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State of New Jersey v. Brooks G. Harris

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 15, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
BROOKS G. HARRIS, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Salem County, Indictment No. 09-07-00422.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE COMMITTEE ON OPINIONS

Submitted September 10, 2012

Before Judges Sabatino, Fasciale and Maven.

Defendant Brooks G. Harris appeals his convictions for first-degree purposeful or knowing murder, N.J.S.A. 2C:11-3(a)(1) or (2) (counts one and two); first-degree conspiracy to commit murder, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3(a)(1) or (2) (counts five and six); second-degree conspiracy to commit aggravated assault, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:12-1b(1) (count seven); second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) and N.J.S.A. 2C:2-6b(3) (count eight); third-degree theft, N.J.S.A. 2C:20-3 and N.J.S.A. 2C:2-6b(3) (count twelve); second-degree burglary, N.J.S.A. 2C:18-2 and N.J.S.A. 2C:2-6b(3) (count fifteen); and second-degree conspiracy to commit burglary, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:18-2 (count sixteen).*fn1 We affirm.

I.

The relevant proofs developed by the State at defendant's*fn2 jury trial established that in the summer of 2008, over the course of several weeks, defendant conspired, both by phone and in person, with his former co-worker Jerry Loatman to kill Jeremy Huff, with whom defendant's wife was having an affair.

The State's evidence showed that on the night of August 13, 2008, defendant dropped off Loatman and Loatman's friend, Lee A. Williams, Jr., near Huff's house, where the two assailants entered, obtained knives, located Huff asleep in his bedroom, and stabbed him nearly forty times, causing his eventual death several hours later. Meanwhile, defendant waited at a bar, apparently in an effort to create an alibi. In the early morning hours of the next day, defendant voluntarily agreed to an interview with State Police detectives and he confessed to the murder conspiracy after only a few hours.

More specifically, the record reflects that in May 2008, defendant's wife, who testified at trial, began an affair with Huff. In June 2008, she separated from defendant and moved out. Defendant insisted that they "stay together for the kids" and started "call[ing] [her] all throughout the day, non-stop, constantly." When she informed defendant about her relationship with Huff, defendant "reacted very bad, very violently . . . ."

On July 4, 2008, defendant's wife was with Huff at his residence when defendant arrived and began "banging on the windows." Huff called 9-1-1 and then went outside, where the two men had a physical altercation. State Trooper Mark Manzo, who testified at trial, arrived at the residence and observed defendant "standing outside," he was "shirtless, covered in mud, [with] some scrapes and bruises on him, some cuts." Trooper Manzo observed Huff in "the same condition."

According to his wife's testimony, following the July 4th incident, defendant told her, "I'm going to kill [Huff]," and "I'd rather talk to my kids in jail than to let [defendant's wife] be with [Huff]." Around that same time, according to Loatman's trial testimony, defendant first told Loatman that "he wanted [Huff] murdered." Loatman, who was seventeen years old at the time of the conversation, had known defendant for "[a] year or so" because they worked together at a tire shop in Salem City.

In their initial conversation about the subject at the tire shop, defendant told Loatman that he would pay Loatman $5000 to kill Huff. Thereafter, defendant and Loatman had approximately ten to fifteen conversations over the phone about killing Huff. Cell phone records showed that defendant placed 125 calls to Loatman between July 28, 2008 and August 14, 2008. During this timeframe, they also had five in-person conversations outside Loatman's residence. At some point, Loatman asked Williams to "go along with [him] to kill [Huff]." Williams agreed.

On the morning of August 13, 2008, defendant called Loatman and told him that he wanted Huff killed that night because defendant was going on vacation the next day and did not want his wife to be alone with Huff. Defendant told Loatman that he wanted him to get a gun and shoot Huff. Loatman and Williams tried to obtain a gun but were unsuccessful. In total, defendant called Loatman thirteen times that day.

At some point between 10:30 and 11:00 p.m. that night, defendant picked up Loatman and Williams outside Loatman's residence.*fn3 As the three men drove toward Huff's residence, Loatman told defendant that he could not get the gun. The three then decided that Loatman and Williams would use knives to kill Huff. Defendant explained how to approach and enter Huff's residence. He instructed them to walk along a guardrail to avoid triggering a spotlight and to wait behind Huff's house for thirty to forty-five minutes so that defendant would have time to arrive at a bar and be filmed on a security camera. They could then enter "through the window where the air conditioner was." Defendant told them that when they got inside, Huff would likely be in his bedroom, the second door on the left, and that after killing him they should take his wallet, phone, and keys from the entertainment center and leave in his truck. They were to contact defendant when the homicide was done.

