STATE OF NEW JERSEY v. MANFRED YOUNGER MANFRED JAY YOUNGER MANFRAD YOUNGER FRED YOUNGER MANFRED YOUNGER JR RAHEEM BLACKWELL BABY

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Superior Court of New Jersey, Appellate Division.

STATE OF NEW JERSEY, Plaintiff–Respondent, v. MANFRED J. YOUNGER, a/k/a MANFRED JAY YOUNGER, a/k/a MANFRAD YOUNGER, a/k/a FRED YOUNGER, a/k/a MANFRED J. YOUNGER, JR., a/k/a RAHEEM BLACKWELL, a/k/a BABY J, Defendant–Appellant.

DOCKET NO. A–0805–11T2

Decided: April 11, 2014

Before Judges Parrillo, Harris, and Guadagno. Joseph E. Krakora, Public Defender, attorney for appellant (Karen E. Truncale, Assistant Deputy Public Defender, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Teresa A. Blair, Deputy Attorney General, of counsel and on the brief). Appellant filed a pro se supplemental brief.

Tried to a jury, defendant Manfred J. Younger was convicted of murdering Tierra Pressley, attempting to murder Adrien Jackson, and other related crimes.   He was sentenced to sixty years on the murder conviction, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43–7.2, and eighteen years on the attempted murder conviction, with the prison terms to be served consecutively.   On appeal, defendant challenges certain jury instructions, the dismissal of a panel of prospective jurors, and the denial of his motion for a mistrial.   He also challenges his sentence as excessive.   Finding no merit to any of these claims, we affirm defendant's conviction and sentence.

I.

On Saturday, June 16, 2007, Tia Lorraine Hannah picked up her cousin, Tierra Pressley, and drove to the Off Broadway Lounge in Camden.   They stayed there briefly before driving to the Seventh and Kaighn Lounge, a short distance away.   While there, Pressley saw a friend, Adrien Jackson, who is also known by the nickname “Ace” and introduced Hannah to him.   At around 2:30 a.m., Sunday morning, Pressley and Hannah left the lounge, intending to drive to a club in Philadelphia.   Jackson accompanied Hannah and Pressley to the parking lot where Hannah had parked her car.

Pressley and Jackson walked ahead of Hannah, who stopped briefly to speak with her sister-in-law, Myeshia Brown, who had also just left the lounge.   Hannah observed that Pressley and Jackson stopped near the gate to the parking lot.

While Hannah was talking with Brown, she heard several gunshots, and Brown pulled her down behind a parked car.   Hannah heard Pressley call her name and she ran in Pressley's direction.   As she ran, Hannah observed two men running away in the direction of a nearby apartment building.   One of the men was still firing a small handgun.

Hannah found Pressley lying on the ground near the gate, bleeding but still breathing.   Hannah called 911, but became frustrated and hung up after the operator asked too many questions.   Hannah got her car and, with help from a lounge patron, lifted Pressley into the back seat and drove her to a nearby hospital.   Pressley was alive when she arrived at the hospital, but died a short time later.   She had been shot six times with one bullet passing through one of her lungs and her liver.

Jackson was also shot.   He was speaking with Pressley when he was struck in his side by a bullet.   He turned and recognized the two assailants, who were standing eight to ten feet away from him.   Jackson knew the men as “Baby J” and “Papa Smurf,” and would later identify defendant as the man he knew as “Baby J” and codefendant, Anthony Parker, as “Papa Smurf.”

Jackson testified that Pressley screamed when she was shot, and he grabbed her and claimed he tried to move her out of the way as he backed away from the gunmen.   Jackson was shot fifteen times in his stomach, chest, arm, and legs, but somehow walked to the side entrance of the lounge where he asked the manager for help.   Shortly thereafter, an ambulance arrived and transported Jackson to the hospital.

Jackson was hospitalized for over one month and suffered injury to his internal organs.   He underwent multiple surgeries and, at the time of trial, he still suffered constant pain, a loss of function in his left arm, and had bullets in his body that could not be removed.

Initially, Jackson refused to cooperate with the police because he wanted to “handle it” himself.   T.L., who was facing federal criminal charges, informed the police that Jackson told him that Baby J and Duke 1 were the men who had shot him.   In exchange for consideration with his federal charges, T.L. agreed to participate in a surreptitious recording of a conversation with Jackson.   During the conversation, Jackson stated that Baby J and Papa Smurf shot him.

At trial, T.L. testified and noted that Jackson “corrected” him when he mentioned his prior statement that Baby J and Duke had shot him.   Jackson specifically stated on the recording that it was Baby J and Papa Smurf who had shot him;  Duke was the driver.

After the police confronted Jackson with the tape, he confirmed that Baby J and Papa Smurf shot him and testified consistently at trial, identifying defendant and Parker.

Based on Jackson's identifications, arrest warrants were issued for defendant and Parker for the murder of Pressley and the attempted murder of Jackson.   At that time, defendant was serving a sentence in federal prison in Tucson, Arizona, for weapons offenses, and a detainer was filed with federal authorities.

At trial, J.L.C., a federal prisoner who had been defendant's cellmate in Arizona, testified that defendant told him that someone had “disrespected” a gang called the “Bloods” and that defendant had been ordered to kill that person as part of his initiation into the gang.   Defendant told J.L.C. he had shot at the target, but Pressley got in the way and had been killed, while the target survived.   Defendant explained that the target “grabbed her and basically pulled her in front of him[,]” using her as a shield.   Defendant expressed no remorse to J.L.C. for killing Pressley, and suggested that “it was her fault for getting in the way[.]”

