N.J. at 185-86. During all the interviews, the defendant never admitted that just before her death he accompanied his mother into her bank while she withdrew a large sum of money. Id. at 187. Defendant did not testify at trial. Ibid. In his opening statement, during the examination of various police witnesses, and during summation, the prosecutor stressed that defendant's story had repeatedly changed from statement to statement and that he never told the police he accompanied his mother into the bank, a fact revealed by surveillance tapes from the bank that showed defendant standing behind his mother. Ibid.

In reversing defendant's felony-murder conviction, a panel of our colleagues concluded such prosecutorial comments violated Muhammad's holding that the State may not comment on defendant's silence "while in custody, under interrogation, or 'at or near' the time of his arrest." Muhammad, supra, 182 N.J. at 558. Following the reasoning of Anderson v. Charles, 447 U.S. 404, 100 S.Ct. 2180, 65 L.Ed. 2d 222 (1980), however, the Supreme Court concluded

A defendant's right to remain silent is not violated when the State cross-examines a defendant on the differences between a post-Miranda statement and testimony at trial. When a defendant agrees to give a statement, he or she has not remained silent, but has spoken. Thus, we conclude that it is not an infringement of defendant's right to remain silent for the State to point out differences in the defendant's testimony at trial and his or her statements that were freely given. [Tucker, supra, 190 N.J. at 189.]

After reversing our judgment, the Court remanded the matter to us to resolve other issues presented by the appeal. Id. at 191.

In light of Tucker, the contention that the prosecutor committed misconduct by highlighting inconsistencies between defendant's trial testimony and his prior statement to the police is simply unavailing.

B.

Defendant contends that while being cross-examined, the assistant prosecutor implied that he was "tailoring" his testimony -- fitting it to that of the witnesses who testified before. He argues this violates the Supreme Court's holding in State v. Daniels, 182 N.J. 80 (2004), and requires reversal of his conviction.

Defendant points to the following exchange:

Q: You sat here all week listening to witness after witness testify against you, correct?

A: Yes.

Q: And you don't want to be convicted, do you?

A: No.

Q: As a matter of fact, you will say what you (sic) got to say to get out of this, right?

A: I'll say the truth.

In Daniels, the prosecutor commented in summation that

[T]he defendant sits with counsel, listens to the entire case and he listens to each one of the State's witness[es], he knows what facts he can't get past . . . . [H]e can choose to craft his version to accommodate those facts. [Id. at 87.]

The Court concluded that "prosecutors are prohibited from making generic accusations of tailoring" -- where there is no specific evidence that defendant tailored his testimony -- "during summation." Id. at 98. Where there is evidence in the record of a defendant tailoring his testimony -- "specific tailoring," -- however, the prosecutor may comment in a limited way. Id. at 98-99. The Court applied the same analysis to a prosecutor's cross-examination of a defendant. Id. at 99. "However at no time during cross-examination may a prosecutor reference the defendant's attendance at trial or his ability to hear the testimony of preceding witnesses." Ibid. Based upon the comment referenced above, the Court reversed defendant's robbery conviction. Id. at 102.

Pursuant to the holding in Daniels, we agree that the prosecutor's cross-examination was inappropriate. The prosecutor implied that defendant tailored his testimony based upon what he heard while present at trial, "a place where the defendant [was] constitutionally authorized to be." Id. at 99-100.

Daniels, however, was decided after defendant's conviction.*fn3

The State argues Daniels announced a new rule of law and should not be applied retroactively to this case. Defendant argues Daniels did not announce a new rule and, therefore, no retroactivity analysis is required. Alternatively, defendant argues that the rule announced in Daniels ought to be accorded, at a minimum, "pipeline" retroactivity and applied to the facts at hand. See State v. Colbert, 190 N.J. 14, 22-23 (2007)(discussing the four options available when considering retroactive application of a new rule of law).