Dropping off Loatman and Williams near Huff's house, defendant gave them a pair of gloves to avoid fingerprints. He paid them $50 as a "down payment" and promised "[t]he rest of the money" the next day. Defendant then drove away, and Loatman and Williams approached Huff's residence. They waited for thirty minutes before attempting to enter. Unable to get in the window with the air conditioner, Williams climbed through a different window and let Loatman in the front door. When he opened the door, Williams had two knives, one of which he gave to Loatman. Williams had also obtained a second pair of gloves from under the deck of Huff's house.

The two men entered Huff's bedroom and found him asleep in bed. As they were standing over his bed "debating on who was going to stab [him]," Huff woke up and said, "Don't do this, Brooks." Loatman then "hopped on [Huff] and started stabbing him" in "[h]is head, his neck, [and] his back." Huff "struggled to his feet and stood up," but Loatman "threw him to the ground." Williams then joined the stabbing and eventually Huff stopped resisting.

Believing Huff was dead, Loatman and Williams entered the living room, took Huff's wallet, phone, and truck keys, and went outside to the truck. Both had blood on them. Police later found blood matching Huff's DNA in the truck and on Loatman's underwear. After leaving in the truck, Loatman sent defendant a text message stating that "the job was done." Defendant texted Loatman back, asking if Loatman was all right. The two drove for ten minutes before abandoning Huff's truck behind a house in Salem City. They "threw the gloves and keys over a wooden fence" and went to Williams's residence to clean up. Before splitting up, they went to a Chinese restaurant to make change for the money defendant had paid them.

Meanwhile, Huff survived the attack and called 9-1-1. State Police Detective Thomas Daltwas, who testified at trial, responded to the scene and observed blood "smeared along the wall" and "fecal matter at the front door . . . ." Detective Daltwas found Huff "slumped over the toilet in the bathroom," partially conscious and bleeding from "numerous stabbings." Huff had "fecal matter all over the front of his body." Detective Daltwas asked Huff who had done this to him. Huff gave defendant's name.

Emergency responders arrived and treated Huff's wounds. At trial, Paramedic John F. Ruhl, Jr. described Huff's condition as "pretty severe." He was "coated in blood, pale, diaphoretic" and had "common . . . signs of shock." He had several stab wounds to the chest and was in respiratory distress. When Ruhl asked Huff who had done this to him, Huff again gave defendant's name. At 4:31 a.m. on August 14, 2008, after being airlifted to a hospital, Huff died during emergency surgery.

Within hours of the stabbing, defendant met and voluntarily accompanied officers to the police station. Being advised of his rights, defendant signed a Miranda*fn4 waiver card at 5:30 a.m., and detectives Robert Gates and Glenn Garrels, both of whom testified at trial, conducted a recorded interview.*fn5 Initially, defendant denied any involvement in the stabbing, insisting that he had been at the Oakwood Inn in Elsinboro from 11:00 p.m. to 1:30 a.m.*fn6 Eventually, however, defendant told detectives that he had hired "two kids" from Salem to "lump [Huff] up." He identified one as "Jarrod,"*fn7 whom he knew from work, and the other as Jarrod's friend, whom defendant did not know. He admitted that he dropped them off near Huff's residence around 11:00 p.m. before going to the bar and paid them $50, promising an additional "couple hundred as [he] got it."

At 6:43 a.m., the detectives took a break. They continued the interview at 7:12 a.m. Defendant admitted to telling "Jerry" he wanted Huff dead, speaking with Jerry on five to ten occasions over a several-week period, and offering him $500*fn8 to kill Huff. Defendant stated that on August 13, 2008, he spoke to Jerry over the phone about obtaining a gun, and that, at approximately 10:45 p.m., he picked up Jerry and Jerry's friend to bring them to Huff's house. Defendant stated that because Jerry did not have a gun, they discussed using knives to kill Huff, and that defendant then dropped the two off near Huff's residence and paid them only $50. Defendant further told detectives that the plan was for Jerry and his friend to take Huff's truck after the killing. He stated that after dropping them off, he "hauled ass to the bar," where, sometime after midnight, he received a text message from Jerry saying that "it's done" and sent Jerry a text message asking if he was okay.

