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State of New Jersey v. Fabian B. Austin

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 22, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
FABIAN B. AUSTIN, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 07-09-0670.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 6, 2012

Before Judges Parrillo, Grall and Hoffman.

Indicted for murder, N.J.S.A. 2C:11-3(a) and N.J.S.A. 2C:2-6, and third-degree aggravated assault with a deadly weapon, N.J.S.A. 2C:12-1(b)(2), defendant Fabian Austin was tried by a jury and convicted of the lesser-included offense of reckless manslaughter and simple assault. The latter was merged with the former, for which defendant was sentenced to a ten-year term of imprisonment, eighty-five percent without parole in accordance with the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant appeals. We affirm the conviction but remand for resentencing.

This criminal episode arises from a homicide in which the victim, Ammar Simmons, was shot after attempting to pose as a member of the Bloods gang. Defendant, a member of the gang, was accused of ordering the shooting.

According to the State's proofs, on the evening of July 14, 2007, at around 11:00 p.m., Franklin Township police, responding to a noise complaint, broke up a house party. Some of those in attendance, including Simmons, Prescott Hill, Jessica Reyes and Christopher Reyes, then headed over to the DeKalb Avenue little league baseball complex because they heard a fight was to take place. Simmons' best friend, Troy Chance, joined them minutes later. According to Chance and Joseph Llorens, a member of the Bloods, there were about thirty people at the complex.

In order to help understand what happened next, the State presented Daniel McNamara of the Franklin Township police department as an expert in gangs, who testified that the Bloods gang had a code providing that if one of its members was in a fight with a non-member, all other members were supposed to jump in and defend the member. McNamara further defined some gang terminology: a "550 order" means a direction that all non-members leave an area, and a "G-check" means a test to determine whether someone is really a gang member. If someone fails a G-check, that person will be beaten sufficiently to cause a visible and permanent injury.

The fight at the baseball complex that drew the thirty-person crowd was between two members of the Bloods, Andrew Colon and Michael Covil. A "550 order" was then declared. The non-gang members, including Simmons and Hill, retreated to the dugout area of the field while the gang members, including defendant, Chance and Xavier Bailey, went to the snack bar area.

After the gang members gathered, Chance jumped on a picnic table and began arguing against the planned fight. About this time, Simmons went from the dugout to the snack area, where one of the gang members asked him if he was a member. Simmons replied that he was. A "G-check" was then administered to Simmons by defendant and Covil, according to Chance. Having apparently failed the test, Simmons was permitted to call his brother, Malik, to vouch for him; however, Malik simply advised him on speaker phone to "go home."

Immediately thereafter, an argument broke out involving Simmons, which Chance tried unsuccessfully to stop. According to both Llorens and Chance, Simmons was attacked by the gang members, including defendant. Chance saw Simmons being hit with a trash can lid. Llorens heard a shot and saw Simmons fall onto a picnic table. Hill also heard a scuffle and then a gunshot, which caused the crowd to scatter and disperse. Chance saw a "flash," and then Simmons lying on the ground. Earlier that evening, Chance had seen Bailey with a "little gun," and also admitted that he himself had a .40 caliber gun with him that night, but denied using it.

Yet another witness, Cleveland Screws, who lived directly across the street from the complex, heard a commotion, saw fighting and heard a shot at around 12:30 a.m. on July 15. However, he could not identify any of the participants.

After fleeing, Chance called Hill and asked him to drive back to the scene. Upon arrival, they put Simmons in the back of the car and drove him to Robert Wood Johnson Hospital in New Brunswick. Simmons died a few hours later. Chance, appearing agitated and yelling he "was not rat," spoke to police at the hospital and later that day at headquarters.*fn1

An autopsy performed by Dr. Thomas Blumenfeld revealed bruises on Simmons' chest and right hand, and a one inch cut on the top of his head. Blumenfeld also observed a bullet wound on the lower right side of Simmons' back. The bullet had traveled through the kidney, pancreas and several arteries, resulting in a large amount of bleeding in the abdominal cavity, which Blumenfeld concluded was the cause of death.

Police investigation of the scene of the shooting around 4:00 a.m. on July 15 uncovered a spent .25 caliber shell casing. Detective Williams Solomons of the Somerset County Prosecutor's Office (SCPO) also observed that one of the picnic tables in the snack area was broken, while another had shoe prints on it.

Also in the area was an overturned garbage can, strewn debris, and quite a few drops of blood on the rocks.

Franklin Township Officer Kenneth Daly reported to Robert Wood Johnson Hospital and was given the bullet that had been removed from Simmons. The bullet and the shell casing recovered by Solomons were compared by the Prosecutor's Office's ballistics unit and found to both be .25 caliber.

