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State v. Then

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 31, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
OSMANI THEN, DEFENDANT-APPELLANT.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
LISANDRO THEN-MENDEZ, DEFENDANT-APPELLANT.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
WINSTON BEARD, DEFENDANT-APPELLANT.*FN1

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 04-12-1728.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 6, 2009

Before Judges Winkelstein, Gilroy and Chambers.

In December 2004, a Passaic County Grand Jury returned Indictment No. 04-12-1728-I, charging Osmani Then, Lisandro Then-Mendez, Luis Feliz, Ariel Mojena, Winston Beard, and Irvin Estanislao with the following offenses: second-degree aggravated assault on Suquan McDonald, N.J.S.A. 2C:12-1b(1) and N.J.S.A. 2C:2-6 (count one); second-degree aggravated assault on Alex Perez, N.J.S.A. 2C:12-1b(1) and N.J.S.A. 2C:2-6 (count two); and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count three). The indictment charged Then, individually, with third-degree hindering apprehension, N.J.S.A. 2C:29-3a(3) and N.J.S.A. 2C:29-3b(1) (count four); and fourth-degree tampering with evidence, N.J.S.A. 2C:28-6(1) (count five).

In this appeal, Then, Then-Mendez, and Beard challenge their convictions following a joint jury trial on seventeen dates between May 31 and June 23, 2006.*fn2 The jury convicted Then of the lesser-included offense of third-degree purposely causing or attempting to cause a bodily injury to McDonald with a deadly weapon (count one); second-degree purposely causing or attempting to cause a serious bodily injury to Perez (count two); third-degree possession of a weapon for an unlawful purpose (count three); third-degree hindering apprehension (count four); and fourth-degree tampering with evidence (count five).

The jury convicted Then-Mendez of the lesser-included third-degree offense of purposely causing or attempting to cause a bodily injury to McDonald with a deadly weapon (count one); second-degree purposely causing or attempting to cause a serious bodily injury to Perez (count two); and third-degree possession of a weapon for an unlawful purpose (count three). The jury found Beard guilty of the lesser-included offense of third-degree purposely causing or attempting to cause a bodily injury to McDonald with a deadly weapon (count one); the lesser-included offense of fourth-degree recklessly causing a bodily injury to Perez with a deadly weapon (count two);*fn3 and third-degree possession of a weapon for an unlawful purpose (count three).

The court sentenced Then to an aggregate seven-year prison term and Then-Mendez to an aggregate six-year prison term; both sentences were subject to an eighty-five percent parole disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2a. Beard was sentenced to three years probation, conditioned on serving sixty days in the county jail.

On appeal, Then raises the following issues:

POINT ONE

THE TRIAL COURT'S ERRONEOUS INSTRUCTION TO THE JURORS ON THE PERMISSIBLE USE OF PRIOR BAD ACT EVIDENCE THAT WAS OFFERED BY THE DEFENSE DEPRIVED DEFENDANT OF HIS FEDERAL AND STATE CONSTITUTIONAL RIGHT TO A FAIR TRIAL AND REQUIRES A REVERSAL OF HIS CONVICTION.

POINT TWO

THE PROSECUTOR'S COMMENTS DURING SUMMATION FAR EXCEEDED THE SCOPE OF FAIR COMMENT AND DEPRIVED DEFENDANT OF HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO DUE PROCESS AND TO A FAIR TRIAL REQUIRING A REVERSAL OF HIS CONVICTION.

POINT THREE

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A MISTRIAL WHEN IT BECAME CLEAR THAT THE ASSISTANT PROSECUTOR WAS USING HIS PEREMPTORY CHALLENGES TO EXCLUDE HISPANICS FROM THE JURY CONTRARY TO DEFENDANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO DUE PROCESS AND TO A FAIR TRIAL.

POINT FOUR

THE SENTENCE IMPOSED BY THE TRIAL COURT WAS MANIFESTLY EXCESSIVE.

POINT FIVE

DEFENDANT JOINS IN ANY AND ALL ARGUMENTS RAISED ON APPEAL TO THIS COURT BY CO-DEFENDANTS, LISANDRO THEN-MENDEZ AND WINSTON BEARD.

Then-Mendez raises the following issues:

POINT ONE

THE PROSECUTOR DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL BY ARGUING IN SUMMATION THAT DEFENDANT'S STATEMENT SHOULD NOT [BE] BELIEVED BECAUSE IT WAS GIVEN AFTER DEFENDANT HAD RECEIVED HIS MIRANDA*fn4 WARNINGS. (Not Raised Below).

POINT TWO

THE COURT'S INSTRUCTION, WHICH LIMITED THE JURY'S USE OF [N.J.R.E.] 404(B) EVIDENCE REGARDING INSTANCES OF PAST VIOLENCE BETWEEN DEFENDANT AND THE VICTIMS TO PROOF OF DEFENDANT'S MOTIVE OR INTENT, UNDERMINED THE DEFENSE BY PRECLUDING THE JURY FROM USING THIS EVIDENCE IN CONSIDERING DEFENDANT'S SELF-DEFENSE CLAIM.

(Not Raised Below).

POINT THREE

INADEQUATE JURY INSTRUCTIONS, WHICH FAILED TO EXPLAIN THE LAW WITH REFERENCE TO THE FACTS OF THE CASE, DEPRIVED DEFENDANT OF DUE PROCESS OF LAW AND THE RIGHT TO A FAIR TRIAL.

POINT FOUR

THE STATE'S DISPROPORTIONATE EXERCISE OF PEREMPTORY CHALLENGES AGAINST BLACK JURORS DEPRIVED DEFENDANT OF HIS RIGHTS TO TRIAL BY AN IMPARTIAL JURY AND TO EQUAL PROTECTION OF LAW, NECESSITATING REVERSAL.

POINT FIVE

DEFENDANT'S SENTENCE IS EXCESSIVE.

Beard raises the following issues:

POINT I

FACTUAL MISSTATEMENTS MADE BY THE PROSECUTOR IN SUMMATION, AND THE PROSECUTOR'S FAILURE TO ACKNOWLEDGE OR CORRECT THE MISSTATEMENTS WHEN GIVEN AN OPPORTUNITY TO DO SO, PREJUDICED THE DEFENDANT'S RIGHT TO A FAIR TRIAL (NOT RAISED BELOW).

POINT II

THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BY THE ADMISSION OF TESTIMONY WHICH DIMINISHED THE PRESUMPTION OF THE DEFENDANT'S INNOCENCE (RAISED IN PART BELOW).

(A) ELICITING TESTIMONY FROM OFFICER KLEIN THAT REFERRED TO ALEX PEREZ AND SUQUAN MCDONALD AS "THE VICTIMS" CONSTITUTES PLAIN ERROR (NOT RAISED BELOW).

(B) ELICITING TESTMIONY FROM BLANCA DURAN THAT ALEX PEREZ AND SUQUAN MCDONALD WERE "JUST DEFENDING THEMSELVES" CONSTITUTES HARMFUL ERROR.

POINT III

OFFICER KLEIN'S TESTIMONY THAT HE WAS DISPATCHED TO THE SCENE ON A REPORT OF "SEVERAL MALES ASSAULTING TWO OTHER MALES WITH ROCKS, BATS, STICKS, AND OTHER OBJECTS" VIOLATED STATE V. BANKSTON[, 63 N.J. 263 (1973)] AND CONSTITUTES PLAIN ERROR (NOT RAISED BELOW).

POINT IV

THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED PLAIN ERROR BY PERMITTING THE PROSECUTOR TO PLAY A RECORDING OF BLANCA DURAN'S 9-1-1 CALL DURING HIS OPENING STATEMENT.

POINT V

THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE DEFENDANT'S MOTION FOR MISTRIAL BASED ON STATE V. GILMORE[, 103 N.J. 508 (1986)].

