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State v. Cook


April 3, 2009


On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 04-03-1113.

Per curiam.


Submitted March 4, 2009

Before Judges A. A. Rodríguez, Payne and Lyons.

Defendant Robert Cook appeals his conviction after trial by jury on an indictment charging him with first-degree murder, N.J.S.A. 2C:11-3a(1)(2), third-degree unlawful possession of a handgun without a permit, N.J.S.A. 2C:39-5b, and second-degree possession of a handgun with the purpose to use it unlawfully against the person or property of another, N.J.S.A. 2C:39-4a. We affirm defendant's convictions, but because we find error in the sentencing judge's failure to merge count three (possession of a handgun with the purpose to use it unlawfully against the person or property of another, N.J.S.A. 2C:39-4a) into count one (murder, N.J.S.A. 2C:11-3a(1)(2)), we vacate defendant's sentence and remand the matter for resentencing. The following factual and procedural history is relevant to our consideration of the issues advanced on appeal.

On August 8, 2003, Reginald Taylor, the victim, and his friend Christopher Wannamaker met at 6:00 p.m. to pick up Taylor's motorcycle from a repair shop. Taylor, who was twenty-nine years old at the time, was employed as a corrections officer in Hudson County. Wannamaker was an electrical engineer. The two later rode their bikes into Irvington, where, at some point in the evening three other friends, Samuel Mason, John Tyler and Tyler's brother, joined them.

At approximately 10:30 p.m., the riders stopped on Springfield Avenue at Avon Avenue to wait for John Tyler, who had given a "young lady" a "short bike ride." Taylor wanted something to drink and asked Wannamaker if he wanted anything. Wannamaker responded that he did not, and Taylor walked over to a store that was closing for the night in order to buy a beverage. He was presumably turned away and he then proceeded to a Chinese restaurant located across the street. Wannamaker remained behind on his bike in the middle of the street with the motor idling, talking to the other bikers.

Vinton Blackwood, a fifty-year-old electrician who was residing in this country illegally, was in the Chinese restaurant with his girlfriend, Latrice (a/k/a Rasheedah) Brown when Taylor entered to buy his drink. While inside the restaurant ordering his food, Blackwood saw defendant enter and then immediately leave again. He recognized defendant from the neighborhood. After ordering food, Blackwood stepped outside while Brown remained in the restaurant. While standing outside, he saw defendant return after a few minutes with a gun. Before defendant reentered the restaurant, Blackwood observed him speak to a light-skinned fourteen or fifteen-year-old male, whom he told to keep a look-out for the police. As defendant went inside the restaurant, Blackwood immediately called for Brown to come outside.

After buying his drink, Taylor left the restaurant and stood on the sidewalk, waiting to cross the street, presumably to re-join Wannamaker and the other bikers. He was carrying a Snapple bottle. According to Blackwood, who was standing approximately fifteen feet away from Taylor, near a light pole, defendant "came beside [Taylor] and was talking and then he put the gun to his head and pull [sic] the trigger." Defendant then ran down Springfield Avenue.

Wannamaker's bike was not facing the Chinese restaurant, however, he had turned his head to look for Taylor. Wannamaker saw Taylor exit the restaurant and begin walking toward him. As Taylor prepared to cross the street, Wannamaker witnessed defendant come up to Taylor and pull on his shirt. As Taylor pulled away, defendant shot him point blank in the head. Wannamaker then observed defendant run directly in front of him, crossing in front of the headlight of his motorcycle.

Samuel Mason, one of the other riders accompanying Taylor and Wannamaker, had his back turned to the restaurant when Taylor exited, but heard a loud gunshot. He turned and saw someone laying on the ground and someone running across the street. While he could not describe the shooter in detail, Mason stated that he was slim, "kind of tall," with short dreadlocks.

Immediately after the shooting, Wannamaker road his motorcycle down the street in search of a police officer and found a police vehicle on Springfield Avenue, one block away. He followed the officers back to the scene of the shooting. Meanwhile, Mason and one of the other bike-riders walked across the street looking for Taylor. After looking in the restaurant and around the corner without success, they finally examined the victim of the shooting and discovered that it was Taylor.

Taylor was pronounced dead at the scene. The police did not recover a wallet or other identification, but found $768.42 in cash on his person.*fn1 He was not carrying his service weapon.

After witnessing the shooting, Blackwood went into the Chinese restaurant to get the food he had ordered. Brown began to cry and got into their car. After getting his order, Blackwood also got into the car and they drove away without speaking to the police, although the police had arrived before they left the scene.

