October 30, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANTHONY FRANKLIN, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 00-08-0930.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 23, 2009
Before Judges Payne and Waugh.
Defendant, charged with murder, was convicted of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a; second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; third-degree hindering apprehension, N.J.S.A. 2C:29-3b; and second-degree possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7.
Defendant was sentenced to an extended term of fifty years on the aggravated manslaughter conviction with a twenty-five and one-half year parole disqualifier imposed pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and to a consecutive term of five years for unlawful possession of a weapon. A concurrent sentence of ten years with a five-year parole disqualifier was imposed on the conviction for possession of a weapon by a convicted felon, and a concurrent five-year sentence was imposed for hindering apprehension. The conviction for possession of a weapon for an unlawful purpose was merged with the aggravated manslaughter conviction. At sentencing, the trial judge cited as applicable aggravating factors 3 (the risk of reoffense), 6 (the extent of defendant's prior record), and 9 (the need for deterrence). N.J.S.A. 2C:44-1a(3), (6) and (9). Sentencing occurred one week after issuance of the Supreme Court's decision in State v. Pierce, 188 N.J. 155 (2006).
However, the procedures mandated in that decision were not followed. On appeal, the State agrees that resentencing is appropriate pursuant to Pierce's dictates, and we order it to occur.
Defendant has appealed, raising the following arguments through counsel:
THE TRIAL JUDGE ERRED IN DENYING THE DEFENDANT'S MOTION FOR RECUSAL AS THERE WAS A SUFFICIENT SHOWING MADE THAT THE JUDGE WAS NOT IMPARTIAL TOWARD THE DEFENDANT.
THE TRIAL JUDGE ERRED IN CHARGING FLIGHT TO THE JURY AS THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT THE INFERENCE THAT THE DEFENDANT'S ABSENCE WAS AS A RESULT OF CONSCIOUSNESS OF GUILT.
THE DEFENDANT'S SENTENCE IS EXCESSIVE.
A SENTENCING REMAND IS NECESSARY AS THE JUDGE'S IMPOSITION OF THIS DISCRETIONARY EXTENDED TERM SENTENCE VIOLATED THE HOLDING OF STATE V. PIERCE, 188 N.J. 155 (2006).
Defendant has presented the following additional arguments pro se.
THE DEFENDANT'S CONVICTION SHOULD BE REVERSED BECAUSE THE TRIAL COURT ENGAGED IN AN EX PARTE OFF-THE-RECORD COMMUNICATION WITH A DELIBERATING JURY. (NOT RAISED BELOW.)
THE TRIAL JUDGE ERRED WHEN IT FAILED TO DECLARE A MISTRIAL BASED ON THE PREJUDICIAL INFORMATION CONCERNING DEFENDANT'S PRIOR TRIAL.
THE STATE'S PRESENTATION OF HEARSAY, TO THE EFFECT THAT DEFENDANT'S IDENTITY WAS INCLUDED IN THE VIDEO SHOWN TO EYEWITNESSES BECAUSE HE HAD BEEN IMPLICATED IN THE SHOOTING BY A NON-TESTIFYING WITNESS VIOLATED DEFENDANT'S RIGHT TO CONFRONT WITNESSES AND HIS RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMENDS. VI, XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9 and 10.
DEFENDANT'S RIGHT TO A FAIR TRIAL WAS VIOLATED WHEN THE STATE CALLED MALIK PORCHEA AS A STATE'S WITNESS NOTWITHSTANDING ITS FOREKNOWLEDGE OR GOOD REASON TO BELIEVE THAT THE WITNESS INTENDED TO REFUSE TO ANSWER QUESTIONS IN FRONT OF THE JURY. THE ERROR WAS COMPOUNDED BY THE COURT'S FAILURE TO PROVIDE THE JURY WITH AN ADEQUATE CURATIVE INSTRUCTION AND BY THE STATE'S MISCONDUCT DURING ITS QUESTIONING OF THE SAME WITNESS AND DURING ITS SUMMATION. (PARTIALLY RAISED BELOW)
The convictions arise out of a confrontation between defendant and Jermaine Roberts outside the Cheetah Club in Paterson on March 26, 2000. As the Club was closing at approximately 2:00 a.m., defendant approached Roberts, and a tussle ensued, during which defendant used his gun in an attempt to hit Roberts. Thereafter, defendant shot Roberts in the back as Roberts attempted to flee the attack. Defendant handed off the gun to Jamie Wilson and departed for South Carolina, where he was eventually apprehended and returned to New Jersey. Roberts died approximately three hours after being shot. Portions of the events that occurred outside the Club were recorded by the Club's exterior video camera, but not the shooting. Nonetheless, by viewing the videotape, the police were able to identify defendant and a number of witnesses, including a friend of Roberts, Darrell Bethune, and also including friends of defendant, Malik Porchea, Tonya*fn1 Hogan, Jimmie Frierson, and Jamie Wilson. Those witnesses were later interviewed and gave statements implicating defendant.
