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State v. Ko

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 25, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
EDMUND KO, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 98-04-0659.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 14, 2008

Before Judges S.L. Reisner, Gilroy and Baxter.

Defendant Edmund Ko appeals from his conviction for second degree aggravated assault, N.J.S.A. 2C:12-1(b)(1), and related offenses.*fn1 After merger he was sentenced to ten years in prison subject to the No Early Release Act (NERA), consecutive to a sentence he is serving for a murder committed in New York. We affirm the conviction but remand for reconsideration of the ten-year sentence pursuant to State v. Natale, 184 N.J. 458 (2005), which was decided after the sentencing in this case.

I.

The charges arose from an incident in which defendant's former girlfriend Diane Kim was assaulted. Defendant claimed the assault was committed by his very jealous current girlfriend, Claudia Seong, and her sister Young Joo Seong. The victim, Kim, claimed that defendant, assisted by Joung Joo, held her down while Claudia slashed Kim with a knife. Ko claimed he was present at the scene, but was a shocked and innocent bystander to violence committed by Claudia and her sister.

The following is a synopsis of the testimony at the trial. Diane Kim explained that she met defendant in 1997 at a party and again at her workplace, the Safari Club; they had "a very short dating relationship." They went out drinking at Korean clubs with defendant's friends on weekends for some two months, and Kim visited defendant's home in the Atrium Apartments in Fort Lee. Their relationship was not serious and it ended gradually when they stopped calling each other. There were no hard feelings when the couple broke up.

Defendant was twenty-two years old at the time of the assault, a graduate of Cornell University, and working as a buyer at Macy's Herald Square. He corroborated Kim's account of their relationship and added that there was no "blowup," fight or violence associated with the end of the relationship; defendant met Claudia, and Kim had another boyfriend. Defendant had no animosity or ill will toward Kim.

In August 1997, Claudia became jealous of Kim and asked defendant to call her. Defendant and Kim concurred that defendant called Kim and informed her that he had a new girl friend who was jealous, and he asked Kim not to acknowledge him if she saw him. Kim asked defendant "if he was whipped," meaning "that he must really like" the new girlfriend. The phone call was friendly.

Kim heard from defendant again on November 16, 1997, at around midnight, when he called her at her home in Edgewater and asked to see her because he needed a favor. Kim asked what the favor was, but defendant "insisted that he had to see me." They agreed to meet the next morning at 11:00 a.m. at a Starbucks near Kim's home. Defendant and Claudia showed up for the meeting, but Kim did not go.

Defendant related that, after giving Claudia Kim's telephone number on the evening of November 17, he went home and went to sleep, but Claudia arrived at his apartment upset at approximately 1:00 a.m. and woke him. Defendant got dressed and accompanied Claudia to her apartment building in Cliffside Park. There, he called Kim from a pay phone downstairs and asked to see her, but she refused. Kim recalled the phone call, defendant's insistence that he needed a favor, and her refusing to see him because her "boyfriend was over."

Claudia and Young Joo came downstairs to the lobby, and defendant called Kim again and told her that he had two girls with him. Kim agreed to go out, and defendant told her that they would "go have some coffee and talk."*fn2

Kim instructed the gate person at her condominium complex to let her visitors in, went to the parking lot and got into the back seat of Claudia's white Honda behind the driver. Defendant was in the front passenger seat. Kim testified that she did not know the woman who was driving or the woman in the back seat.

Joseph Valdivia, the gatehouse security officer at Independence Harbor in Edgewater, corroborated that on November 18, 1997, at approximately 3:00 a.m., a white car with an Asian woman driving and a man in the front passenger seat arrived, and the man said that they were going "to pick someone up" at Kim's address. Valdivia contacted Kim, who directed him to let the car in, which he did. Approximately five minutes later, Valdivia noticed that the same car, with four people in it, left the complex.

Kim and defendant agreed that the car drove down River Road, made a left turn, and turned left onto a dead end street that was blocked at the end with barricades. It was dark, but there was a street light.

According to Kim's testimony, they got out of the car, and Kim asked defendant what the favor was that he needed. Defendant then pushed, slapped and hit Kim on her shoulders. She moved backwards, and defendant began kicking her legs. The woman who had sat in the back seat said, "You're not hitting her hard enough." Defendant then pushed Kim down over a barricade and onto the ground. Kim asked defendant what was wrong, but he did not respond.

