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State of New Jersey v. Donel Matthews

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 10, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DONEL MATTHEWS, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-12-3695.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 19, 2012

Before Judges Reisner and Harris.

In connection with the killing of Keith King, defendant Donel Matthews was acquitted of first-degree murder, N.J.S.A. 2C:11-3a, but convicted of second-degree reckless manslaughter, N.J.S.A. 2C:11-4b(1). He was also convicted of second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b. He was acquitted of fourth-degree aggravated assault on Marvin Harris, N.J.S.A. 2C:12-1b, and second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a. The court imposed an aggregate sentence of eight years in prison subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

Defendant appeals from the conviction and the sentence, raising the following points for our consideration:

I. THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY ON THE MENTAL STATE OF "NEGLIGENTLY" WAS REVERSIBLE ERROR.

II. THE DEFENDANT'S CONVICTIONS SHOULD BE REVERSED BECAUSE TESTIMONY THAT DEFENDANT POSSESSED A HANDGUN PRIOR TO THE SHOOTING WAS IMPROPERLY ADMITTED, AND THE TRIAL COURT'S CURATIVE INSTRUCTION FAILED TO AMELIORATE THE PREJUDICE.

III. SINCE THE DEFENSE ASSERTED AT TRIAL WAS "ACCIDENT," DR. HUA'S TESTIMONY THAT THE MANNER OF DEATH WAS A NON-ACCIDENTAL HOMICIDE CONSTITUTED AN INADMISSIBLE NET OPINION THAT THE DEFENDANT WAS GUILTY (NOT RAISED BELOW).

IV. THE TRIAL COURT MISAPPLIED ITS DISCRETION IN ACCEPTING TRIAL COUNSEL'S STIPULATIONS THAT THE DEFENDANT POSSESSED THE HANDGUN; THAT THE DEFENDANT DID NOT HAVE A PERMIT TO OWN THE HANDGUN; AND THAT THE HANDGUN WAS OPERABLE; WITHOUT SECURING THE DEFENDANT'S CONSENT BECAUSE IT RESULTED IN AN ADMISSION OF GUILT WITH REGARD TO COUNT THREE (NOT RAISED BELOW).

V. THE DEFENDANT'S CONVICTIONS SHOULD BE REVERSED BECAUSE OF PROSECUTORIAL OVER-ZEALOUSNESS.

VI. THE IN-COURT CONDUCT OF THE STATE'S WITNESSES, IN CONJUNCTION WITH THE COMMENTS MADE BY THE PROSECUTOR CONCERNING THEIR IN-COURT CONDUCT, PREJUDICED THE DEFENDANT'S RIGHT [TO] A FAIR TRIAL (RAISED IN PART BELOW).

VII. THE [EIGHT-]YEAR BASE TERMS IMPOSED ON THE DEFENDANT'S CONVICTIONS WERE MANIFESTLY EXCESSIVE.

Having reviewed the record, we reject these arguments and affirm the conviction and the sentence.

I

This was the most pertinent trial evidence. The State attempted to prove that defendant was motivated to kill King because of jealousy over the affections of Clerice Harris.*fn1

Clerice testified that she met defendant in March 2007, when she was living at her mother's house in Irvington, the city where defendant also lived. She described her relationship with defendant as "pretty close"; they saw each other "[a]lmost every day." Defendant asked her to be his girlfriend nearly every time they saw each other, although Clerice thought he was "joking at first." Defendant also told Clerice that he loved her. However, Clerice did not want to be defendant's girlfriend, and she told him that "[a]ll of the time." Nevertheless, they had a brief sexual relationship during the few months she lived in Irvington.

In May 2007, Clerice moved to Newark. Defendant continued to call her for several weeks, and would ask to come see her. According to Clerice, after a week or two, she stopped accepting defendant's phone calls, and eventually he stopped calling.

