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State of New Jersey v. David Jordan


September 4, 2012


On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 08-08-1444.

Per curiam.


Submitted June 6, 2012

Before Judges Cuff and Lihotz.

Following a seven-day jury trial, defendant was convicted of the lesser included offense of aggravated manslaughter, N.J.S.A. 2C:11-4a (count one); felony murder, N.J.S.A. 2C:11-3a(3), (count two); armed robbery, N.J.S.A. 2C:15-1, (count three); second degree burglary, N.J.S.A. 2C:18-2, (count four); first degree conspiracy, N.J.S.A. 2C:5-2, (count five); second degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a, (count six), second degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b, (count seven); and two counts of third degree hindering apprehension or prosecution by giving false information to law enforcement, N.J.S.A. 2C:29-3b(4), (counts nine and ten). Defendant appeals from the judgment of conviction, alleging the trial judge erred in instructing the jury and by denying his motion for a mistrial. On appeal, defendant argues:









We affirm.


These facts are taken from the trial record. On April 14, 2008, around 9 p.m., Glenn Hunter, accompanied by his friends Leah Dudley and Korey Watson, arrived at Hunter's home on Woodland Avenue in South Plainfield, which he shared with his brother, Al Mustafa Rodriguez. When Hunter reached the front door, he found it unlocked. Inside he saw the house was "tossed," with clothing, paperwork, and furniture strewn everywhere. Hunter saw "blood everywhere" and found Rodriguez lying on the floor of his bedroom with his head covered by his bedroom closet door. Hunter, Dudley, and Watson "ran out [of] the house" and called the police.

Patrolman Antonio Grasso of the South Plainfield Police Department (SPPD) was on patrol when he heard the radio call regarding an "[u]nresponsive male." SPPD Officer Lloyd McNelly also responded. Both officers arrived within minutes and attempted "preservation of life" measures on the victim who lay "on the ground face down." However, Rodriguez was dead.

A third SPPD officer arrived and assisted Patrolman Grasso in checking and securing the house. Paul Miller, an investigator with the Middlesex County Prosecutor's Office (MCPO), Homicide Unit, was also called to the crime scene.

The MCPO also contacted Investigator Cheryl Dato of the Crime Scene Investigation Unit, who arrived and began collecting evidence, including samples of blood found on numerous objects and surfaces throughout the house. Investigator Dato recovered two shell casings, one next to Rodriguez and another underneath him; recorded two bullet holes in the bedroom, one in the ceiling and another in the outside wall of the bedroom; and recovered a bullet fragment from the attic, but could not recover the bullet, which traveled outside the building. Investigator Dato gathered fingerprints and searched for illicit narcotics when a narcotics dog reached to several spots throughout the house.

Doctor Alex Zhang, an Assistant Medical Examiner in the Middlesex County Medical Examiner's Office, performed Rodriguez's autopsy. He concluded Rodriguez was shot from a distance of more than three feet and the cause of death was a bullet, which entered through his back, puncturing his left lung.

That same day, Officer George Castro, assigned to the University of Medicine and Dentistry, was stationed outside the ambulance/emergency room entrance at the hospital's Newark campus. At 10:10 a.m., a hospital employee informed Officer Castro that a man, later identified as defendant, was found lying on the side of the road, bleeding from the neck. Officer Castro, along with medical personnel, went to defendant's aid. Defendant told Officer Castro someone attempted to rob him on Muhammad Ali Boulevard in Newark and he was shot while resisting.

Officer Castro contacted the Newark Police and relayed the information defendant had supplied. Detective Emanuel Miranda from the Major Crimes Division dispatched a unit to the Muhammad Ali Boulevard area to canvas for ballistics evidence and witnesses. He also called central communication to inquire whether "anybody had called in any shots fired[.]" After defendant was stabilized, he told Detective Miranda he was meeting a woman at the Felix Fuld Housing Projects and was approached and shot as he ascended the stairs. "He believed the female had set him up because [she] knew that he had carried a lot of cash on him."