The Daniels Court did not conduct any retroactivity analysis. We have yet to consider the issue directly in a reported decision; however, a panel of our colleagues has apparently accorded pipeline retroactivity to Daniels. State v. Roman, 382 N.J. Super. 44, 58-59 (App. Div. 2005), certif. granted, 188 N.J. 219 (2006), certif. dismissed, 189 N.J. 420 (2007).*fn4

We note, however, that when the Daniels Court turned its attention to accusations of "tailoring" in a prosecutor's cross-examination of a defendant, it stated,

Although not raised by defendant at trial or before this Court, we recognize that both trial courts and litigants may have questions as to whether, and to what extent, our opinion concerning prosecutorial summation applies to cross-examination by the State. For future guidance, the same analysis that we have provided for summations applies also to cross-examination. [Daniels, supra, 182 N.J. at 99 (emphasis added).]

We therefore conclude that the Court intended to limit its holding regarding the permissible bounds of prosecutorial cross-examination of a defendant and to apply the new rule prospectively to future cases. Hence, Daniels does not control our consideration of this issue.

Prior to the decision in Daniels, the prosecutor's cross-examination in this case, which proceeded without defense objection, would not compel reversal of defendant's conviction. See State v. Buscham, 360 N.J. Super. 346, 366 (App. Div. 2003)(holding that prosecutor's suggestion during cross-examination that defendant tailored his testimony was not plain error); State v. Robinson, 157 N.J. Super. 118, 120 (App. Div.) (concluding that summation comments accusing defendant of tailoring his testimony were proper), certif. denied, 77 N.J. 484 (1978); but see State v. Eason, 138 N.J. Super. 249, 259 (App. Div. 1975)(disapproving summation comments that suggested defendant tailored his testimony).

Moreover, even if we have misinterpreted the Court's intention and Daniels applies to this case, we are convinced that the prosecutor's single, fleeting implication during cross-examination does not warrant reversal. Our colleagues in Roman considered a similar situation in which the prosecutor "cross-examined by stressing that defendant had access to the State's case through discovery and 'had the opportunity to listen to every one of the State's witness[es].'" Roman, supra, 382 N.J. Super. at 58. Despite this violation of Daniels, and other instances of prosecutorial excesses, the Roman court concluded that the "prosecutor's misconduct did not cause the jurors to reach a result that they would not otherwise have reached." Id. at 61.

We conclude that while the prosecutor's cross-examination of defendant in this regard was improper under Daniels, it was limited to this one exchange, an implicit suggestion that defendant would tailor his testimony after having heard all of the other witnesses. As we discuss in further detail below, in view of all the other evidence in the case, we are convinced the line of questioning did not deprive defendant of a fair trial and does not warrant reversal. State v. Josephs, 174 N.J. 44, 124 (2002).

C.

Defendant's final contention regarding prosecutorial misconduct asserts that the prosecutor generally demeaned and disparaged defendant and defense counsel throughout the trial, and in particular suggested the defense was "constructed." In large measure, except as noted hereafter, these alleged improprieties occurred without objection from defense counsel.

"It is clearly improper for a prosecutor 'to demean the role of defense counsel or cast aspersions upon a lawyer's motives. It is likewise improper for a prosecutor, without support in the evidence, to accuse a defendant of conspiring with his counsel to conceal and distort the truth.'" State v. Setzer, 268 N.J. Super. 553, 565 (1993) (quoting State v. Darrian, 255 N.J. Super. 435, 457 (App. Div.), certif. denied, 130 N.J. 13 (1992)), certif. denied, 135 N.J. 468 (1994). It is similarly improper for the prosecutor to impugn defense counsel by implying, without basis, that he attempted to fabricate the testimony of other witnesses. State v. Nelson, 173 N.J. 417, 461 (2002); State v. Rose, 112 N.J. 454, 518-19 (1988).