Defendant's interview ended at 7:50 a.m. At a later point, between 3:00 p.m. and 5:00 p.m. of the same day, Trooper Charles Vicente, who also testified at trial, took defendant outside to smoke a cigarette. At that time, defendant told Detective Vincente that he had "messed everything up by hiring this Jerry Loatman" to murder Huff.

At trial, defendant testified in his defense that he paid Loatman "to beat up" Huff, but not to kill him. He admitted that he dropped off the two assailants near Huff's home, but claimed that he believed they did not have weapons. Defendant called no other witnesses. [verify]

On the second day of deliberations, the jury returned its verdict, finding defendant guilty of first-degree murder, first-degree conspiracy to commit murder, and the other previously-noted crimes.

On June 1, 2010, the trial judge sentenced defendant to an aggregate sentence of fifty years imprisonment with an 85% period of parole ineligibility under the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2.*fn9 The judge found aggravating factors two, three, six, nine, and thirteen and mitigating factors ten and twelve, and determined that "the aggravating factors quite fairly substantially outweigh the mitigating factors." This appeal followed.

II.

On appeal, defendant raises the following points:

POINT I

THE COURT ERRED IN PROHIBITING DEFENDANT FROM TESTIFYING AS TO WHAT HE WAS TOLD BY INTERROGATING OFFICERS DURING THE PERIOD BETWEEN HIS TWO RECORDED STATEMENTS AND IN CHARGING THE JURY THAT IT MUST EVALUATE THE CREDIBILITY OF THOSE STATEMENTS WITHOUT TELLING IT THAT IT MUST ALSO DETERMINE WHETHER THOSE STATEMENTS HAD ACTUALLY BEEN MADE.

POINT II

THE TRIAL JUDGE ERRED IN PERMITTING THE PROSECUTOR TO IMPEACH THE DEFENDANT BASED ON HIS VIOLATIONS OF PROBATION (Not Raised Below).

POINT III

THE TRIAL COURT'S CHARGE ON ACCOMPLICE CULPABILITY WAS INCORRECT SINCE IT DID NOT COMPLY WITH STATE V. BIELKIEWICZ[, 267 N.J. Super. 520 (App. Div. 1993).] (Not Raised Below).

POINT IV

THE SENTENCE IMPOSED UNDER N.E.R.A. - WHICH INCLUDED AN AGGREGATE SENTENCE OF FIFTY YEARS OF WHICH HE MUST SERVE 85% BEFORE BEING ELIGIBLE FOR PAROLE - WAS MANIFESTLY EXCESSIVE.

POINT V

REVERSAL IS REQUIRED BECAUSE OF THE CUMULATIVE EFFECT OF THE ERRORS SET FORTH IN POINTS I THROUGH III, SUPRA.

We are unpersuaded by any of these contentions.

A.

In his first point, defendant argues that the judge erred by not allowing him to testify as to the detectives' alleged "questioning [of him] in a different room other than the interview room" during the break in the recorded interview. Defendant did not proffer exactly what the interrogating officers told him during the half-hour period between his two recorded statements, although he contends that the interim discussion would be material to his defense.

During trial, the following relevant exchanges on this subject occurred:

[DEFENSE COUNSEL]: So there was a period of time, maybe a good half an hour, between the two statements? [DEFENDANT]: Yes. [DEFENSE COUNSEL]: Do you recall what happened during that half-hour period? [DEFENDANT]: They were questioning me in a different room other than the interview room. [DEFENSE COUNSEL]: And what were they telling you? [PROSECUTOR]: Judge, I object to that.

The judge then conducted a sidebar discussion. The prosecutor argued that defense counsel's question would elicit hearsay, and that the "appropriate time to bring that out would [have been] cross-examination of the [interviewing] detectives." The judge stated that defendant could not testify as to what the officers said to him because it did not fit any of the exceptions to the hearsay rule. Defense counsel responded that "it appears that way[;] however, I think more of a broader interpretation should be afforded this [d]efendant" because "the [recorded] statements that occurred and what occurred between those two statements is all part and parcel of the interview and the statement process . . . ." The judge disagreed and sustained the objection on the hearsay grounds.

Resuming defendant's direct examination, defense counsel asked him what was occurring during the interview break. Defendant stated that the detectives were questioning him and that "they mentioned to me that Jeremy [Huff] had passed." At this point, the prosecutor objected again on hearsay grounds and the judge sustained the objection. When defendant's testimony continued, he agreed that during the break he first "bec[a]me aware" that Huff was dead and stated that he "was very upset and started crying. That was one of my friends." Defendant then explained that he told the detectives he wanted Huff dead because he believed they would let him go if he cooperated and that he could then see his children.