Kim testified that the woman from the back seat sat on Kim's knees. Defendant pinned Kim's shoulders down with his elbows and held her hands above her head. Kim struggled but could not free herself. The driver of the car took a sharp, shiny, silver object out of her pocket and cut Kim's right leg, scalp and face. Kim testified that the two women were very petite and could not have restrained her without Ko's help. After the attack, defendant and the two women got into the car and left. Kim did not testify as to where each of her assailants sat in the car as it departed.

Defendant's version differed considerably from Kim's. According to defendant, he was "confused as to why Claudia had stopped the car" in a deserted area. However, when they got out of the car, he told Kim that he wanted Claudia to see for herself that "there is nothing going on between us." Kim said, "this is what you got me out of my apartment in the middle of the night for? I mean, your girlfriend is so insecure . . . that she has to put you through all this?" According to defendant, a "heated dialogue" ensued between Claudia and Kim, which escalated to yelling and cursing. Kim said "I could have Ed back whenever I want him back." Defendant told Kim to go home and pushed her away in an attempt to urge her to leave. After resisting initially, Kim started to walk away.

Defendant contended that he then walked toward the car. He denied punching, slapping or kicking Kim. According to defendant, Claudia and Young Joo ran after Kim; Young Joo pushed Kim's back and she fell. Claudia and Young Joo jumped on Kim, and Claudia yanked Kim's hair. Defendant, Claudia and Young Joo then returned to the car, and defendant drove back to his apartment. Defendant was aware that there had been a fight and that Claudia and Young Joo "had sort of beat Diane up." Defendant maintained that what happened was "unexpected" and "a total surprise." He had "nothing to do with Diane getting, you know, hurt."

On cross-examination, defendant was confronted with his prior inconsistent statement to the police shortly after his arrest. At that time, defendant claimed that nothing happened to Kim. He told police that he and the Seong sisters had an uneventful meeting with Kim and then dropped her off unharmed, at a shopping plaza near her home.

Kim testified that after the attack she walked home, which was less than one mile away. She was "drenched in blood" and had to wipe the blood away from her eyes so she could see. She tried to get help from motorists, but no one stopped. She passed a mall and saw a security guard, but he left.

Joseph Krupinski, a security field supervisor, was driving on River Road toward Fort Lee on November 18, 1997, at approximately 3:30 a.m., when he saw a female covered in blood "head to toe" waving her arms at him. He stopped, and the female asked him to take her home; Krupinski told her to wait while he called for medical assistance. Krupinski drove to a nearby shopping center and called 9-1-1 from a pay phone, but when he returned the injured woman was gone.

Kim recalled that as she arrived at the gatehouse of her condominium complex, Valdivia screamed when he saw her and then called an ambulance. Valdivia recalled that Kim knocked on the gatehouse door approximately one or one and one-half hours after she left; "there was blood coming out of her head, and she was covered in blood, and there was blood coming down her face and her hands." Kim asked Valdivia to call her boyfriend, but there was no answer in her apartment. Kim left, and Valdivia called the police, who arrived, picked Kim up from her apartment and administered first aid. Then an ambulance arrived and took Kim to the hospital.

On cross-examination, Kim was confronted with a police report of an interview with her. The report did not include her accusation that Ko was involved in the attack. However, on redirect, she read a portion of the handwritten statement she gave the police that same day, in which she stated that Ko held her hands while Claudia cut her. Thus, there was evidence that Kim had given consistent information all along, while Ko had significantly changed his version of events between his statement to the police and the trial. Photographs of bruises on Kim's hands also supported her testimony that someone had restrained her hands during the attack.

Dr. Franklin Rivera, who treated Kim at the Palisades Medical Center on November 18, 1997, observed "a large laceration on the top of her head from the forehead down to the back of her head," through to her skull, eight or nine inches long. This wound created a loose flap of scalp. She had a deep laceration across her nasal bridge, exposing cartilage, two and one-half inches long. She had a laceration on her cheek three centimenters long, and one on her right thigh two centimeters long. According to Rivera, the injuries were smooth, not jagged suggesting that Kim had been cut with a very sharp instrument such as a scalpel or razor.