When defendant was later transferred to the Camden County jail, he met J.G. who was being held on an unrelated homicide of a Bloods gang member.   Defendant was kept in a cell near J.G.'s cell.   At trial, J.G. testified that he had known Pressley from high school and that her death concerned him, as he considered her one of his “people[ ].”  Defendant explained the charges against him to J.G., including how Pressley was killed.   When J.G. expressed disbelief that Pressley could be involved in anything that would result in her murder, defendant stated that he had been sent by his “boss,” a man known as “Jazzy,” 2 to shoot, kill, and “handle” a man known as Ace because Ace “did some type of violation.”   Because Pressley was standing in the parking lot talking to Ace and because Ace “grabbed her” when the shooting started, defendant explained, “she got hit up, too.”

When J.G. expressed mild outrage at Pressley's needless death, defendant responded, “fuck that bitch.   She all out there in the way, man, she got to get handled[.]”  J.G. testified that, when he continued to express his disapproval, defendant said “man, 8 to 80, cripple and crazy, they could get it, man, it don't even matter ․ man, fuck her ․ man, fuck it.”   When J.G. suggested that defendant might be convicted for Pressley's murder, defendant responded that Jazzy “ain't letting nobody come in court on us[.]”

Defendant elected not to testify at trial but called seven witnesses who had been incarcerated in the Camden County jail with J.G. They testified that J.G. had a reputation for trying to obtain information from other inmates to present to authorities for his own benefit.

On May 20, 2011, after a twenty-two day trial, defendant was found guilty of all charges.   On appeal, defendant presents the following arguments:

point i

the court committed reversible error in failing to instruct the jury on how to evaluate the defendant's oral out-of-court statements and to use caution in said evaluation. (not raised below)..

point ii

the court erred in ordering that jury selection begin anew based upon an incorrect finding that references to the custodial status of some witnesses and to the defendant's federal sentence on an unrelated charge caused taint.

point iii

the court committed reversible error when it admitted highly prejudicial testimony alleging that the defendant was indifferent to pressley's death and committed the shooting as a gang initiation but failed to issue a limiting instruction as to its use. (not raised below).

point iv

in summation, the prosecutor committed prosecutorial misconduct when she implored the jury to do the right thing for the DEceased victim and convict.

point v

the aggregate sentence of 78 years, 85% to be served before parole, was manifestly excessive.

In addition, defendant submitted a pro se supplemental brief raising the following claim:

point one

the defendant was constitutionally denied his right to confront a witness against him in violation of the sixth amendment of the u.s. const. when the state called a surrogate medical examiner as it's witness to testify to another medical examiner's autopsy report and lab reports.

II.

A.

Defendant first argues that the trial court erred by failing to issue appropriate limiting instructions to the jury concerning trial testimony by J.L.C. and J.G. about inculpatory statements made to them by defendant.   Both J.L.C. and J.G. testified that defendant told them that he had been directed to shoot Jackson by a gang boss, but that Pressley had been in the way and had been shot by him, along with Jackson.

Defendant argues the trial court was required to issue limiting instructions pursuant to State v. Hampton, 61 N.J. 250, 271–72 (1972), and State v. Kociolek, 23 N.J. 400, 421 (1957).   As neither defendant nor his codefendant requested such instructions, we review for plain error.   See R. 2:10–2.

“Hampton requires that a jury be instructed to view all the circumstances to determine whether a defendant's written, oral or recorded statement is true.”  State v. Jackson, 289 N.J.Super. 43, 51 (App.Div.1996), certif. denied, 148 N.J. 462 (1997).  “Kociolek provides for a similar but more detailed instruction․”  Id. at 52.   Kociolek requires that a jury be instructed to receive, weigh, and consider evidence concerning a defendant's oral statements with caution, in view of the generally recognized risks of inaccuracy and error in communication and recollection of verbal utterances and possible misconstruction of those utterances by the hearer.  Ibid.

In State v. Harris, 156 N.J. 122, 182–83 (1998), cert. denied, 532 U.S. 1057, 121 S.Ct. 2204, 149 L. Ed.2d 1034 (2001), the Court explained:

Criminal defendants are entitled to an instruction that jurors use caution in evaluating testimony concerning out-of-court statements [allegedly made by them].  State v. Kociolek, 23 N.J. 400, 421 (1957).   Further, when the prosecution seeks to introduce a statement made by a criminal defendant, and the trial judge is required to determine the admissibility of that statement, the judge must instruct the jury to disregard the statement if it finds it is not credible.  State v. Hampton, 61 N.J. 250, 271–72 (1972).

Defendant did not request the Hampton and Kociolek instructions at trial.   However, a defendant need not request those instructions in order to preserve the right to them.   In State v. Jordan, 147 N.J. 409 (1997), we held that the Hampton charge is required, “[w]hether requested or not, whenever a defendant's oral or written statements, admissions, or confessions are introduced in evidence.”  Id. at 425.  “Like the Hampton charge, the Kociolek charge should be given whether requested or not.”  Id. at 428.   However, we held in Jordan that if a defendant fails to request either the Hampton or Kociolek instruction, a trial judge's failure to give the applicable charge is not per se reversible error.  Id. at 425, 428.   Rather, Jordan held that the omission of the Hampton instruction warrants reversal “only when, in the context of the entire case, the omission is ‘clearly capable of producing an unjust result.’ ”  Id. at 425 (citing R. 2:10–2).   The same standard applies to the omission of an unrequested Kociolek charge.   See id. at 428.

The State contends that the Hampton instruction was not required, as defendant's statement was not given to the police in a custodial setting, but to defendant's fellow inmates, J.L.C. and J.G. The State relies on our decision in State v. Baldwin, 296 N.J.Super. 391, 398 (App.Div.), certif. denied, 149 N.J. 143 (1997), where we held that “a special cautionary instruction is not required when a defendant has allegedly made a voluntary inculpatory statement to a non-police witness without being subjected to any form of physical or psychological pressure.”   We also noted that “every case in which we have concluded that a Hampton instruction was required involved a defendant's statement made while in police custody.”  Id. at 399, accord, State v. Wilson, 335 N.J.Super. 359, 367 (App.Div.1999) (“Hampton does not apply precisely because the statements were volunteered to non-police witnesses.”), aff'd, 165 N.J. 657 (2000).