On September 4, 2007, Jeffrey VanderGoot, an investigator with the SCPO, received a letter from J.M., who had been arrested in June 2007 for assaulting a police officer and had shared the same "pod" with defendant in the Somerset County jail, describing a jailhouse conversation he had with defendant. According to J.M., defendant told him that he was in jail for "beating up a dead man," specifically that he and a friend had beaten up Simmons because Simmons had wrongfully claimed to be a member of the Bloods. Defendant described Simmons as "food," or someone marked for death. As a result, defendant told "his man Eggezy," later identified as Bailey,*fn2 to get his gun, which, defendant told J.M., was small caliber, and shoot Simmons. Bailey complied, and shot Simmons in the buttocks.*fn3

J.M. acknowledged that he wrote the Prosecutor's Office in July 2007 offering to inform on three other inmates, and also admitted writing the office eight letters, some using aliases. In addition, he had previously testified as a confidential informant in at least three trials in New York. As part of a plea agreement in October 2007, stemming from his June 2007 arrest, J.M. was sentenced to time served on charges of third-degree aggravated assault. However, he denied that his guilty plea in October 2007 was part of any deal for a reduced sentence in exchange for his testimony in this matter.

On appeal from his reckless manslaughter conviction, defendant raises the following issues:

I. THE TRIAL COURT ERRED IN REFUSING TO CHARGE THE JURY THAT IT MUST FIND THAT THE DEFENDANT'S ALLEGED STATEMENTS WERE ADEQUATELY CORROBORATED, NECESSITATING REVERSAL. U.S. CONST., AMEND. VI, XIV; N.J. CONST., (1947), ART. 1, PAR. 10.

II. THE DEFENDANT WAS GREATLY PREJUDICED BY UNSUPPORTED HEARSAY TESTIMONY SUGGESTING THAT THE ALLEGED SHOOTER IMPLICATED THE DEFENDANT, EXACERBATED BY THE STATE'S CITATION OF THAT TESTIMONY IN SUMMATION, AND THE PURPORTEDLY CURATIVE INSTRUCTION WAS INSUFFICIENT TO CURE THE PREJUDICE. ACCORDINGLY, REVERSAL IS NECESSARY. U.S. CONST., AMEND. VI, XIV; N.J. CONST., (1947), ART. 1, PARS. 9, 10.

III. THE TRIAL COURT ERRED TO DEFENDANT'S PREJUDICE IN REFUSING TO QUESTION THE JURY CONCERNING A PREJUDICIAL NEWSPAPER ARTICLE APPEARING DURING THE COURSE OF DELIBERATIONS, NECESSITATING REVERSAL. N.J. CONST., AMENDS. VI, XIV; N.J. CONST., (1947), ART. 1, PARS. 9, 10.

IV. THE TRIAL COURT ERRED TO DEFENDANT'S PREJUDICE BY DELIVERING INCOMPLETE AND ONE-SIDED RE-INSTRUCTIONS AS TO ACCOMPLICE LIABILITY, NECESSITATING REVERSAL. U.S. CONST., AMEND. XIV; U.S. CONST., AMEND. VI, XIV; N.J. CONST., (1947), ART. 1, PARS. 9, 10.

V. THE TRIAL WAS MARKED BY A REMARKABLE NUMBER OF DISCOVERY FAILURES BY THE STATE, TO DEFENDANT'S PREJDICE, NECESSITATING REVERSAL. U.S. CONST., AMEND. XIV; N.J. CONST., [1947], ART. 1, PAR. 10.

VI. THE TRIAL COURT'S REPEATED AND ONE-SIDED INTERRUPTIONS OF THE TRIAL, INCLUDING QUESTIONING WITNESSES AND HIGHLIGHTING THEIR TESTIMONY, VIOLATED THE DEFENDANT'S RIGHTS TO A JURY TRIAL AND DUE PROCESS, NECESSITATING REVERSAL. U.S. CONST., AMEND. VI, XIV; N.J. CONST., (1947), ART. 1, PAR. 9.

VII. THE CONVICTION WAS CLEARLY AGAINST THE WEIGHT OF THE EVIDENCE, NECESSITATING REVERSAL. U.S. CONST., AMEND. XIV; N.J. CONST., (1947), ART. 1, PAR. 10.

VIII. THE CUMULATION OF ERRORS WAS SO SUBSTANTIAL AS TO NCESSITATE REVERSAL. U.S. CONST., AMEND. XIV; N.J. CONST., (1947), ART. 1, PAR. 10.

IX. THE TRIAL COURT IMPOSED AN EXCESSIVE SENTENCE, NECESSITATING REDUCTION.

We address in detail those issues deemed worthy of discussion.

I Defendant first argues that the trial court's failure to instruct the jury that his jailhouse confession - the main evidence against him - had to be corroborated constituted reversible error. Because defendant requested such a charge, to which he was entitled, we must determine whether the failure to give a corroboration instruction, when read in the context of the jury charge as a whole and the proofs at trial, possessed a clear capacity to bring about an unjust result. R. 2:10-2; State v. Macon, 57 N.J. 325, 336 (1971). So measured, we conclude the omission did not amount to harmful error.