Kim's hair, face, and clothes were soaked with blood. After cleaning her up, Rivera sutured the lining of Kim's skull, and then sutured her skin. The laceration on her nose was likewise so deep that it had to be sutured in layers. Kim has permanent scars, still visible at the trial which occurred five years after the assault.

II.

On this appeal, defendant raises the following points for our consideration:

POINT I: THE TRIAL COURT ERRED WHEN IT PRECLUDED EDMUND KO FROM TESTIFYING ABOUT CLAUDIA SEONG'S STATEMENTS ABOUT THE VICTIM DURING THE PERIOD IMMEDIATELY BEFORE AND DURING THE ASSAULT, VIOLATING MR. KO'S RIGHT TO TESTIFY AND HIS RIGHT TO PRESENT A DEFENSE, CONTRARY TO THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ART. 1, § 10 OF THE NEW JERSEY CONSTITUTION.

POINT II: THE TRIAL COURT IMPROPERLY RESTRICTED DEFENSE COUNSEL'S CROSS-EXAMINATION OF DIANE KIM, VIOLATING HIS RIGHT TO CONFRONT WITNESSES GUARANTEED BY THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ART. 1, ¶ 10 OF THE NEW JERSEY CONSTITUTION.

POINT III: THE TRIAL COURT ERRED IN PERMITTING KIM TO TESTIFY THAT SHE OBSERVED THE WORDS "PAY PHONE" ON HER CALLER ID WITHOUT ESTABLISHING A FOUNDATION THAT THE MACHINE WAS RELIABLE.

POINT IV: THE TRIAL COURT FAILED TO ADEQUATELY VOIR DIRE THE MEMBERS OF THE JURY REGARDING EXPOSURE TO A HIGHLY INFLAMMATORY ARTICLE WHICH APPEARED IN THE RECORD THE DAY AFTER THE VICTIM'S TESTIMONY, VIOLATING HIS RIGHT TO A FAIR AND IMPARTIAL JURY GUARANTEED BY THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ART. 1, ¶ 10 OF THE NEW JERSEY CONSTITUTION.

POINT V: THE TRIAL COURT ERRED WHEN IT REVERSED ITS PREVIOUS RULING EXCLUDING FROM THE CASE THE RESULTS OF ADDITIONAL DNA TESTING CONDUCTED BY THE STATE AFTER ITS INITIAL RULING, AND IMMEDIATELY BEFORE TRIAL.

POINT VI: THE TRIAL COURT ERRED IN REFUSING TO GRANT A MISTRIAL AFTER UNEXPECTED, INADMISSIBLE AND HIGHLY PREJUDICIAL TESTIMONY BY A STATE WITNESS WHICH DEPRIVED MR. KO OF A FAIR TRIAL.

POINT VII: EGREGIOUS MISCONDUCT BY THE PROSECUTOR IN MANIPULATION OF PRETRIAL DISCOVERY, IN OPENING ARGUMENT AND IN SUMMATION DEPRIVED PETITIONER OF HIS RIGHT TO A FAIR TRIAL.

A. Introduction

B. Pretrial Shenanigans

C. Inflammatory Opening and Summation

POINT VIII: THE TRIAL COURT ERRED WHEN IT INVITED JURORS TO INTERRUPT THE PLAY-BACK OF THE VICTIM'S TESTIMONY BEFORE THE CROSS-EXAMINATION WHEN THE JURY'S NOTE HAD SPECIFICALLY REQUESTED THAT THE CROSS-EXAMINATION BE PLAYED.

POINT IX: THE SENTENCE IMPOSED WAS GROSSLY DISPROPORTIONATE TO THE FOUR-YEAR SENTENCE IMPOSED ON SEONG, AND CONTRARY TO THE PRINCIPLE THAT A LESS-THAN-THE-MAXIMUM POSSIBLE TERM SHOULD BE IMPOSED ON CONSECUTIVE SENTENCES, AND, IN ANY EVENT, THE CASE MUST BE REMANDED FOR RE-SENTENCING PURSUANT TO STATE V. NATALE.