Nor may the prosecutor argue that defense counsel is attempting to confuse the jury or deceive them by presenting a defense. See State v. Frost, 158 N.J. 76, 86 (1999) (finding prosecutor's summation comments suggesting defense counsel's summation was "lawyer talk" was improper); see also State v. Lockett, 249 N.J. Super. 428, 434 (App. Div.)(prosecutor's characterization of defense as "smoke" was improper), certif. denied, 135 N.J. 468 (1994). With these general principles in mind, we turn to the specific instances of prosecutorial misconduct alleged by defendant.

During direct-examination of Semidey, the following exchange took place:

Q: Did Face have gun on him?

A: I didn't see a gun, sir.

Q: Are you a hundred percent sure that Face had no gun?

A: Yes sir.

Q: Now, the attorney here [defense counsel] do you know him?

A: Yes, sir.

Q: Has he called you? A: Yes, sir.

Q: Has he attempted to make you say that there was a gun? [Defense Counsel]: Objection your Honor. [The Court]: Sustained, foundation. Rephrase the question.

Q: Have you had any discussions with [defense counsel] about Face having a gun?

A: Yes, sir.

Q: Okay. What were those discussions about?

A: He was telling me Face had a gun.

Q: But did he?

A: No.

[Emphasis added.]

Defendant contends the prosecutor's suggestion that defense counsel was attempting to mold the witness's testimony was improper.

We note that on this occasion there was a timely objection by defense counsel to the question. The judge immediately sustained the objection and required the prosecutor to provide a proper foundation for the inquiry. When the prosecutor resumed, the exchange reveals that there was indeed some good faith basis for the prosecutor's question -- Semidey claimed that despite his clear recollection that the victim was unarmed, defense counsel called him, spoke to him, and told him that the victim had a gun. We do not believe the prosecutor's direct examination was improper.

We are more troubled by the implied and direct attacks upon the defense during cross-examination of defendant and during the prosecutor's summation. During cross-examination, the following exchange took place:

Q: And you had an opportunity to say whatever you want because you had approximately 60 days to think about this truth that you wanted to come out, right? Right, sir?

A: I had time to think, yes, but I just told the truth.

Q: Isn't it a fact that during that 60 days while you were staying at a friend's house, you had all the time in the world to think about all the justification that you had and all of the reasons that you had for doing this thing, correct?

A: Yes, but it didn't occur that way.

Q: Why didn't you tell the police all of these horrible things, that [the victim] was a drug dealer, that he was a shooter, that he was -- whatever, he attacked all these people, how come that comes out now, sir?

Q: But now you know all of these horrible things about this victim. Did this man here, [defense counsel] tell you to say those things? Did he say it would be helpful for the case?

A: No.

Q: He never told you that?

A: No.

[Emphasis added.]

The following exchange occurred later in the cross-examination:

Q: Now, you claimed that there was some guy there that had pulled out a gun?

A: Yeah. It was two or three guys there but one of them pulled out a gun that I seen, yes.

Q: And that person pulled out the gun, you make no mention of that in your statement [to police], do you?

A: No.

Q: You don't?

A: No.

Q: Did [defense counsel] say that would be helpful if you mentioned that?

A: No.

[Emphasis added.]

The judge overruled defense counsel's objection stating, "It is cross-examination." The question was improper. The record discloses no reasonable, factual basis for the inquiry. Moreover, the prosecutor was seeking to elicit from defendant testimony of potentially privileged conversations with his attorney. See N.J.R.E. 504.

In his summation, the prosecutor emphasized the inconsistencies between defendant's statement to the police, and his trial testimony. At one point, he described the testimony as having been "constructed falsely." He repeatedly emphasized that the defendant had fifty-four days to "think[] about what he was going to explain," and "what he was going to say as justification," finally noting

So which one is the truth? The one that took him 54 days to come up with or the one that he came up with yesterday after two years?

Later in his summation, the prosecutor attempted to rebut defense counsel's comments in summation regarding Torres's alleged violent nature.