Detective Miranda confronted defendant with the lack of evidence uncovered from the Muhammad Ali Boulevard area search. Miranda stated defendant "ended up admitting that . . . he wasn't shot in Newark, that he was actually shot in Plainfield, somewhere on Third Street." Detective Miranda contacted Officer Mahasin El-Amin of the Plainfield Police Department Ceasefire Unit. Officer El-Amin interviewed defendant, then searched the area in Plainfield where defendant claimed he had been shot. The investigation uncovered no evidence or witnesses suggesting a shooting had taken place. Shortly thereafter, Officer El-Amin learned of the Woodland Avenue shooting and conferred with the SPPD, prompting Investigator Miller to speak with defendant.

Before questioning him, Investigator Miller read defendant his Miranda*fn1 rights because "whoever [wa]s responsible for Mr. Rodriguez's death had themselves bled[.]" Defendant agreed to speak to Investigator Miller and denied he knew Rodriguez or what happened on Woodland Avenue. Defendant also consented to provide a buccal swab, a method of collecting DNA from the cells on the inside of a person's cheek, which Investigator Miller administered, logged into evidence, and transported to the New Jersey State Police forensic science center for DNA testing. Defendant's DNA sample matched the DNA of the blood taken from the crime scene.

Investigator Miller prepared an arrest warrant and served defendant on May 28, 2008, at 5:30 a.m. At the SPPD, defendant was placed in an interview room equipped with video and audio recording devices. Investigator Miller confronted defendant with the DNA evidence, which conclusively established he was at Rodriguez's home. Defendant repeatedly stated he did not kill Rodriguez, but ultimately acknowledged it was "possible" he knew what happened. Defendant explained he and Rodriguez planned to go fishing, but when defendant arrived at Rodriguez's home, the cable television, internet, and phone service were out of order. Later, there was a knock at the door and the individual announced he was a Comcast repairman. Defendant saw Rodriguez opened the door and "[t]wo guys came blazin' through." After a scuffle, Rodriguez "got hit first" and defendant "got hit second." Defendant stated he watched the men search the home for something, but they left without taking anything. Defendant acknowledged he "ran through the house lookin' for what they was lookin' for." Defendant suggested he had not previously volunteered this information because he believed he would be accused of the crime. Defendant consented to a search his home, vehicle, and girlfriend's residence, if she agreed.

Defendant's girlfriend was simultaneously questioned by the SPPD. Defendant was later told she offered information, which conflicted with his story. At that point, defendant admitted he and co-defendant Antoine Williams went to Rodriguez's home to rob him. The two, in "desperate need of money[,]" chose Rodriguez because defendant heard he was "heavy into sellin' drugs."

Defendant had followed Rodriguez home the week before. On April 13, 2008, around 7:30 p.m., he cut the cable wire that ran into Rodriguez's house with a pair of pliers. Defendant overheard Rodriguez call the cable company. He and Williams waited about twenty minutes then left. The following morning, defendant and Williams returned to Rodriguez's home. Williams "knocked on the door and said Comcast." Rodriguez stalled then answered the door, allowing Williams to charge into the home, armed with a gun. Defendant followed.

Defendant asserted he heard a gunshot as Williams pushed his way into the home and also heard Rodriguez say, "I'll give you everything, I'll give you everything." Rodriguez also was armed with a gun. When defendant began struggling with Rodriguez, he fired, hitting defendant in his right hand and neck. Williams disappeared during the scuffle, leaving defendant to "tussle" with Rodriguez. As defendant "bear hugged him from the back[,]" Rodriguez managed to get up onto his knees. Rodriguez was almost standing when Williams returned and shot him. With Rodriguez incapacitated, defendant and Williams tore the house apart looking for drugs and money, but found only "five or six" small bags of marijuana on the kitchen counter. Defendant noticed Rodriguez was still breathing, but it "[s]ounded like he was chokin[g] on his blood[.]" Williams removed both weapons from the house, but defendant did not know what he did with them.