In January 2008, Clerice moved back into her mother's home. At the time, she was approximately six months pregnant; she gave birth in late April 2008. Shortly thereafter, in June 2008, Clerice began dating Keith King. Neither defendant nor King is the biological father of Clerice's baby. However, Clerice and King treated King as the baby's father and told people that the baby was his. Prior to King's death in August 2008, Clerice and King were planning to get married.

During the summer of 2008, until King's death in August, Clerice and defendant saw each other frequently. According to Clerice, defendant would "flirt" with her "a lot," and commented that she "should be with him."

According to Clerice, on the night of the shooting, she invited defendant to come over to her mother's house to visit her. While he was there, defendant stood over Clerice and said to her "you still haven't found nobody to fuck with me -- that could fuck with me." She just shook her head and did not take him seriously, because "he was drunk." Clerice testified that defendant had made similar remarks in the past, but she regarded his comments as a joke. At some point during the evening, Clerice went to the store with a friend. Before she returned to the house, the shooting had already occurred. The next day, defendant called her and said, "Reece, I'm sorry."

On cross-examination, Clerice agreed that she and defendant were friends. She never treated him like "a fool" although she laughed at his jokes. Defendant liked to brag about how tough he was, but she never took his bragging seriously. She also testified that defendant, her brother Marvin, and King all got along well. In fact, earlier on the day of the shooting, she and the three men were all "in the park laughing and joking."

Marvin also testified for the State. Like Clerice, Marvin lived at their mother's house in Irvington. He considered himself a "real close friend" of King's, and referred to King as "like a brother." According to Marvin, he saw defendant three times on August 30, 2008, the day of King's death. The first time was at approximately 5:00 p.m., when defendant passed by the house "just saying hey." The second time was at approximately 8:00 p.m. Marvin and King were outside the house when they saw defendant pass by, rolling a bicycle with one hand and holding a dog in the other. Defendant was drinking from a bottle of brandy. The three men engaged in a brief conversation, after which defendant said, "I['ll] see you all later, I am going to take my baby home." Marvin thought defendant was referring to his dog until defendant pulled out his gun. Marvin told defendant, "yeah, go put that up," meaning that defendant should take his gun home and leave it there. Marvin identified a Glock 9-millimeter handgun in evidence as defendant's gun.

The third time Marvin saw defendant was at approximately 10:00 p.m. That night, Marvin had friends over to celebrate his birthday. Clerice had invited defendant. Marvin stepped out of the house for a cigarette, at which time he saw defendant approaching. Marvin saw defendant tip up a bottle of brandy as if finishing it, and then throw the bottle onto the ground before continuing into the house.

Inside the house, during a conversation involving defendant, King, and Marvin, defendant asked Marvin, "have you ever killed anybody before[?]" At that point, Marvin took defendant outside because defendant was drunk and Marvin did not want him in the house anymore. King came outside as well. Marvin and King began talking about school and children. King was giving Marvin advice. During a lull in the conversation, defendant said, "I see you and [King] you all trying to do something with your life. Me, I'm not, I'm a fucked up individual[.]" Marvin testified that defendant then said, "I'm fucking busting you, and bust you" and pointed at Marvin and King. Marvin testified that he did not take defendant seriously, but he asked defendant why he was talking to him and King "like that." Defendant replied that he was not "talking to you or Keith," he was just repeating what he said to other people who might bother him. At that point King told Marvin not to "trip," meaning "don't worry about it."

Then, defendant said, "I don't even got to say anything I just show him this[.]" Defendant then pulled out his gun, pointed it at Marvin, and asked if he was scared. Marvin said he was and put his hands up. At this time, King was sitting at the top of the porch steps, while Marvin and defendant were standing on opposite sides at the foot of the steps; the three men formed a triangle, each about six feet apart from the others. Defendant lowered the gun to his side, said, "Keith['s] not scared," and "pulled the trigger." King fell backward onto the porch.

Thinking that defendant was going to shoot him next, Marvin ran away. As Marvin jumped over a fence, he looked back and saw defendant start to point the gun toward him, then walk toward King and stand as though he was looking over him. Marvin continued to run until a woman stopped him, let him into her house, and called the police. When Marvin returned to the house, the police were already there.