Defendant contends that a custodial setting is not required to trigger the requirement of a Hampton instruction.   Defendant relies on our decision in Jackson, supra, 289 N.J.Super. at 51, where we held “[t]he charges required by Hampton and Kociolek

․ are not dependent on a defendant being questioned [by the police].   Any statement of a defendant is subject to their rules.”   In Jordan, the Court held:

Whether requested or not, whenever a defendant's oral or written statements, admissions, or confessions are introduced in evidence the Hampton instruction, directing the jury to determine the credibility of the statements without any knowledge that the court has already determined the issue of voluntariness, should be given.   By using the term “shall” in N.J.R.E. 104(c), we expressly recognized that a Hampton charge is required.

[Jordan, supra, 147 N.J. at 425.]

The Jordan Court did not restrict the requirement for a Hampton instruction to those statements made by a defendant to the police while in custody.   The Court referred to N.J.R.E. 104(c), which codified the holding in Hampton and does not restrict statements requiring a Hampton instruction to those made by a defendant while in police custody.  Id. at 419–20.  N.J.R.E. 104(c) addresses “defendant's statements” generally, and provides that the jury “shall be instructed to disregard the statement if it finds that it is not credible.”   The commentary to N.J.R.E. 104(c) suggests that “[i]t is questionable whether the holding in [Baldwin ] that no Hampton charge is necessary ‘when a defendant has allegedly made a voluntary inculpatory statement to a non-police witness without being subjected to any form of physical or psychological pressure’ survives the Supreme Court's decision in Jordan.”   Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment 6 on N.J.R.E. 104 (2013).

In Harris, the Court determined that both Hampton and Kociolek jury instructions should have been given when non-police witnesses testified concerning inculpatory statements allegedly made to them by the defendant.   Harris, supra, 156 N.J. at 182–83.   In State v. Feaster, the Court determined that both Hampton and Kociolek jury instructions should have been given when a non-police witness who was the defendant's jailhouse cellmate testified concerning inculpatory statements made to him by the defendant.   156 N.J. 1, 26–27, 72–73 (1998) cert. denied, 532 U.S. 932, 121 S.Ct. 1380, 149 L. Ed.2d 306 (2001).   The Feaster Court also determined that a Kociolek jury instruction should have been given when several non-police witnesses offered similar testimony.  Id. at 22–23, 72–73.

“If the defendant does not object to the charge at the time it is given, there is a presumption that the charge was not error and was unlikely to prejudice the defendant's case.”  State v. Singleton, 211 N.J. 157, 182 (2012) (citing State v. Macon, 57 N.J. 325, 333–34 (1971)).   Defendant failed to request Hampton or Kociolek instructions as to J.L.C.'s and J.G.'s testimony and we are left to determine whether the trial court's failure to do so, sua sponte, amounted to plain error that was clearly capable of producing an unjust result in the context of the entire case.   See R. 1:7–2;  State v. Wakefield, 190 N.J. 397, 473 (2007) (“[T]he failure to object to a jury instruction requires review under the plain error standard.”), cert. denied, 552 U.S. 1146, 128 S.Ct. 1074, 169 L. Ed.2d 817 (2008).   Plain error is that which is “clearly capable of producing an unjust result[.]”  R. 2:10–2.   When error is alleged in a jury instruction not objected to during trial, “plain error requires demonstration of ‘legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and 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. Chapland, 187 N.J. 275, 289 (2006) (quoting 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)).

In Feaster, the Court noted that the “very purpose of a Hampton charge is to call the jury's attention to the possible unreliability of the alleged statements made by a criminal defendant.”  Feaster, supra, 156 N.J. at 72.   In Harris, the Court noted that the “principal value of the Kociolek charge is to cast a skeptical eye on the sources of inculpatory statements attributed to a defendant.”  Harris, supra, 156 N.J. at 183.

In both cases, the Court determined that the respective jury charges did not actually have to be given to achieve the Hampton instruction's purpose or obtain the Kociolek instruction's value.  Ibid.;  Feaster, supra, 156 N.J. at 72–73.   The Court determined that the failure of the trial courts to issue such jury instructions sua sponte did not amount to plain error because the credibility of the testifying witnesses was thoroughly tested through cross-examination at trial and because the trial courts issued detailed credibility instructions to guide the juries in assessing the witnesses' testimony.  Harris, supra, 156 N.J. at 183;  Feaster, supra, 156 N.J. at 72–73.

Similarly, in the present case, a review of the record reveals that J.L.C. and J.G. were thoroughly and rigorously cross-examined by defendant's counsel.   J.G. was also cross-examined by codefendant's counsel.   Their credibility was strongly challenged as a result of that cross-examination.   Additionally, the trial court provided comprehensive jury instructions to guide the jury in assessing the credibility of the witnesses generally and of J.L.C. and J.G. specifically.

We are satisfied that the thorough cross-examination of J.L.C. and J.G., combined with the trial court's comprehensive jury instructions concerning the assessment of their credibility, assured that the trial court's failure to issue Hampton and Kociolek jury instructions sua sponte did not constitute plain error and was not clearly capable of producing an unjust result.

B.