Wannamaker remained at the scene of the shooting until 3:15 a.m., at which point he was taken to the Irvington police station and gave a statement. He described the shooter as wearing a long black t-shirt with a white t-shirt underneath and blue jeans. He further said that the shooter was between five feet nine inches and six feet tall and weighed between 130 and 140 pounds, was dark-skinned, and had short dreadlocks down to his collar. Wannamaker told the police that he would not be able to identify the shooter because he was in a state of shock and, therefore, the police did not attempt to have him make an identification from a photo array at that time. However, Wannamaker later tried to contact the prosecutor's office and the police station numerous times to tell them that he could, in fact, make an identification. His calls were never returned. He did not go to the police station in person in an attempt to make an identification.

The police found Blackwood at his place of employment by contacting Latrice Brown. On August 9, 2003, the police took him to the police station, where he gave a statement. Blackwood told the police that he thought he could identify the shooter from a photograph because he had seen him in the neighborhood before. He described the shooter as a dark-skinned male, seventeen or eighteen years old, weighing between 150 and 160 pounds, and wearing dark jeans and a black t-shirt.

The police called Blackwood back to the station on August 12, 2003, in order to show him a photo array. Blackwood identified defendant from a selection of photographs. The police also showed him a second set of photographs, from which he identified a young male, R.B., as the individual defendant had employed as a look-out.

Police arrested defendant and R.B. on August 13, 2003. Detective Paul Sarabando, the Essex County prosecutor's detective, testified that defendant, on the day of his arrest, was five feet eight inches, 160 pounds, had a dark complexion and had his hair in braids.

In early 2004, Blackwood testified against defendant before an Essex County Grand Jury. On March 24, 2004, the Grand Jury returned Indictment No. 04-03-1113, charging defendant with purposeful or knowing murder, N.J.S.A. 2C:11-3a(1)(2), third-degree unlawful possession of a handgun without a permit, N.J.S.A. 2C:39-5b, and second-degree possession of a handgun, with the purpose to use it unlawfully against the person or property of another, N.J.S.A. 2C:39-4a.

In late November or December 2005, Wannamaker finally spoke with the Assistant Prosecutor and explained that he was in shock immediately after the shooting but he would "never forget that face" and could now identify the shooter. As such, Wannamaker was shown a photo array, in which he calmly identified defendant. He stated that he was one-hundred percent certain of his identification.

On June 23, 2006, the police interviewed defendant via video conference at the Essex County Correctional Facility. When asked to provide his own version of the night of the shooting, defendant stated "I'm not the person who killed this man. The person who killed him was 'Cake' and he was killed in 2004."

Defendant was tried by a jury between May 3 and May 15, 2006. Wannamaker and Mason both testified to the facts set forth above. Vinton Blackwood also testified, describing the events of the evening of August 8, 2003, consistently with the statement he gave on August 9, 2003. Blackwood further described how he selected a picture of defendant from a photo array on August 12, 2003.

In addition, Blackwood testified regarding a surveillance video the State presented to the jury. The police had acquired the video, which showed the shooting, from a camera positioned on the corner of Springfield and Avon Avenues. In his testimony, Blackwood used the video to identify himself, Latrice Brown, Taylor carrying the Snapple bottle, and the shooter at the scene.

During direct examination, Blackwood also testified that he had "a complaint pending" against him "for using some false documents to obtain a driver's license." He attempted to use the forged documents in either 2004 or 2005 and was indicted*fn2 in March 2006 on three counts of forgery. However, his statement and photo identification in August 2003, and his testimony in early 2004 before the Grand Jury, pre-dated his indictment. Blackwood further stated that after giving his testimony before the Grand Jury, he had no contact with the prosecutor's office until two weeks before defendant's trial. The prosecutor's office attempted to contact him months before defendant's trial date, but Blackwood eluded them because he "didn't want to get involved."

Unbeknownst to the prosecution, Blackwood was scheduled to appear in court for a pre-arraignment conference on his indictment on April 10, 2006. He failed to appear and, as such, the court issued a bench warrant for his arrest. That warrant was still outstanding during Blackwood's direct examination at trial.

On cross-examination, the defense sought to question Blackwood about his immigration status, the indictment, and his outstanding bench warrant. Specifically, defendant wanted to suggest to the jury that Blackwood received favorable treatment in exchange for his testimony, citing the fact that he had been residing in the United States illegally with no repercussions and he had not yet been arrested on the bench warrant. The prosecutor argued that he was not aware of the warrant or Blackwood's indictment and stated that, to his knowledge, Blackwood also knew nothing about the warrant. Defendant did not make any offer to prove that Blackwood had such knowledge. The State agreed to allow questioning on Blackwood's forgery indictment but objected to any questions regarding his immigration status or the issuance of the bench warrant.