We reject defendants' arguments and affirm their convictions and sentences.

I.

Because the witnesses related differing versions of the incident that led to the charges against defendants, we set forth the testimony in substantial detail.

On August 9, 2004, Perez and McDonald, who had known each other since elementary school, were on a friend's porch in Paterson. Also present were Angeline Cerat, Jennifer Blizzard, and Niasi Tucker. Perez is of Puerto Rican descent; the others are African-American.

Around 6:00 p.m., as Perez and McDonald walked toward a grocery store at the end of the block, they saw a Lincoln Towncar parked at the corner. Perez thought he recognized the two men sitting in the car and began talking to them. He realized the driver was Then-Mendez, and remembered that he had "problems" in the past with him and his brother, Osmani Then, including a confrontation with Then in 2000, which involved a fight among fifteen men armed with bats and golf clubs. Perez was stabbed during the fight.

After recognizing Then-Mendez, Perez yelled at him, called him names, and challenged him to get out of the car and fight. Perez warned Then-Mendez: "I'm going to get your brother." As Then-Mendez drove the car away, Perez kicked it.

McDonald and Perez went to a friend's yard and retrieved golf clubs and a bat and returned to the porch. Around 7:00 p.m., the people on the porch noticed a burgundy/red Honda circling the block several times. Because the windows were tinted, they could not see who was inside. After seeing the car for the third time, McDonald realized that "something was about to go down." Suddenly, a group of about eight men with bats and sticks came around the corner, running toward the porch. They threw rocks and pieces of metal at McDonald.

McDonald asserted that when the men ran toward the house, Perez ran into the street with a baseball bat in his hand and McDonald followed, holding a golf club. Almost immediately, Then hit Perez in the back of the head with a weapon. Perez fell to the ground where several men surrounded him. When he tried to stand up, Then "started smashing him on the head with the bat." Perez collapsed.

According to McDonald, while he was trying to help Perez, he was attacked by Then-Mendez, Beard, Estanislao, and another man; Then-Mendez and Beard had bats and the other two had golf clubs. McDonald fought the attackers by swinging his golf club, which broke in half when it struck Then-Mendez's bat. McDonald fell to the ground and covered his head with his arms. The men continued to strike him with their weapons. The last face that he saw was Then's, who hit him with a bat as he tried to get up.

Perez testified that when he saw Then in the street, he grabbed his bat and ran out to meet him. He never hit anyone, as he was immediately hit in the back of the head and knocked unconscious.

According to Cerat, a group of about ten men ran down the street, all carrying weapons, throwing rocks and metal at McDonald. Perez ran into the street and was immediately hit in the head with a baseball bat. McDonald followed Perez into the street and fought with four people. When his golf club broke, the men kept hitting him on the back with baseball bats. Tucker saw the men running down the street and Perez and McDonald running off the porch toward them. Blizzard said that the men dragged Perez into the street and beat him, continuing to hit him as he lay on the ground.

Two women who lived in the neighborhood, but who did not know Perez or McDonald, also testified. Blanca Duran saw people fighting in the street, and several men with bats attacking two men. The two men "being hit... were defending themselves and they didn't have baseball bats." One of the men was lying on the ground, and other men were hitting him.

Duran called 9-1-1. Because she had trouble speaking English, she asked her twelve-year-old daughter to talk to the operator. The 9-1-1 call was played for the jury several times. The record on appeal does not contain a transcription of the call. According to the prosecutor's closing argument, Duran's daughter told the operator that seven men were hitting a man with bats.

Yolanda Rivera described the fight as between a group of Hispanics and two African-Americans. She said that the Hispanics were armed with bats and metal sticks, but she did not see anything in the hands of the African-Americans. Rivera recalled that the man on the ground covered himself and did not fight back while the Hispanics continued to "stomp[] him." The second African-American tried to pull the Hispanics off the man on the ground, but other Hispanics with bats attacked him. One of the Hispanic men told people in the street not to call the police. Despite these warnings, Rivera ran to her basement to call 9-1-1. At trial, Rivera could not identify any of the Hispanic men she saw that day. She nevertheless testified that the Then brothers looked similar to the person who told the onlookers not to call the police.

When police officer Robert Klein arrived, he saw Perez sitting on the porch, in pain and covered with blood. Perez told Klein that seven or eight "Dominicans" who threw rocks and hit him with bats and golf clubs had assaulted him. Both Perez and McDonald said they could identify the men who attacked them.

Blizzard gave Klein the license plate number of the red Honda that had circled the block. Detective Juan Garcia used the license plate number to find the addresses of the vehicles' registered owners. When he went to the address, he saw the car, and he spoke to Feliz. The police investigation of the car led them to Then and Then-Mendez. The police directed Feliz, Then, and Then-Mendez to go to the police station.

Immediately following the fight, McDonald and Perez were taken to the hospital. McDonald was treated and released. Perez developed a coma and remained hospitalized for several weeks. He underwent cranial surgery to remove a blood clot from the right side of his brain.

McDonald went to the police station and provided a statement. The police showed him numerous photographic lineups, from which he identified Beard, Estanislao, Then-Mendez and Then. Perez was unable to provide the police with a statement until September 7, 2004, when he identified Then-Mendez, Then, Feliz, and Estanislao from photographic arrays; he identified Feliz, Then, and Then-Mendez by name.

The day after the fight, Then gave Detective Garcia a formal statement. He told Garcia that he learned that "some guys" were looking for him. He drove to Redwood Avenue with Estanislao and Feliz, got out of the car, and approached the porch where Perez and McDonald were "hanging out." Perez and McDonald came down from the porch with a bat and a golf club, respectively. Perez started swinging the bat. Later that evening, Then threw the bats in the river.

Then-Mendez told Garcia about his past problems with Perez and McDonald, saying that they "wanted to find reason to fight." He claimed that during the October 2000 fight, Perez stabbed him. He said that the night before the August 2004 fight, Perez approached his car saying, "What's up, niggers?" and "Get out of the car." When Then-Mendez started to drive away, Perez kicked the car and said he was looking for Then.

Then-Mendez phoned Then and told him what happened. They went to where they knew Perez and McDonald "chill[ed] out" and parked their car around the corner. Perez had a bat and McDonald had a golf club. Then-Mendez fought Perez one-on-one for a long time. Eventually, Then-Mendez pushed Perez, causing him to fall and hit his head on a pole. Then-Mendez asserted that "[Perez and McDonald] started it."

In a statement to the police, Beard said that when he returned home from work around 6:45 p.m. on August 9, he saw Feliz's red Honda parked nearby, got in the car, and they drove to Redwood Avenue. When Beard stepped out of the car, everyone was fighting and someone swung a bat at him. He saw a "light-skinned Hispanic guy" on the ground, bleeding badly.

Then and Then-Mendez did not testify at trial. Beard did. He said that he got into Feliz's car that evening because he and Feliz often drove around and talked. Another person was in the car, who he later learned was Mojena. The three men talked for several minutes; Beard did not know where they were going. Feliz drove to the area of Redwood and Crosby Avenue and stopped his car in the middle of the street because a "bunch" of people were there. Beard recognized Then and Then-Mendez, but no one else.

As Beard got out of the car, the fight started. He did not know what the fight was about and he did not know who swung a bat first. He did not have a bat, and he did not hit anyone. He saw Then-Mendez holding a bat in a swinging position and McDonald swinging a golf club. Beard was focusing on McDonald because McDonald was immediately in front of him. The fight lasted about thirty seconds. He did not see a one-on-one fight between Perez and Then-Mendez. When Perez fell to the ground, everyone started running.

II.

Against this factual background, we begin our discussion with Then's and Then-Mendez's arguments that the trial court erred in its instructions to the jury concerning the permissible use of the evidence of the prior fight among defendants and McDonald and Perez. Defendants claim that the court failed to instruct the jury about the defensive use of other crimes evidence in accordance with Model Jury Charge (Criminal), Proof of Other Crimes, Wrongs, or Acts - Defensive Use (2000). Then-Mendez also contends that the court should have tailored the charge on self-defense to facts of the case. We reject these arguments.