Defendant and Williams were indicted and tried separately. In addition to the State's witnesses, who related the facts set forth above, the defense called Sean Belus, a corrections officer assigned to the Middlesex County Adult Corrections Center. Belus conveyed a conversation he had with Williams in the summer of 2008. Belus stated Williams reported his intention that "he wasn't going to help [defendant] . . . . He was going to let [him] kind of hang, burn himself, because [defendant] was a punk and he wasn't going to say, 'Yeah, I shot him. They're going to have to figure that out on their own.'" Defendant presented no additional evidence.

Following deliberations, the jury found defendant guilty of all counts charged, but instead of murder, N.J.S.A. 2C:11-3a(1), the jury convicted defendant of the lesser included offense of aggravated manslaughter, N.J.S.A. 2C:11-4a. The court, at the request of the State, dismissed a separate pending indictment charging defendant with possession of a weapon by certain persons. N.J.S.A. 2C:39-7.

After his motion for a new trial was denied, defendant was sentenced on count one to a ten year term of imprisonment, subject to No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and a five year period of parole supervision; after merging counts three, four, five and six into count two, a life sentence without parole was imposed on count two, to run concurrent to count one; on count seven defendant was sentenced to ten years, to run concurrent to count two; and on counts nine and ten, two five year terms were imposed, also to run concurrent to count two. Applicable fines, penalties, and fees were assessed. This appeal ensued.


On appeal, defendant attacks various portions of the jury charge. It is undisputed that proper jury charges are "essential to a fair trial." State v. Bunch, 180 N.J. 534, 541-42 (2004). See also State v. Green, 86 N.J. 281, 287 (1981) ("Appropriate and proper charges to a jury are essential for a fair trial."). The trial judge must guarantee jurors receive accurate instructions on the law as it pertains to the facts and issues of each case. See State v. Thompson, 59 N.J. 396, 411-12 (1971). A trial court is obligated to properly instruct and guide a jury, which "includes the duty to clarify statutory language that prescribes the elements of a crime when clarification is essential to ensure that the jury will fully understand and actually find those elements in determining the defendant's guilt." State v. Alexander, 136 N.J. 563, 571 (1994). Because of the importance of accurate jury instructions, "erroneous instructions on material issues are presumed to be reversible error." State v. Marshall, 173 N.J. 343, 359 (2002). See also State v. Vick, 117 N.J. 288, 289 (1989) ("[E]rroneous instructions are almost invariably regarded as prejudicial."); State v. Simon, 79 N.J. 191, 206 (1979) (Such errors "are poor candidates for rehabilitation under the harmless error philosophy.").

In our review of a defendant's challenge to a trial judge's jury instructions, the "portions of a charge alleged to be erroneous cannot be dealt with in isolation[,]" rather, the charge must "be examined as a whole to determine its overall effect." State v. Wilbely, 63 N.J. 420, 422 (1973). Finally, we must evaluate a claim of error "in light 'of the overall strength of the State's case.'" State v. Burns, 192 N.J. 312, 341 (2007) (quoting State v. Chapland, 187 N.J. 275, 289 (2006)).


Defendant first maintains the trial judge erred in denying his request for the non-slayer participant defense arguing "the record was open to interpretation as to whether or not [he knew] in advance that [Williams] was armed with a gun." We disagree.