The trial court held a hearing outside the jury's presence, where Blackwood testified that he had missed his court date because he had moved and never gave the court his new address. As such, he never received notice that he was due to appear in court.*fn3 Based on this, the trial judge allowed the defense to question Blackwood on his immigration status and the indictment, but excluded questioning on the bench warrant. The judge determined:

I am not gonna allow you to go into anything with regard to the bench warrant. I see no - absolutely no relevance whatsoever as to the bench warrant, particularly in light of the fact that we don't know whether he got notice, whether he had a lawyer. We now know that he moved, so he wasn't at the address. [...] Quite frankly, I think the jury would be confused as why you would be going into a new matter - I mean, that he's arrested on all these charges and then say well, isn't it - you know, go into his bench warrant. [...] They wouldn't understand that and I don't believe it would serve any purpose.

After the trial judge made his ruling and court was adjourned for that day, the prosecutor took Blackwood to the judge who issued his bench warrant and the warrant was vacated.

On the next day of trial, the defense again argued that Blackwood had received favorable treatment, citing the fact that the bench warrant was now vacated and should therefore be the subject of cross-examination. Again, the trial court refused to allow questioning on the warrant. When cross-examined, Blackwood admitted to his illegal immigration status and his indictment, but testified that he did not discuss his immigration status with police in 2003 when he gave his initial statements, nor did he ever discuss his indictment. He further stated that he was never promised any favorable treatment in exchange for his testimony in this case.

Dr. Junaid R. Shaikh, the Senior Supervising Medical Examiner for the Regional Medical Examiner's Office in Newark, testified as an expert in forensic pathology. Dr. Shaikh reviewed Taylor's autopsy report and autopsy photographs and testified that he had sustained a single penetrating gunshot wound to the left side of his head at the temple with stippling, which indicated that the shot that killed Taylor discharged approximately six to eight inches from his head. Four bullet fragments were extracted from Taylor's brain.

The State chose not to call Latrice Brown as a witness because she had proven difficult to find in the past and had acted erratically, apparently under the influence of alcohol, when she was present at the courthouse a week before defendant's trial for an unrelated matter.

Defendant did not take the stand. The only witness he called was R.B., the juvenile he had employed as a look-out the night of the shooting. R.B. testified that he knew defendant, but was not friends with him and did not know him well. He admitted he was at the Chinese restaurant on the night of August 8, 2003, to buy cigarettes. R.B. stated that after he left the restaurant, he heard a gunshot and then proceeded to run away from the scene, towards 22nd Street. He denied seeing defendant there or having a conversation with defendant, and further denied seeing anyone with a gun.

The jury convicted defendant on all charges. The trial judge entered the judgment of conviction on July 21, 2006, sentencing defendant to fifty-years imprisonment on count one, murder, with a forty-two year period of parole ineligibility, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The trial judge imposed concurrent terms of four years on count two, unlawful possession of a handgun without a permit, and seven years on count three, possession of a handgun with the purpose to use it unlawfully, and also ordered defendant to pay a VCCB assessment of $150, an SNSF assessment of $225, a LEOTEF assessment of $30, and $2,141 in restitution to Taylor's family. This appeal ensued.

On appeal, defendant presents the following arguments for our consideration:







(Not Raised Below)



(Not Raised Below)



Defendant first argues that, in light of defendant's constitutional right to confrontation, the trial judge abused the discretion afforded to him by N.J.R.E. 403 and 611 when he barred defendant from questioning Blackwood about his bench warrant. The Confrontation Clause of both the State and Federal Constitutions ensures that criminal defendants will have "a meaningful opportunity to present a complete defense" and will have the right to be confronted with and cross-examine the witnesses against them. State v. Garron, 177 N.J. 147, 168 (2003), cert. denied, 540 U.S. 1160, 124 S.Ct. 1169, 157 L.Ed. 2d 1204 (2004) (quoting Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 2146, 90 L.Ed. 2d 636, 645 (1986)). A defendant's constitutional right to confront the witnesses against him or her "would be an empty one if the State were permitted to exclude competent, reliable evidence bearing on... credibility... when such evidence is central to the defendant's claim of innocence." Crane, supra, 476 U.S. at 690, 106 S.Ct. at 2147, 90 L.Ed. 2d at 645; State v. Schnabel, 196 N.J. 116, 129 (2008). The right protects against improper restrictions on questions defense counsel may ask during cross-examination. Pennsylvania v. Ritchie, 480 U.S. 39, 52, 107 S.Ct. 989, 999, 94 L.Ed. 2d 40, 54 (1987). Coupled with the rights to compulsory process and to due process, the right of confrontation guarantees criminal defendants "a meaningful opportunity to present a complete defense." State v. Budis, 125 N.J. 519, 531 (1991) (quoting Crane, supra, 476 U.S. at 690, 106 S.Ct. at 2146, 90 L.Ed. 2d at 645).