Having reviewed the entire record, we conclude that except for Point IX, all of defendant's arguments are either without merit or concern harmless error. The State concedes that State v. Natale, supra, requires that we remand the sentence for reconsideration.

Defendant's first point is that the trial judge improperly sustained hearsay objections to portions of Ko's testimony, although the testimony was not being offered for the truth of the statements and was important to the defense. Having read the transcript, we agree that defendant was precluded from testifying about statements Claudia made to him that were not hearsay because they were not offered for their truth and were evidence of her jealous state of mind. See N.J.R.E. 801(c); State v. Long, 173 N.J. 138, 152-53 (2002). On the other hand, even without testifying to all of Claudia's statements to him, defendant was able to clearly convey to the jury the central premise that Claudia was extremely jealous of Kim. In fact, Kim also testified that he told her Claudia was very jealous. Therefore, although the judge's rulings were erroneous, the error was harmless. R. 2:10-2. See State v. Castagna, 187 N.J. 293, 312-13 (2006).

The record does not support defendant's contention that Ko's direct examination was so frequently interrupted by objections as to affect the coherence of the testimony. It was not. We also note that the prosecutor asked defendant a long series of argumentative questions, and that the trial judge sustained nearly all of the defense counsel's objections to those questions. Thus, the cross-examination was subject to many interruptions as well.

Defendant next contends he was unfairly denied the opportunity to cross-examine Kim about her alleged alcoholism, in order to create an inference that she was intoxicated on the night of the assault and hence, that her recollection of details was suspect. Defendant contends that if the jury knew Kim was an alcoholic, her testimony about not drinking at her work at a bar might have been less credible. However, that was not her testimony as to the night of the attack. The defense was permitted to ask Kim if she drank any alcohol at work that night; she responded that she did not recall.

Defense counsel then attempted to ask Kim if she was "arrested for" and was cut off by an objection which was sustained. Even if the question was going to be about an arrest for drunk driving, it would have been improper and inadmissible under N.J.R.E. 404(a) and (b), and N.J.R.E. 608. Moreover, the issue of Kim's possible consumption of alcohol was speculative and tangential at best. None of the witnesses who observed her on the night of the assault, including Ko, testified that she appeared intoxicated.*fn3 We find no abuse of discretion in the judge's decision to preclude this line of questioning. See State v. Messino, 378 N.J. Super. 559, 583 (App. Div.), certif. denied, 185 N.J. 297 (2005).

We next address defendant's point III concerning the admission of Caller ID information. Defense counsel objected to Kim's testimony that she observed the words "pay phone" on her Caller ID, because the information was "hearsay." This objection was properly overruled. The information provided by a machine such as Caller ID is not hearsay. See Kansas v. Schuette, 44 P.3d 459, 464 (Kan. 2002)("The caller ID display is not the output of statements from an out-of-court declarant but merely the result of the device's operations, which is not hearsay.").

We will not address for the first time on appeal defendant's contention that the State should have laid a foundation for the testimony by having Kim testify about the previous reliability of her Caller ID device. See People v Caffey, 792 N.E.2d 1163, 1191 (Ill. 2001), cert. denied, 536 U.S. 944, 122 S.Ct. 2629, 153 L.Ed. 2d 810 (2002). Defense counsel could have cross-examined Kim as to what she observed on the machine and as to the reliability of the device. Moreover, even if the State should have laid a foundation for the testimony, any error was clearly harmless. Ko did not deny that he called Kim on the night of November 18 and asked her to meet him. In fact, according to Ko, when he eventually got through to Kim in the early morning of November 18, he was calling from a pay phone in Claudia's apartment building.*fn4

More significantly, Kim testified that after she got home from work that evening, she actually answered repeated phone calls from Ko in the early morning of November 18. "And I told Edmund no, and then he kept - kept persisting. He wouldn't hang up the phone." In light of this testimony, the information about the prior calls showing up on the Caller ID added little. Further, in his testimony, defendant indicated that he gave Kim's phone number to Claudia and that when Claudia came to see him in the middle of the night, he got the impression she already knew Kim was not at home; hence, the jury could have concluded that Claudia and not defendant had made the prior pay phone calls. There was no testimony that the prior pay phone calls had come from Ko or even that they were from a man. And, in any event, there was no dispute that Ko called Kim and persuaded her to meet him that night. Finally, in the jury instructions, the judge told the jury that "You will rely upon your evidence, your recollection, as to how may calls were made, and if they were made by Mr. Ko or some unidentified person."