On cross-examination, Marvin agreed that he had never observed any "bad blood" between defendant and King. He also testified that at the time of the shooting, defendant was so intoxicated that he had trouble talking, and he walked "like he was drunk[.]" On cross-examination, Marvin also gave a more complete description of the shooting. He explained that defendant first pointed the gun at Marvin's head, then lowered the gun to defendant's hip level and swept it in King's direction. According to Marvin, at that point, defendant was pointing the gun toward King but was not "aiming" it at him. "[H]e wasn't trying to aim, but it was just pointing towards Keith." But "[a]fter he saying Keith not scared, he pulled the trigger."

Athena Baker, Clerice and Marvin's mother, was inside the house when this incident occurred. She testified she heard a "pow sound" coming from the porch. When she opened the door, she saw King lying on his back and defendant leaving the property by the front gate. She also saw defendant place an object into his pants. When she saw that King was bleeding and not moving, she called the police. On cross-examination, she stated that earlier that evening, she, defendant, King, and several others had been on the porch laughing and joking, and she had no reason to anticipate that there would be a shooting later on.

On August 31, 2008, defendant, accompanied by his mother and his girlfriend, voluntarily surrendered to the police. According to a police witness, defendant was crying and asked if he could apologize to the victim's mother. Defendant also asked if the police had located the gun. When he was told they had not, he informed the police that he had separated the magazine clip from the gun and thrown them in someone's yard. He gave no other statement. The gun was later turned in to the police by a neighbor, who found it in his back yard. The police also found the magazine.

The State presented testimony from Detective Chung, a firearms expert, who testified that it takes "at least five and [a] half pounds trigger pull pressure" to fire the Glock 9-millimeter pistol used in the shooting. He also testified that, including a trigger safety, a Glock has "three safeties and all three have to be disengaged to be fired." He demonstrated the safety features to the jury in detail. He testified that the gun would not fire if it were simply dropped. In fact, while being trained, he saw his instructor take a Glock up in a helicopter and drop it from 500 feet; "it never discharged." However, he admitted that once the trigger safety is off, the gun can be fired, and one fires the gun by pulling on the safety at the same time as the trigger. He admitted that it "could happen" that this type of gun would go off "mistakenly" if two people were handling it simultaneously, but it was not "likely" to happen.

Dr. Zhongque Hua, Deputy Medical Examiner, performed the autopsy on King. According to Dr. Hua, King suffered one gunshot wound to the chest, which was the cause of death. Dr. Hua testified that the bullet traveled into King's body from front to back at a downward angle, "slightly from [the] right side moving towards the midline, towards the left side." From his examination of the body, he could not determine the angle at which the shooter was standing, but the shot was not fired "from below the body upward." However, if King had been leaning forward, the bullet could have come from a horizontal position. Dr. Hua found no evidence of burns or stippling on the entrance wound, indicating the shot was fired from more than one-and-one-half feet away. He also found no stippling, gun powder burns, or wounds on King's hands.

Finally, Dr. Hua opined that the manner of death was homicide. In describing what the term "homicide" meant in the field of forensic pathology, Dr. Hua stated*fn2

We usually -- every case you perform --manner of death is [a] very simple issue.

People can die of natural disease. You can stroke and hypertension natural manner.

Death. Contrary natural or unnatural. With that category you can have homicide which by our definition is die [due] to action of someone else, or you can have suicide.

People can shoot themselves and [it is] called suicide. Sometimes people die of drug over dose and motor vehicle accident, we call it an accident. It's a typical classification system.

At the end of the State's case, defendant stipulated that the Glock handgun in evidence belonged to defendant on August 30, 2008, that it was operable, and that defendant did not have a permit to own the gun. The trial court instructed the jury that it "should treat these facts as undisputed," but also added that "as with all evidence . . . , you can accept or reject the evidence in reaching your verdict. It's up to you to decide . . . based upon all that evidence that fits in with the entire case . . . whether the State has proved each and every essential element of the offenses charged beyond a reasonable doubt."