Prior to trial, counsel for Then-Mendez told the court that he planned to offer medical records to show that he was treated for ice pick wounds that he incurred during the October 2000 fight with Perez and McDonald. He also planned to cross-examine Perez with regard to that act. The prosecutor had "no problem" with that proposal; he also wanted to refer to the prior incident. Then and Beard also agreed that this evidence would be admissible at trial.

The prosecutor and Beard's trial counsel referred to the October 2000 incident in their openings. After openings, the trial judge asked the attorneys to comment on the charge he intended to give to the jury concerning other crimes evidence. He also asked whether he should give the charge at that time or wait until the testimony as to that issue. All counsel agreed that the testimony should be elicited before the instruction was given. No attorney commented on the content of the proposed instruction.

The State was the first party to present evidence of the October 2000 incident to the jury, when it elicited details of the incident from McDonald. From the State's perspective, this evidence showed defendants' motive, intent, and plan to beat Perez and McDonald. Near the end of the first day of McDonald's testimony, the trial judge told the attorneys that he did not want the jury to leave without receiving a limiting instruction as to the use of prior-bad-act evidence. See State v. Blakney, 189 N.J. 88, 92-93 (2006); State v. Cusick, 219 N.J. Super. 452, 466-67 (App. Div.) (providing an example of an other-crime instruction), certif. denied, 109 N.J. 54 (1987). Counsel agreed, and the court instructed the jury that evidence concerning the 2000 incident could only be used for a limited purpose. The court explained that evidence of a prior bad act must not be used to show that a person is a bad person and, thus, is likely to have committed the offense that they're charged with, or to show that the person has a disposition, which makes him likely to commit the offense that he's charged with.

However, there are times when evidence like that that deals with some prior occasion is admissible for a limited purpose. Here it is alleged that these prior incidents are relevant with regard to the motive for what it is that happened on August the 9th, 2004.

Or to show the intention that the State must show that the perpetrators allegedly had with regard to the offenses committed on... August 9, 2004.

The judge instructed the jury that it must first decide whether to accept the evidence regarding the prior incidents and then decide whether those incidents were relevant to the limited purpose for which the evidence is allowed: "That is to show motive or any intentional act, to show intent." He emphasized that "under no circumstances [was the jury] to consider the evidence with regard to prior matters... as showing that a defendant is a bad person or has a disposition to commit crimes."

At the charge conference, the judge informed the attorneys that he would again instruct the jury about the limited use of prior-bad-act evidence, saying that he would give essentially the same charge that he gave during trial. Counsel did not object to the proposed charge.

In the final charge, the judge reminded the jury about the limited use of evidence of prior bad acts. He reiterated that the evidence regarding a defendant's involvement in a prior confrontation was only allowed "as it might bear on the limited issue of motive or intent to commit a crime charged here or to give meaning to what is alleged to be the reasons for what occurred here." Again, defense counsel did not object.

"Accurate and understandable jury instructions in criminal cases are essential to a defendant's right to a fair trial." State v. Concepcion, 111 N.J. 373, 379 (1988). "Erroneous instructions on matters or issues material to the jurors' deliberations are presumed to be reversible error." State v. Grunow, 102 N.J. 133, 148 (1986); accord State v. Jordan, 147 N.J. 409, 422 (1997).

If a defendant does not object to an instruction, he may be deemed to have waived his right to challenge the instruction on appeal. R. 1:7-2; State v. Afanador, 151 N.J. 41, 54 (1997). "A reviewing court may reverse on the basis of unchallenged error only if it finds plain error clearly capable of producing an unjust result." Ibid.; R. 2:10-2. Put another way, erroneous instructions in criminal cases are only excusable if they are harmless beyond a reasonable doubt. State v. Vick, 117 N.J. 288, 292 (1989).

The State may offer evidence of a defendant's prior bad acts pursuant to N.J.R.E. 404(b), which provides:

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

The admission of other-crime evidence "creates the strong potential for prejudice because of its natural tendency to demonstrate a criminal predisposition." Blakney, supra, 189 N.J. at 93 (quotation omitted). For that reason, "[w]hen dealing with other-crimes evidence, a court must precisely instruct the jury that the proper use of such evidence is to prove a relevant issue in dispute and not to impugn the character of the defendant." Id. at 92.

Despite these legal standards, Then-Mendez's argument that the court should have instructed the jury as to the defensive use of other-crime evidence is unavailing. Although "a defendant may use similar other-crime evidence defensively if in reason it tends, alone or with other evidence, to negate his guilt of the crime charged against him[,]" State v. Garfole, 76 N.J. 445, 453 (1978), aff'd following remand, 80 N.J. 350 (1979); see also State v. Williams, 214 N.J. Super. 12, 20 (App. Div. 1986), certif. denied, 107 N.J. 629 (1987), the court is not required to give this instruction when other-crime evidence is introduced for defensive use.

"[W]hen the defendant is offering [other-crime] proof exculpatorily, prejudice to the defendant is no longer a factor, and simple relevance to guilt or innocence should suffice as the standard of admissibility." Garfole, supra, 76 N.J. at 452-53. Hence, the strong potential for prejudice that led the Court to mandate the issuance of appropriate limiting instructions in State v. Cofield, 127 N.J. 328 (1992), Cusick, and Blakney, is not a factor when the evidence is for defensive use. See State v. Franklin, 384 N.J. Super. 306, 310 (App. Div. 2006) (when defense offers other-crime evidence, prejudice to defendant not a factor). Thus, the court here did not err by failing to give the defensive use charge.

Defendants' next claim is that the court's self-defense charge was inadequate. That argument too is without merit. No defendant clearly articulated a theory of self-defense. In his opening, Then-Mendez's counsel referred to the fight in October 2000, but only to support his contention that Perez was a violent person and a liar. During closing, he again cited the injuries inflicted on Then-Mendez in 2000 as proof of Perez's bad character. He continuously repeated that Then-Mendez had been "ice picked" and claimed that "but for [Perez], we wouldn't even be here today." This did not portray a theory of self-defense on Then-Mendez's part.

Likewise, Then did not assert self-defense. In his statement to the police, he admitted to being at the scene but said he did not have a weapon and did not hit anyone. His counsel did not assert self-defense in his opening or closing. Beard asserted a "mere presence" defense, stating that he was there during the fight but did not participate. No evidence showed that he was involved in the October 2000 incident or that he even knew about it.

During a charge conference, the judge asked defense counsel if they wanted him to instruct the jury that defendants contend they did not posses weapons. Beard's attorney suggested that the court tell the jury that defendants contend they were acting in self-defense. Then-Mendez's attorney did not feel such an instruction would be appropriate. After a conference, all attorneys agreed that the court should "just leave it blank," and thus not address defendants' theory at all.

Because defendants presented no clear theory as to how their actions constituted self-defense, the court could not explain the self-defense claim to the jury with particular reference to the facts. Indeed, counsel requested that the court not even try.

Although model jury charges are helpful to trial courts, they are not always sufficient to spell out how the jury should apply the legal principles to the facts. Concepcion, supra, 111 N.J. at 379. "[T]he better practice is to mold the instruction in a manner that explains the law to the jury in the context of the material facts of the case." Ibid. Courts have emphasized the need for tailored jury charges when a defendant asserts a claim of self-defense. State v. Bilek, 308 N.J. Super. 1, 10-11 (App. Div. 1998).