We next address the issue of publicity during the trial. Before resuming the State's case on the second day of testimony, January 22, 2003, defense counsel informed the judge that there was an article about the case in the newspaper, The Record, on January 17, 2003. The article described a subsequent crime committed by defendant - the March 1998 murder of another ex-girlfriend, a Columbia University law student, whose throat he slashed - and reported that defendant was serving twenty-five years to life for this offense. The article appeared on the front page of the local section with the headline "Woman describes vicious assault," with a sub-headline, "Convicted killer on trial in slashing."

Defense counsel asked the trial judge to individually voir dire the jurors as to whether they had seen the article. The judge responded "I don't think it's necessary, based upon all the other trials I've done. I will call them over to the sidebar individually if I feel that we need to." The judge asked the jurors as a group whether they had "heard about or read about the case" over the weekend. He then added, "[t]here may have been an article in one of the local newspapers, . . . The Record, or The Star-Ledger. Let me find out, do any of you and you can raise your hand and indicate whether you get those newspapers regularly. Okay." The judge did not indicate for the record whether any jurors raised their hands.

He then asked if "any of your family members discuss[ed] anything that might have been in the newspaper pertaining to this case?" Again, he did not indicate what, if anything, the jurors responded. However, the judge did then state, "[b]ased upon my instructions, you've all followed my instructions [not to read about the case] and we're ready to proceed." Moreover, several pages later in the transcript, when defense counsel again requested individual voir dire, the judge stated "I asked if they've read about it . . . and they said no."

Where publicity about a trial or a defendant has a capacity to create prejudice, as the Record article clearly did, the trial court must act to ensure that the jury has not been tainted. See State v. Bey, 112 N.J. 45, 86-87 (1988). "Where the court concludes there is a realistic possibility that information with the capacity to prejudice defendant's right to a fair trial may have reached members of [the] jury, it should conduct a voir dire to determine whether any exposure has occurred." Ibid. In a footnote, the Bey Court observed that the manner of conducting the voir dire was discretionary with the trial court, although individual voire dire was preferable. "Though the form and content of this initial questioning is better left within the trial court's sound discretion, we note that a practice of polling the jurors individually, in camera, is likely to be more effective in uncovering any exposure than is questioning the jury en banc, in open court." Id. at 87 n.26. On the other hand, if any juror responds affirmatively to the court's inquiries, that juror must be questioned individually. Id. at 86-87.

In this case, we find no abuse of discretion in the trial judge's decision to question the jurors as a group. See Bey, supra. From the beginning of the trial, the judge had repeatedly and explicitly warned the jurors against reading articles about the case. He also suggested that they have family members remove any such articles from the jurors' newspapers and put them aside until the trial was over. Unlike Bey, the judge did not refuse to question the jurors when the prejudicial article was brought to his attention. The judge placed on the record that none of the jurors indicated that they had seen the Record or the Star-Ledger or any articles about the case. Further, the judge repeated his admonitions throughout the trial and questioned the jury several times during the trial as to whether they had seen any articles about the case. We find no warrant to disturb the verdict based on prejudicial publicity.

We likewise find no merit in defendant's point IV, concerning the State's late production of DNA evidence identifying blood on the passenger door of the white Honda as belonging to Kim. Defendant's brief does not explain how defendant was prejudiced by this evidence. All along, the State had reported that one of the blood swabs taken from the front passenger door handle of the car showed Kim's blood. Therefore, from the beginning, the defense was aware that this would be part of the State's case. Shortly before the trial, the State discovered that two of the swabs had been mixed up, and several had not been tested. Once tested, the swabs once again showed the presence of Kim's blood on the front passenger door handle.

However, while it was undisputed that Ko sat in the front passenger seat on the ride to the crime scene, there was no testimony from Kim or any other witness that Ko was sitting in the front passenger seat during the ride away from the crime scene. In fact, Ko testified that he was the driver when they left the scene. Consequently, the blood on the door handle only proved that someone entering the car had had contact with Kim's blood, a fact Ko did not dispute since he agreed that the attack took place.