We review these evidentiary rulings of the trial court for abuse of discretion. State v. Marrero, 148 N.J. 469, 483-84 (1997). Unless there has been "a clear error of judgment," we will not upset those rulings. State v. Koedatich, 112 N.J. 225, 313 (1988), cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989).

Here, the judge did not abuse his discretion by not permitting defendant to testify as to what he alleged the detectives had told him between the two interview sessions. Although defendant argues now, for the first time on appeal, that the judge should have permitted the detectives' alleged statements as evidence bearing upon defendant's state of mind, i.e., not offered to prove the truth of the matter asserted, see N.J.R.E. 801(c)(defining hearsay), defense counsel never argued this at trial.*fn10

We conclude that even if, for the sake of discussion, the alleged statements of the detectives would not have violated the hearsay rules, no harmful error flowed from the judge's ruling to exclude them. Although the judge prevented defendant from repeating what the detectives might have said, there was no objection to defendant stating to the jury that it was his "understanding that if [he] cooperated, that [he] would be released." Not only was his "understanding" plainly before the jury, but the State presented rebuttal testimony on this specific point from Detective Gates, whom defense counsel, at that time, declined to cross-examine.*fn11 As such, defendant's contentions about the alleged conversations should have been obvious to the jury. His defense would not have been materially enhanced by the additional testimony that the trial judge curtailed.

Defendant also argues that the judge should have instructed the jury to determine whether defendant's two recorded statements were actually made and, if so, whether they were credible. This argument is specious. There was no dispute that defendant actually made the electronically recorded statements. Defense counsel even consented to having the jury charge tailored to remove the question of whether defendant actually made the statements.

In sum, we discern no harmful error on these issues. State v. Macon, 57 N.J. 325, 336 (1971).

B.

Defendant next contends that he is entitled to a new trial because in cross-examining him at trial, and again in closing argument, the prosecutor pointed out to the jury that defendant had violated the terms of his probation for certain past offenses. Defendant argues that these references were unfair and improper under State v. Jenkins, 299 N.J. Super. 61, 75 (App. Div. 1997) (holding that "[s]ince a probation violation is not a criminal conviction, it cannot be used for impeachment purposes under N.J.R.E. 609").*fn12 We reject this contention, for it misconceives the State's proper purpose in responding to defendant's own potentially misleading statements during his direct examination.

In Jenkins, supra, 299 N.J. Super. at 63-64, the defendant was on trial for attempted burglary and a related offense. Following an admissibility hearing, the judge ruled that the State, on certain conditions, could use evidence of the defendant's prior criminal convictions to impeach his credibility pursuant to N.J.R.E. 609 if he took the stand. Id. at 71. Guided by that ruling, the defendant took the stand and, on direct examination, admitted in response to his own counsel's questioning that he had been convicted of two prior crimes and had previously violated his probation. Ibid. Thereafter, on cross-examination, the prosecutor delved into more of the details of the probation violation. Id. at 72-73. The prosecutor then argued in her summation that the defendant must not have been telling the jury the truth because he had two prior criminal convictions and had also been "sentenced on a violation of probation to four years in the state prison." Id. at 72.

This court ordered a new trial in Jenkins on several grounds. Id. at 75. One of those grounds was the fact that the prosecutor had inappropriately relied on N.J.R.E. 609 in attempting to impeach the defendant's credibility based upon, in part, his prior violation of probation. Ibid. We distinguished in this regard a criminal conviction, which may be used to impeach a testifying defendant's credibility under Rule 609, and a probation violation, which stems from a parole revocation proceeding rather than a criminal prosecution. Id. at 73-74. We noted that "[w]hile a probation revocation proceeding is a step in the corrections process that involves a potential loss of liberty and requires due process, the probation violation itself does not consitute a criminal conviction." Id. at 73.

Consequently, we held that the probation violation could not be used for impeachment purposes under Rule 609, although the ultimate sentence that the defendant received for the violation may be used to impeach under that evidence rule. Id. at 75.

Here, the circumstances are markedly different because, on direct examination, defendant and his counsel potentially misled the jurors into thinking that defendant had successfully completed the terms of his probation. The relevant portion of that direct examination is as follows:

[DEFENSE COUNSEL]: And there were two convictions? [DEFENDANT]: Yes. [DEFENSE COUNSEL]: And what were they for? [DEFENDANT]: Fourth Degree Criminal Mischief. [DEFENSE COUNSEL]: You pled guilty? [DEFENDANT]: Yes. [DEFENSE COUNSEL]: You were guilty? [DEFENDANT]: Yes. [DEFENSE COUNSEL]: You got probation on both of those offenses? [DEFENDANT]: Yes, I did. [DEFENSE COUNSEL]: You served those probations? [DEFENDANT]: Yes.