Yet, the court is not required to provide a detailed tailored instruction in every case. "Such tailoring and specification is required only if necessary to avoid confusion or misunderstanding, or when the facts and legal concepts are complex and require such treatment." State v. T.C., 347 N.J. Super. 219, 240 (App. Div. 2002), certif. denied, 177 N.J. 222 (2003); accord State v. Baker, 303 N.J. Super. 411, 414 (App. Div.), certif. denied, 151 N.J. 470 (1997). Cases in which the court found a reversible error in failing to issue such instructions involve situations where a general self-defense charge was misleading or confusing. Bilek, supra, 308 N.J. Super. at 11-12 (inclusion of general self-defense charge, not tailored to the claim of defense of one's dwelling, is confusing, if not misleading, to the jury); see also State v. Gartland, 149 N.J. 456, 460, 475 (1997) (where the defendant was a woman who killed her husband in her own bedroom, abstract charge on duty to retreat confusing because it did not explain how or to where the woman could have retreated, especially where record showed that assailant blocked the only doorway out of the bedroom).

Nevertheless, the court here did provide the jury with an appropriate self-defense instruction. The instruction was legally correct and generally conformed with Model Jury Charge (Criminal), Justification Self Defense - In Self Protection (N.J.S.A. 2C:3-4) (2006). The instructions included a recitation of the charges brought against each defendant, definitions of lesser-included offenses, and an explanation of defendants' affirmative defenses. Throughout the instructions, the court referred to defendants by name and explained how the charges related to each of them. When appropriate, the charge referred to testimony adduced at trial in order to place a particular charge in context.

As to self-defense, the court told the jury that "[e]ach particular defendant contends that if the State proves he used or threatened to use force upon another, that such force was justifiably used for his own protection or the protection of the third person." It then charged the jury as to the law of self-defense, including the use of deadly force and the obligation to retreat.

The confrontation here, unlike in Gartland, supra, 149 N.J. 456, occurred on the street without an impediment to defendants' retreat from the area. Further, though defendants asserted the defense of third persons as a justification for their actions, they did not identify those persons or explain how they were endangered. Defendants' claim of self-defense lacked the complexity to warrant a more specific charge.

Furthermore, when the trial judge asked the defense attorneys what they wanted him to tell the jury about the self-defense claim, Then-Mendez's counsel stated that a specific instruction would not be appropriate. All attorneys agreed that the court should "just leave it blank," and not specifically address defendants' self-defense theory at all. Consequently, defense counsel cannot now complain that that charge was not molded to the facts of the case. See State v. Pontery, 19 N.J. 457, 471 (1955) ("defendant cannot beseech and request the trial court to take a certain course of action, and upon adoption by the court, take his chance on the outcome of the trial, and if unfavorable, then condemn the very procedure he sought and urged"); State v. Harper, 128 N.J. Super. 270, 277 (App. Div.) (trial errors induced, encouraged or acquiesced in by defense counsel, are not ordinarily a basis for reversal), certif. denied, 65 N.J. 574 (1974).

III.

We turn next to defendants' argument that they were unduly prejudiced by the prosecutor's comment that their statements to the police were untrustworthy because they made them after the police provided them with Miranda warnings. Then also contends that the prosecutor improperly suggested that the jurors would not be doing their job if they did not convict defendants, and improperly vouched for the credibility of a State witness. Beard argues that he was prejudiced by the prosecutor's factual misrepresentation of McDonald's testimony concerning who wielded the bat that broke his golf club. None of the remarks challenged on appeal engendered an objection at trial.

"[P]rosecuting attorneys, within reasonable limitations, are afforded considerable leeway in making opening statements and summations." State v. DiFrisco, 137 N.J. 434, 474 (1994) (quotation omitted). "So long as he stays within the evidence and the legitimate inferences therefrom the Prosecutor is entitled to wide latitude in his summation." State v. Mayberry, 52 N.J. 413, 437 (1968), cert. denied, 393 U.S. 1043, 89 S.Ct. 673, 21 L.Ed. 2d 593 (1969). "Indeed, prosecutors in criminal cases are expected to make vigorous and forceful closing arguments to juries." State v. Frost, 158 N.J. 76, 82 (1999). A prosecutor's wide latitude, however, is not unfettered. State v. Williams, 113 N.J. 393, 447 (1988). "A prosecutor's remarks and actions must at all times be consistent with his or her duty to ensure that justice is achieved." Id. at 447-48. Nevertheless, "[p]rosecutorial misconduct is not ground for reversal of a criminal conviction unless the conduct is so egregious that it deprived defendant of a fair trial." State v. Pindale, 249 N.J. Super. 266, 285 (App. Div. 1991).

In determining whether a reversal is warranted, the reviewing court considers whether defense counsel made a timely and proper objection. State v. Smith, 167 N.J. 158, 182 (2001); State v. Ramseur, 106 N.J. 123, 322-23 (1987). If no objection is made, the court usually will not deem the remarks prejudicial. Ramseur, supra, 106 N.J. at 323; State v. Wilson, 57 N.J. 39, 50 (1970). As the Wilson Court explained: In addition to giving the trial judge an opportunity to take corrective action, a timely objection signifies that the defense believes itself to have been prejudiced by the prosecutor's remarks. Conversely, a failure to object... indicates that in the atmosphere of the trial the defense did not believe that the prosecutor's remarks were prejudicial.

[57 N.J. at 50-51.]

Here, because defense counsel did not object to the summation, the prosecutor's remarks would only warrant reversal if the remarks had "a clear capacity to bring about an unjust result and... substantially prejudiced the defendant's right to have the jury fairly evaluate the merits of his defense." State v. Goode, 278 N.J. Super. 85, 92 (App. Div. 1994) (quotation omitted).

A.

Then and Then-Mendez argue that the prosecutor unfairly attacked their credibility by suggesting that advising them of their constitutional rights gave them a motive to lie. Then-Mendez cites two instances where the prosecutor made such remarks. The first occurred near the beginning of the summation when the prosecutor said:

The defendants' versions obviously are important. The defendants want the police to believe that version and they certainly want you to believe that version, but we know they're interested people.

Can we really have any degree of confidence that what a defendant says to the police after being given his MIRANDA warnings, that's got to be the truth? You ought to take that with a grain of salt. So go beyond it.

The second remark occurred when the prosecutor was commenting on the statement that Then-Mendez gave to the police:

Now remember when [Then-Mendez] was brought to headquarters, it was August 10, 2004, about 12 hours after this incident. Most respectfully, ladies and gentlemen, he knows darned well why he's there, and the first thing the police did was read him his MIRANDA rights.

And we all know that when you're in police headquarters and somebody is telling you you have the right to a lawyer, you have the right to stop answering any questions at any time, if you can't afford a lawyer, one will be appointed for you, what you're saying can and will be used in a court of law, that is almost a universal code for man, you're in trouble.

So knowing this, what does [Then-Mendez] spend a good part of his interview talking about, what happened last night, defending himself? He talks about what happened four years ago.

Questionable references to Miranda in summation typically occur when a prosecutor seeks to impeach a defendant's trial testimony by use of a defendant's silence at or near the time of his arrest. See State v. Muhammad, 182 N.J. 551, 564 (2005); State v. Deatore, 70 N.J. 100, 114-16 (1976) (a defendant's silence in police custody is an inappropriate subject of cross-examination whether or not Miranda warnings were given).

In the matter at hand, defendants made exculpatory statements to the police after receiving Miranda warnings. The prosecutor made no argument that defendants omitted information from these statements or neglected to offer an alibi that they proffered for the first time in court. Thus, the prosecutor did not seek to use their silence against them.

The prosecutor did, however, suggest to the jury that because the police had provided defendants with their Miranda warnings, they could not be trusted to tell the truth. The remarks could also have suggested to the jury that Then and Then-Mendez were guilty simply because they had been Mirandized. Thus, the challenged statements were improper. Nevertheless, they are not cause for reversal for several reasons.