Defendant next argues that the trial court erred when it interrupted voir dire, discharging an unsworn jury panel, and beginning jury selection anew.   Defendant contends that the court erred by determining that the first jury panel had been “tainted” when certain prospective witnesses were identified as being in custody.   Defendant did not object to this decision by the court.   Defendant also contends that the court erred when it modified his voir dire question concerning his federal criminal conviction in questioning prospective jurors for the second jury panel.   Defendant did object to this modification.

“Voir dire procedures and standards are traditionally within the broad discretionary powers vested in the trial court and ‘its exercise of discretion will ordinarily not be disturbed on appeal.’ ”  State v. Williams, 113 N.J. 393, 410 (1988) (quoting State v. Jackson, 43 N.J. 148, 160 (1964), cert. denied, 379 U.S. 982, 85 S.Ct. 690, 13 L. Ed.2d 572 (1965)).  “Generally, a trial court's decisions regarding voir dire are not to be disturbed on appeal, except to correct an error that undermines the selection of an impartial jury.”  State v. Winder, 200 N.J. 231, 252 (2009).

Where a defendant does not object in a timely manner to the trial court's actions on voir dire, the plain error standard applies to later alleged errors.  Ibid. Under those circumstances, a defendant must establish that there was an error clearly capable of producing an unjust result.  Ibid.;  R. 2:10–2.

Defendant's first contention involves several potential defense witnesses listed as being “in custody” and not as residing in a particular municipality.   Prior to the initial jury selection, the trial court asked counsel whether there was any objection to stating that these potential witnesses were in custody when inquiring of the prospective jurors whether they knew any of these witnesses.   Defendant had no objection, but the codefendant did.

The matter was resolved when it was agreed that the potential witnesses would be identified as being in custody, but that the court would issue a cautionary instruction about the limited use that the prospective jurors could make of that information.   This procedure was followed for five days of jury selection.   By April 1, 2011, sixteen persons had been qualified to sit as jurors, although the jury had not yet been sworn in.   At that point, the trial court reconsidered the appropriateness of having informed the prospective jurors that some of the potential witnesses were in custody.   Specifically, the judge found that “identifying these witnesses as being in custody taints the jury” and that such identification prejudiced defendant and codefendant.   The judge reasoned that the purpose of informing prospective jurors about potential witnesses is to determine whether any of the jurors knew them and that such information could have been gathered in a non-prejudicial manner simply by telling the jurors the last known address of the witnesses.

Because the judge determined that the jury had been tainted and because defendant and codefendant had suffered prejudice, the judge discharged the sixteen jurors and began jury selection anew.   Defendant's counsel did not object, stating that “I don't have a problem with listing [the potential witnesses] that they are not in custody.   That doesn't particularly bother me.”   Counsel agreed that the witnesses should be identified as living in Camden and that procedure was followed when jury selection resumed.

Defendant now asserts that the trial court erred because the jury that was later seated learned about the witnesses' custodial status when they were called to testify at trial.   Defendant contends that the original panel was not tainted because they later learned of the custodial status of certain witnesses anyway.   Citing no statutory or precedential support for this novel argument, defendant claims he had a “vested interest in retaining those jurors who he had assessed as best able to be fair and impartial.”

In addressing defendant's contention, the first question is whether the judge abused her discretion and “undermine[d] the selection of an impartial jury” when she discharged the sixteen jurors because they had been exposed to the information concerning the custodial status of the potential witnesses.   See Winder, supra, 200 N.J. at 252.   We are satisfied that the judge acted to further the selection of an impartial jury by eliminating a source of possible prejudice to defendant and did not abuse her discretion.   We find no reason to disturb the judge's decision.

Defendant next challenges the trial court's decision to modify his proposed voir dire question:  “Manfred Younger has one criminal conviction and is serving a five-year sentence in federal prison.   How might that affect your deliberations?”

When jury selection began, defendant requested that this question be asked of the prospective jurors as part of his attempt to defuse the issue of his conviction of and incarceration for a federal crime.   Defendant realized that his incarceration would eventually be revealed to the jury as a result of J.L.C.'s expected testimony.

The trial court questioned defendant and ascertained that he was aware of the possible effect of that information on his constitutional right to remain silent.   The judge asked the question during the first round of jury selection, but after she discharged the first panel, she reconsidered and determined that, notwithstanding defendant's trial strategy, revealing the information about defendant's federal criminal conviction and five—year sentence infringed upon his Fifth Amendment right to remain silent about such matters.   Moreover, the judge reasoned that revealing such information to the prospective jurors allowed them to draw the prejudicial inference that “the Court is telling us about one person [defendant] having a conviction.   If the co-defendant had a conviction, the Court would tell us that also.   So maybe one of the defendants is more culpable than the other.”

Accordingly, the judge determined that defendant's very specific question should not be submitted to the prospective jurors during the new round of jury selection but invited defendant to formulate a more general question involving the criminal conviction of an unspecified “witness or party” that accomplished the same goal.

Defendant objected that the barring of his question negatively affected his trial strategy of obtaining information about how his federal criminal conviction would be received by the prospective jurors during deliberations.   The judge rejected defendant's position and found the disputed question to be “too prejudicial” to his right to remain silent.   The judge then suggested a more general formulation of the question that would not offend defendant's rights.

When jury selection resumed with a new panel, the prospective jurors were asked:  “[W]ould the fact that certain individuals connected to this case are or may have been in custody, or are serving or may have been serving—or may have served a sentence affect your deliberations?”

On appeal, defendant asserts that the judge's modification of his question eliminated his “most critical inquiries,” which were “designed to weed out any prospective juror who would be biased” against him because of his federal criminal conviction.   We disagree.

The trial court had a reasonable concern that defendant's constitutional rights would be negatively affected if the prospective jurors were told directly of his federal conviction and sentence at the outset.   It reasoned that the sought-after information about the jurors' attitudes and feelings concerning such criminal convictions could be obtained without imparting to them specific facts about defendant's criminal history.   The court's modification of defendant's direct and pointed voir dire question to a more indirect and neutral question that would elicit similar information from the jurors addressed that problem and lessened the possible prejudice to defendant.