Defendant testified on his own behalf. According to defendant, he and Clerice met around March 2007, and were "close friends." They had a brief sexual relationship but when that was over they remained friends. At some point after she had the baby, Clerice introduced defendant to King. Defendant testified that he was not jealous of King, nor did it bother him that Clerice had a baby with someone else. There was "[n]o question at all" in defendant's mind that Clerice's baby was not his.

On the night of the shooting, Clerice asked defendant to come to her mother's house, telling him that some people were trying to enter her house to "fight" with her and her mother. He arrived at her house at approximately 9:00 p.m. When he arrived, Marvin and Keith were on the porch, and he showed them a gun that he had bought a few days earlier. He testified that he brought the gun with him because there were young children visiting his house and he did not want to leave the gun where they might find it.

Defendant testified that he had been drinking that day, and that he, King, and Marvin drank more after defendant arrived at the house. According to defendant, he came to the house only once that day, not three times as Marvin claimed. Defendant stated that there was never any hostility between him and Marvin or King and no "bad words" were exchanged between any of them on the day of the shooting. In fact, he testified that he, King, Marvin and Clerice walked to a liquor store, and then walked back to the house laughing together.

When they reached the house, Clerice went inside, while he, Marvin and King stayed on the porch. Defendant took his gun out to show them, and they were admiring its color and its special features. He thought at the time that the gun was unloaded, although, as it turned out, there was one bullet in the chamber. Shortly after the group arrived, Clerice left to go to the store, while defendant, Marvin, and King remained outside talking about the gun and passing it around. At one point, defendant handed the gun to King, who was sitting on the porch while defendant and Marvin were standing at the bottom of the steps. King held the gun in his lap looking at it "for a minute." Then defendant "stepped up and . . . grabbed the gun." According to defendant, as he grabbed the gun and began lifting it up, it accidentally discharged. He testified that "[t]he gun did go off in my hands" because "I guess I grabbed it wrong." Defendant testified that he "took off running" because he was "scared," and threw the gun away because he was "drunk."

According to defendant, he never pointed the gun at Marvin. He insisted that the gun went off by "accident," and he claimed that "I never meant to hurt [King] or anybody on that porch."

He testified that right before the shooting, they were "smiling at each other, there wasn't no problem." On cross-examination, he admitted that he pulled the trigger but stated that it happened "by accident." On re-direct, defendant clarified that he was standing "above" King when the gun went off.

On cross-examination, the prosecutor questioned defendant about whether he ever thought he might be the father of Clerice's baby:

Q Sir, did you ever think that the baby . . . was your baby?

A No, I didn't.

Q Never for a moment?

A No, I didn't.

Q It's kind of close in time?

A It's close in time, yes.

Q It could have been your baby in terms of the time?

At this point, defense counsel objected to this line of questioning and asked for a mistrial. The State argued that "[i]f [defendant] thought it was his baby . . . , it goes towards motive[.]" The judge let the colloquy stand and denied the request for a mistrial. He allowed defendant to answer the last question "no," but disallowed any further questioning on the subject.

Based on the trial evidence, the jury found defendant guilty of reckless manslaughter for killing King, but acquitted him of possessing the gun for the unlawful purpose of killing King. They convicted defendant of unlawful possession of the gun, an offense of which his counsel essentially conceded he was guilty in summation. The jury acquitted defendant of all charges based on the allegation that he pointed the gun at Marvin.

II

A.

On this appeal, defendant first argues that because he claimed, as a defense, that the shooting was an accident, the judge erred in refusing to charge the jury on negligence. Citing State v. Curtis, 195 N.J. Super. 354 (App. Div.), certif. denied, 99 N.J. 212 (1984), defense counsel requested the judge to charge the jury that "there's no crime if the killing is caused by negligence of the defendant, and defendant's culpability does not rise to a level of recklessness if the jury has reasonable doubt as whether a killing was accidental[.]" The judge reasoned that, "[w]hile that is a true statement of the law, the jury is not to be instructed specifically as to accident or negligence." He found that it "was inherent in our charge" that "either the defendant is guilty of one of the degrees of homicide from murder to reckless . . . manslaughter, or he's not guilty." However, the judge did not preclude defense counsel from arguing the concepts of accident and negligence in summation.