To avoid the danger of convicting a defendant solely on the basis of his or her own words, the State must introduce independent proof of facts and circumstances which strengthen or bolster a confession and tend to generate a belief in its trustworthiness. State v. Reddish, 181 N.J. 553, 617 (2004). However, there are no hard and fast rules regarding corroboration and the requirement is both a legal and factual determination. Id. at 618. The court must first determine whether, as a matter of law, the State has introduced any legal evidence that tends to support the statement's trustworthiness and, if so, any missing details, speculation or discrepancies in the evidence simply raise fact questions as to weight and sufficiency which may be resolved by the jury. Ibid.

A defendant, of course, is entitled to request and receive a charge to the jury on its duty with respect to issues of corroboration. Id. at 621; State v. DiFrisco, 118 N.J. 253, 273 (1990), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996). However, the Court has noted on several occasions that the failure of the trial judge sua sponte to instruct the jury on corroboration does not rise to plain error where other aspects of the charge addressed the jury's responsibility to assess credibility, and "'[t]he entire thrust of the defense' was that the statements at issue were untrue." Reddish, supra, 181 N.J. at 621 (alteration in original) (quoting State v. Roach, 146 N.J. 208, 228, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996)); State v. Lucas, 30 N.J. 37, 63 (1959). Thus, while the argument of counsel is not a substitute for a correct charge, it could nevertheless mitigate the prejudicial effect of an erroneous charge. Reddish, supra, 181 N.J. at 621-22.

The circumstances in this case are similar to Reddish. Here, defense counsel urged the jury to reject J.M.'s statements as untrue, in both her opening and summation, and the trial court addressed the jury's need to assess J.M.'s credibility.

In her opening, defense counsel described J.M. as a "professional liar, who would figuratively say or do anything to buy his way out of State Prison." She claimed that J.M. had an extensive criminal record and used many aliases, and that he "bought his way out by harming other people with lies." She added:

[J.M.] started writing to the Prosecutor's office. And he basically said hi, I'm out here. I'm a professional witness, I've testified three times before in trials in New York and I work for a police officer in New York. Apparently he's a confidential informant. And I hold up my end, I'm good at this. And I will do anything you want to . . . prove my innocence. Which really means, if you read between the lines, I will do anything you want to get myself out of this jam.

In summation, defense counsel stated that J.M. had "misinformation," and that he was "pumped info that he couldn't keep straight." She added:

I fervently hope that you see through him when you recognize that he's a grasping criminal that he is. Before you begin to carefully examine him and what he offered you here, would you please think of this? Does it make sense at all that someone that you accuse of G-checking, so that you keep gang stuff secret . . . would go and willy nilly disclose what would have had to have been considered a gang secret, and violate gang ethics to someone who looks and sounds like [J.M.]? Clearly has abused his body and himself?

Did Fabian Austin ever tell this cockamamie story to [J.M.]? Of course not.

In addition, the trial court instructed the jury:

In considering whether [J.M.]'s testimony and Austin's statement is credible, you should take into consideration the circumstances and facts as to how the statement was made, as well as all other evidence in this case relating to that issue.

If after consideration of all of the factors, you determine that the statement was not actually made, or that if made is not credible, then you must disregard the statement completely. If you find that the statement was made and part of it is credible, you may give whatever weight you think appropriate to the portion of the statement you find to be truthful and credible.

Granted, in Reddish, counsel never requested a corroboration charge and the court's failure to give the instruction sua sponte was assessed under the "plain error" standard. Here, of course, counsel made a specific request, but we measure the resultant harm against the same test: whether the error was clearly capable of producing an unjust result. R. 2:10-2. See also Roach, supra, 146 N.J. at 229 (finding that the failure to give the corroboration charge was not harmful error because the "entire thrust of the defense was its argument that the [confession] was untrue[,]" and the trial court's charge "clearly advised the jury that it must decide the issues of fact regarding the value" of the defendant's confession). So viewed, given the extensive attack on J.M.'s credibility by defense counsel, and the court's instruction that the jury had to consider J.M.'s credibility, we deem the court's failure to charge the jury on corroboration was not harmful error.

Moreover, defendant has failed to demonstrate that his statement was insufficiently corroborated. The "requirements are narrow with respect to the quantum of evidence required to establish corroboration in law." DiFrisco, supra, 118 N.J. at 273 (citations omitted). A trial court should properly refuse to grant a judgment of acquittal when the State provides "any legal evidence, apart from the confession of facts and circumstances, from which the jury might draw an inference that the confession is trustworthy." Lucas, supra, 30 N.J. at 62. As with the quantum of evidence, "the scope of the corroboration requirement similarly is circumscribed." Reddish, supra, 181 N.J. at 618. In Lucas, the Court made clear that the State must introduce, apart from a defendant's statement, "independent proof of loss or injury . . . ." 30 N.J. at 56. But as the Court further explained in State v. Johnson, 31 N.J. 489 (1960), in a trial for murder the State only needs independent proof of the victim's death; the remaining elements of the crime may be established by the confession, so long as its corroboration requirement has been met. 31 N.J. at 504.