No defense attorney objected to the remarks. This suggests that the comments, when made, did not have the impact that they have when reviewed in the written transcript, and that in the atmosphere of the trial, "the defense did not believe that the prosecutor's remarks were prejudicial." Wilson, supra, 57 N.J. at 51.

Further, when considered in context with all of the evidence, the prosecutor's remarks did not substantially prejudice defendants' rights to have the jury fairly evaluate the case. The prosecutor made the comments to convey the atmosphere in which Then-Mendez made his statement; he did not imply that Then-Mendez should not have received Miranda warnings. His remarks are distinguishable from those, for example, in Pindale, supra, 249 N.J. Super. at 286, where the prosecutor commented that "our system gives defendant all kinds of rights which were scrupulously honored, but that defendant did not give any rights to his victims."

And significantly, the evidence against Then and Then-Mendez was overwhelming. Both admitted being at the scene of the assaults. No witness corroborated Then-Mendez's account of his protracted, one-on-one struggle with Perez. Then admitted to gathering a group of men, arming them with bats, and driving to where they would find Perez and McDonald. He admitted that after the altercation, he threw the bats into the river because he did not want anybody to go to jail. The State's summation was not strident, argumentative or emotion-laden, nor did it refer to matters outside the evidence.

Given the overwhelming evidence of defendants' guilt, and defense counsel's failure to object when the prosecutor made the remarks, we conclude that the challenged remarks could not have led the jury to a verdict that it would not otherwise have reached. The prosecutor's comments, while ill-advised, did not deprive defendants of a fair trial.

B.

Then also contends that the prosecutor exceeded the limits of proper comment. In attacking Then's claim that he only went to Redwood Avenue to talk to Perez, the prosecutor stated: "The truth is there. It's not hard. You don't have to be a genius. You've just got to look." Then asserts that these remarks impermissibly suggested that the jury was not doing its job.

"Many courts historically have viewed... warnings to the jury about 'not doing your job' as among the most egregious forms of prosecutorial misconduct." Pindale, supra, 249 N.J. Super. at 286. The prosecutor's remarks here do not, however, urge the jury to do its job. A reasonable interpretation of "[y]ou don't have to be a genius" is that it asks the jurors to use common sense in evaluating Then's account of the incident.

Given that no objection was raised at trial, it is unlikely that this brief remark unfairly prejudiced Then.

Then further argues that the prosecutor vouched for Duran's credibility. The prosecutor made the following comment while discussing Duran's call: "Listen carefully to the words. She and her daughter are describing what they are watching at the moment, not what they saw ten minutes ago or yesterday, what they're seeing at this time. There's no possibility of fabricating. They are describing what they saw."

"A prosecutor may not express a personal belief or opinion as to the truthfulness of his or her witness's testimony." State v. Staples, 263 N.J. Super. 602, 605 (App. Div. 1993) (citing State v. Marshall, 123 N.J. 1, 154, 156 (1991)). A prosecutor may, however, argue that a witness is credible based on the evidence adduced at trial. State v. Scherzer, 301 N.J. Super. 363, 445 (App. Div. 1997), certif. denied, 151 N.J. 466 (1997). Here, the prosecutor did not express his personal belief of Duran's credibility. Rather, he made an argument that relied on the facts of the case. Thus, the prosecutor's remarks regarding Duran's testimony were not improper.

C.

Beard argues that the prosecutor's factual misstatement in summation and failure to acknowledge or correct that misstatement prejudiced him. He asserts that the prosecutor's remarks left the jury with the impression that the prosecutor had special knowledge of his guilt.

During closing, the prosecutor recounted McDonald's testimony as: "Yeah, I had my golf club, I'm going to use it, positively, we're being attacked. I believe he said it was Winston Beard who swung the golf -- his bat and Winston Beard's bat broke the golf club. We know that's true. We've got a broken golf club." This statement was incorrect. McDonald did not testify that Beard broke anyone's golf club.

Neither defense counsel nor the court caught the error, but the jury did. Shortly after adjourning for deliberations, the jury sent out a note asking, "who did Suquan McDonald testify broke his golf club with a bat and... who did Suquan testify struck him from behind?" In response to this question, a tape of the appropriate portions of McDonald's testimony was played for the jury.

Prosecutors are "duty-bound to confine their comments to facts revealed during the trial and reasonable inferences to be drawn from that evidence." Frost, supra, 158 N.J. at 85. They should not make inaccurate legal or factual assertions during opening or closing arguments. Ibid.

Although the prosecutor erred in his remarks concerning Beard, this error did not have a clear capacity to bring about an unjust result. The court instructed the jurors that they were the sole and exclusive judges of the evidence and "[r]egardless of what an attorney may have said or what [the court] may say in recollecting evidence in the case, it is your recollection of the evidence that should guide you as judges of the facts." The jury caught the error and asked for a clarification, and the court played the tape of McDonald's testimony for the jury. The court's instruction combined with the replayed testimony eliminated any undue prejudice that the misstatement may have caused.

Furthermore, the prosecutor did not convey a personal belief. He did not intimate personal knowledge or invoke facts outside the record. He simply misstated McDonald's testimony, which provides no basis to reverse Beard's conviction.

IV.

Next, we address defendants' argument that the court erred in denying their mistrial motion when the prosecutor used his peremptory challenges to exclude four Hispanic potential jurors. The court conducted jury selection over five days. Near the end of the first day, one of the defense attorneys moved for a mistrial after the State excused two Hispanic potential jurors.

The prosecutor explained that he excused one, J.M., because J.M.'s cousin had been stabbed and there would be testimony at trial about stabbing incidents. He excused another, B.C., because her brother was incarcerated. The court accepted these explanations as satisfactory.

The next day, the prosecutor excused another Hispanic potential juror, J.S., causing the defense to renew its mistrial motion. The prosecutor excused J.S. based on the response the juror gave to one of the court's questions. The prosecutor explained:

[Y]our honor... the question you asked was have you or anyone close to you ever been the victim, and I want to emphasize victim of a crime. And [J.S.] answered that by saying yes, a friend was arrested for assault. Now I've got to take that in its literal sense, maybe he misunderst[ood]. But I've got to take it in its literal sense that he thought that his... friend, was the victim of an assault, and yet he was arrested.

He went on to say [his] friend had gone to prison, served a prison sentence. The prison sentence was seven years. When he finished his prison sentence he was deported....

....

[H]ow could one credibly really believe that someone who believed or may well have believed that his friend was the victim of an assault, yet went to prison, yet was deported, and that's not going to factor in his mind.

The court was satisfied with the proffered explanation, reasoning that the prosecutor had a right to be concerned that a person who had a close association with someone who was deported after serving a prison sentence might not be fair to the State.

On the final day of voir dire, the prosecutor excused another Hispanic potential juror, C.D., because the way she answered the questions, the way she talked, that she's a babysitter... wearing the knapsack, she just struck me as somebody who was a slow person, intellectually slow. I know this is not very diplomatic, but frankly she struck me as being dim witted. And I would not have someone like that on a jury regardless of the color of the skin.

The defense renewed its mistrial motion. The court did not have a clear recollection of C.D. It stated:

[T]he best image I have of [C.D.]... is that she certainly is not terribly sophisticated, and may not be highly educated, but as to whether or not intellectually she's deficient, I can't honestly say that I have a recollection of that, that I had that impression of her. So it puts me in kind of a position of having to accept to some extent the prosecutor's account on his word if I do, when I can't confirm that I have that reaction about her, other than what I have said, because... we've been so long selecting a jury. This is the third panel we've had up here.

The court had agreed with the prosecutor's reasons for excusing the first three Hispanic jurors. It also observed that Hispanic potential jurors remained on the panel. The court concluded that the State's use of peremptory challenges was not discriminatory.