In his closing, defense counsel argued at length that the shooting was an accident, and he told the jury that "negligence" was not the equivalent of "recklessness." The prosecutor primarily argued that the killing was not an accident but rather was an intentional killing motivated by jealousy. In charging the jury, the judge properly defined "recklessly" as requiring the jury to find that defendant was aware of and consciously disregard[ed] a substantial and unjustifiable risk that the death will result from his conduct. The risk must be of such a nature and degree that considering the nature and purpose of the defendant's conduct and the circumstances known to the defendant his disregard of the risk is a gross deviation from the standards of conduct that a reasonable person would follow in the same situation. In other words, you must find the defendant was aware of and consciously disregarded the risk of causing death.

During deliberations, the jury asked the judge to explain the difference between aggravated manslaughter and reckless manslaughter, and in the course of answering that question, the judge once again gave the same definition of "recklessly." The jury asked no questions indicating any confusion between reckless manslaughter and negligent or accidental killing.

Relying on State v. Atwater, 400 N.J. Super. 319 (App. Div. 2008), and State v. Concepcion, 111 N.J. 373 (1988), defendant argues that in the context of this case, the jury "needed to understand where 'negligently' ended and where 'recklessly' began." In Atwater, a case involving an automobile accident in which the driver had been drinking, the jury asked questions evincing confusion between the concepts of negligence and recklessness. Atwater, supra, 400 N.J. Super. at 328. In that context, we held it was error for the trial judge to decline to define accident or negligence, particularly since the judge had also "precluded [defense counsel] from arguing negligence" in his summation. Id. at 332. Likewise, in Concepcion, the jury's request for reinstruction indicated "that some members of the jury did not understand sufficiently the concept of recklessness." Concepcion, supra, 111 N.J. at 381. The Court held that the trial court should have explained the concept by comparing recklessly "with other mental states, such as . . . negligently." Ibid.

Here, without citing any specifics, defendant contends that the jury's questions indicated it was having trouble distinguishing between recklessness and negligence.

We disagree. The jury first asked for a complete readback of the testimonies of Marvin and defendant. The jury then asked the judge to explain the difference between aggravated manslaughter and reckless manslaughter and "specifically, . . .

[t]he difference between reckless[ly] causing the death of Keith King [versus] recklessly and under circumstances manifesting extreme indifference to human life caus[ing] the death of Keith King." Unlike the juries in Atwater and Concepcion, this jury evinced no confusion about the definition of recklessness or any doubt as to whether defendant committed manslaughter. Rather, the jurors were apparently considering which degree of manslaughter he had committed. If they had any confusion or doubt on that score, it redounded to defendant's benefit, because they found him guilty of reckless manslaughter.

This case is most closely analogous to State v. Pigueiras, 344 N.J. Super. 297 (App. Div. 2001), certif. denied, 171 N.J. 337 (2002). There, we found no need to instruct the jury on negligence and carelessness, where "counsel fully conveyed those concepts to the jury in summation" and the jury expressed no confusion regarding the meaning of recklessness. Id. at 317; see also State v. Reyes, 50 N.J. 454, 464-65 (1967); State v. Curtis, supra, 195 N.J. Super. at 368-69.

In light of the case law, applied to the trial evidence, we find no abuse of the trial judge's discretion in declining to charge the jury on negligence. But even if there were an error in the charge, on this record it would have been harmless.