Here, there was sufficient corroboration. The State's proofs identified defendant as a member of the Bloods gang, his association with other gang members including Bailey, his presence at the scene of the shooting, his direct participation in the assault upon Simmons, and a motive for the attack, namely, the Bloods' code calling for the infliction of visible and permanent injury upon someone falsely claiming to be a member. Accordingly, we are satisfied that the evidence and inferences to be drawn from the evidence were sufficient for the jury to determine that the confession was trustworthy. We conclude that the trial court's failure, therefore, specifically to charge the jury that it must find corroboration was not harmful error.

II

Defendant next contends that the court erroneously admitted evidence of a police officer's reference to information he received from Bailey, a non-testifying witness, as to defendant's involvement in the crime, and that the prosecutor compounded the error by referring to that reference in his summation. We find no reversible error because the challenged comment was invited by defense counsel and, in any event, cured by the court's remedial instruction.

Some background is in order. Defendant called Detective VanderGoot as a witness, and the following colloquy took place:

Q. And you also said that you never met with [J.M.] before your interview with him on September 4th, is that right?

A. That's correct.

Q. So you're stating that you arrested an individual on a murder charge on the word of a snitch that you had just met?

A. In part.

Q. In part. Which part of the question are you answering?

A. We relied heavily upon the information provided by [J.M.].

Q. What else did you rely on?

A. The prior information we had, ma'am, that led us to have the initial charges against Fabian Austin.

Q. Can you please elaborate on what the information was?

A. Yes, information that was provided by Troy Chance that [defendant] was . . . essentially performing a G check . . . . We also received information from Joseph Llorens that [defendant] was involved in the beating . . . . And in the statement of Xavier Bailey, the individual who shot Ammar Simmons, he had also indicated that the beating . . . was preceded by questions being asked by [defendant] and [defendant] actually participated in the assault.

[(Emphasis added).]

The next day, defense counsel made a request for an "unavailable witness" instruction and for the jury to disregard VanderGoot's testimony regarding Bailey, which the court denied, as it did the defense's later request to introduce Bailey's full statement to the police.*fn4 When during summation defense counsel attempted to explain Bailey's absence, the prosecutor objected and the court instructed the jury thus:

I instruct you to ignore that last comment of counsel in regard to why you haven't heard from . . . Mr. Bailey. Instead, I will tell you that it is not for you to speculate as to why . . . Mr. Bailey w[as] not called by one side or the other, but I instruct you that there are sound legal reasons which I have determined for their absence. Any other suggestion by counsel is not to be considered by you. Their absence from this trial is not to be considered by you, nor should you speculate as to the reasons therefore [sic].

In his summation, the prosecutor commented on VanderGoot's testimony:

[H]e was asked when he was called by the defense . . . about [J.M.]'s role in this case. And you know, I couldn't paint it to you any other way, you know this murder charge came about after [J.M.] said, hey, listen to what I know. . . . And when asked about that, Detective VanderGoot . . . didn't retreat from that, he didn't try to say, well, [J.M.]'s just a part of this, there's a lot more. His honest response to a question in this case was we did rely upon him in large part. . . .

The follow-up question was what else did you rely upon? And the answer was, well, we relied upon Troy Chance's account of that night. We relied upon Joey Llorens explaining the Defendant's involvement in beating the victim, and we relied upon Xavier Bailey's account. [(Emphasis added).]

At the conclusion of the summation, defendant objected to the reference to Bailey and asked for a curative instruction. The court responded that the prosecutor "only repeated . . . the question and the answer posed to and given" by VanderGoot. The court again rejected defendant's previous request for an "unavailable witness" instruction, but stated it was now inclined to tell the jury that it was not known what Bailey told VanderGoot; that such evidence would have been inadmissible hearsay in any event; and that the jury was not to speculate as to what, or whether, Bailey said anything to VanderGoot. Accordingly, over defense counsel's objection, at the start of its general charge, the court told the jury:

During the testimony of Detective VanderGoot, when he was called by the Defendant, he was asked . . . what else did you rely upon in the decision to charge [defendant] with murder, beyond [J.M.]'s information? And he said we relied upon . . . in part, in addition to [J.M.], the information provided by Troy Chance and what Xavier Bailey told us. . . .

Now, whatever Xavier Bailey told the police would not be admissible, even if someone tried to get it in, because it's hearsay. And the reason it wouldn't be admissible under the hearsay rule, and constitutionally, is that an individual charged with a crime has a right to confront witnesses against him or her. . . .