[Emphasis added.]

On cross-examination, the prosecutor attempted to correct the latent misimpression created by defendant's affirmative testimony that he had "served" his probation:

[PROSECUTOR]: Mr. Harris, I'm going to start with the fact that you indicated on direct examination that you were a convicted felon; correct? [DEFENDANT]: Yes. [PROSECUTOR]: And you indicated that you were sentenced to periods of probation on both of those offenses; right? [DEFENDANT]: Yes, sir. [PROSECUTOR]: And you indicated that you successfully completed those probation periods; didn't you? [DEFENDANT]: Yes. [PROSECUTOR]: Okay. Let's start with the conviction that you indicated was in 2003. It's true that on December 10 of 2003, you were convicted of Criminal Mischief, Fourth Degree? [DEFENDANT]: Yes. [PROSECUTOR]: You were sentenced to probation for two years? [DEFENDANT]: Yes. [PROSECUTOR]: Sentenced to pay restitution of $3,750. Am I correct? [DEFENDANT]: Yes.

[PROSECUTOR]: And your testimony is that you successfully completed that probation. Am I right? [DEFENDANT]: Yes. [PROSECUTOR]: On April the 9th of 2008, . . . you were also sentenced to a Fourth Degree Criminal Mischief. Am I right? [DEFENDANT]: Yes. [PROSECUTOR]: You were sentenced to probation for a period of 18 months. Am I right? [DEFENDANT]: Yes. [PROSECUTOR]: You indicated that you paid -- and restitution was ordered in that case in the amount of $2,140. Am I correct? [DEFENDANT]: Yes. [PROSECUTOR]: And it was indicated that if you were to pay your fines and comply with conditions, that probation would be terminated early; isn't it? [DEFENDANT]: Yes. [PROSECUTOR]: The truth of the matter is, Mr. Huff -- Mr. Harris, excuse me -- that you didn't complete your probation successfully in that case; isn't it? [DEFENDANT]: I was making payments. [PROSECUTOR]: As a matter of [f]act, you didn't make the payments; did you? [DEFENDANT]: Yes, I did make the payments until I was incarcerated. [PROSECUTOR]: You didn't make all the payments; did you?

[DEFENDANT]: Not all of them because I was incarcerated. [PROSECUTOR]: Well, if you didn't -- we're talking about prior to August the 13th of 2008. Your testimony is that you made all the payments prior to that? [DEFENDANT]: Yes. [PROSECUTOR]: And you also, as a condition of probation, were required to report to the Probation Office at certain times; weren't you? [DEFENDANT]: Yes, sir. [PROSECUTOR]: And on the days of May 20, 2008 and June the 6th of 2008, you did not report to Probation as required, did you? [DEFENDANT]: Not that I recall. The probation officer had no problem with that. [Defendant was then shown an exhibit to refresh his memory.] [PROSECUTOR]: Let's go to number six. Does that refresh your recollection as to whether or not you reported to the Probation Office on May the 20th, 2008 and June the 6th, 2008, a[s] required as a condition of your probation? [DEFENDANT]: Yes, that's what it says. [PROSECUTOR]: It says what? [DEFENDANT]: It says; "Specifically, that probationer failed to report on the following dates; May 20, 2008 and June 6, 2008."

[PROSECUTOR]: So when you told us that you had successfully completed probation, the matter of fact is you didn't; did you? [DEFENDANT]: That was because I became incarcerated and it says custody status, incarcerated. [PROSECUTOR]: Well, let's talk about you failing to report on May the 20th, 2008 and June the 6th, 2008. That's what this says.

Did you or did you not fail to report on May the 20th, 2008 and June the 6th, 2008? [DEFENDANT]: Yes. [PROSECUTOR]: Okay. So what you said, that you successfully completed probation, was not true; right? Yes or no? [DEFENDANT]: Yes. [Emphasis added.]

Along the same lines, the prosecutor made the following remarks in summation:

And here's another thing in this case, ladies and gentlemen, and that is in assessing the credibility of Mr. Harris, you can use -- and this is solely for the purpose of assessing his credibility.