Additionally, the judge had an obvious and reasonable concern about the negative inference that the prospective jurors might draw from defendant's question.   Providing information about defendant's federal conviction and incarceration, while saying nothing about codefendant's criminal history, could have painted defendant as the more culpable of the two in the eyes of the prospective jurors.   The judge's modification of defendant's question addressed and resolved that problem.

Under the applicable appellate standard, the issue is whether the judge abused her broad discretion in making decisions regarding voir dire, thereby undermining the selection of an impartial jury by modifying defendant's voir dire question.   See Winder, supra, 200 N.J. at 252.   Not only did the judge not abuse her discretion, but she promoted the selection of an impartial jury by modifying a voir dire question that was, on its face, prejudicial to defendant, his trial strategy notwithstanding.

C.

Defendant next argues that the trial court erred by failing to issue limiting instructions, sua sponte, to the jury concerning certain trial testimony by his cellmates, J.L.C. and J.G. Specifically, J.L.C. testified that defendant told him that he had been sent to kill Jackson because Jackson had disrespected the “Bloods” and that killing Jackson would allow defendant to “get initiated” into the Bloods.   J.G. testified that defendant told him he was sent by his “boss” to kill Jackson because Jackson had committed some sort of violation.   Both J.L.C. and J.G. testified that defendant was indifferent to the fact that Pressley had been shot and killed during the attempt on Jackson's life.

Defendant argues that, because the above-cited testimony was admitted as other-crime evidence under N.J.R.E. 404(b), the trial court was required to issue limiting instructions to the jury on the use it could make of the evidence that the “hit was his gang initiation” requirement and that he had expressed a callous indifference to the death of Pressley.

As defendant did not request such limiting instructions, he can obtain the relief he seeks only if the trial court's failure to issue the instructions sua sponte constituted plain error that was clearly capable of producing an unjust result.   See Winder, supra, 200 N.J. at 252;  R. 2:10–2.

Prior to trial, defendant and codefendant moved to exclude the testimony of J.L.C. and J.G. concerning the Bloods and gang activity on the grounds that it was unfairly prejudicial and there was no proof that defendant was involved or associated with the Bloods.   After analyzing the issue pursuant to N.J.R.E. 404(b), the trial court denied the motion, determining that, although the evidence was “highly prejudicial,” it was “deeply probative” of defendant's motive, mental state, and intent at the time of the shootings.

Not only did defendant fail to request any limiting instruction, he explicitly declined such an instruction when the trial court offered to give it.  “If the trial court determines that the evidence of other crimes is admissible [pursuant to N.J.R.E. 404(b) ], ․ the court must carefully instruct the jury as to its limited use.”  State v. Barden, 195 N.J. 375, 390 (2008).

In the present case, the trial court proposed such an instruction as part of its preliminary charge to the jury at the start of trial.   Defendant's counsel, however, did not want to “highlight” evidence about gang activity that would “scare off jurors with something that totally misdirects the focus of the case.”   The judge acceded to counsel's trial strategy, explaining that:

I note for the record that I provided the defense and the State with the potential voir dire questions and certainly certain instructions when this would involve a possible gang situation.   That was based on the Court's understanding that this was an ordered hit from the boss.   May the statement be true or not, it's there, so, therefore, I proposed an instruction that would be given in reference to that specific testimony or language that [the jurors are] going to hear so that the jury can be instructed not to draw a negative inference and I left it to the parties to submit something to the Court, but if, in fact, the defense is not seeking that language, it's on the record.   I certainly will not disturb a decision that you're making about your case.

In not giving the preliminary instruction she had proposed, the judge was yielding to the stated trial strategy of defendant's counsel.   This circumstance also explains the absence of limiting instructions both when J.L.C. and J.G. testified and in the final charge.   Thus, the trial court's failure to give limiting instructions sua sponte was not the result of oversight on the part of the judge, but was done in conscious adherence to counsel's strategy.   Under these circumstances, it cannot be concluded that the trial court plainly erred by not giving the jury instructions sua sponte.   See R. 2:10–2.

In addition, it was unnecessary to issue the limiting instructions to the jury because it was unnecessary to apply N.J.R.E. 404(b) to the gang-related evidence in this case.

N.J.R.E. 404(b) governs the admissibility of evidence involving other crimes, wrongs, or acts, stating that such evidence is inadmissible

to prove the disposition of a person in order to show that such person acted in conformity therewith.   Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute

N.J.R.E. 404(b) “does not apply to uncharged acts of misconduct that are components of the crime that is the subject of the trial.”  State v. Martini, 131 N.J. 176, 241 (1993) (discussing Rule 404(b)'s predecessor, Rule 55).   As explained in State v. Rose, 206 N.J. 141, 176–77 (2011), such uncharged acts of misconduct constitute “intrinsic evidence” of the charged crime.  “[E]vidence that is intrinsic to the charged crime is exempt from the strictures of Rule 404(b) even if it constitutes evidence of uncharged misconduct that would normally fall under Rule 404(b) because it is not ‘evidence of other crimes, wrongs, or acts.’ ”  Id. at 177 (quoting N.J.R.E. 404(b)).  Rose holds that the “threshold determination” under N.J.R.E. 404(b) is whether the other-crime/bad-act evidence is actually evidence concerning other crimes or bad acts or whether it is evidence intrinsic to the charged crime.  Rose, supra, 206 N.J. at 179.   If it is intrinsic evidence, then N.J.R.E. 404(b) does not apply because the evidence does not involve some other crime, but instead pertains to the charged crime.   Ibid.