Following an initial trial and conviction for murder, defendant appealed, and we reversed, finding that the trial judge erred in failing to instruct the jury on murder's lesser included offenses. Upon retrial before the same judge, the State's witnesses diluted their testimony, claimed a lack of memory of the events, or refused to testify. With the exception of Wilson,*fn2 their prior statements and trial testimony were utilized at the second trial pursuant to N.J.R.E. 803(a) and 804(a) and (b).
On appeal, defendant first argues through counsel that the trial court erred in denying defendant's motion seeking his recusal and that the judge continued to exhibit a bias against him throughout the second trial. The issue of recusal had arisen in the first trial after Wilson had refused to take the oath or to testify, thereby making his statement inadmissible. At the time, the judge stated for the record that he found the situation to have been "dismaying." While the judge was expressing his frustration at Wilson and other witnesses whose recall of events did not match their statements to the police, defendant attempted unsuccessfully to stare down the judge and thereafter unsuccessfully sought his recusal. The issue was again raised on appeal. Although it was not directly addressed, in ordering a new trial, we did not suggest reassignment to a different judge.
At the commencement of the second trial, defendant again sought recusal. In considering the motion, the judge recounted the events of the first trial involving Wilson and the stare-down. Thereafter, the judge commented at length upon his determination at the first trial, in accordance with defendant's wishes, not to charge lesser-included offenses to murder - a determination that, following conviction, became the basis for a motion by defendant for a new trial. In this regard, the judge observed that because Roberts had been shot in the back while fleeing, the facts could support only a conviction for knowing and intentional murder. The judge then ruled that recusal was unnecessary because he viewed his conduct toward defendant in the first trial to have been fair and because reassignment had not been ordered upon remand. The judge stated:
[B]ecause I'm completely satisfied that the record of this trial would show that I was in every way fair to the defendant, I'm not persuaded that I should recuse myself since I'm the judge who is familiar with the record of this case. And since I honestly and in my heart believe I was as fair to the defendant as I could be and I will continue to be as fair to the defendant and the State, by the way, as I feel I can be, in my best judgment, I don't find that anything has been shown to me to cause me to feel that I should recuse myself from this case. Defendant also claims bias in connection with the conduct of the second trial. At that trial, witness Jimmie Frierson refused to testify, and as a result, his prior trial testimony was read to the jury. Following that testimony, the prosecutor indicated that he was having difficulty securing the presence of another witness to the events of March 26, Tonya Hogan, who appeared to be "avoiding coming to court." As a result, the prosecutor moved to carry the matter to 1:30 that day. Defendant objected, insisting that trial proceed. The judge granted the prosecutor's motion, observing:
There have been witnesses who have refused to testify who are facing contempt. It's obvious that there are witnesses here who are reluctant to testify and would prefer not to testify. By the Court's ruling of excluding any testimony with regard to the witnesses who refused to testify the defendant gets the benefit of that. That's not being done out of any interest to be cooperative with the prosecution of this case or to bring the truth to the trial. It seems to me obviously that that is being done to accommodate the defendant. It's something that is a regrettable situation... it doesn't serve the integrity of the justice process when we're litigating the killing of a human being and there are people who it is known have direct information about that and they refuse to testify and are willing to take a sentence of six months in the County Jail to obviate that. It's obvious to me that that's being done to serve the defendant's interests.
I'm not afraid to say that on the record.
So I have no hesitation at all in granting the adjournment that's being asked for at the moment. The defendant's motion is denied without the slightest hesitation.