The fact that he has two prior convictions. Not only that, ladies and gentlemen, he told you on direct examination that he had successfully completed probation and when I cross-examined him, he admitted that that was not true. [Emphasis added.]

Significantly, defendant's trial counsel did not object to either of these references on cross-examination or in the prosecutor's summation. Because defendant did not raise these concerns before the trial court, they are reviewed for plain error on appeal. R. 2:10-2. As such, any error must have been "clearly capable of producing an unjust result . . . ." Ibid.

No such error, much less plain error, occurred here because we agree with the State that the prosecutor's cross-examination and summation were allowable to impeach defendant's credibility, not under N.J.R.E. 609, but instead under N.J.R.E. 607.*fn13 The State was not, as was the case in Jenkins, introducing defendant's prior violations of probation to impeach his credibility generally based on past criminal behavior. Rather, the State was introducing defendant's prior violations of probation to specifically impeach his prior testimony, which erroneously had implied that he had "served," i.e., had fully and successfully completed, his probation on a previous offense. That line of impeachment was allowable under Rule 607 because defendant had, in essence, opened the door to the State to attempt to show that he had arguably misled the jury into thinking that he had fulfilled all of the terms of his probation without incident, when he actually had not done so. Such impeachment proof was authorized under Rule 607 as "extrinsic evidence relevant to the issue of credibility . . . ." To disallow such proof would have left the jurors with a likely misimpression about the outcome of defendant's probation. More importantly, it provided legitimate support for the State's position that defendant was not a forthright witness.

Moreover, as we have noted, defendant's trial counsel never objected, "rendering it 'fair to infer from the failure to object below that in the context of the trial the error was actually of no moment.'" State v. Ingram, 196 N.J. 23, 42 (2008) (quoting State v. Nelson, 173 N.J. 417, 471 (2002)) (additional internal quotation marks omitted).

We therefore reject defendant's reliance upon Jenkins in the distinguishable context of this case, and reject his claim for a new trial based upon an alleged violation of N.J.R.E. 609.

C.

Defendant further argues that the trial judge erred by not charging the jury on certain lesser-included offenses in accordance with State v. Bielkiewicz, 267 N.J. Super. 520 (App. Div. 1993). He thus urges that we reverse his convictions for purposeful or knowing murder, aggravated assault, theft, and burglary.

"An unrequested charge on a lesser included offense must be given only where the facts in evidence 'clearly indicate' the appropriateness of that charge." State v. Savage, 172 N.J. 374, 397 (2002) (quoting State v. Choice, 98 N.J. 295, 298 (1985)). As such, a "trial court does not 'have the obligation on its own [to] meticulously sift through the entire record' to find appropriate charges." Ibid. (quoting Choice, supra, 98 N.J. at 299).

At trial, defendant did not request an instruction on lesser-included offenses to murder.*fn14 Thus, without objection, the judge instructed the jury in accordance with Model Jury Charge One pertaining to "Criminal Liability for Another's Conduct/Complicity," a charge that does not incorporate the principles of Bielkiewicz. Model Jury Charge (Criminal), "Criminal Liability for Another's Conduct/Complicity - No Lesser-Includeds" (1995) (Charge # One).*fn15

On appeal, defendant argues that under Bielkiewicz, supra, 267 N.J. Super. at 533, the judge should have instructed the jury that defendant could have had a state of mind less culpable than that of Loatman or Williams. Specifically, defendant contends that the judge should have instructed on the lesser-included charges of aggravated manslaughter, reckless manslaughter, and passion/provocation manslaughter. He argues that his testimony revealed that he did not intend to have Huff killed, that Huff was his "best friend," and that defendant merely wanted the assailants to "lump [Huff] up." Defendant further argues that he "only told the police that he intended to have Huff killed when he became afraid that he would not otherwise be released," and that he "underwent much emotional suffering in expectation of the divorce." Defendant contends that these facts were on the record, and therefore the judge should have charged a lesser-included offense to murder. We disagree.

In Bielkiewicz, we explained that "'[b]y definition an accomplice must be a person who acts with the purpose of promoting or facilitating the commission of the substantive offense for which he is charged as an accomplice.'" Bielkiewicz, supra, 267 N.J. Super. at 527-28 (quoting State v. White, 98 N.J. 122, 129 (1984)). As such, the trial judge must instruct the jury that "to find a defendant guilty of a crime under a theory of accomplice liability, it must find that he 'shared in the intent which is the crime's basic element, and at least indirectly participated in the commission of the criminal act.'" Id. at 528 (quoting State v. Fair, 45 N.J. 77, 95 (1965)).