The affirmative defense relates to the felony murder charge. Where "the defendant was not the only participant in the underlying crime," the defendant has a statutory "non-slayer participant" affirmative defense if the defendant:

(a) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and

(b) Was not armed with a deadly weapon, or any instrument, article or substance readily capable of causing death or serious physical injury and of a sort not ordinarily carried in public places by law-abiding persons; and

(c) Had no reasonable ground to believe that any other participant was armed with such a weapon, instrument, article or substance; and

(d) Had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury. [N.J.S.A. 2C:11-3a(3)]

"[I]f a defendant requests a charge on the defense and there is a rational basis in the record to give it, then the court should give the requested instruction." State v. Walker, 203 N.J. 73, 87 (2010). However, the defendant must "produce some evidence in support of each prong of the defense, irrespective of whether there was strong evidence to the contrary." Ibid. (citing N.J.S.A. 2C:1-13(b)). "The question is not whether the jury is likely to accept the defendant's theory, but whether it would have a rational basis on which to do so." State v. Savage, 172 N.J. 374, 397 (2002). If the defendant meets this burden, the burden shifts to the State to disprove the defense beyond a reasonable doubt. State v. Smith, 322 N.J. Super. 385, 396 (App. Div.), certif. denied, 162 N.J. 489 (1999).

In his review of defendant's jury charge request, the trial judge considered these three excerpts from defendant's police interview transcript to support the denial of the affirmative defense. We recite the three passages, separated by ellipses:

[Miller]: Okay now what did you guys have when you went in the house? [Defendant]: I don't know what type of gun it was. It was some old rusty lookin' type of gun, I don't know. It was kind of a big gun.

Q: Whose gun was it?

A: It was Antoine's.

Q: A big gun you said?

A: Yeah not too big where you couldn't conceal it but big enough that if approached on the street you, you . . . you'd fear it.

Q: So did he show that gun when he first went in the house?

A: No.

Q: You heard what [Rodriguez] said the night before [about being ready for anything because he was suspicious about his cable going out]?

A: Yeah.

Q: Obviously, you . . . told us[: "]Ya know . . . You're a smart dude, I mean ya know[."]

A: Obviously[,] I knew he, it was possible that he had [a gun]. I just thought that he might've just been talkin'. I don't know. Ya know so[.]

Q: You figured he was goin' in first, Antoine was gonna go in first and that it was safe[.]

A: Yeah, yeah.

Q: Safer that he would have the piece not you.

A: Basically.

Q: D[id] you . . . make sure there's no one else in the house besides him?

A: . . . I heard the conversation [between Rodriguez and Comcast] start off yeah well, I've been hearin' about mass robberies like that you know first your cable, then your phone, cause he called them from his cell phone. Um[,] so I was sittin' there and I'm hearin' the conversation, the ending part of the conversation was, oh I'm ready I'm good so then, right then and there that told me it's possible that he could have a gun.

Like a jackass, we left, came back the next day.

In light of these admissions, the trial judge found "no evidence supporting this particular charge" stating "it would be pure, utter folly and speculation for any reasonable factfinder to find that [defendant had] . . . no knowledge that a weapon was possessed by the co-defendant." We find no error in this assessment.

Moreover, defendant fails to identify a rational basis in the record to support his claim the court erred in declining the request to include a "non-slayer participant" affirmative defense jury charge. Viewing the entirety of defendant's statement to Investigator Miller, we determine the State's evidence established defendant aided in the commission of a homicidal act, was reasonably certain Williams took a weapon to the robbery, and referenced nothing to suggest the gun would not be used to effectuate the crime. Other than the fact defendant did not pull the trigger, he identifies no evidence to support the other three prongs of the affirmative defense.


Defendant next challenges the state of mind jury charge regarding aggravated manslaughter. See N.J.S.A. 2C:11-4a(1) (explaining aggravated manslaughter requires the actor "recklessly cause[d] death under circumstances manifesting extreme indifference to human life"). Defendant maintains the trial judge erred in delivering the charge by failing to inform the jury his liability as an accomplice was dependent on his own state of mind, and not on the state of mind of the main actor, Williams. See State v. Bridges, 254 N.J. Super. 541, 565 (App. Div. 1992), aff'd in part, rev'd in part on other grounds, 133 N.J. 447 (1993).