This is character assassination from the first minute of this trial. From the first minute of this trial, it was character assassination. This defendant assassinated his body, this defense attorney assassinated Julio Torres'[s] character.

Shortly thereafter, the prosecutor claimed defense counsel called the victim "a piece of trash." Our review of defense counsel's summation reveals no such reference.

We have often noted "prosecutors in criminal cases are expected to make vigorous and forceful closing arguments to juries." Frost, supra, 158 N.J. at 82. They are therefore allowed "considerable leeway in closing arguments as long as their comments are reasonably related to the scope of the evidence presented." Ibid. Additionally, as long as the comments do not misstate the evidence, prosecutors are permitted to rebut the specific arguments made by defense counsel. See State v. Mahoney, 188 N.J. 359, 376-77 (2006)(holding "prosecutor's comments . . . placed an unforgiving and harsh glare on . . . defense" but were permissible); see also State v. Morais, 359 N.J. Super. 123, 131 (App. Div.)(holding prosecutor may respond to defense counsel's arguments as long as comments "do not stray beyond the evidence"), certif. denied, 177 N.J. 572 (2003).

We note that defense counsel's summation emphasized Torres's violent nature lending support to defendant's claim that he reasonably apprehended danger to himself and thus acted in self-defense. Defense counsel called Torres "a menace to society," a "violent individual," someone known as "a violent animal," and someone "who should be the defendant here." We also note that Torres's reputation in the community for violence was a subject in dispute and there was divergent testimony on the issue from both sides. While we disapprove of the inflammatory rhetoric utilized by the attorneys, and it would have been advisable if each had shown more restraint on this issue, we cannot conclude that the prosecutor's characterization of the defense tactics as "character assassination" requires reversal.

The improper cross-examination of defendant and the summation comments regarding a falsely "constructed" defense however, are more troubling. We strongly condemn the prosecutor's attempts to suggest, without any apparent basis, that defense counsel and defendant schemed to embellish the truth.

The essential inquiry, however, is whether these prosecutorial misdeeds require reversal because they deprived defendant of a fair trial. As we noted above, in this context, we consider whether the improper conduct drew an objection from defense counsel. "The failure to object suggests that defense counsel did not believe the remarks were prejudicial at the time they were made," and it "deprives the court of an opportunity to take curative action." Frost, supra, 158 N.J. at 84. Here, defense counsel failed to object to virtually all the statements we have set forth at length.

We conclude that the prosecutor's misconduct did not cause the jury to reach a result they would not otherwise have reached. See R. 2:10-2. "When all of the offending conduct is considered against the strength of the State's evidence, we cannot conclude that the prosecutor's tactics deprived defendant of a verdict that fairly reflected the evidence." Roman, supra, 382 N.J. Super. at 61; see State v. Hightower, 120 N.J. 378, 412 (1990)(noting that the "strength of the State's case served to minimize any prejudice").

The evidence against defendant was overwhelming and would have clearly supported a conviction for murder. Except for defendant, no other witness placed a gun in Torres's hand on the night of the incident. Moreover, all the witnesses indicated that defendant repeatedly fired at Torres while he was prone in the street and still alive; defendant, in his statement to the police, admitted firing at Torres while he was down because he wanted to make sure he was dead. The forensic evidence supported the State's version of the events; in particular, that defendant's first shot disabled Torres, but did not kill him, and that the subsequent shots were fired at close range while he lay on the ground, with his arm raised in a defensive gesture.

The jury, however, acquitted defendant of murder, returning a guilty verdict on the lesser charge of aggravated manslaughter. Likewise, the evidence supported a guilty verdict on the charge of possession of a firearm with the unlawful purpose of using it against Torres; here, too, the jury acquitted defendant of that charge.