The Rose Court referred to the Third Circuit's decision in United States v. Green, 617 F.3d 233 (3d Cir.), cert. denied, 562 U.S. 363, 131 S.Ct. 363, 178 L. Ed.2d 234 (2010), for a “workable, narrow description of what makes uncharged acts intrinsic evidence of the charged crime, and therefore not subject to Rule 404(b)[.]”  Rose, supra, 206 N.J. at 180.

Quoting Green, the Rose Court stated that

we ․ reserve the “intrinsic” label for two narrow categories of evidence.   First, evidence is intrinsic if it “directly proves” the charged offense.   This gives effect to Rule 404(b)'s applicability only to evidence of “other crimes, wrongs, or acts.”   If uncharged misconduct directly proves the charged offense, it is not evidence of some “other” crime.   Second, “uncharged acts performed contemporaneously with the charged crime may be termed intrinsic if they facilitate the commission of the charged crime.”   But all else must be analyzed under Rule 404(b).

[Rose, supra, 206 N.J. at 180 (quoting Green, supra, 617 F.3d at 248–49).]

The testimony of J.L.C. and J.G. concerning defendant's statements to them plainly carries the stigma of gang activity, given that “the average juror would likely conclude that a gang member has engaged in criminal activity.”   See State v. Goodman, 415 N.J.Super. 210, 228 (App.Div.2010), certif. denied, 205 N.J. 78 (2011).   While there was a stipulation that there was no proof that defendant was a Bloods gang member, the distinction between actual gang membership and defendant's status as an apprentice initiate, as suggested by J.L.C.'s testimony, might be lost on the “average juror” referred to in Goodman.

Because defendant's statements strongly suggest gang activity, it would appear at first glance that appropriate limiting instructions were required and should have been given.   However, closer examination of the statements reveals that the disputed testimony of J.L.C. and J.G. constitutes intrinsic evidence of defendant's crimes that falls outside of the ambit of N.J.R.E. 404(b).

As observed by the trial court, defendant's statements to J.L.C. and J.G. provided direct proof of his intent and mental state when he engaged in the shootings.   In the disputed statements, defendant admitted that he intended to kill Jackson as a part of his initiation into the Bloods, and he acknowledged and consciously disregarded Pressley's presence near Jackson at the time of the shooting.   The trial court found that defendant's statements “underscore[d] the certainty of his purpose and calculated indifference in conducting the shooting which resulted” in Pressley's death.   As recognized by the trial court, defendant's statements to J.L.C. and J.G. provided a “direct insight into the defendant's mental state with respect to the killing, which absent such evidence, may or may not amount to murder.”

Defendant's statements fall within both of the “narrow categories” of intrinsic evidence that are outside of the ambit of N.J.R.E. 404(b), as they directly prove defendant's gang-related intent in committing the crimes of murder and attempted murder and show that defendant had his initiation into the Bloods on his mind contemporaneously with and as his primary motivation for the shootings.

We are satisfied that defendant's statements to J.L.C. and J.G. were intrinsic evidence of the crimes for which he was convicted.   Because “evidence that is intrinsic to the charged crime is exempt from the strictures of Rule 404(b) [,]” Rose, supra, 206 N.J. at 177, there was no need to issue limiting instructions to the jury on the use to be made of such evidence, as required by N.J.R.E. 404(b).

D.

Defendant next argues that the trial court erred by denying his motion for a mistrial, which was based upon allegedly improper comments made by the prosecutor during her summation.

“A mistrial is an extraordinary remedy.”  Goodman, supra, 415 N.J.Super. at 234.  “Generally, a motion for a mistrial should be granted only in those situations which would otherwise result in manifest injustice.”  State v. DiRienzo, 53 N.J. 360, 383 (1969).  “The decision to grant or deny a motion for a mistrial is within the discretion of the trial judge.”  Goodman, supra, 415 N.J.Super. at 234–35.  “Our scope of review of such a decision is limited to whether the trial court abused its discretion.”  Id. at 235.

At the close of her lengthy summation, the prosecutor remarked:

Ladies and gentlemen, all of this evidence proves beyond a reasonable doubt that both of these defendants are guilty of purposeful and knowing murder.   Murder is the only correct verdict as to Tierra Pressley's death.   It's not aggravated manslaughter.   It's not reckless manslaughter.   It's murder.

The State asks that you do the right thing, that you do justice for Tierra.   Do the right thing by her and return a guilty verdict on murder.

Counsel for codefendant immediately objected and asked for a mistrial on the grounds that the comments constituted prosecutorial misconduct and an improper “call to arms” to the jury.   Defendant's counsel also objected although he did not specifically move for a mistrial.   Instead, defendant's counsel asked that the jurors be instructed that their verdict should not be based on “passion, prejudice or the fact that a tragedy has occurred.”

The trial court agreed that the prosecutor's comments were somewhat inflammatory, passionate, and prejudicial, “but not enough to order a mistrial.”   Instead, the court found that the disputed comments were “teetering on the line” between propriety and impropriety, but did not cross it.

The court agreed to instruct the jurors that “they are to render a verdict which is free of any passion or prejudice or bias against anyone.”   Shortly thereafter, the judge instructed the jury as follows:

I want to remind you that ․ any verdict that you render in your deliberations is going to be based on only the evidence that you heard in the courtroom.   I do remind you that your verdict should not be based on any bias, prejudice or sympathy that you may have for anyone in this case.   It is to be based on the evidence itself.

Defendant's counsel did not initially object to this instruction.

On the following day, defendant's counsel joined codefendant's counsel in moving for a mistrial based on the combined effect of the prosecutor's comments and the prosecutor's display of a photograph of Pressley “on the gurney” during her summation.   Defendant's counsel argued that a mistrial was required because the prejudice engendered by the comments urging the jurors to “do justice” was exacerbated by the photograph of Pressley.