Defendant's reliance on Bielkiewicz, supra, 267 N.J. Super. at 534 is misplaced. There, we stated in dicta: "If a trial court submits lesser included offenses to the jury but fails to give accurate and complete instructions regarding accomplice liability for these lesser offenses, there is a similar risk that the jury will compromise on a guilty verdict for the greater offense." The "risk" that concerned us was the trial court's failure to instruct on lesser-included charges. Ibid. The trial court's instruction in that case: conveyed the impression that the jury could not convict the principal of murder and the accomplice of a lesser included offense. The court also failed to tell the jury that if it found the accomplice had the purpose to promote or facilitate an assault upon the victim, but did not share the principal's purpose to cause death or serious bodily injury, he should be acquitted of murder but could be found guilty of aggravated manslaughter, manslaughter, or assault.

Consequently, the court's instructions could have given the jury the impression that if they found the principal guilty of murder they would be required either to acquit or also to convict the alleged accomplice of murder. [Ibid.]

The Bielkiewicz decision went on to describe the prejudice that could result from the failure to charge a lesser-included offense:

[A] jury reluctant to acquit defendant might compromise on a verdict of guilt on the greater offense. Where one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction. [Ibid. (alteration in original) (internal quotation marks omitted).]

Here, that same risk was not present.

First of all, we note that defendant here did not request a lesser-included offense of murder, and even if the failure to give such a charge was error, it did not rise to the level of plain error clearly capable of producing an unjust result. R. 2:10-2.

Moreover, lesser-included offenses were not "clearly indicate[d]" on the evidence in this record. See Savage, supra, 172 N.J. at 397 (quoting Choice, supra, 98 N.J. at 298); see also State v. R.T., 205 N.J. 493, 510 (2011) (stating that "the need for the charge must jump off the proverbial page" (internal quotations omitted)); Choice, supra, 98 N.J. at 299 (stating that in a prosecution for murder, a manslaughter charge need not "automatically" be given).

The portions of defendant's testimony that he emphasizes on appeal - e.g., that he only wanted Huff beat up, did not actually intend to have Huff killed, and only told police he intended the killing because he wanted to be released - do not make a lesser-included manslaughter charge "jump off the proverbial page." R.T., supra, 205 N.J. at 510 (internal quotation marks omitted). This is particularly so when considered in light of the compelling evidence against defendant, showing his purposeful desire to have Huff killed, including: his wife's testimony that defendant told her that he was "going to kill [Huff]"; defendant's extensive communications with Loatman; Loatman's testimony that defendant wanted Huff killed and that he and Williams tried to obtain a gun; defendant's planned and executed alibi; and defendant's ultimate confession to the detectives.

The fact that defendant testified that he only wanted Huff beat up does not warrant a lesser-included charge, given the dearth of evidence to support his claims and the overwhelming proof to the contrary. Further, defendant's attorney did not request any lesser-included charges, suggesting that such charges were not clearly indicated on the record.

Aggravated or reckless manslaughter require a finding of recklessness. "Criminal homicide constitutes aggravated manslaughter when: (1) The actor recklessly causes death under circumstances manifesting extreme indifference to human life." N.J.S.A. 2C:11-4a(1) (emphasis added). "Criminal homicide constitutes manslaughter when: (1) It is committed recklessly." N.J.S.A. 2C:11-4b(1) (emphasis added). Here, overwhelming evidence indicates that the killing of Huff was premeditated, planned over several weeks, and even included a planned alibi and coordination with others. No lesser-included offense was requested or clearly indicated on this record. As such, the judge did not err by not giving Model Charge Two on accomplice liability.

The judge also did not err in not charging the jury with passion/provocation manslaughter as a lesser-included offense to murder. "Criminal homicide constitutes manslaughter when: . . . (2) A homicide which would otherwise be murder under section 2C:11-3 is committed in the heat of passion resulting from a reasonable provocation." N.J.S.A. 2C:11-4b(2). Here, the evidence established premeditated murder, planned over several weeks. Even if defendant was reasonably provoked over his wife's affair with Huff, he had more than sufficient time to "cool[] off," thereby negating an essential element. See State v. Josephs, 174 N.J. 44, 103 (2002). Thus, even if the judge had instructed on this lesser-offense, the jury could not have found defendant guilty of it as an alternative to murder.

D.