Thus, the core value protected by the Federal and State Confrontation Clauses is the right of the accused to present all relevant evidence necessary for the defense. State v. Garron, supra, 177 N.J. at 166. That right, however, is not absolute. Chambers v. Mississippi, 410 U.S. 284, 295, 93 S.Ct. 1038, 1046, 35 L.Ed. 2d 297, 309 (1973); State v. Budis, supra, 125 N.J. at 530-32. It "'may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process,' such as established rules of evidence and procedure designed to ensure the fairness and reliability of criminal trials." State v. Garron, supra, 177 N.J. at 169 (quoting Chambers, supra, 410 U.S. at 295, 93 S.Ct. at 1046, 35 L.Ed. 2d at 309); see also Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 294, 88 L.Ed. 2d 15, 19 (1985) (holding that the Confrontation Clause guarantees the "opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish").

Pursuant to that principle, N.J.R.E. 403 states that the trial judge may exclude relevant evidence "if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence." The burden is on the party urging exclusion of evidence to convince the court that the N.J.R.E. 403 considerations should control. Richard J. Biunno, Current New Jersey Rules of Evidence, comment 1 on N.J.R.E. 403 (2008).

Once the trial judge determines that evidence is relevant pursuant to N.J.R.E. 401, the admissibility of such evidence falls largely within his discretion. Biunno, supra, comment 2 on N.J.R.E. 403; State v. Nelson, 173 N.J. 417, 470 (2002). This is because the trial court is in the "best position to engage in th[e] balancing process" required by this rule. Biunno, supra, comment 2 on N.J.R.E. 403 (quoting State v. Ramseur, 106 N.J. 123, 266 (1987), cert. denied, 508 U.S. 947, 113 S.Ct. 2433, 124 L.Ed. 2d 653 (1993)). Therefore, trial courts "retain wide latitude... to impose reasonable limits on... cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant." Budis, supra, 125 N.J. at 532.

Moreover, pursuant to N.J.R.E. 611, the trial court is given broad discretion to "exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence" to effectuate the purposes set forth in the rule, i.e., ascertaining truth, using time effectively and avoiding embarrassment of the witness. Beyond that, N.J.R.E. 611(b) broadly authorizes questioning on "matters affecting the credibility of the witness." Biunno, supra, comment 2 on N.J.R.E. 611. N.J.R.E. 611 should be read in conjunction with N.J.R.E. 403, and, as such, N.J.R.E. 403 considerations can sometimes justify restrictions on cross-examination. Biunno, supra, comment 1 on N.J.R.E. 611.

Therefore, despite the constitutional implications of limiting cross-examination, its scope is generally within the trial court's control, and "an appellate court will not interfere with such control unless clear error and prejudice are shown...." State v. Wakefield, 190 N.J. 397, 452 (2007), cert. denied, _____ U.S. _____, 128 S.Ct. 1074, 169 L.Ed. 2d 817 (2008) (quoting State v. Murray, 240 N.J. Super. 378, 394 (App. Div.), certif. denied, 122 N.J. 334 (1990)). In other words, there must be a "clear abuse of discretion which has deprived [a party] of a fair trial." Persley v. New Jersey Transit Bus Operations, 357 N.J. Super. 1, 9 (App. Div.), certif. denied, 177 N.J. 490 (2003). This same standard applies to general evidentiary rulings the trial judge makes pursuant to N.J.R.E. 403. State v. Lykes, 192 N.J. 519, 534 (2007).

In this case, defendant argues that Blackwood, one of the State's key witnesses against him, had an outstanding bench warrant for his arrest when he gave his direct testimony at trial. After giving his direct testimony, the prosecutor took him to the issuing judge and the warrant was vacated. At that time, defendant argued that this was clearly favorable treatment from the State, and sought to question Blackwood about it. The trial judge, exercising his N.J.R.E. 403 and 611 discretion, refused, finding that the warrant was 1) not relevant because there was no evidence that Blackwood had notice that he was due in court, 2) there was nothing to suggest Blackwood or the prosecutor even knew about the warrant, thereby making it impossible for Blackwood to have an expectation of favorable treatment and 3) the issue would confuse the jury. Defendant now argues that, by refusing to allow him to question Blackwood on the bench warrant, the trial court denied him his constitutional right to confront a witness against him, and therefore abused his discretion.