The trial court denied defendant's mistrial motion for the same reasons that it denied codefendant's mistrial motion on the previous day, stating that it did not find the prosecutor's summation “to manifest an injustice.”   The court noted that it had immediately given a curative instruction, which it believed had adequately addressed the issue, and that it would give another instruction in the final charge, directing the jurors to “weigh the evidence calmly and without passion, prejudice or sympathy.”   Shortly thereafter, in its charge to the jury, the trial court instructed the jurors that:

You took the oath and the duty to weigh the evidence that was presented in this case calmly and without passion, prejudice or sympathy for anyone in this case.   So I instruct you as I instructed you in your preliminary charge, I emphasize to you, that your duty as jurors is to weigh the evidence calmly without passion, prejudice or sympathy.

I note that any influence caused by these emotions has the potential to deprive both the State and Mr. Younger and Mr. Parker of what you promised them, which is a fair and impartial trial by fair and impartial jurors.

Defendant now claims that the prosecutor's “plea to the jury to render justice for the deceased” was so prejudicial and improper that his convictions must be reversed.

Prosecutorial misconduct in the form of improper comments made in summation

can be a ground for reversal where the prosecutor's misconduct was so egregious that it deprived the defendant of a fair trial.   In determining whether a prosecutor's misconduct was sufficiently egregious, an appellate court must take into account the tenor of the trial and the degree of responsiveness of both counsel and the court to improprieties when they occurred.   Specifically, an appellate court must consider (1) whether defense counsel made timely and proper objections to the improper remarks;  (2) whether the remarks were withdrawn promptly;  and (3) whether the court ordered the remarks stricken from the record and instructed the jury to disregard them.

[State v. Frost, 158 N.J. 76, 83 (1999) (citations and internal quotation marks omitted).]

Here, defendant's counsel made a timely objection to the disputed comments, and initially asked only that the trial court issue a curative instruction, reminding the jurors not to base their findings on passion, prejudice, or the happening of a tragic event.   The trial court issued the requested instruction both shortly thereafter and as part of the jury charge.   Thus, defendant received the specific relief that he initially requested.   He now asserts that the court's instructions were insufficient to address the prosecutorial misconduct presented by the disputed comments.   The narrow question is whether the prosecutor's call to “do justice” was so egregious that it denied defendant a fair trial.

In State v. DiFrisco, 137 N.J. 434, 473–76 (1994), cert. denied, 516 U.S. 1129, 116 S.Ct. 949, 133 L. Ed.2d 873 (1996), the Court rejected the defendant's argument that the prosecutor's summation comment urging the jury to “do justice” deprived him of a fair trial.   There, the prosecutor remarked:  “[t]hat wasn't justice.   It's a much, more personal thing now.   Justice is going to be with twelve of you people.   Only twelve of you can do justice.”  Id. at 474.   The defendant's objection to this remark was overruled, following which, the prosecutor continued, commenting that “[o]nce again, only twelve of you can do justice.   Out of twelve of you only twelve of you can recognize aggravating factors and only twelve of you can stand up, with the courage, stand up and make the right decision.   The only correct decision here is the death penalty.”  Id. at 474–75.

While the DiFrisco Court did not condone the comments made by the prosecutor, it concluded that the comments were “not so egregious as to warrant reversal [because] they did not jeopardize defendant's right to a fair trial and to individualized sentencing.”  Id. at 476.   The main thrust of the prosecutor's summation was to “urge[ ] the jurors to have the courage to render a verdict in accordance with the evidence, however the verdict turned out.”   Ibid. The Court noted that the prosecutor's focus on the evidence during the bulk of his summation effectively defused any harm that might have resulted from the disputed summation comments, thus preserving the defendant's right to a fair trial.  Ibid.

Similarly, a review of the prosecutor's summation here shows that the bulk of it dealt with examining and discussing the evidence presented at trial and drawing inferences and conclusions from that evidence.   Defendant challenges only the last two sentences of that summation.   Under these circumstances, the disputed comments to “do justice” were not so egregious as to deprive defendant of a fair trial.   The prosecutor's call to the jury to “do justice for Tierra” constituted only a small portion of a lengthy summation that was almost completely devoted to a fair review of the evidence.3

E.

Finally, defendant challenges his sentence as manifestly excessive.   “Appellate courts review sentencing determinations in accordance with a deferential standard.”  State v. Fuentes, _ N.J. _, _ (2014) (slip op. at 13).   Our review “is relatively narrow and is governed by an abuse of discretion standard.”  State v. Blackmon, 202 N.J. 283, 297 (2010).   Where the sentencing court has followed the sentencing guidelines and has made factual findings concerning the aggravating and mitigating factors that are grounded in competent credible evidence in the record, an appellate court will not modify the sentence unless the application of the guidelines to the facts of the case make the sentence so clearly unreasonable “ ‘as to shock the judicial conscience.’ ”  State v. Dalziel, 182 N.J. 494, 501 (2005) (quoting State v. Roth, 95 N.J. 334, 363–65 (1984)).

Defendant focuses on his murder conviction and argues that the sentencing court improperly assessed the aggravating factors and failed to consider the “real-time consequences of NERA” when it imposed a sentence “almost double the amount of time before parole that the Legislature fixed as the appropriate mandatory term, 30 years.”   Defendant claims that a proper assessment of the aggravating factors and of NERA's effect on his overall sentence should result in a reduction of his murder sentence to the minimum period of thirty years.   We disagree.