Now, the point of this . . . is to tell you that we don't know what Bailey said, we don't know if he said anything. I don't know and neither do you. So, I am instructing you you are not to speculate as to what Bailey may have said, how Detective VanderGoot may have taken it, because it's not before you. And among the promises you made at the beginning of this case and the oath you took was to decide this case solely upon the evidence presented to you at this trial. And that did not include anything that might have been said by Bailey. So, I repeat, I don't know what if anything Bailey said, and neither do you, and you are not to speculate about it. Okay?

At this point, in the presence of the jury, defense counsel stated: "I renew my application that this jury be given full information on Xavier Bailey's statement so they're not left --." The court interrupted counsel and told the jury:

Ladies and gentlemen, that comment of counsel is entirely improper and inappropriate, and you are to ignore it. I am doing the impossible. I am asking you to unring that bell.

What counsel has just done is to suggest to you that there is something in Bailey's statement that you should know about, and I have determined the contrary.

Ignore that comment.

In denying defendant's subsequent motion for a mistrial based on VanderGoot's testimony about Bailey, and the prosecution's reference to it in summation, the court stated:

There is no bad faith on the part of the State. Here the possible effect of the testimonial reference to what Bailey told the police is that the jury may be tainted by material prejudicial to the Defendant. That Defendant elicited the testimony of the inadmissible statement . . . the reference to its making by Xavier Bailey is not dispositive of the inquiry, but it is relevant under the circumstances of . . . this case. There is no manifest necessity to terminate the trial. As such, a mistrial is not warranted by either defense counsel's examination, behavior, or that of the Prosecutor.

Whatever danger of prejudice to the Defendant . . . was met and remedied, I believe, by the curative instruction given to the jury. The public interest does not require that this matter be terminated and retried.

The court relied on the same rationale in denying defendant's post-verdict motion for a new trial:

First, it should be noted that the information about the statement of Xavier Bailey was adduced by Defendant, and not the State, during Defendant's case, by Defendant's witness, in response to specific questioning by Defense Counsel which was designed to produce an answer of the type given. Det. VanderGoot, upon the insistence of defense counsel, listed the things that prompted him to arrest Defendant for murder. This was in direct response to defense counsel's line of questioning. Defense counsel did not object to the answer at that time. . . .

There is no such thing as a perfect trial. There is no doubt that the . . . question to Det. VanderGoot, in hindsight, should not have been asked. But, under all the circumstances, the Court's direct instruction, delivered in a forceful manner with eye contact with each juror, avoided any potential harm . . .

A police officer may, without violating the hearsay rule or the defendant's right of confrontation, explain the reasons he apprehended a suspect or went to the scene of the crime by stating that this was done based "upon information received." State v. Bankston, 63 N.J. 263, 268 (1973). However, when the witness becomes more specific by repeating what some other person told him concerning a crime by the accused, that testimony constitutes inadmissible hearsay and a violation of the accused's right of confrontation. Id. at 268-69. "When the logical implication to be drawn from the testimony leads the jury to believe that a non-testifying witness has given the police evidence of the accused's guilt, the testimony should be disallowed as hearsay." Id. at 271. Thus, a police officer may not imply to the jury that he possesses superior knowledge, outside the record, that incriminates the defendant. State v. Branch, 182 N.J. 338, 351 (2005).

In State v. Douglas, 204 N.J. Super. 265, 273 (App. Div.), certif. denied, 102 N.J. 378 (1985), on cross-examination of a police detective, the defense counsel asked whether, at the time of a photo identification, he believed one of the perpetrators of the crime in question was the defendant. In response, the detective stated that one "of the other perpetrators" had told the police that defendant was involved. Ibid. The defense did not immediately object, and did so only when the prosecutor made reference to the testimony in summation. Ibid. The objection was sustained and the jury admonished to disregard the reference to the statement. Ibid. In its charge, the court reminded the jury to disregard the prosecutor's comment. Ibid.

In affirming, we found that the hearsay evidence elicited from the detective was harmless error, id. at 274, noting that where "the errors were invited or induced by defense counsel they will not serve as a basis for reversal on appeal." Ibid. In addition, we found no prejudice because there was substantial credible evidence upon which the jury could have predicated its finding of guilt without the hearsay evidence, ibid., notable among which was the positive identification of the defendant's role in the crime, as well as his possession of the weapon used in the robbery. Id. at 274-75.

In Douglas, defense counsel merely asked the detective whether, at a certain point in time, he believed that the defendant was one of the perpetrators. Instead of giving a yes or no answer, the detective went beyond the parameters of the defense counsel's question. Here, much more egregiously, defense counsel directly asked VanderGoot what information he relied on in making defendant's arrest and VanderGoot did not go beyond the parameters of the question in making his reply. In other words, the evidence that Bailey gave information to VanderGoot that formed the basis for defendant's arrest was elicited only upon defense counsel's insistence. Defendant was solely responsible for the introduction of this hearsay.