R. 2:10-2. Given all of the testimony, the jury most likely concluded that defendant, who was intoxicated and did not realize that the gun had a bullet in the chamber, pointed the gun at King and pulled the trigger. On those facts, reckless manslaughter was the appropriate verdict. See Concepcion, supra, 111 N.J. at 382-83 (Handler, J., concurring) (reviewing cases in which reckless manslaughter was an appropriate charge for misuse of a gun); State v. Reed, 211 N.J. Super. 177 (App. Div. 1986), sentence aff'd, 215 N.J. Super. 105 (App. Div.), certif. denied, 108 N.J. 667 (1987) (defendant, believing a gun to be unloaded, pointed it at his girlfriend and pulled the trigger).

However, even defendant's version of the facts (as implausible as it was) would support a verdict of reckless manslaughter. According to defendant, he intentionally brought the gun to Clerice's house. On the way to her house, he drank a bottle of brandy, and consumed more brandy after he arrived. He then passed the gun around to his friends for them to admire. Suddenly, without provocation, he "grabbed" the gun away from King, in the process turning the barrel toward King's chest, and pulled the trigger and the safety with enough force to cause the gun to fire. Whichever version the jury accepted, the evidence of reckless manslaughter was overwhelming.

B.

Defendant next argues that the trial court erred in allowing Clerice to testify that defendant had a handgun a week before the shooting. The issue arose in this context. Clerice testified that, approximately one week before King's death, she saw defendant with a gun. At the time, he was riding a bicycle past Clerice's mother's house. Another one of his bicycles had recently been stolen. According to Clerice, defendant told her that "when I find out who stole my bike I am going to fuck them up."

At this point, defense counsel objected and asked that the entire line of questioning be stricken as irrelevant. The trial court excused the jury for the day, after which the State made an offer of proof regarding what Clerice would say if permitted to continue her testimony. The court immediately held an N.J.R.E. 104 hearing, during which Clerice testified that, in response to defendant's statement, she and others present "laughed at [defendant]," at which time he revealed his gun.

Defendant said "he was packing and he always carrying it [sic]." He referred to the gun as his "baby."

The judge held that all of the testimony on the gun incident was too prejudicial to admit in evidence. He also ruled it was unnecessary for the State to introduce evidence that defendant previously had possession of a gun, because during the argument on the issue, defense counsel conceded that defendant had a gun on the night of the shooting. However, the judge denied defendant's request for a mistrial based on the testimony the jury had heard before the objection was lodged, stating that "I don't think there's extreme prejudice here . . . [and] I do not find that the [p]rosecutor . . . was[] trying to prejudice this defendant in any way through his conduct."

On the next day, the court gave the jury an extensive curative instruction:

Ladies and gentlemen, yesterday there was an objection made, and I want you to know that I sustained the objection. And as a result of sustaining that objection, I am going to strike certain testimony.

Now, you will recall that at a certain point yesterday, the witness began to talk about a discussion she alleged to have had with the defendant about his bike allegedly being stolen on a previous occasion. Now, I am striking all of that testimony. Anything that was said at all, or alleged to have been said between the two of them is stricken and it is not for your consideration. That includes any discussions or content that she may have testified that would suggest that the defendant possessed a weapon on any prior occasion. Anything that may have been said relating to what she contended he had or may have said about that.

Now, when I strike evidence, that means it's not evidence. You can no longer discuss it. You can't think about it in the jury room. Don't think about it. Don't think purple elephant or pink elephant, whatever the phrase is. By that I mean, it's not for your consideration, it's not something that belongs in your discussion, so you're not to think about it in any way. Particularly you are not to think about --to utilize it to consider and think in your mind that that would make the defendant a bad person if he had done something wrong on a previous occasion. It's more likely he did do something on another occasion. Those things are specifically not permitted for you to think about. In general, you just can't utilize it in any way. Again, I know that that's not an easy thing -- you know, not to remember it. I'm not saying it has to be [banished] from your mind. You have taken an oath to follow the rules in the manner which you can consider evidence and I trust you will all be able to do so. You will not consider any of that testimony for any reason whatsoever in this case.