Because defendant did not object to the jury charge at the time of trial, we review this challenge using the plain error standard. See R. 1:7-2 (requiring a party to "make known to the court specifically the action which the party desires the court to take or the party's objection" to reserve the issue for appeal); R. 2:10-2 (setting forth the standard of review for notice of trial error). In reviewing the jury charge, claimed to suffer from "legal impropriety," we must find the error "prejudicially affect[ed] the substantial rights of the defendant" and was "sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970). Considering defendant's assertions under this standard, we are not persuaded a reversal is warranted.

Accomplice liability is set forth in N.J.S.A. 2C:2-6c, which states:

A person is an accomplice of another person in the commission of an offense if:

(1) With the purpose of promoting or facilitating the commission of the offense; he

(a) Solicits such other person to commit it;

(b) Aids or agrees or attempts to aid such other person in planning or committing it; or

(c) Having a legal duty to prevent the commission of the offense, fails to make proper effort so to do[.]

"'[W]hen a prosecution is based on the theory that a defendant acted as an accomplice, the court is obligated to provide the jury with accurate and understandable jury instructions regarding accomplice liability even without a request by defense counsel.'" State v. Ingram, 196 N.J. 23, 41 (2008) (quoting State v. Bielkiewicz, 267 N.J. Super. 520, 527 (App. Div. 1993)). "In addition, when an alleged accomplice is charged with a different degree offense than the principal or lesser included offenses are submitted to the jury, the court has an obligation to 'carefully impart[] to the jury the distinctions between the specific intent required for the grades of the offense.'" Bielkiewicz, supra, 267 N.J. Super. at 528 (quoting State v. Weeks, 107 N.J. 396, 410 (1987)). This requirement recognizes "each [participant] may participate in the criminal act with a different intent. Each defendant may thus be guilty of a higher or lower degree of crime than the other, the degree of guilt depending entirely upon his own actions, intent and state of mind." State v. Fair, 45 N.J. 77, 95 (1965).

Where the proofs reasonably suggest that a defendant could be convicted of a lesser included offense than that of a co-perpetrator, the court should "make specific reference to those [lesser] offenses in the context of its charge on accomplice liability." State v. Harrington, 310 N.J. Super. 272, 278 (App. Div.), certif. denied, 156 N.J. 387 (1998). The failure to supply such guidance creates a "risk that the jury will compromise on a guilty verdict for the greater offense." Bielkiewicz, supra, 267 N.J. Super. at 534. "In addition to requiring trial courts to instruct juries that an accomplice can have a different mental state from that of the principal, our courts regularly have noted the importance of tailoring the jury charge to the facts of the case." Savage, supra, 172 N.J. at 389.

Moreover, when instructing the jury on the lesser included offense of aggravated manslaughter under an accomplice liability theory, the court must explain "the accomplice could be found guilty of a lesser offense involving recklessness if he intended that an assault be committed upon [the victim] but did not share the principal's intent that that assault cause death or serious bodily injury." Bielkiewicz, supra, 267 N.J. Super. at 533.

Here, when delivering the aggravated manslaughter charge, the judge referenced an earlier instruction on accomplice liability given in the context of the murder charges. The judge explained the State's theory was that "the other gentleman who caused the death, but that [defendant wa]s acting as an accomplice." The court noted:

If in light of all the evidence, you find . . . [d]efendant's conduct resulted in a probability as opposed to a mere possibility of death, then you may find that he acted under circumstances manifesting extreme indifference to the value of human life . . . [but] if you find that his conduct resulted in only a possibility of death, then you must acquit him on the aggravated manslaughter[.]

The earlier portion of the charge explained accomplice liability and was taken from the Model Jury Charge (Criminal), "Liability For Another's Conduct" (1995), stating a person is an accomplice when "in the commission of an offense, if, with the purpose of promoting or facilitating the commission of the offense, he/she (a) solicits such other persons to commit it and/or (b) aids or agrees or attempt[] to aid such other person in planning or committing of the offense." The judge also noted

An accomplice may be convicted on proof of the commission of a crime of their complicity therein even though the person who is claim[ed] to have committed the crime hasn't been prosecuted or convicted or has been convicted of a different offense or degree. . . . It is not sufficient to prove only [d]efendant had knowledge . . . another person was going to commit the crimes charged[, rather, t]he State must prove that it was [d]efendant's conscious object that the specific conduct charged be committed. [(Emphasis added.)]