We are further convinced that defendant was not deprived of a fair trial as a result of any prosecutorial misconduct because of the trial judge's instructions to the jury. Immediately after the prosecutor's summation, before the jury took its luncheon recess, and without any specific request by defense counsel, the judge advised the jurors that while "both attorneys did excellent jobs in their summations," "the evidence [in the case] is what you recall from the witness stand and what has been marked into evidence and what you receive, not the comments of the attorneys." He noted those comments were only the lawyers' "recollection of the facts." He reiterated these instructions during the course of his general charge approximately one hour later. See State v. Tirone, 64 N.J. 222, 229 (1974)(citing adequate instructions that directed the jury's attention to the evidence and not summations of counsel).

The jury deliberated in this case for more than two full days and during that time asked several questions and requested to be re-charged on the law on two separate occasions. In short, we do not believe defendant suffered any prejudice from the prosecutor's improper remarks. Unlike the result of our review of prosecutorial excesses in State v. Negron, 355 N.J. Super. 556, 578-79 (App. Div. 2002), here we are left with "the requisite sense of confidence that the verdict was the result of a jury assessment of permissible considerations based on the evidence in the case."

III.

We next consider defendant's contention that the judge erred in allowing the State to elicit testimony that defendant laughed when he looked at photos of the victim's autopsy. While cross-examining defendant, the prosecutor asked:

Q: On Monday you were looking at them right at that table, right?

A: I don't remember, sir.

Q: You don't remember laughing when you were looking at the photos on Monday?

A: Never laughed, sir.

Q: You didn't laugh?

A: No.

Shortly thereafter, the assistant prosecutor directed the defendant to resume his place on the witness stand and gratuitously stated, "Sir, please don't laugh." Defendant denied he was laughing. The trial judge sustained defense counsel's objection and struck the comment from the record. On re-direct, defense counsel elicited from defendant his feelings of remorse over the shooting.

After the defense rested, the assistant prosecutor proffered County Investigator Michael Recktenwald as a rebuttal witness who saw the defendant "smirking and chuckling" as he viewed the autopsy photos earlier in court. Defense counsel objected on relevancy grounds and also argued that the testimony's prejudicial effect far outweighed any probative value. The judge permitted the rebuttal testimony, reasoning

The defendant took the witness stand and part of his testimony was that he has nightmares about this. He regrets it, he cries about it, it has upset him. He is remorseful about it, and that it still happens to this very day. So I'm going to allow the [S]tate to put this rebuttal witness on. I think it goes to the credibility of the witness, and also the

[S]tate's claims that . . . this was no killing in self-defense . . . .

Recktenwald testified that he observed defendant at counsel table "smirking and chuckling" as he "leaf[ed] through the crime scene photos and the close-ups of [the victim's face]." He was never asked whether the jury was present in the courtroom during his observations of defendant's conduct. Defendant testified on sur-rebuttal and again denied that he laughed or smirked while looking at the autopsy photos.

In State v. Rivera, 253 N.J. Super. 598, 601 (App. Div.), certif. denied, 130 N.J. 12 (1992), we considered the appropriate parameters for the admission in evidence of a defendant's non-testimonial demeanor at trial. There, the assistant prosecutor commented during summation that the defendant cried during the trial. Id. at 601. Although the defendant had not testified, the assistant prosecutor invited the jury to speculate whether defendant also cried when she sold narcotics to an undercover police officer, the offense for which she was being tried. Ibid. We noted that if defendant had engaged in "testimonial behavior," her actions could be the "subject of fair comment." Ibid. (quoting State v. Fioravanti, 46 N.J. 109, 120-121 (1965), cert. denied, 384 U.S. 919, 86 S.Ct. 1365, 16 L.Ed. 2d 440 (1966)). We added, however,

Where the evidence of a display of emotion is active, the trial judge is faced with a difficult decision. Did the defendant cry or laugh voluntarily? Can the action correctly be interpreted as nervousness, sadness, fear, remorse, glee, irony or some private emotion? The better rule in such cases is to prohibit any comment by the State unless the demeanor evidence is clearly injected as an unsworn attempt to influence the jury. [Id. at 604 (emphasis added).]