Following this ruling, the judge and counsel discussed the admission of exhibits into evidence and commenced a preliminary charge conference. During its course, the judge once more expressed at length his personal opinion that it was "out of line to include these lesser includeds for [murder] all the way down to simple assault" and that the charge could appear to be a perversion of justice to family members of the victim.
The judge again made remarks to which defendant objects at sentencing. At that proceeding, defendant moved for a new trial, arguing, in part, that he was denied his right of confrontation when, after Frierson refused to testify, his testimony from the first trial was read to the jury. During the course of that argument, the judge noted that on the day of the crime, Frierson was on weekend furlough from a halfway house to which he had been sent before serving his full mandatory minimum period of incarceration. The judge objected to this mode of incarceration, stating that it created a "deplorable situation." The judge then revisited issues surrounding the reluctance of witnesses to testify at defendant's two trials, stating that in cases involving street crimes, "often gang related and drug related killings, usually":
When the case comes to trial they employ this practice of standing m[ute] and the State loses the benefit of their testimony. That happened with other witnesses here. The defendant winds up getting the benefit of that and then, of course, complains about it when you get to the Appellate process and so forth. And what happens is they're found in contempt of court and wind up with a six month sentence. Something needs to be done about that. The governor is talking a lot about street crimes, and the Attorney General is talking about it and legislation is rolling out to deal with these things, but nothing to deal with this situation that has become a common practice in the courts, particularly in the counties that have inner city communities within them. So I'm hoping that someone will read this somewhere along the line and believe that something needs to be done. I've even suggested things that come to my mind as to how this should be dealt with to avoid this image of how the criminal justice system works. There's often people at these trials who have lost a son or a husband or a brother or a sister or someone, what do they think when they see this?*fn3
The judge then denied defendant's motion as it related to Frierson's testimony.
On appeal, defendant argues that "[t]he judge's continued anger about the way Mr. Franklin's trial was being presented clearly showed a bias and point of view which has no place on the bench." Accordingly, defendant, relying principally on Rule 1:12-1(f), seeks reversal of his convictions and a remand for a new trial before a different judge. Rule 1:12-1(f) provides:
The judge of any court shall be disqualified on the court's own motion and shall not sit in any matter,...
(f) when there is any other reason which might preclude a fair and unbiased hearing and judgment, or which might reasonably lead counsel or the parties to believe so.
See also R. 1:12-2 (any party may move for a judge's disqualification); Code of Judicial Conduct, Cannon 3C (2010) ("A judge should disqualify himself... in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where: (a) the judge has a personal bias or prejudice concerning a party."). A showing of actual bias or prejudice on the part of the trial judge is not required, rather, an appearance of bias may be sufficient if the belief that the proceedings were unfair are found to have been objectively reasonable. State v. Marshall, 148 N.J. 89, 279, cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L.Ed. 2d 88 (1997). A decision denying recusal is reviewed under an abuse of discretion standard. Panitch v. Panitch, 339 N.J. Super. 63, 71 (App. Div. 2001).
We have not been provided with a transcript of the first trial and are therefore unable to fully judge defendant's arguments as they relate to that trial. Nonetheless, we have carefully considered the arguments that relate to the first trial and the judge's comments regarding them, made just before the second trial commenced. We are satisfied that assignment to a different judge on remand was not required merely because the judge expressed frustration at the lack of cooperation of certain material witnesses and because of the stare-down in which defendant and the judge engaged outside the jury's presence. As to the former, full presentation of evidence relevant to defendant's guilt or innocence was the laudable goal of the trial judge. We find his frustration, stemming from the unwillingness of witnesses to offer such evidence, to have been reasonable in the circumstances. As to the latter, the judge clearly possessed the power to control his courtroom and proceedings therein. State v. Cusumano, 369 N.J. Super. 305, 311 (App. Div.) (a "trial judge has the ultimate responsibility to control the trial in the courtroom and is given wide discretion to do so") (quoting Horn v. Village Supermarkets, Inc., 260 N.J. Super. 165, 175 (App. Div. 1992), certif. denied, 133 N.J. 435 (1993)), certif. denied, 181 N.J. 546 (2004). Nothing suggests that, in doing so, the judge failed to act reasonably or exceeded constitutional bounds. Ryslik v. Krass, 279 N.J. Super. 293, 297-98 (App. Div. 1995).