After some deliberation, the jurors requested the court again instruct them on accomplice liability. The court reiterated the general accomplice liability charge as outlined above.

Following that reinstruction, the jury returned a guilty verdict.

Examining the charge as a whole, we conclude it was satisfactory. The jury charge appropriately guided the jury on the distinctions between murder and aggravated manslaughter. Further, it focused the jury to assess defendant's actions and state of mind, without consideration of what happened to Williams. Moreover, the charge appropriately addressed the concerns this court identified in Bielkiewicz. The instruction explained the jury could find defendant guilty as an accomplice to the lesser included offense of aggravated manslaughter only if it found the State proved defendant's conduct satisfied each element of aggravated manslaughter, regardless of Williams' conduct, mental state, or intent. We determine the jury instruction adequately led the jury through each issue it was charged to review, properly explaining the law to provide the jurors a thorough understanding of his or her responsibility.

In a related claim, defendant argues the absence of a Bielkiewicz charge advising the jury that their determination of the degree of the offense must be guided by defendant's state of mind, not Williams' intent or state of mind, fatally tainted the convictions for armed robbery and armed burglary. However, at trial no objection to the charge was offered, suggesting the court's instruction was sufficient. State v. Mays, 321 N.J. Super. 619, 630 (App. Div.), certif. denied, 162 N.J. 132 (1999). The lack of an objection not only suggests there was no prejudice, but also deprives the trial judge of the opportunity to cure any perceived flaw prior to the jury's deliberation. State v. Cordero, 293 N.J. Super. 438, 442 (App. Div. 1996), certif. denied, 147 N.J. 577 (1997). To warrant reversal, the alleged error must have caused the jury to reach a verdict it otherwise would not have reached. State v. Macon, 57 N.J. 325, 335-36 (1971). We do not find such an error.

The trial judge detailed each portion of the charge of robbery, articulating the difference between armed robbery and second degree robbery, emphasizing the jury must find the State proved defendant's conduct satisfied each element. The judge also discussed the State's theory that defendant's conduct could fit that of an accomplice to Williams, emphasizing "the State must prove beyond a reasonable doubt the [d]efendant was in the course of committing a theft." When differentiating between the first and second degree offenses, the judge said: "[i]f you find that the [d]efendant was not armed or was not acting as an accomplice to a person who was armed, he would not be guilty of the upgraded robbery, but of the lower grade robbery," meaning second degree.

Similarly, when relating the law regarding second and third degree burglary, the judge outlined the difference between second and third degree burglary. He related the elements of each degree to the proofs required of the State. Finally, he outlined the necessary state of mind elements for the two offenses and directed "[i]f you find [the State] ha[s] proved all the elements of burglary, but not the elevated burglary, then you would not find him guilty of the second degree, only what we call the third[]degree burglary. He would not be guilty of the second[]degree burglary."

We are not persuaded by defendant's assertions and find the jury charge appropriately guided the jury on the distinctions between first and second degree robbery, and second and third degree burglary, while stressing defendant's actions and state of mind were the jury's essential focus. We conclude the charge sufficiently differentiated the separateness of defendant's and Williams' conduct. Although the charge did not reflect every sentence contained in the Model Jury Charges, the charge as a whole conveyed the jury's obligation to individually assess defendant's actions and mental state. See Model Jury Charge (Criminal), "Accomplice" (1995).