In his point VI, defendant contends that the trial court should have declared a mistrial based on improper testimony from the condominium security guard who saw Kim shortly after she was slashed. The prosecutor asked security guard Joseph Valdivia what Kim said to him when she arrived at the guard booth covered in blood right after the attack. As soon as defense counsel objected, the prosecutor argued that whatever Kim said was an excited utterance. Later in the colloquy, she made a proffer that the guard was going to testify that Kim asked him to call her boyfriend. On that basis the judge overruled the objection. However, the security guard unexpectedly testified that Kim said "he tried to kill me." The judge immediately instructed the jury to disregard the statement, and shortly thereafter, in the presence of the jury, the prosecutor re-emphasized the point by reminding the witness that "[y]ou can't tell us what another person said because that would be hearsay."

We find no error in the judge's decision to deny defense counsel's motion for a mistrial based on Valdivia's testimony.

While the prosecutor did not press the point, there was sufficient foundation to admit the statement as an excited utterance, since it was made shortly after the attack, when Kim was still under the stress of the incident and was in no condition to fabricate. See State v. Long, supra, 173 N.J. at 159-60. Moreover, although the judge had stricken the testimony and told the jurors to disregard it, defense counsel proceeded to cross-examine Valdivia about the statement and the fact that he had not reported it to the police shortly after the incident. Thus, the defense re-opened the door after the judge had closed it. Moreover, unlike State v. Winter, 96 N.J. 640 (1984), in which a deceased declarant was said to have stated that defendant was trying to kill her, in this case the defense had ample opportunity to cross-examine Kim about her central accusation that Ko participated in the slashing attack.

Except for those issues discussed herein, defendant's contentions in his point VII, regarding the prosecutor's conduct, are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). The prosecutor's misstatements in her opening remarks about accomplice liability were immediately followed by an instruction from the judge to the jury to disregard the statements. The prosecutor's summation comments about accomplice liability correctly included the words "with the purpose of promoting or facilitating the offense." Further, it is clear from the entire summation that the prosecutor was not asking the jury to find Ko guilty merely because he was present at the scene or because he lured Kim to the scene. The prosecutor explained that "Edmund Ko is not just someone who is aiding Claudia Seong and [Young Joo] Seong. He's an active participant. He's participating in holding [Kim] down." She then elaborated on this point in considerable detail. Again, the prosecutor told the jury that "[w]ith regard to accomplice liability . . . the direct evidence is Diane Kim's testimony that he held her down."

The prosecutor's comment about Kim having been "scalped" was dramatic but fundamentally accurate, in light of the later medical testimony of Dr. Rivera who treated her in the emergency room. We find no merit in the contention that the prosecutor misstated the State's burden of proof; she correctly stated that the jury must be "firmly convinced." See State v. Medina, 147 N.J. 43, 61 (1996), cert. denied, 519 U.S. 1135, 117 S.Ct. 1001, 136 L.Ed. 2d 880 (1997). She then accurately pointed out that the decision rested on the credibility of the witnesses. We also conclude that the prosecutor's argument, that if Kim was not being held down the cuts to her face and scalp would have been jagged instead of smooth and straight, was fair comment on the evidence. However, in his charge to the jury, the trial judge also gave a limiting instruction about the prosecutor's comments, and defense counsel did not object to that limiting instruction.

In the prosecutor's summation, in an effort to link the blood on the car door handle to Ko, she argued that Kim "places [Ko] in the car, in the front passenger seat." Defense counsel immediately objected. The judge sustained the objection and directed that the jurors rely on their own recollections of Kim's testimony concerning "the passenger seat before and after the assault took place." This was sufficient.*fn5

The prosecutor also accused defendant of "tailoring his testimony" to fit the evidence produced at trial. In State v. Daniels, 182 N.J. 80 (2004), the Supreme Court held that generic accusations of tailoring are prohibited:

Generic accusations occur when the prosecutor, despite no specific evidentiary basis that defendant has tailored his testimony, nonetheless attacks the defendant's credibility by drawing the jury's attention to the defendant's presence during trial and his concomitant opportunity to tailor his testimony. . . . Allegations of tailoring are specific when there is evidence in the record, which the prosecutor can identify, that supports an inference of tailoring. . . . [G]eneric accusations of tailoring debase the "truth-seeking function of the adversary process," violate the "respect for the defendant's individual dignity," and ignore "the presumption of innocence that survives until a guilty verdict is returned." . . . Therefore, pursuant to our supervisory authority, we hold that prosecutors are prohibited from making generic accusations of tailoring during summation. [Id. at 98 (citations omitted).]