In connection with the second trial, defendant again cites to the judge's evident frustration when witnesses declined to appear in court pursuant to subpoena, changed their testimony so as to be less incriminating, professed ignorance or lack of recollection of the events of March 26, or refused utterly to testify. However, the United States Supreme Court has observed: opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible. [Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 1157, 127 L.Ed. 2d 474, 491 (1994).]
Contrary to defendant's position on appeal, we find no evidence that the judge attributed the conduct of trial witnesses to efforts by defendant to suppress unfavorable testimony. Moreover, our review of the record in this matter reveals none of the antagonism or favoritism that would have warranted recusal or a new trial. Although the trial judge was understandably frustrated by the conduct of the witnesses to the March 26 events, there is no evidence whatsoever that he vented that frustration before the jury or in acts affecting either the defendant or the State. The most that can be stated is that the judge granted a short adjournment to permit the State to further attempt to locate a reluctant witness. This discretionary determination was not grounds for disqualification. An adverse decision almost never provides a basis for a motion premised on judicial partiality. Ibid.; Marshall, supra, 148 N.J. at 279.
Defendant also notes the trial judge's fundamental disagreement with our reversal of the initial murder conviction on the ground that the lesser included offenses to murder should have been charged. In that connection, we emphasize that at the initial trial, the judge favored defendant by acceding to his request that the jury determine guilt or innocence with respect to the murder charge, alone, despite the judge's expressed knowledge of our decision in State v. Jenkins, 356 N.J. Super. 413, 424-26 (App. Div. 2003)*fn4 suggesting this might not be the proper course to take. Nonetheless, once the judge's initial determination had been overturned, and despite his misgivings, expressed outside of the jury's presence, the judge charged the jury as we required, and the verdict of aggravated manslaughter was returned. In our view, the judge's opinion regarding the application of the law to the facts in the matter before him did not suggest bias in favor of the State or against defendant, but merely an honest legal disagreement regarding the application of precedent. As such, neither recusal nor a new trial was required.
Defendant next argues that the judge erred in charging flight, stating that testimony by the police that he could not be found at his home, at the residence of his girlfriend, or in other frequented locations and that he was located in South Carolina approximately three weeks after the crime, provided an insufficient basis from which to infer consciousness of guilt. We disagree.
In State v. Sullivan, 43 N.J. 209 (1964), cert. denied, sub nom., Sullivan v. New Jersey, 382 U.S. 990, 86 S.Ct. 564, 15 L.Ed. 2d 477 (1966), the Supreme Court stated:
For departure to take on the legal significance of flight, there must be circumstances present and unexplained which, in conjunction with the leaving, reasonably justify an inference that it was done with a consciousness of guilt and pursuant to an effort to avoid an accusation based on that guilt. [Id. at 238-39.]
The record in this matter discloses that, in addition to the foregoing evidence, a police witness testified that he had interviewed defendant's mother, informed her that a warrant had been issued for defendant's arrest, and had given her his card with instructions that she contact him if she had any information regarding his location, but had received nothing. Additionally, Malik Porchea, a friend of defendant's who witnessed the March 26 events and gave two statements to the police, the substance of which were presented to the jury, disclosed that after the shooting, defendant passed his gun to Jamie Wilson, who hid it under his clothing. Thereafter Porchea picked up Wilson and Frierson in a truck. Once in the truck, Wilson placed defendant's gun in his lap. They then drove to a house in Paterson where they met with defendant. Porchea said in his April 1 statement that on the previous night he had spoken by telephone to defendant who inquired whether Porchea was "all right... ['c]ause he - me being questioned by the police." Defendant then stated that he was planning to turn himself in on the following Monday. Porchea reported that the call was then disconnected, but that he was able to determine that it had been made from a number with an 803 area code.*fn5
Porchea stated that, at the time of the call, defendant knew he was wanted by the police. However, defendant did not turn himself in as initially planned. He was located in South Carolina on April 20, 2000, approximately three weeks after the killing.