One final note, the State's overwhelming evidence was sufficient to support defendant's convictions for armed robbery and armed burglary as a principal, rather than as an accomplice. The State asserted defendant's conduct showed he planned and carried out the crimes and jointly possessed the weapon, even if he did not pull the trigger. See State v. Kelly, 201 N.J. 471, 490 n.17 (2010) ("'A person constructively possesses an object when, although he lacks physical or manual control, the circumstances permit a reasonable inference that he has knowledge of its presence, and intends and has the capacity to exercise physical control or dominion over it during a span of time.'" (quoting State v. Spivey, 179 N.J. 229, 236-37 (2004) (citation and internal quotation marks omitted))).


Defendant's final argument suggests the trial court erred in refusing to grant a mistrial after Detective Miranda testified defendant told him he "recently had came [sic] home from jail." The unanticipated remark, followed by a swift and strong curative instruction results in our conclusion defendant's trial was fair and reversal is not warranted.

"[A] trial is not a perfectly scripted and choreographed theatrical presentation; rather, it is an extemporaneous production whose course is often unpredictable given the vagaries of the human condition." State v. Yough, 208 N.J. 385, 397 (2011). Occasionally, "even the most precise question may bring an unexpected response from a witness." Ibid. However, inadmissible prejudicial remarks do not necessarily require a mistrial if the "remark can be neutralized through a curative instruction[,]" ibid., which juries are presumed to understand and follow, State v. Feaster, 156 N.J. 1, 65 (1998), cert. denied sub nom, Kenney v. New Jersey, 532 U.S. 932, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001). The determination in this regard is "'peculiarly within the competence of the trial judge[,]'" Yough, supra, 208 N.J. at 397 (quoting State v. Winter, 96 N.J. 640, 646-47 (1984)), who should grant a mistrial "only when necessary 'to prevent an obvious failure of justice[,]'" ibid. (quoting State v. Harvey, 151 N.J. 117, 205 (1997)).

The claim of prejudice resulted when Detective Miranda was asked on direct examination about his investigatory interviews with defendant. The prosecutor asked, "[a]nd what, if anything, happened during the second interview of [defendant]?" In response, Detective Miranda added "[h]e told me a story that he recently had came [sic] home from jail." The defense immediately objected, and the court instructed the jury "to disregard that comment."

Following Detective Miranda's testimony, the defense moved for a mistrial. The court commented "it shocks the consci[ence] of the [c]court that [Detective Miranda] would make a comment of that nature[,]" but "[g]iven the nature of this particular case, . . . it[ was not] particularly prejudicial."

After lunch, a colloquy occurred because defendant had not "just gotten out of jail[,]" he had actually been "paroled in July of [20]04[.]" The court offered to instruct the jury "that that statement not only should be stricken, it is simply not true." The judge issued this curative instruction at the end of the day's testimony:

Folks, listen to me very carefully. Sometime I think during the Newark Police testimony he indicated something about the gentleman being released from a prison or from jail or something of that nature, that he allegedly said. And there was an objection and that objection was sustained.

I repeat this for a couple reasons: A, I'm instructing you as I did then, to ignore that and disregard it. Not only is it something that shouldn't be considered, it simply is not true.

Okay. So I don't know where the [o]fficer was getting his information or what he was thinking, but the commentary he made when I instructed at [defendant]'s request was not an accurate statement. In fact, I will tell you that both the State and the [d]efense ha[ve] indicated to me it's not an accurate statement. It's not true and you should not consider it for any purpose whatsoever except to understand sometimes people make mistakes, and it was the [o]fficer's mistake, not [defendant's]. Don't consider it in any way, shape or form.

A renewed motion for mistrial was also denied.

The trial court's immediate and strong curative instruction negated any possible harm from the inappropriate remark. We can think of no stronger directive from the bench than the trial judge's pointed command to the jury not to "consider [the comment] in any way, shape or form" because "it's not true" and the officer "was simply wrong." The requests for a mistrial were considered and properly denied as no "'clear showing' that 'the defendant suffered actual harm' or that the court otherwise 'abused its discretion'" was presented. Yough, supra, 208 N.J. at 397 (quoting State v. Labrutto, 114 N.J. 187, 207 (1989)).


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