Lastly, defendant contests his sentence. He argues that the judge should not have found aggravating factor two, N.J.S.A. 2C:44-1a(2) ("gravity and seriousness of harm inflicted on the victim"); that the trial proofs "could . . . have" supported mitigating factors three and four, N.J.S.A. 2C:44-1b(3) ("defendant acted under a strong provocation") and (4) ("substantial grounds tending to excuse or justify defendant's conduct"); that the judge failed to consider that defendant "had been close friends with the victim and was 'extremely remorseful'"; and that, therefore, his fifty year sentence with eighty-five parole ineligibility amounts to an excessive life sentence.

Our review of sentencing determinations is limited. State v. Roth, 95 N.J. 334, 364 (1984). If the judge followed the sentencing guidelines, we do not second-guess the sentencing. State v. Jabbour, 118 N.J. 1, 5 (1990). We will not substitute our judgment for the sentencing judge's or impose our own view of an appropriate sentence. State v. Bieniek, 200 N.J. 601, 607-08 (2010); State v. Evers, 175 N.J. 355, 386 (2003).

In sentencing, a judge must consider the relevant aggravating factors and may consider mitigating factors. N.J.S.A. 2C:44-1a, b. The judge must then "determine which factors are supported by a preponderance of the evidence, balance the relevant factors, and explain how [he or she] arrives at the appropriate sentence." State v. O'Donnell, 117 N.J. 210, 215 (1989) (citing State v. Kruse, 105 N.J. 354, 359-60 (1987)). We are "bound to affirm a sentence, even if [we] would have arrived at a different result, as long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record." Ibid. (citing State v. Jarbath, 114 N.J. 394, 400-01 (1989); Roth, supra, 95 N.J. at 364-65).

Here, the judge found aggravating factors two ("gravity and seriousness of harm inflicted on the victim"); three ("risk that the defendant will commit another offense"); six ("extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted"); nine (need for deterring the defendant and others"); and thirteen ("defendant's . . . while in the course of committing or attempting to commit the crime . . . used or was in possession of a stolen motor vehicle"). N.J.S.A. 2C:44-1a(2), (3), (6), (9), (13). The judge found mitigating factors ten ("defendant is particularly likely to respond affirmatively to probationary treatment"); and twelve ("willingness of the defendant to cooperate with law enforcement authorities").*fn16 N.J.S.A. 2C:44-1b(10), (12).

We conclude that the court did not err by finding aggravating factor two, which directs the judge to consider:

The gravity and seriousness of harm inflicted on the victim, including whether or not the defendant knew or reasonably should have known that the victim of the offense was particularly vulnerable or incapable of resistance due to advanced age, ill-health, or extreme youth, or was for any other reason substantially incapable of exercising normal physical or mental power of resistance . . . . [N.J.S.A. 2C:44-1a(2).]

The judge explained:

Obviously, [count one] is the most serious offense and to award aggravating two merely because this is a murder, that would be double counting and that would be inappropriate.

But I agree with the State's argument that some weight should be given to . . . aggravating factor two.

[Defendant] planned this to occur while he knew [the victim] was asleep and would not know what was happening until it was happening and would not be able to begin defending himself until the act had started.

In fact, that's what happened.

[A]s the co-[d]efendants were in the process of beginning stabbing [the victim] to death, he awoke and saw what was happening and attempted to defend himself.

Which of course, based on the facts that we heard at the trial, was impossible due to the nature of the attack and the wounds that were inflicted.

These findings are supported by the record. The record reflects that defendant planned the attack at night because it was more likely that Huff would be asleep and vulnerable. In fact, defendant informed Loatman and Williams that the victim would be in his bedroom and instructed them to enter the second door on the left. Furthermore, the judge afforded only "some weight" to aggravating factor two and found five other aggravating factors. Thus, even if no weight had been given this factor, the sentence would not necessarily have been lighter.

We need not entertain defendant's contention that the judge should have discussed that defendant "had been close friends with [Huff] and was 'extremely remorseful.'" Also, the judge did not err by declining to find mitigating factors three (defendant acted under strong provocation) and four (substantial grounds tending to justify defendant's conduct). N.J.S.A. 2C:44-1b(3), (4). We cannot agree with defendant's contention that his then-pending divorce and his wife's affair support these factors. But, moreover, "[w]hen conscientious trial judges exercise discretion in accordance with the principles set forth in the Code . . . , they need fear no second-guessing." Roth, supra, 95 N.J. at 365.

We thus reject defendant's contentions concerning his sentence.

E.

Defendant's remaining arguments are "without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2).

Affirmed.


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