We find no abuse of discretion in the judge's decision to issue a curative instruction instead of declaring a mistrial. See State v. Harvey, 151 N.J. 117, 205 (1997). The jury knew defendant had a gun, because he admitted it. The length of time for which he had owned the gun was irrelevant but not prejudicial to the defense. There was no suggestion that King had stolen defendant's bicycle. Moreover, because the jury acquitted defendant of possessing the handgun for an unlawful purpose, any error would have been harmless. See R. 2:10-2; State v. Macon, 57 N.J. 325, 335-36 (1971).

C.

Defendant's remaining challenges to his conviction are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Nonetheless, we comment on them briefly. Defendant argues that the medical examiner should not have been permitted to opine that the death was a "homicide," because that testimony implied defendant's guilt. The argument is without merit. The medical examiner explained that "homicide" meant a death "due to action of someone else," as opposed to "suicide." Understandably, defense counsel did not object to this testimony, because it did not contradict defendant's claim that he killed King by accident. Although the medical examiner also explained that if someone was killed in a car crash or died due to a drug overdose, that would be classified as an "accident," in the context of the entire record, no reasonable juror would believe he was opining that King's death was an intentional rather than an accidental killing.

Defendant next argues that his counsel should not have stipulated to his possession of an operable handgun without a permit. However, defendant admitted to all the elements of that offense in his trial testimony. Moreover, the defense was that he shot the victim by accident. Defendant could hardly assert that defense without admitting that he possessed an operable handgun.

Before the trial began, defense counsel told the judge that he would not seek to suppress defendant's statement telling the police where to find the gun, because it was part of the defense strategy to inform the jury that defendant immediately "surrendered himself, and . . . told them where the gun was[.]" Given the evidence in this case, it was an altogether reasonable defense strategy to concede the gun possession issue and focus on contesting the murder charge. Finally, the judge properly charged the jury that despite the stipulation, it was the jury's role to determine the facts. See State v. Wesner, 372 N.J. Super. 489, 493-94 (App. Div. 2004), certif. denied, 183 N.J. 214 (2005).

Defendant next complains of alleged prosecutorial misconduct. We find no merit in his contentions. During defendant's cross-examination at the trial, the prosecutor asked defendant if he believed he was the father of Clerice's baby.

This was proper cross-examination because defense counsel had raised the issue on direct examination, and it was relevant to defendant's possible motive for killing King.

We find no merit in defendant's argument that the prosecutor made improper comments in summation. Defense counsel did not object to any of those comments, evidently believing that they were not "'prejudicial at the time they were made.'" State v. Echols, 199 N.J. 344, 360 (2009) (citation omitted). Viewed in context, the prosecutor's remarks, that neither Marvin nor Clerice had a motive to lie, were an appropriate response to defense counsel's extended and vigorous attack on their credibility. Further, in testifying, defendant put his own credibility in issue. We therefore find no impropriety in the prosecutor's comments on defendant's demeanor during his testimony, as compared to the demeanor of the State's witnesses.

We also find no merit in defendant's argument that the judge should have declared a mistrial due to displays of emotion by the State's witnesses. Both Marvin and Clerice became distraught and cried during their testimony. Defense counsel did not request a mistrial, but instead agreed to the judge giving a curative instruction. After obtaining both sides' agreement to his proposed instruction, the judge told the jurors that "human beings just naturally may generate some sympathy for people in distress[,]" but he reminded the jurors "that sympathy plays absolutely no role in your determination of the facts of this case." We find no abuse of the judge's discretion in giving that instruction and no plain error in the judge failing to sua sponte declare a mistrial. R. 2:10-2; see Harvey, supra, 151 N.J. at 205.

D.

Finally, we find no abuse of discretion or other error in the eight-year NERA sentence, which was only slightly above the mid-range for a second-degree offense. See State v. Natale, 184 N.J. 458, 488-89 (2005); State v. Bieniek, 200 N.J. 601, 608-09 (2010). We affirm the sentence substantially for the reasons set forth in the trial judge's lengthy and thoughtful oral opinion of May 19, 2010.

Affirmed.


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