Whether a prosecutor has exercised peremptory challenges in a discriminatory manner lies within the sound judgment of the trial court. Gilmore, supra, 103 N.J. at 545. "[W]hat is involved is a judgment call by a trial judge who was closely involved in the situation as it unfolded and upon whose sense of fairness and impartial judgment we have been adjured to depend." State v. Hughes, 215 N.J. Super. 295, 299-300 (App. Div.), certif. denied, 107 N.J. 55 (1986). Thus, "[a]n appellate court will extend substantial deference to a trial court's findings relating to whether the prosecution has exercised its peremptory challenges on constitutionally-impermissible grounds." State v. Clark, 316 N.J. Super. 462, 473 (App. Div. 1998), after remand, 324 N.J. Super. 558 (App. Div. 1999), certif. denied, 163 N.J. 10 (2000).

Both the United States and New Jersey Constitutions restrict the use of peremptory challenges to remove prospective jurors on impermissible grounds. Hernandez v. New York, 500 U.S. 352, 370-71, 111 S.Ct. 1859, 1872, 114 L.Ed. 2d 395, 412 (1991); Gilmore, supra, 103 N.J. at 511. The State "must satisfy a heavier burden under the New Jersey Constitution [than under the federal constitution] to overcome a prima facie showing that it has exercised peremptory challenges on constitutionally-impermissible grounds." Clark, supra, 316 N.J. Super. at 469. Because defendants' arguments are based primarily on State law, which affords defendants more protection than its Federal counterpart, we analyze this issue under the procedure established in Gilmore.

Jury selection is designed to ensure that juries are drawn from community cross-sections, without disqualification because of "race, color, creed, national origin, ancestry, marital status or sex." Gilmore, supra, 103 N.J. at 526. A prosecutor may remove a potential juror only if he or she believes that the juror entertains a specific bias relating to the particular case on trial. Id. at 530-31. The use of non-specific, presumed "group bias" or "group affiliation" to remove a juror is a "perversion" of the process. Id. at 531.

To ensure a defendant's right to trial by an impartial jury, a two-step process is employed when the defendant alleges that a prosecutor is improperly using peremptory challenges. Id. at 533-39. First, the defendant must timely object to the prosecution's use of peremptory challenges and must establish a prima facie showing that the challenges are being exercised on constitutionally-impermissible grounds. Id. at 535. If this showing is made, "[t]he burden shifts to the prosecution to come forward with evidence that the peremptory challenges under review are justifiable on the basis of concerns about situation-specific bias." Id. at 537. For the State to meet its burden, it must show, by a preponderance of the evidence, a genuine and reasonable ground for believing that a prospective juror might have an individual or personal bias that would make excusing him or her rational and desirable.... [T]he trial court must determine whether the explanations proffered by the State are genuine and must weigh those explanations against the showing made by defendant. On that weighing the trial court must then determine whether defendant has rebutted... the presumption of constitutional exercise of the preemptory challenges. [State v. McDougald, 120 N.J. 523, 555 (1990).]

Here, defendants did not place the basis of their motions for a mistrial on the record, and the court never found that defendants made a prima facie showing that the prosecutor exercised challenges on constitutionally-impermissible grounds. Nevertheless, assuming that defendants made such a showing, the prosecutor proffered sufficient reasons for excusing the four Hispanic potential jurors.

J.M.'s cousin had been stabbed in Paterson. Because a juror's involvement in a crime similar to that with which a defendant is charged can potentially give rise to a risk of bias, excusal is often required. See, e.g., State v. Singletary, 80 N.J. 55, 63-64 (1979). Here, the prosecutor provided a reasonable ground to believe that J.M. had a situation-specific bias against the State.

Likewise, the prosecutor cited the incarceration of B.C.'s brother and her relationship with him as the reason for excusing her from the jury. This explanation was both reasonable and situation-specific.

J.S. asserted that a friend had been arrested for assault, incarcerated, and deported. The prosecutor expressed concern that the juror apparently considered his friend to have been a "victim" of crime. That concern over J.S.'s potential bias was reasonable and situation-specific.

The State's reasons for excusing C.D. are not as clear. She said that she was a babysitter, her mother was a middle school teacher, her father was an unemployed lawyer, and her sister was a nurse. In justifying his challenge to C.D., the prosecutor stated that she appeared "dim witted" and "intellectually slow." To support these conclusions, the prosecutor cited C.D.'s general demeanor, her possession of a knapsack, and her occupation as a babysitter.

The written record gives little support to the prosecutor's impression. C.D.'s responses to the court's questions were appropriate and she was oriented as to time and place. Nonetheless, demeanor evidence is often difficult to determine from a written record; we have affirmed trial judges who have accepted explanations based on demeanor as demonstrating non-discriminatory bases for challenges. See, e.g., State v. Huff, 292 N.J. Super. 185, 193 (App. Div. 1996) (accepting prosecutor's explanation that juror avoided making eye-contact with him during voir dire and noting that such conduct is "a frequent indicator of prospective adverse reaction"), aff'd o.b., 148 N.J. 78 (1997).

Here, the court accepted the prosecutor's reasons as to why he excused C.D. Although the court could not clearly remember its impression of C.D., it recalled that she did not appear well-educated or sophisticated. Its independent observations thus partially corroborated the prosecutor's impression.

Moreover, the circumstances surrounding the State's use of all of its peremptory challenges further support the trial court's rulings. The prosecutor had exercised twelve peremptory challenges, four to excuse Hispanic potential jurors. Two Hispanic jurors remained on the final jury panel.*fn5 The prosecutor had no motive to exclude Hispanic jurors, given that one of the victims (Perez) was Hispanic and one of the State's key witnesses (Duran) was Hispanic. Given the substantial deference afforded to the trial court's judgment in such matters, we find no basis to conclude that the court mistakenly exercised that discretion.

V.

We next address Beard's argument that his presumption of innocence was diminished by Officer Klein's repeated references to Perez and McDonald as "victims."

Klein was the first police officer to arrive at the scene. When he arrived, he saw three people on the porch. He "went onto the porch to speak with the victims" and learned that "our victim one was Alex Perez." He said that McDonald was "victim two" and that an ambulance took both "victims" to the hospital. On cross-examination, he explained that he did not investigate the area because he was busy "tending to the victims."

Beard's attorney did not object to this testimony. In fact, he questioned Klein about it:

Q: [Y]ou kept referring to the victims as Alex Perez and Suquan McDonald, correct?

A: Yes.

Q: And... in your mind, you had made the conclusion they were the victims because they were bleeding, right?

A: Correct.

Q: And because they were bleeding, they were the victims, correct?

A: They were the only ones on scene. Correct.

Q: Well, they were the only ones you saw and they were the only ones that were bleeding and, therefore, they were the only ones that were the victims....

A: Yes.

Although a complaining witness should not be referred to as a "victim" until it has been conclusively established that a crime has taken place, State v. Cusumano, 369 N.J. Super. 305, 311 n.1 (App. Div.), certif. denied, 181 N.J. 546 (2004), under the circumstances here, absent an objection, the use of the term "victim" by the State witness did not deprive defendants of a fair trial. Cusumano does not stand for the proposition that any reference to the term "victim" suggests that a defendant is guilty. The court made no finding as to the appropriate use of the term "victim" at a criminal trial. Indeed, courts have frequently concluded that a reference to an injured person as a "victim" was not reversible error. See United States v. Washburn, 444 F.3d 1007, 1013 (8th Cir. 2006) (jury instructions that referred to complaining witnesses as "victims" did not prejudice defendant's rights); Connecticut v. Santiago, 917 A.2d 1051, 1059-62 (Conn. App.) (defendant's failure to object fatal to his claim of prejudice by court's and prosecutor's references to the alleged murder victim as "the victim"), appeal dismissed, 935 A.2d 152 (Conn. 2007); Iowa v. Walker, 737 N.W.2d 325 (Iowa Ct. App. 2007) (in light of the "totality of the circumstances," use of term "victim" in the jury instruction not prejudicial); Vermont v. Wigg, 889 A.2d 233, 236-37 (Vt. 2005) (prosecution witness's reference to complainant as the "victim" was improper, but error harmless); Illinois v. Zernel, 636 N.E.2d 834, 839 (Ill. App. Ct. 1994) (no prejudicial error in prosecutor's use of term "victim" when referring to a complaining witness); Washington v. Alger, 640 P.2d 44, 47 (Wash. Ct. App. 1982) ("when placed in the context of entire trial, single reference by trial judge to 'victim' is harmless error beyond a reasonable doubt").