In essence, defendant contends that Blackwood was biased in his testimony. Bias is defined "to describe the relationship between a party and a witness which might lead the witness to slant, unconsciously or otherwise, his testimony in favor of or against a party." State v. Holmes, 290 N.J. Super. 302, 313 (App. Div. 1996) (quoting United States v. Abel, 469 U.S. 45, 52, 105 S.Ct. 465, 469, 83 L.Ed. 2d 450, 457 (1984)). It has been held that the right to cross-examine prosecution witnesses and test for their bias in criminal cases is indispensable and is a right of constitutional dimensions. State v. Sugar, 100 N.J. 214, 230 (1985); Biunno, supra, comment 4 on N.J.R.E. 611. Thus, N.J.R.E. 611(b)'s authorization to question on "matters affecting the credibility of the witness" clearly goes to exposing a witness's bias.

While it has been consistently held that essential facts demonstrating the possibility of bias must be allowed into evidence, the court "has discretion to determine the extent to which the details may be brought out." State v. Ortiz, 202 N.J. Super. 233, 244 (App. Div.), certif. denied, 102 N.J. 300 (1985). For example, cross-examination into the interest of a witness may be curtailed where it has "already been adequately highlighted at trial." State v. Kelly, 207 N.J. Super. 114, 118-20 (App. Div.), certif. denied, 103 N.J. 497 (1986).

In this case, Blackwood gave his initial statement to the police and later testified before the Grand Jury before he committed the forgeries in 2005 and before he was charged. Therefore, at that time, he had no reason to seek or expect any lenient treatment from the prosecutor in exchange for his testimony. Importantly, there is no indication that his trial testimony was in any way inconsistent with his initial statement or his Grand Jury testimony.

The trial judge barred questions concerning Blackwood's potential bias regarding his bench warrant largely because he "accept[ed] the State's representation they didn't know about the warrant." The judge further stated that "I don't see how Mr. Blackwood could possibly have had any expectation [of] favorable treatment, because he didn't know about the warrant." While it is not certain from the record whether Blackwood knew about the bench warrant, the prosecutor stated numerous times that he was not personally aware of it, nor did he believe Blackwood had knowledge of it. Assuming Blackwood was not aware of the warrant, he could not have expected to get it vacated in exchange for his testimony. Therefore, the influence on the witness was most likely non-existent. See State v. Gibson, 156 N.J. Super. 516, 523 (App. Div.), certif. denied, 78 N.J. 411 (1978) (holding that where a witness for the State did not know there were charges pending against him when he testified, his testimony "could not have been influenced").

Moreover, the fact that Blackwood was questioned regarding his criminal charges and his citizenship decreases the probative value of the bench warrant. It has been established that proffered evidence which is objected to on N.J.R.E. 403 grounds depends to some degree on the availability of other evidence that can be used to prove the same point. State v. Smith, 158 N.J. 376, 391 (1999). The obverse is also true, in that relevant evidence loses some of its probative value to the extent it becomes more cumulative. State v. Covell, 157 N.J. 554, 569 (1999); see also State v. Engel, 249 N.J. Super. 336 (App. Div.), certif. denied, 130 N.J. 393 (1991) (holding that because defense counsel thoroughly cross-examined the State's witness regarding his plea, the reason for his testimony and his interest in the case, the trial court did not err in barring questions regarding the possibility of executive clemency).

In this case, the evidence defendant sought to expose pales in comparison to the probative value of the other information the trial court permitted defendant to delve into on cross-examination. If Blackwood had any expectation of favorable treatment, he more than likely would have pinned those hopes on his indictment or his immigration status, and defendant was at liberty to inquire into these possible biases. Moreover, because the bench warrant had been vacated before defendant began Blackwood's cross-examination, Blackwood's motivation, if any, to cooperate with the State in exchange for help with the warrant would have no longer been an issue. Therefore, the cumulative nature of the warrant greatly reduced its probative value.

As noted above, N.J.R.E. 403 also gives the trial judge discretion to exclude evidence if it will confuse the issues or waste the court's time. Here, the trial judge expressed concern that questioning Blackwood about the warrant would create these problems. If the warrant were introduced, a witness, most likely from the criminal case management division, would need to testify as to the common procedures both in issuing a bench warrant and then in having it vacated. Blackwood's lack of notice concerning his court date would need to be addressed and the prosecutor himself risked being called as a witness to testify that he was unaware of the warrant. Also, the judge who vacated the warrant faced being called as a witness to testify that he acted within the scope of regular procedure and did not vacate the warrant as a favor to the prosecutor. Considering the attenuated relevance of the warrant, this myriad of testimony could easily have rendered the information more confusing, distracting and time consuming than probative, thereby giving the trial judge the discretion to exclude it.