Moreover, the prosecutor's reference to the answer in summation did not unduly highlight VanderGoot's reference to Bailey. To the contrary, the prosecutor, as did VanderGoot, referred to other testifying witnesses' accounts of defendant's participation in Simmons' beating and therefore the added brief reference to Bailey was not unduly prejudicial when considered in the full context of the detective's testimony.

In any event, any potential for prejudice was adequately cured by the court's forceful admonition to the jury not to speculate as to what Bailey told police. State v. Loftin, 146 N.J. 295, 365 (1996), remanded by, 157 N.J. 253 (1999). Given this corrective action, and the fact that errors created by defense counsel will not ordinarily be grounds for reversal, State v. Harper, 128 N.J. Super. 270, 277 (App. Div.), certif. denied, 65 N.J. 574 (1974), the court's denial of defendant's mistrial motion was not an abuse of discretion. State v. Goodman, 415 N.J. Super. 210, 234-35 (App. Div.), certif. denied, 205 N.J. 78 (2011).

III

Defendant also moved for a new trial on the ground that the State's "repeated and significant" discovery violations hampered his ability to prepare for trial. We disagree as defendant was not deprived of any material to which he was entitled.

Generally, a defendant in a criminal trial is entitled to broad discovery. State v. Gilchrist, 381 N.J. Super. 138, 145 (App. Div. 2005), certif. denied, 203 N.J. 96 (2010). However, that right under Rule 3:13-3(c) is not unlimited; a defendant may not engage in an unfocused and haphazard search for evidence. Id. at 145-46. The request for discovery must be relevant, namely, a logical connection between the evidence sought and a fact in issue. Id. at 146.

It is the prosecution's duty to comply with requests for discovery within a reasonable time period. State v. Polito, 146 N.J. Super. 552, 556 (App. Div. 1977), certif. denied, 76 N.J. 243 (1978). Nonetheless, the defendant must establish prejudice from the failure to turn over information. State v. Marshall, 148 N.J. 89, 195, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 988 (1996). The test is whether there was a reasonable probability that, had the evidence been disclosed in a timely manner, the result of the proceeding would have been different. State v. E.W., 413 N.J. Super. 70, 81 (App. Div. 2010). The court's ruling on a defendant's discovery motion is reviewed for abuse of discretion. Gilchrist, supra, 381 N.J. Super. at 147.

Defendant cites several instances of late discovery. However, he does not allege that any of the late discovery constituted exculpatory evidence and, thus, a Brady*fn5 violation. Nor has he demonstrated that had the evidence been provided in a more timely fashion, the verdict would have been different.

For example, prior to trial, defendant sought to obtain the police report of J.M.'s June 2007 arrest by Franklin Township police. The State objected, but the court found that it was discoverable. Defendant does not point to how he was in any way prejudiced by the timing of the discovery. In fact, counsel was able to cross-examine J.M. in detail as to his arrest.

So too, defendant has failed to establish any prejudice from the late discovery of several letters J.M. wrote to the prosecutor as well as information that he had been a witness in three trials in New York. In fact, when defense counsel asked for a one-day continuance because of his late receipt of this correspondence, the court granted the request.

Similarly, with respect to the untimely disclosure of J.M.'s criminal record, in denying defendant's motion for a new trial, the judge stated:

The evidence of [J.M.]'s criminal record was material to the impeachment of [J.M.] while he was on the stand testifying, and it was provided to Defendant prior thereto, albeit not in a timely fashion. . . . Defendant has not provided this Court with any evidence indicating that there is a reasonable probability that the result of the proceeding would have been different had evidence of [J.M.]'s criminal record been (previously) disclosed. . . . Absent a showing that . . . there was a reasonable probability that the result of the proceeding would have been different had the suppressed evidence been disclosed, which is not the case here, a failure to disclose evidence that may prove helpful to the defense on some level does not rise to the level of a Constitutional violation.

In another of the cited instances, during the trial, defense counsel requested copies of photo arrays shown to several witnesses, including Chance. The court directed the State to produce these arrays. However, as with other defense requests, because there was no evidence that any witness, including Chance, identified defendant from the photo arrays, no prejudice has been shown.

Lastly, when defense counsel complained at trial that she had not received letters sent by Bailey to Simmons' sister and a transcript of Bailey's waiver hearing, the court responded by twice offering defendant the opportunity for a continuance, which counsel declined on both occasions. Instead, defendant opted to go forward, an indication that the defense did not believe it was prejudiced by the State's belated discovery.

Although in some instances the State's tardiness remains unexplained, we discern no resultant prejudice and on those occasions where the potential for some may have existed, the court afforded defendant the opportunity to alleviate any perceived harm. We emphasize that on no occasion was exculpatory evidence withheld and the requested materials that were discoverable were eventually disclosed albeit belatedly. We are satisfied that the discovery lapses complained of did not amount to reversible error and, accordingly, the trial court did not abuse its discretion in denying defendant's motion for a new trial grounded thereon.