Klein's testimony was replete with "jargon" typically found in police reports. See Jackson v. Delaware, 600 A.2d 21, 24-25 (Del. 1991) (law enforcement officers accustomed to using term "victim" when referring to a complainant). Viewing the testimony in its entirety, Klein used the term "victims" simply to refer to the individuals who were injured and needed medical assistance. He expressly agreed with defense counsel's assertion that he considered Perez and McDonald to be "victims" because they were the ones who were bleeding. The jury was not misled into believing that Klein's remarks bolstered the testimony of Perez and McDonald or expressed his view of defendants' guilt.

VI.

Beard next argues that the court erred in allowing Duran to testify that Perez and McDonald were "just defending themselves." He contends that this testimony embraced the ultimate issue in the case, was unreliable, and constituted an improper legal opinion.

During direct examination, the prosecutor asked Duran, "what were these two guys who were in the house in front doing?" She replied, "Nothing, they were just defending themselves." Then-Mendez objected, but the court overruled the objection. When the prosecutor attempted to follow up on Duran's statement, Then-Mendez and Beard objected. Then-Mendez argued that the question called for a legal conclusion. The court rejected this argument. The judge ruled that although the question called for a conclusion, "the witness could testify to it if we had the foundation." The prosecutor then asked Duran, "Could you please tell us what you saw that led you to conclude that two guys were defending themselves?" She responded: "[W]hat I saw was... they were being hit, and they were defending themselves and they didn't have baseball bats."

A trial court's decisions concerning the admissibility of evidence are reviewed under an abuse of discretion standard in which substantial deference is afforded to the trial court. State v. Feaster, 156 N.J. 1, 82 (1998). A trial court's evidentiary ruling must be upheld unless it can be shown that the court's "finding was so wide of the mark that a manifest denial of justice resulted." State v. Carter, 91 N.J. 86, 106 (1982).

A lay witness may testify as to any matter of which he or she has personal knowledge. Phillips v. Gelpke, 190 N.J. 580, 589 (2007) (citing N.J.R.E. 602). Before testifying, the witness must establish a proper foundation by demonstrating personal knowledge of the matter. Biunno, Current N.J. Rules of Evidence, comment on N.J.R.E. 602 (2008).

Here, Duran established that she had personal knowledge of the subject matter of her testimony. She was standing near the front door of her house when she saw people in the street hitting each other with bats. Duran's 9-1-1 call, which was played for the jury, shows that she observed the altercation.

In addition to simply recounting facts, "a lay witness may give an opinion on matters of common knowledge and observation." State v. Bealor, 187 N.J. 574, 586 (2006) (quotation omitted). A lay "witness'[s] testimony in the form of opinions or inferences may be admitted if it (a) is rationally based on the perception of the witness and (b) will assist in understanding the witness' testimony or in determining a fact in issue." N.J.R.E. 701. To satisfy the first requirement, that the opinion be rationally based on the perceptions of the witness, the lay witness must establish that he or she has "actual knowledge, acquired through his or her senses, of the matter to which he or she testifies." State v. Labrutto, 114 N.J. 187, 197 (1989). As discussed, Duran satisfied the actual knowledge requirement.

The second prong of N.J.R.E. 701, which requires the lay opinion to be of aid to the trier of fact, is satisfied if the observed facts "are incapable of reproduction and comprehension by mere description." Priest v. Poleshuk, 15 N.J. 557, 563 (1954). Evidence of opinion is proper "where [the] description is not adequate to enable anyone but the witness himself to see or comprehend them as they would have been seen or comprehended could the jury have occupied his position of observation." Id. at 563-64 (internal quotation omitted). Duran's testimony also satisfied this requirement.

Whether a person embroiled in a fight is the aggressor or simply defending himself is a matter of common knowledge and observation. Courts have allowed lay witnesses to offer opinions about an individual's mental state when those opinions "spring[] from the common understanding and experience of mankind." State v. Risden, 56 N.J. 27, 40 (1970); cf. Estate of Nicolas v. Ocean Plaza Condo. Ass'n, Inc., 388 N.J. Super. 571, 582-83 (App. Div. 2006) ("person's insanity for purposes of [statute of limitations] can be established under N.J.R.E. 701, through the testimony of laypersons"); State v. Guerrido, 60 N.J. Super. 505, 511 (App. Div. 1960) (use of lay opinion testimony to establish alcohol intoxication). The opinion that Perez and McDonald were "just defending themselves" fits within this line of cases.

VII.

Beard next argues that Klein's testimony that he was dispatched to the scene on a report of "several males assaulting two other males with rocks, bats, sticks, and other objects" was inadmissible hearsay. Relying on State v. Bankston, 63 N.J. 263 (1973), he contends that the testimony improperly reinforced the credibility of the State's witnesses. We disagree.

The rule against hearsay is not violated when a police officer explains the reason he went to the scene of a crime by stating that he did so "upon information received." Id. at 268. "However, when the officer becomes more specific by repeating what some other person told him concerning a crime by the accused the testimony violates the hearsay rule.... [and] violates the accused's Sixth Amendment right to be confronted by witnesses against him." Id. at 268-69.

Here, on direct examination, the prosecutor asked Klein to explain the nature of the dispatch call. Then-Mendez objected and argued that Klein's response would be hearsay. The court overruled the objection, reasoning that the 9-1-1 call had already been played for the jury and the caller had already testified. The prosecutor again asked Klein what the dispatch said, and Klein replied: "Dispatched to 160 Redwood Ave. Several males assaulting two other males with rocks, bats, sticks and other objects."

This was not a Bankston violation. The information in Klein's hearsay statement had already been admitted in evidence. Duran and Rivera each testified that they saw two men being beaten by a group of men armed with bats and sticks. The 9-1-1 calls were played for the jury. Klein's testimony as to why he was dispatched to the scene simply reflected facts already in evidence. The informants were identified; they testified, and were subjected to cross-examination. The defense had the opportunity to question them concerning what they saw and why they called the police. Defendants' Sixth Amendment right to be confronted by the witnesses against them was not violated.

VIII.

Beard argues next that the trial court abused its discretion in allowing the prosecutor to play a recording of Duran's 9-1-1 call during the prosecutor's opening statement. Beard asserts that the probative value of the unauthenticated recording was substantially outweighed by its prejudicial impact. See N.J.R.E. 403. He further asserts that the prosecutor's representations concerning the recording were not supported by the evidence. Again, we disagree.

"The purpose of a prosecutor's opening statement is to present to the jury an outline or summary of what the State expects to prove." State v. W.L., 292 N.J. Super. 100, 108 (App. Div. 1996); see also, State v. Walden, 370 N.J. Super. 549, 558 (App. Div.), certif. denied, 182 N.J. 148 (2004). For that reason, "[a] prosecutor may state in his opening only facts he intends in good faith to prove by competent evidence." State v. Hipplewith, 33 N.J. 300, 309 (1960). The failure of the State to offer proof to meet its proffer, however, "is not ground for reversal unless allegations in the opening statement are completely unsupported by the evidence and there is a showing of prejudice to the defendant and bad faith by the prosecutor." Ibid.