We also consider that questions asked to impeach a witness "must be based upon facts in evidence and based upon a proffer by the cross-examiner indicating the ability to prove the facts contained in the question and to demonstrate the admissibility of that proof...." Biunno, supra, comment 2 on N.J.R.E. 611; State v. Martini, 131 N.J. 176, 255 (1993), overruled in part on other grounds, State v. Fortin, 178 N.J. 540 (2004). Here, defendant sought to imply to the jury that Blackwood knew about the bench warrant and testified against him in exchange for having the warrant vacated. However, there is no indication that Blackwood did know of the outstanding warrant nor did defendant proffer any proof to that effect. Because defendant was apparently not prepared to prove his allegation, the trial judge correctly barred him from using that allegation to impeach Blackwood's credibility.

Based on the discretion to exclude evidence given to the trial judge by N.J.R.E. 403 and the discretion to limit cross- examination pursuant to N.J.R.E. 611, and considering the bench warrant's probative value and cumulative nature, we hold the judge did not err in refusing to allow defendant to question the witness about the bench warrant. Allowing such testimony would have required calling other witnesses, could have confused the issues for the jury, and would have wasted the court's time. Also, there is no indication that defendant could have proven that either Blackwood or the prosecutor knew about the warrant. As such, defendant's constitutional right to confront a witness against him was not infringed by the trial court's ruling.

Defendant also argues that reversal is required because, during his summation, the prosecutor (1) added words and phrases to Wannamaker's testimony, thereby embellishing it, and (2) framed his argument in a way that asked the jury to accept Wannamaker's testimony based on the prosecutor's personal belief of its veracity. Defendant did not object to either of these comments below.

Prosecutors are given "considerable leeway" in summarizing their case to the jury. State v. Smith, 167 N.J. 158, 177 (2001). "Indeed, prosecutors... are expected to make vigorous and forceful closing arguments." State v. Frost, 158 N.J. 76, 82 (1999). However, "[t]he primary duty of a prosecutor is not to obtain convictions, but to see that justice is done." State v. Ramseur, 106 N.J. 123, 320 (1987).

To that end, prosecutors may not "make inaccurate legal or factual assertions" and must "confine their comments to evidence revealed during the trial and reasonable inferences" that can be drawn from the evidence. Smith, supra, 167 N.J. at 178. We will reverse a conviction and order a new trial if we find that the prosecutor's failure to confine his summation to appropriate comments was "so egregious that it deprived the defendant of a fair trial." Frost, supra, 158 N.J. at 83. "Generally, if counsel did not object [to the remarks], the remarks will not be deemed prejudicial." State v. Josephs, 174 N.J. 44, 124 (2002).

For the first time on appeal, defendant objects to the following comment by the prosecutor:

[Y]ou know what? He [Wannamaker] told you the truth. He came in to my office for a pretrial when this case was scheduled once before, he told you. He met with me and Investigator Shaw and he told you, the first thing he said was, I'll never forget that man's face as long as I live.

Defendant contends that the prosecutor made three embellishments to Wannamaker's testimony: (1) Wannamaker never included the phrase "as long as I live" after he stated that he would never forget the shooter's face; (2) he did not remember Investigator Shaw's name when he gave his testimony; and (3) Wannamaker never characterized his meeting with the prosecutor as "pretrial." We find no basis for reversal.

None of the prosecutor's comments were "so egregious that it deprived the defendant of a fair trial." Frost, supra, 158 N.J. at 83. On cross-examination, Wannamaker stated he met with the prosecutor before giving his testimony when the case was "scheduled for trial." He, therefore, described a "pretrial" meeting and the prosecutor did not mischaracterize Wannamaker's testimony. Moreover, the prosecutor adding the phrase "as long as I live" to Wannamaker's statement about "never" forgetting the shooter's face was merely his recollection of his testimony, and was not an "inaccurate legal or factual assertion[]."

Smith, supra, 167 N.J. at 178. Wannamaker's recollection of Investigator Shaw's name is likewise immaterial in that it does not in any way pertain to his identification of defendant or to his testimony regarding the events of the night of the shooting.

Regarding defendant's contention that the prosecutor represented that he had a personal belief in the honesty of the contents of Wannamaker's statements, this is also not supported by the record. The prosecutor was merely commenting on the testimony at trial and stated that Wannamaker was truthful when he testified that he met with the prosecutor before trial. He did not vouch for the truthfulness of Wannamaker's identification of defendant. As such, we reject plaintiff's argument that the prosecutor committed misconduct during his summation.

Defendant further contends that he was entitled to a Clawans charge when the State failed to produce Latrice (a/k/a Rasheedah) Brown, a witness to the shooting, at trial, and his conviction should therefore be reversed. The adverse inference charge, also known as the Clawans charge, is available when a party does not call to the stand a witness that the party has the power to produce and whose testimony would be superior to testimony presented at trial. State v. Clawans, 38 N.J. 162, 170-71 (1962). The inference is that "the party so failing [to produce the witness] fears exposure of those facts would be unfavorable to him." Ibid. The adverse inference is not to be utilized when the witness is unavailable or likely to be prejudiced against the party calling him. Id. at 171; Gonzalez v. Safe & Sound Sec. Corp., 185 N.J. 100, 118 (2005). We have stressed the need for trial courts to exercise caution in authorizing the inference. State v. Velasquez, 391 N.J. Super. 291, 306 (App. Div. 2007).