IV

Defendant next argues that he was denied the right to a fair trial as a result of the trial court's improper questioning of witnesses and summarizing of evidence. He cites a litany of examples, but we find none of the judicial interventions, either singly of collectively considered, warrants reversal of his conviction.

N.J.R.E. 614 explicitly grants judges the right to question witnesses in accordance with the law and subject to the right of a party to make a timely objection. Moreover, "trial judges possess broad discretion to intervene in a criminal trial where necessary." State v. O'Brien, 200 N.J. 520, 534 (2009). This includes when a defendant's rights are being threatened, when expedition is needed to prevent a waste of judicial time, when testimony requires clarification, or when a witness appears to be having trouble testifying. Ibid. However, the judge, particularly in a criminal trial, should not "telegraph to the jury" any partiality. Ibid. Thus, undue interference, impatience or a caustic attitude towards a witness should be avoided. Ibid. Not showing bias is particularly important when a criminal defendant is testifying. Id. at 535.

Defendant first claims that the court improperly elicited testimony that Llorens was a member of the Bloods at the time of the shooting, and that defendant was prejudiced thereby because it was alleged that he also was a member of the Bloods. However, Llorens had already told the jury he was a member of the Bloods before the court intervened. The question the court was trying to clarify was whether he was a member on the night of the shooting. Given Llorens's prior admission, and defense counsel's failure to object to the court's questioning, the elicited testimony did not constitute an abuse of discretion.

Another incident involved the court's questioning of Chance. During defendant's cross-examination, Chance stated that he did not speak to investigators for other participants in the incident because he was afraid of becoming "food," i.e., retaliation. The court then asked him, "[Y]ou indicated that you told the investigators . . . that you didn't know anything, you didn't see anybody there because you didn't want to be food, which would mean every Blood would be after you, is that right?" Chance replied, "Correct." Defense counsel told the court of her concern about the court repeating the testimony of witnesses "pretty much verbatim," as it did with Chance. The court responded that he asked the question to make sure that he heard the witness correctly.

The following day, defense counsel was attempting to elicit whether the prosecutor had promised Chance parole in return for his testimony in this matter. Chance testified that the prosecutor never made a promise in that regard, but that he did say that he would write a letter to the parole board on Chance's behalf. The following colloquy then took place:

THE COURT: So, in other words, your understanding was that the State would, in consideration of your being able to testify, write to the parole board, outline the extent of your cooperation in this matter, and ask the parole board to consider releasing you . . . ? [CHANCE]: Correct.

THE COURT: Okay. But he didn't promise that you were going to get out. [CHANCE]: No.

THE COURT: Okay. Because he can't do that, the parole board is the only one that can do that. Is that your understanding? [CHANCE]: Correct.

THE COURT: But he did promise, and it was your understanding that he'd write a letter to the parole board outlining your cooperation and recommending that it consider releasing you in May? [CHANCE]: Correct.

At the conclusion of this colloquy, defense counsel thanked the court.

Defendant contends that this questioning bolstered Chance's credibility by letting the jury know that he was not guaranteed release in return for his testimony, and that the questioning was gratuitous and prejudicial. We agree that the questioning went beyond a mere clarification into a restating and further development of the matter. However, since defendant did not object, but in fact thanked the court despite its admonition of the court the previous day, and there was no suggestion of partiality, the intervention did not constitute an abuse of discretion.

Defendant also takes issue with the court advising the jury about injuries Chance sustained the evening before his testimony as a result of an altercation with jail officers. Defense counsel asked that the jury be informed of this fact, but the court declined, telling them that they should give no consideration to Chance's injuries or to the fact that he was in restraints:

[Y]ou will notice he has a band aid on the outside of his left brow. You are not to speculate as to its etiology. But . . it's etiology had absolutely nothing to do with this trial, this Defendant, or Mr.

Chance's appearance at this trial. I do not want you speculating.

What I'm saying to you, again, is that Mr.

Chance's appearance in restraints, or the band aid on his head has nothing to do with this trial, his appearance at it, or his being a witness in this trial, okay? Nobody threatened him or lumped him up to influence, prevent, or otherwise interfere with his testimony. [(Emphasis added).]

Even though defendant now complains about the underscored portion, he voiced no objection after the instruction was given to the jury. Moreover, the reference did not implicate defendant and was part of an instruction that benefited defendant by dissuading the jury from believing that defendant was in some way connected with the injuries. It, therefore, did not constitute an abuse of discretion.

Defendant also complains about several interventions by the court during his counsel's cross-examination of J.M. When offered as a basis for a new trial, the court concluded:

Defendant has not provided this Court with any evidence that the jury was improperly influenced by any action of the Court. Further, Defendant has not provided this Court with any authority which indicates that the conduct of the Court was prejudicial in a way which would necessitate an acquittal, or a new trial. It is the conclusion of this Court that it was fair and even handed to both parties. Defendant's list of "interruptions" by the Court during the witness [J.M.]'s testimony represents the exercise of discretion under N.J.E.R. [sic] 614. This Court did not deviate from the parameters thereof.