The prosecution is afforded considerable leeway in openings and summations. State v. Loftin, 146 N.J. 295, 386 (1996). Nonetheless, a prosecutor should refrain from making "'inflammatory and highly emotional'" appeals that have the capacity to confuse or mislead the jury. W.L., supra, 292 N.J. Super. at 111 (quoting Marshall, supra, 123 N.J. at 161). Still, reference in a prosecutor's opening to inflammatory information that is later admitted into evidence "is not reversible misconduct, even if prejudicial to the defense." State v. Timmendequas, 161 N.J. 515, 578 (1999).

Here, in his opening, the prosecutor described Duran's 9-1-1 call and told the jurors that he was going to play it for them. Beard objected, arguing that it would be inappropriate to play the recording because it had not yet been entered into evidence and it was beyond the scope of an opening statement. The prosecutor proffered that he intended to call Duran as a witness and introduce the recording into evidence at trial. The court overruled the objection.

The prosecutor played the 9-1-1 recording, and then commented to the jury:

These calls are not always the clearest, because as you can imagine, obviously, they're over the telephone, and often people who make 9-1-1 calls are excited about what they see. You hear the young lady say seven or eight -- seven -- they're hitting him with bats. And she says, oh, my God, they're killing him.

The recording was subsequently entered into evidence without objection and played for the jury twice during Duran's testimony. It was also played during the prosecutor's closing. Thus, because the prosecutor offered to introduce the 9-1-1 recording at trial and, in fact, did so, his reliance on the recording was supported by the evidence. Under the circumstances, the court did not abuse its discretion by permitting the prosecutor to play the tape during his opening.

IX.

We turn next to defendants' sentences. "In sentencing, trial judges are given wide discretion so long as the sentence imposed is within the statutory framework." State v. Dalziel, 182 N.J. 494, 500 (2005). The standard of review is "one of great deference." Id. at 501. When reviewing a sentence, we determine whether the sentencing guidelines were followed, whether the court properly considered and weighed the aggravating and mitigating factors, and whether the court adhered to the sentencing guidelines. State v. Roth, 95 N.J. 334, 364-65 (1984).

A.

The court sentenced Then to an aggregate seven-year prison term, which he argues was manifestly excessive. He does not contend that the court failed to recognize any applicable mitigating factors, but confines his argument to challenging the court's findings of the following aggravating factors: his risk of recidivism, N.J.S.A. 2C:44-1a(3); the seriousness and extent of his prior criminal record, N.J.S.A. 2C:44-1a(6); and the need to deter him and others, N.J.S.A. 2C:44-1a(9). We reject his arguments.

When evaluating the aggravating factors, the court recognized the risk that Then would commit another offense, N.J.S.A. 2C:44-1a(3). The judge also considered the extent of Then's prior criminal record and the seriousness of the offenses for which he had been convicted, N.J.S.A. 2C:44-1a(6). The court commented that Then's felony record was "rather compelling" because it included an aggravated assault involving a serious bodily injury. Further, at the time of the present assault, Then had only been on parole from the latter offense for a year. Finally, the judge found the need for deterring Then and others from violating the law, N.J.S.A. 2C:44-1a(9).

With regard to mitigating factors, the court found that the victim of Then's conduct induced or facilitated its commission, N.J.S.A. 2C:44-1b(5); that the assault never would have happened if it had not been for Perez's provocation. The court gave "that factor a lot of weight" in determining Then's sentence.

The judge also recognized that incarceration would involve excessive hardship to Then's dependents, N.J.S.A. 2C:44-1b(11). The court concluded that on balance, the aggravating factors preponderated, and a presumption of imprisonment applied.

The court did not abuse its discretion in sentencing Then.

The court based its finding of aggravating factors 3 and 6 on Then's juvenile and adult record. Then had been involved in the juvenile justice system, yet persisted in committing crimes as an adult. Then's adult record included a previous conviction arising from a gang fight in which one person was killed and another was seriously injured. He was charged with multiple counts, including murder, and was convicted of serious bodily injury aggravated assault. That Then had previously been convicted of the same serious offense for which he was being sentenced here strongly supports the court's findings.

With regard to aggravating factor 9, Then repeatedly denied any wrongdoing in connection with the beating of Perez and McDonald and showed no remorse. A finding of a need to deter a defendant from similar conduct in the future may be supported by a defendant's consistent denial of involvement in wrongdoing and lack of remorse. State v. Rivers, 252 N.J. Super. 142, 153-54 (App. Div. 1991). Then committed the aggravated assaults on Perez and McDonald while on parole, less than a year after he was released from prison for a previous aggravated assault. This established a specific need to deter him from engaging in assaultive conduct in the future. See State v. Jarbath, 114 N.J. 394, 405 (1989) (sentence can have both general deterrent effect on the public and personal deterrent effect on defendant).

In sum, the court followed the sentencing guidelines, made findings of aggravating and mitigating factors based upon competent credible evidence in the record, and imposed a reasonable sentence.

B.

Then-Mendez argues that his sentence to a six-year term for his aggravated assault conviction was excessive. He contends that the court erred in finding the risk of recidivism as an aggravating factor, given his minimal criminal record. He also contends that the court should have found that imprisonment would entail excessive hardship for him and that substantial grounds excused his conduct. He asks that we reduce his sentence to the minimum five-year term. We decline to do so.

We begin with the aggravating factors. The court found aggravating factors N.J.S.A. 2C:44-1a(3) and N.J.S.A. 2C:44- 1a(9).*fn6 Then-Mendez had no prior Superior Court convictions, but he had six prior municipal court convictions. The court reasoned that Then-Mendez's seven arrests and six convictions in a period of three years showed repeated involvement in prohibited conduct. Then-Mendez's argument that the court erred in finding that he presented a risk of recidivism lacks merit in the face of these convictions. A court may consider a record of municipal court convictions as part of a defendant's personal history. State v. Taylor, 226 N.J. Super. 441, 454 (App. Div. 1988).

A trial judge is also required to consider all of the mitigating factors supported by the evidence. Dalziel, supra, 182 N.J. at 505. Where a mitigating factor is amply based in the record before the sentencing judge, it must be found. Id. at 504-05.

Here, as a mitigating factor, the court found that Perez's conduct induced or facilitated the commission of the crime, N.J.S.A. 2C:44-1b(5). Giving substantial weight to that factor, the court concluded that Then-Mendez's aggravating and mitigating factors were in balance.

Nevertheless, Then-Mendez contends that the court erred in not finding that imprisonment would entail excessive hardship, N.J.S.A. 2C:44-1b(11), based on his paranoid schizophrenia, and in not finding that there were substantial grounds excusing his conduct, N.J.S.A. 2C:44-1b(4), in light of his self-defense claim. We are not persuaded by these arguments.

Then-Mendez had received mental health treatment and took medication for depression. At trial, he did not, however, argue that his mental illness would make imprisonment an excessive hardship. When discussing a letter written by Then-Mendez's psychiatrist, defense counsel stated, "So I offer it to this Court today as perhaps somewhat of an explanation why [Then-Mendez's] judgment was not perhaps the judgment that one of us would have had." The record contains no evidence that Then-Mendez would be unable to receive proper medical treatment while in prison or that he would be unable to function in a prison environment. Thus, there was no basis for the court to have found mitigating factor 11.

Then-Mendez's claim that mitigating factor 4 is applicable is also without merit. His account of the incident as a one-onone struggle between himself and Perez, in which he claimed that Perez accidentally hit his head on a signpost, was uncorroborated by any other evidence at trial. The jury plainly rejected Then-Mendez's assertion of self-defense. Thus, the court did not abuse its discretion in failing to find mitigating factor 4.

In sum, the court followed the sentencing guidelines, made findings of aggravating and mitigating factors based upon competent credible evidence in the record, and imposed a reasonable sentence.

X.

The remainder of defendants' arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm defendants' convictions and sentences, and remand to amend the judgments of conviction of defendants Beard and Then-Mendez to allow for the correction of clerical errors.

Affirmed and remanded.


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