Trial courts should carefully consider all of the circumstances and restrict comments of counsel to those instances where the court first determines on the record (1) that the uncalled witness is peculiarly within the control or power of only the one party, or that there is a special relationship between the party and the witness [...]; (2) that the witness is available to that party both practically and physically; (3) that the testimony of the uncalled witness will elucidate relevant and critical facts in issue, and (4) that such testimony appears to be superior to that already utilized in respect to the fact to be proven. [State v. Hickman, 204 N.J. Super. 409, 414 (App. Div. 1985), certif. denied, 103 N.J. 495 (1986).]

In this case, the State initially intended to call Brown as a witness, but decided against it because she was difficult to locate and had exhibited erratic behavior. The prosecutor stated "I've had [difficulties] with her all along in finding her. She is kind of a street person, Judge. She sometimes would be with Vinton [Blackwood], sometimes you wouldn't see her for days. She's not the kind of person who has a stable background...." At one point, approximately one week before defendant's trial, the prosecutor said she appeared at the courthouse unsolicited "as drunk as a human being could possibly be, created a scene up here" and had to be restrained and escorted out of the building.

When the State decided not to call Brown as a witness, defendant requested a Clawans charge, noting that he had attempted to find and interview Brown prior to trial but "was unable to based on the addresses and locations that were given to the defense, despite having made efforts to do so." The trial judge refused to give the charge, finding that Brown was "not a State employee, not a law enforcement officer, and had no connection to the Prosecutor's office. The witness is, by definition, equally available to both parties." The trial court further found that the State "is certainly in a position to make a judgment as to whether or not the witness... would offer information that would be superior to two other witnesses who testified on the same issue..." and "it is clear that either party could... have attempted to bring the witness in." Therefore, "simply as a basis of trial strategy," the court held that "one could easily understand why the State would not want this witness."

The trial judge did not commit reversible error in refusing to give the jury the Clawans charge. Brown had no special relationship with the State placing her within the prosecution's control. State v. Hickman, supra, 204 N.J. Super. at 414. She was not a State employee or agent and the record shows that the State had difficulty in finding her. When asked to disclose her location, the prosecutor stated "I don't know where she is right now. I have no idea where she is." Moreover, when Brown did appear at the courthouse, unsolicited, she was drunk and could not be controlled. Her erratic behavior and the State's inability to produce her at will illustrates that she was not available to the State "both practically and physically." Ibid.

In addition to the State's clear inability to produce Brown, it is apparent that her testimony would not have "elucidate[d] relevant and critical facts in issue." Ibid.; State v. Velasquez, supra, 391 N.J. Super. at 308-09. The State already had the testimony of Blackwood, Wannamaker and Mason. Any testimony Brown would have provided would have, most likely, merely been cumulative and certainly would not have been "superior to that already utilized in respect to the fact to be proven." State v. Hickman, supra, 204 N.J. Super. at 414.

Brown was not presented at trial because she was difficult to find, had a history of not appearing in court sober and lucid, and her testimony would have merely been cumulative. There was no fear on the State's part of exposure of unfavorable facts through her testimony. Because the adverse inference charge would not have reflected the State's motivation for not calling Brown, we affirm the trial judge's refusal to give the jury the Clawans charge.

Defendant also contends that the quantum of his sentence is excessive. The trial judge sentenced defendant to a term of fifty years on count one (N.J.S.A. 2C:11-A(1)(2)), four years for count two (N.J.S.A. 2C:39-5(b)) and seven years on count three (N.J.S.A. 2C39-4(a)). The judge ordered that the sentences imposed for counts two and three are to run concurrent to count one. Therefore, the trial judge sentenced defendant to a total of fifty years, subject to NERA.

Defendant argues that the trial judge misapplied the statutory aggravating factors found in N.J.S.A. 2C:44-1(a), resulting in a sentence that is excessive in the aggregate. The trial judge found three aggravating factors: N.J.S.A. 2C:44-1a(3) (the risk defendant will commit another offense); N.J.S.A. 2C:44-1a(6) (the extent and seriousness of the prior record); and N.J.S.A. 2C:44-1a(9) (the need to deter defendant and others). He found that no mitigating factors applied.