On the other hand, specific allegations are acceptable:

When a prosecutor makes specific accusations of tailoring, however, we apply a different analysis. If there is evidence of tailoring, beyond the fact that the defendant was simply present at the trial and heard the testimony of other witnesses, a prosecutor may comment, but in a limited fashion. The prosecutor's comments must be based on the evidence in the record and the reasonable inferences drawn therefrom. See State v. Rose, 112 N.J. 454, 522 (1988).

Moreover, the prosecutor may not refer explicitly to the fact that the defendant was in the courtroom or that he heard the testimony of other witnesses, and was thus able to tailor his testimony. [Id. at 98-99.]

During her summation, the prosecutor remarked "now [defendant's] been sitting at this trial along with you and he's been hearing all the evidence that you've been hearing." However, taken in context, the main thrust of the prosecutor's summation was not a generic allegation of tailoring based on defendant's mere presence at the trial, an argument that would be contrary to Daniels. Rather, the prosecutor argued that defendant's trial testimony was contrary to statements he made to the police shortly after his arrest. She highlighted Ko's statement that he and the Seong sisters dropped off Kim in front of a shopping plaza and that there was no fight or confrontation, as opposed to his trial testimony in which he admitted that the Seong sisters attacked Kim. She also argued that, in contrast to Ko, Kim had always been consistent in alleging that Ko participated in the attack. Considering the summation as a whole, and the trial record as a whole, we conclude that if the prosecutor crossed the line set by Daniels in her remarks, it was harmless error. See State v. Timmendequas, 161 N.J. 515, 575 (1999), cert. denied, 534 U.S. 858, 122 S.Ct. 136, 151 L.Ed. 2d 89 (2001).

Addressing point VIII, we find no error in the trial judge's handling of the playback of Kim's testimony. The jury sent out a note asking for a playback of her testimony and indicated that they wanted her entire testimony from the time the parties got out of the car at the scene of the assault, to the end of Kim's testimony. However, after hearing Kim's direct testimony, one of the jurors indicated that was sufficient, and the judge sent the jurors back to continue deliberating. The judge stated on the record that he had observed all of the jurors at that point and they seemed to be in agreement. However, in response to defense counsel's objection, the judge specifically asked the jury later that day whether they wanted to hear more of Kim's testimony. The foreperson confirmed that they did not. At the jury's request, they also watched a playback of defendant's entire testimony from the time the parties got out of the car. As with the playback of Kim's testimony, the judge advised the jury that they could indicate at any point if they had seen the material they needed to review. They did not ask to have the tape stopped but watched Ko's entire testimony.

The trial judge's conduct of the readbacks was entirely consistent with State v. Wilson, 165 N.J. 657 (2000):

We assume that when jurors request a readback, what is being sought is "only . . . those portions of the testimony about which they are in doubt or disagreement." Accordingly, where a request is clearly circumscribed, the trial court has no obligation to compel jurors to hear testimony they have not asked for or to continue a readback after they have expressly indicated that they have heard enough. That is so even if one of the parties registers a request for a further readback.

But if the scope of the jury's request is unclear or if something occurs during the readback to raise a question about the extent of the testimony sought, the obligation of the trial court is to ascertain the will of the jury. [Id. at 660 (citations omitted).]

We find no merit in defendant's arguments to the contrary.

Finally, the State concedes that a remand is required because defendant's ten-year sentence exceeded the then-presumptive sentence for a second-degree crime. Accordingly, we remand for reconsideration of the sentence pursuant to State v. Natale, 184 N.J. 458 (2005). In light of the remand, we deem it premature to consider defendant's remaining challenges to the length of his sentence.

We affirm the conviction and remand the sentence for reconsideration.


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