Although the evidence that we have recited could be construed by the jury to have been benign in nature, it was not necessarily thus. During the course of jury instructions,*fn6 the jury was charged, in accordance with the model instruction as to flight, that there was evidence adduced at trial from which the jury could infer that defendant fled shortly after the commission of the crime, although defendant denied that flight occurred. The jury was further instructed that whether flight occurred was an issue for the jurors to decide, and that "[f]light may only be considered as evidence of consciousness of guilt if you should determine that the defendant's purpose in leaving was to evade accusation or arrest for an offense charged in the indictment."
We find the evidence to have been sufficient to support a flight charge in this matter and that the jury was properly instructed regarding its consideration of that evidence. There was no trial error.
Because we must remand this case for resentencing in light of State v. Pierce, we give limited consideration to defendant's sentencing arguments, focusing in that regard on the propriety of imposing an extended sentence and on the fact that a consecutive term was imposed on the charge of unlawful possession of a weapon.
N.J.S.A. 2C:44-3 permits the imposition of an extended term sentence, upon motion of the prosecuting attorney, if the defendant is over the age of twenty-one and has been previously convicted on at least two separate occasions of two crimes, committed at different times, when he was at least eighteen years of age. The pre-sentence investigation report in this matter and the sentencing transcript indicate that defendant turned eighteen in 1988. Since that time, he was convicted (1) pursuant to Indictment No. 89-10-1697 of third-degree criminal restraint and received a sentence of three years in custody on October 5, 1990; (2) pursuant to Accusation No. 90-3-56 of second-degree bribery and third-degree possession of a controlled dangerous substance with the intent to distribute it within 1,000 feet of a school and sentenced to five years in custody with twenty-one months of parole ineligibility on June 8, 1990; (3) pursuant to Indictment No. 93-02-143 of third- degree unlawful possession of a weapon, for which an initial sentence of five years of probation was imposed on January 28, 1994*fn7; and (4) pursuant to Indictment No. 95-03-288 to second-degree aggravated assault, for which a sentence of five years in custody was imposed. The conditions for imposition of an extended sentence were therefore met.
Defendant argues that, in sentencing, the trial judge's use of his prior record in both granting the extended sentence motion and imposing a fifty-year custodial term constituted double counting. We disagree. The Supreme Court established the considerations required in imposing an extended term sentence in State v. Dunbar, 108 N.J. 80 (1987). As a preliminary matter, the Court required the sentencing judge to determine whether the minimum statutory predicates for subjecting a defendant to an extended term had been met. Id. at 87-89. It then held:
Once the decision to impose an extended term has been made, the court should then return its focus primarily to the offense. "[T]he conduct that is the occasion for the sentence controls the severity of the sentence * * *." [Model Penal Code] § 6.07 comment at 174. As noted, depending on the balance of the aggravating and mitigating factors, the court adjusts the base term of the sentence. N.J.S.A. 2C:44-1f. The defendant's prior record of conviction has been taken into account in deciding whether to impose an extended term and presumably would not have the same qualitative weight in grading the range of the extended sentence. But other aspects of the defendant's record, which are not among the minimal conditions for determining persistent offender status, such as a juvenile record, parole or probation records, and overall response to prior attempts at rehabilitation, will be relevant factors in adjusting the base extended term. Nonetheless, the primary focus will be on the conduct that occasions the sentence. [Dunbar, supra, 108 N.J. at 91-92.]
See also State v. Vasquez, 374 N.J. Super. 252, 267 (App. Div. 2005) (holding that the trial judge erred in "concluding that Dunbar permitted him to raise the presumptive extended base term on account of defendant's only prior conviction, the very conviction which both allowed and required an extended term.").
In contrast to Vasquez, in the present case, defendant had two indictable convictions more than the minimum required for imposition of an extended term, and he was the subject of multiple proceedings in the Paterson Municipal Court. His prior crimes were of an escalating nature, and he did not benefit from probation, but instead violated the probationary sentence imposed for third-degree unlawful possession of a weapon. In these circumstances, adherence to Dunbar's precepts when imposing sentence was evident. No error was committed. We leave for future consideration any issue as to the length of defendant's eventual sentence.
Because a conviction for unlawful possession of a firearm does not merge with a conviction for a substantive crime involving the use of that firearm, State v. DeLuca, 325 N.J. Super. 376, 392-93 (App. Div. 1999) aff'd as mod., 168 N.J. 626 (2001), and indeed the conduct required is wholly separate from any criminal activity in which a gun is used, imposition of a consecutive sentence was proper. State v. Yarbough, 100 N.J. 627, 643-44 (1985).