We agree.

The gist of defendant's complaint as to this witness is that the court's questioning "short-circuited cross-examination in a manner that made [J.M.] seem more . . . credible . . . ." Yet in one instance the court was simply trying to clarify J.M.'s testimony as to how many felony convictions he had. State v. Taffaro, 195 N.J. 442, 450-51 (2008). And in another instance, although the court's questioning seemed to have crossed the line as it veered off into inquiry about J.M.'s interaction with the prosecution and expectation of a deal, defendant did not object and the questioning, by itself, was not clearly capable of producing an unjust result, Rule 2:10-2, since the jury was already aware of the competing claims regarding whether J.M. received a favorable bargain for testifying.

As to defendant's general claim that his counsel was treated "unequally," the court adequately addressed the same complaint at trial in his denial of defendant's new trial motion:

[T]he comments made by the Court, which the Defendant alleges were false accusations of impropriety, were made after defense counsel continued to insist that the jury be allowed to review the Bailey statement, after the Court had made its determination that the statement was hearsay and was not to be considered by the jury in its deliberations.

By continuing to insist in the presence of the jury, that the jury be allowed to review the statement, defense counsel was clearly implying to the jury that it did not have all the information before it which was required to render a verdict. The action by defense counsel threatened to undermine the integrity of the judicial proceeding, and was dealt with by the Court in an appropriate fashion.

While a trial judge should never unfairly criticize, humiliate or otherwise mistreat defense counsel in front of the jury, State v. Zwillman, 112 N.J. Super. 6, 21 (App. Div. 1970), certif. denied, 57 N.J. 603 (1971), the examples cited by defendant do not, in our view, constitute such treatment.

Moreover, the interventions cited by defendant were, on the one hand, either attempts to clarify the witness's testimony, or summarize the answer to expedite the matter, or on the other hand, inconsequential or too attenuated to be harmful. For these reasons, we discern no abuse of discretion in the court's conduct of the trial and no prejudice to defendant as a result thereof.

V

Defendant claims that his ten-year sentence was manifestly excessive because based on an improper assessment of the aggravating and mitigating factors. Because we find consideration of aggravating factors 1 and 2, N.J.S.A. 2C:44-1(a)(1) and (2), to have been improper and not supported by the record, we remand for resentencing.

As aggravating factors, the court found the nature and circumstances of the offense due to the "cruel manner of the attack," the gravity and seriousness of the harm inflicted on the victim, the risk that defendant would commit another offense, and the need for deterrence. The court found no mitigating factors. It concluded that the aggravating factors far outweighed the nonexistent mitigating factors. As a result, the court sentenced defendant to the maximum term permitted: ten years with 85% parole ineligibility on the reckless manslaughter conviction. The simple assault conviction was merged.

We must determine whether the findings of fact regarding aggravating and mitigating factors were based on competent and credible evidence in the record, whether the court applied the correct sentencing guidelines enunciated in the Code, and whether the application of the facts to the law constituted such an error of judgment as to shock the judicial conscience. State v. Roth, 95 N.J. 334, 363-65 (1984). We should not second guess a trial court's finding of the aggravating and mitigating factors if they are supported by substantial evidence in the record. State v. Soto, 340 N.J. Super. 47, 71 (App. Div.), certif. denied, 170 N.J. 209 (2001).

Defendant maintains that the court erred by double counting aggravating factors. Clearly, an element of the offense may not be cited as an aggravating factor. State v. Pavin, 202 N.J. Super. 255, 266-67 (App. Div. 1985). Thus, a victim's death may not be used as an aggravating factor in a homicide case. State v. Carey, 168 N.J. 413, 425 (2001). However, for purposes of aggravating factor N.J.S.A. 2C:44-1(a)(1), the cruel manner of an attack may be considered. Soto, supra, 340 N.J. Super. at 71-72. That said, we find no compelling reason for application of this factor. The State's evidence established that another individual was the shooter and, as the jury's verdict evidently suggests, although at defendant's instigation, his intent was apparently that the victim be shot in a non-vital area.

So too, as concerns the second aggravating factor - the gravity and seriousness of the harm inflicted - suffice it to say, a necessary element of reckless manslaughter is obviously the death of the victim. Carey, supra, 168 N.J. at 425. To consider the ultimate harm inflicted as an aggravating circumstance is improper double counting.

Because these two aggravating factors entered into the court's ultimate determination, we are constrained to remand for resentencing. On remand, we simply note by way of possible mitigation, that although defendant has a significant juvenile record, the matter represents his first adult conviction.

N.J.S.A. 2C:44-1(b)(7).

VI

We have considered the remaining issues in light of the record, the applicable law, and the arguments of counsel, and we are satisfied that none of them is of sufficient merit to warrant discussion in a written opinion R. 2:11-3(e)(2).

The matter is remanded for resentencing, and the judgment of conviction is affirmed in all other respects.


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