Appellate review of a sentencing decision calls for the reviewing court to determine whether the trial court clearly erred "by reaching a conclusion that could not have reasonably been made upon a weighing of the relevant factors." State v. Roth, 95 N.J. 334, 366 (1984). An appellate court should not "substitute its judgment for that of the lower court, and... a sentence imposed by a trial court is not to be upset on appeal unless it represents an abuse of the lower court's discretion." State v. Gardner, 113 N.J. 510, 516 (1989). We may only disturb a trial judge's sentencing decision in three situations. State v. Carey, 168 N.J. 413, 430 (2001). Those situations are: "(1) the trial court failed to follow the sentencing guidelines, (2) the aggravating and mitigating factors found by the trial court are not supported by the record, or (3) application of the guidelines renders a specific sentence clearly unreasonable." Ibid.

In applying factors (3) and (6), the trial judge considered defendant's prior record, which consisted of five arrests and two convictions for unlawful possession of a weapon and possession of a controlled dangerous substance. Defendant argues that, while he does have prior convictions, these offenses are "not severe" and, as such, the court should have given them less weight and not considered them predictors of defendant's risk of recidivism. However, defendant's prior convictions involve firearms and were of an "escalating nature." Based on this, the trial judge made an "evaluation and judgment about the individual in light of his... history" and determined that there was a risk of recidivism. State v. Thomas, 188 N.J. 137, 153 (2006). It was also within the trial judge's discretion to consider defendant's record itself as an aggravating factor. While defendant can argue that being convicted of possessing a firearm is not "serious," his current appeal is related to his illegal use of a weapon. Defendant does not contest that he has prior convictions, and so the trial judge's application of these aggravating factors was clearly supported by the record and does not "shock the judicial conscience." State v. Roth, supra, 95 N.J. at 366.

In addition, the trial judge found the need for deterrence to be an aggravating factor. N.J.S.A. 2C:44-1a(9). This statutory factor is designed to deter both individual defendants and others in society from committing similar crimes. State v. Gardner, supra, 113 N.J. at 520. Finding this aggravating factor in the case of a homicide is not unreasonable.

Defendant also contends that the trial judge incorrectly considered his professions of innocence at sentencing. Defendant refers to a statement he made to the Probation Department, in which he said, "I'm not the person who killed this man. The person who killed him was 'Cake' and he was killed in 2004." When the trial judge asked defendant if he wished to be heard before sentencing, defendant opted to rely on that statement, at which point the trial judge stated "[n]ot so sure those comments help him...." After hearing defendant's arguments in favor of a mitigated sentence, the trial judge informed defendant, "You, despite the verdict of the jury, have chosen to deny the fact that you committed this act. I'm not sure that that helps you in trying to determine what would be a judgment for you." Defendant now contends that these comments by the judge reflect his improper consideration of defendant's continued assertions of innocence.

In State v. Poteet, cited by defendant, our Supreme Court stated "the sentencing judge may not add a penalty because he believes the defendant lied." 61 N.J. 493, 495 (1972), habeas granted, Poteet v. Fauver, 517 F.2d 393 (3rd Cir. 1975). Moreover, the Court held the sentencing judge "should not himself seek to induce a defendant to confess." Id. at 497. In this case, the trial judge did not attempt to make defendant confess, nor is there any indication that he increased defendant's penalty because he relied on his previous statement implicating another in the murder. To the contrary, the trial judge's reasons for giving the sentence he imposed are well documented in the record and are limited to statutorily prescribed aggravating factors. We, therefore, affirm his sentence.

However, we do find merit in defendant's assertion that the trial court erred by failing to merge his conviction of possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a, with his murder conviction, N.J.S.A. 2C:11-3a(1)(2).*fn4

The crime of possession of a weapon for an unlawful purpose has been described as an inchoate crime. John M. Cannel, New Jersey Criminal Code Annotated, comment on N.J.S.A. 2C:1-8 (2008); State v. Harmon, 104 N.J. 189, 203 (1986). Therefore, possessing of a weapon for an unlawful purpose "will merge with a completed... murder where a jury does not find a broader purpose for that possession than the completed substantive offense." Ibid.; State v. Diaz, 144 N.J. 628, 636 (1996).

In this case, the trial judge charged the jury that "the State contends that the defendant's unlawful purpose in possession of the firearm was to shoot and kill [the victim]." Moreover, as defendant contends, the record is "devoid of evidence that the weapon was purportedly possessed for any other purpose, or indeed, at any time other than, during the incident."

Based on the applicable statutes and case law, the trial court should have merged the one weapons charge with the purposeful and knowing murder charge. Therefore, we find the trial judge's failure to merge the counts to be plain error pursuant to Rule 2:10-2 and we reverse and remand solely so that defendant's conviction for possession of a weapon for an unlawful purpose can be merged into his murder conviction.

Affirmed in part, reversed in part.

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