We now turn to defendant's pro se arguments. We find defendant's first point to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Defendant complains about an ex parte communication by the judge with the deliberating jury. Those portions of the record upon which defendant relies in this regard fail to suggest any such communication.
Defendant next argues that a mistrial should have been ordered when, on two occasions, references to a prior trial occurred. We disagree. The Supreme Court held in State v. Loyal, 164 N.J. 418 (2000):
Whether "manifest necessity" or "the ends of public justice" require declaration of a mistrial depends on the unique acts of the case and the sound discretion of the trial court. That test was first articulated in United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165, 165 (1824), where the Supreme Court observed that the law has invested courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes. [Loyal, supra, 164 N.J. at 435-36.]
We are satisfied that neither manifest necessity nor the ends of public justice required a declaration of mistrial in this matter as the result of two fleeting references to a prior trial. Because of the unwillingness of the State's witnesses to testify and the concomitant need to use prior statements and trial testimony, it would have been evident to the jury, regardless of the specific trial references, that some sort of a trial-like proceeding had previously occurred in relation to the March 26 killing. Although an inference could have been drawn by the jury that the trial had involved defendant, that inference was not the only one that the evidence supported. Moreover, even if the jury concluded that defendant had been previously tried for the present crimes, nothing suggested that he had been convicted of any of them, because if a conviction had occurred, the present trial likely would have been unnecessary. As we have previously observed: "A mistrial is an extraordinary remedy and should be resorted to only to prevent an obvious failure of justice." State v. Ribalta, 277 N.J. Super. 277, 291 (App. Div. 1994) (citing State v. Hubbard, 123 N.J. Super. 345, 351 (App. Div.), certif. denied, 63 N.J. 325 (1973)), certif. denied, 139 N.J. 442 (1995). We do not regard the present circumstance as rising to that level. "'Not every admission of inadmissible hearsay or other evidence can be considered to be reversible error.'" State v. Winter, 96 N.J. 640, 646 (1984) (quoting Bruton v. United States, 391 U.S. 123, 135, 88 S.Ct. 1620, 1627, 20 L.Ed. 2d 476, 484 (1968)).
We find insufficient merit in defendant's third argument to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). There, defendant, relying on State v. Branch, 182 N.J. 338, 348-53 (2005), claims that his right to confrontation was denied when testimony by a police detective allegedly raised the inference that the owner of the Cheetah Club identified defendant as one of the people appearing on the videotape at the time of the crime. However, unlike the defendant in Branch, there was no suggestion that the club owner implicated defendant in a crime, id. at 349, rather than identifying him as a witness to a crime. Moreover, defendant himself admitted to being present at the location pictured by the video and several trial witnesses confirmed that fact. No plain error occurred. R. 1:7-5.
As a final matter, we find no merit in defendant's argument that the trial judge committed plain error when he permitted the prosecutor to call Malik Porchea as a State's witness notwithstanding his knowledge or belief that Porchea intended to refuse to answer questions before the jury. The record reflects that at a hearing conducted outside the presence of the jury, Porchea sought to invoke his Fifth Amendment right to remain silent. Having been informed that he had no basis for such an invocation, Porchea was sworn as a witness and subsequently testified on both direct and cross-examination. Contrary to defendant's representations, Porchea never refused to answer a question, although his responses often expressed an inability to remember the events of March 26, his subsequent statement to the police, and his testimony at the first trial. When that occurred, Porchea's prior sworn statement and trial testimony were properly utilized in accordance with N.J.R.E. 803(a) (prior statements of witnesses), N.J.R.E. 612 (refreshed recollection) and N.J.R.E. 803(c)(5) (recorded recollection).
We also reject defendant's subsidiary argument, contained within Point IV, that the prosecutor improperly expressed his personal belief as to defendant's guilt in his closing argument. The statement at issue expressed no personal opinion, but instead, properly responded to arguments of defense counsel that a third party had shot Franklin from the street after the struggle and discharge of four bullets on the sidewalk had occurred. State v. Nelson, 173 N.J. 417, 473 (2002).
Defendant's convictions are affirmed; the matter is remanded for resentencing pursuant to State v. Pierce.