We noted the comments invited the jury to contrast "the fearful or contrite behavior of defendant in the courtroom," with the "self-assured woman who sold drugs to the undercover investigator." Id. at 605. We concluded that although it was difficult to determine whether the defendant had voluntarily cried to affect the jury's determination of the issues, the assistant prosecutor's comments were "reasonably innocuous." Ibid.

Here, the record is unclear whether defendant's alleged conduct occurred in the jury's presence. Since the behavior was ultimately the subject of testimony, the distinction does not necessarily matter. The salient issue is whether Recktenwald's testimony regarding defendant's behavior was "relevant evidence."

"'Relevant evidence' [is] evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401. The judge determined Recktenwald's testimony was relevant because it affected defendant's credibility, and because it supported the State's contention that the shooting was not in self-defense.

In general, the admission or exclusion of proffered evidence is within the sound discretion of the trial court. State v. Torres, 183 N.J. 554, 567 (2005). We conclude the admission of Recktenwald's testimony was not a mistaken exercise of the trial judge's discretion. Moreover, even if the judge erred, the admission of this evidence does not require the reversal of defendant's conviction. The testimony was brief and tangential to the real issues in the case; defendant countered in sur-rebuttal. In light of all the other evidence in the case, its introduction was "reasonably innocuous." Rivera, supra, 253 N.J. Super. at 605.

IV.

Defendant claims Cosgrove was impermissibly allowed to testify as an expert and opine that fingerprints could not be lifted from spent shell casings. That testimony was elicited on re-direct after defense counsel specifically asked whether Cosgrove had secured any fingerprints from the casings. Since there was no objection, we must evaluate whether allowing Cosgrove to render this opinion was error and, if it was, whether it presents plain error, that is, error that was "clearly capable of producing an unjust result." R. 2:10-2. The error must be of sufficient magnitude to raise a reasonable doubt whether it led the jury to a result they otherwise would not have reached. State v. Macon, 57 N.J. 325, 336 (1971).

We find no error, much less plain error, in allowing Cosgrove to testify as he did. Defendant invited the questioning on redirect by asking Cosgrove on cross-examination whether he tested the shell casings for fingerprints. Having done so, the State was entitled to respond with a reason why fingerprint tests were not administered. Defendant's contention in this regard lacks sufficient merit to warrant any further discussion in this opinion. R. 2:11-3(e)(2).

V.

Defendant's sentence exceeded the statutory presumptive sentence for first-degree aggravated manslaughter. Pursuant to N.J.S.A. 2C:11-4c, "[A]ggravated manslaughter . . . is a crime of the first degree and upon conviction thereof a person may . . . be sentenced to an ordinary term of imprisonment between ten and thirty years." The presumptive term is twenty years. N.J.S.A. 2C:44-1f(1)(a).

In State v. Natale, 184 N.J. 458 (2005), the Court concluded that any sentence above the statutory presumptive term based solely on a judicial finding of aggravating factors, other than a prior criminal conviction, violated a defendant's Sixth Amendment right to a trial by jury. Id. at 484. The Court, therefore, eliminated presumptive terms, stating, "Without presumptive terms, the statutory maximum authorized by the jury verdict, or the facts admitted by a defendant at his guilty plea is the top of the sentencing range for the crime charged." Id. at 487.

The Court granted pipeline retroactivity to its holding. Id. at 494. Here, the trial judge sentenced defendant to a term of imprisonment in excess of the presumptive term of twenty years upon the finding of aggravating factors other than defendant's prior record. Defendant's appeal was pending while Natale was decided. Therefore, we must vacate defendant's sentence and remand the matter to the trial court for re-sentencing.

Affirmed; remanded solely for re-sentencing in accordance with Natale.


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