Defendant relies on two cases, neither of which supports his claim.   In State v. Marinez, 370 N.J.Super. 49, 57–59 (App.Div.), certif. denied, 142 N.J. 152 (2004), we considered the “real-time consequences” of NERA when it modified the base term of imprisonment set for the defendant's aggravated sexual assault conviction from eighteen years to fifteen years.   In doing so, we examined the trial court's evaluation of the aggravating and mitigating factors, finding two mitigating factors where the trial had found none and discounting the applicability of two of the three aggravating factors that the trial court had found.  Id. at 58–59.   The result was that the two newly-applied mitigating factors and the two discounted aggravating factors rendered the base-term sentence imposed by the trial court “unduly harsh and severe,” when the NERA was applied to it.  Id. at 59.

In contrast, defendant does not contend that any of the statutory mitigating factors apply to him.   Nor, does defendant challenge the three aggravating factors found by the court.   Rather, defendant asserts that the sentencing court relied too heavily on those “offender-oriented” factors when it should have had an “offense-oriented” viewpoint and focused instead on the gravity of the offenses for which he was being sentenced.

The trial judge noted that defendant had been convicted of Pressley's murder, which she described as a “cold, calculating, senseless [act] ․ committed with a total disregard for human life.”   Contrary to defendant's contention, the judge did have an overall “offense-oriented” viewpoint when she considered the aggravating and mitigating factors applicable to his murder conviction.

The second case relied upon by defendant is State v. Berardi, 369 N.J.Super. 445, 452–55 (App.Div.2004), appeal dismissed, 185 N.J. 250 (2005), where we affirmed the defendant's conviction of first-degree carjacking, but vacated his twenty-year sentence, based upon considerations involving NERA. The Berardi panel noted that the carjacking statute had four categories of first-degree crime, one of which reflected the “most serious” criminal behavior, two of which were of “intermediate” seriousness, while the remaining category addressed the “least serious” carjacking crimes.  Id. at 448–51.

The Berardi panel reasoned that, because the defendant was not convicted of a crime falling within the most serious category of carjacking, he should have been given a shorter sentence of imprisonment, with NERA applied to that shorter sentence.  Id. at 453–55.   Instead, the defendant appeared to have been sentenced as though he had been convicted of a crime falling within the most serious category of carjacking and, when NERA was applied, the resulting real-time sentence was found to be excessive.  Ibid.

Here, defendant was convicted of first-degree murder, and the Berardi rationale that his conviction might fall into a less serious category is not applicable.   Defendant does not assert that his sentence fell outside of the sentencing guidelines, recognizing instead that “the trial court imposed a sentence marginally below the maximum legal range of a life sentence, which is deemed to be 75 years.”   Rather, defendant claims that the sentencing court improperly assessed the three aggravating factors in imposing a sixty-year sentence.

The court found three aggravating factors:  factor three, the risk that the defendant will commit another offense, N.J.S.A. 2C:44–1(a)(3);  factor six, the extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted, N.J.S.A. 2C:44–1(a)(6);  and factor nine, the need for deterring the defendant and others from violating the law.   N.J.S.A. 2C:44–1(a)(9).

As to factor three, the court noted defendant's extensive juvenile record of serious offenses and his adult convictions for the crimes in the present case and the federal case.   The court noted that “[a]ll attempts to rehabilitate proved unsuccessful[,]” plainly recognizing that defendant's repeated criminal conduct, despite many attempts at rehabilitation, revealed a definite risk that defendant would commit another criminal offense if the opportunity presented itself.

As to factor six, the court noted:

As a juvenile, the defendant has three successful diversions and 13 juvenile adjudications as well as two violations of probation as a juvenile.

As an adult, the defendant has one Superior Court conviction [in the present case] and one Federal Court conviction [for conspiracy and firearms violations].

The Court finds that the defendant has serious juvenile adjudications․  His record is one replete with charges and adjudications as a juvenile for weapons, robbery, sex assault, burglary, aggravated assault, as well as other crimes.

Defendant asserts that, in applying this aggravating factor, the sentencing court's appraisal of his prior record was deficient because it was merely a quantitative determination of his criminal history, which did not reflect the court's decision whether that criminal history was “serious and extensive.”   Again, we disagree.

The court specifically noted that defendant's juvenile adjudications involved serious offenses, and it characterized defendant's attack on Pressley and Jackson as an act that was “cold, calculating, senseless and committed with a total disregard for human life.”

As to factor nine, the court noted that it found that defendant's “freedom presents a continuing danger to the community.”  “Deterrence has been repeatedly identified in all facets of the criminal justice system as one of the most important factors in sentencing[,]” and “is the key to the proper understanding of protecting the public.”  State v. Megargel, 143 N.J. 484, 501 (1996).  “[D]emands for deterrence are strengthened in direct proportion to the gravity and harmfulness of the offense[.]”  State in the Interest of C.A.H. & B.A.R., 89 N.J. 326, 337 (1982).

We find no abuse of discretion in defendant's sixty-year sentence for his brutal and senseless murder of a young innocent woman who “got handled” because she happened to get in the way of defendant's bungled audition for a barbarous and lawless gang.   Nor does defendant's consecutive eighteen-year sentence shock the judicial conscience where he eagerly accepted the mindless task of killing a man for disrespecting that gang, shooting him fifteen times, and leaving him permanently incapacitated.

We find the remaining arguments presented by defendant lack sufficient merit to warrant discussion in our opinion.  R. 2:11–3(e)(2).

Affirmed.

FOOTNOTES

1.  FN1. “Duke” is the nickname of Henry Cole.

2.  FN2. “Jazzy” is the nickname of Jeffrey Jones, who had been a childhood friend of Jackson.

3.  FN3. We note that the jury acquitted codefendant, Anthony Parker, of all charges which supports the conclusion that the jury was not inflamed by the prosecutor's brief comments and instead, considered and weighed the evidence against both defendants before rendering a verdict.

PER CURIAM

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