STATE OF NEW JERSEY v. MICHAEL COPPOLA (2010)

Tried by a jury, defendant Michael Coppola was convicted of aggravated manslaughter, N.J.S.A. 2C:11-4a(2), attempted aggravated sexual assault, N.J.S.A. 2C:5-1a(3) and 2C:14-2a(7), possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d, and unlawful possession of a weapon, N.J.S.A. 2C:39-5d.   Defendant now appeals, and for the reasons that follow, we reverse and remand for a new trial.

The indictment charged defendant with first-degree murder, N.J.S.A. 2C:11-3a(1) (count one), and first-degree felony murder, N.J.S.A. 2C:11-3a(3) (count two);  defendant was actually convicted of a lesser-included offense of murder, namely, aggravated manslaughter.   The trial court granted defendant's motion for acquittal on felony murder at the close of the State's case.   Defendant was sentenced on August 20, 2008, to an aggregate twenty-seven years imprisonment subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2:  twenty years on the aggravated manslaughter (count one) followed by a seven-year consecutive term on the second-degree attempted aggravated sexual assault (count five).   A one-year concurrent term was imposed on the fourth-degree unlawful possession of a weapon (count four).   The possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d, (count three), was merged with count one.

At trial, Patrolman Jamil Aburomi of the Pompton Lakes Police Department testified that at approximately 11:00 a.m. on Saturday, March 12, 2005, he responded to a dispatch of a stabbing at a condominium community in Summit Falls.   Upon arrival, he saw defendant “running ․ into the middle of the street.”   He was “covered in blood” and “collapsed” onto the ground “in front of [the] patrol car.”   Officer Jessica Ribitzki was the second officer at the scene.

Inside the residence, Aburomi found the victim, Andrew Vogel, “on the floor in a pool of blood,” with a woman kneeling next to him.   Vogel had no pulse and was not breathing.   The woman, Vogel's girlfriend, A.M., was “screaming and crying hysterically.”

While testifying, Aburomi read his report of the subsequent interview to the jury over defendant's objection, made on the ground that the material was inadmissible hearsay.   In doing so, he repeated A.M.'s accusation that defendant “raped” her while she was sleeping.   A.M.'s statement also described how she and Vogel met defendant for the first time the night before at a local bar.   At approximately 1:00 a.m., defendant invited them back to his apartment, where they continued to drink.   Defendant invited them to spend the night, and she and Vogel slept in an upstairs bedroom.   A.M. awoke between 10:00 and 10:30 a.m. the following morning and found defendant sitting on her side of the bed.   The covers were pulled back and she was not wearing pants or underwear.   Defendant then told A.M. that they had “had sex,” at which point she became very upset.   She immediately awakened Vogel and rushed him to get dressed so they could leave.

As A.M. drove away from the condominium, she told Vogel about her conversation with defendant.   Vogel directed her to drive back to defendant's residence.   Once she pulled up to the front of the condominium, Vogel “jumped out and started knocking on the door.”   As A.M. turned the car around and began pulling into the driveway, she saw defendant stumble out of his home, covered in blood.

Bruce Sewell, defendant's next-door neighbor, testified that on the morning of March 12, 2005, as he was washing his car in the driveway, he saw Vogel and A.M. leave defendant's residence.   A.M. was sobbing and Sewell thought he may have heard her say, “my God.” Approximately five minutes later the couple returned, Vogel got out of the car, and he walked past him, “in a hurry,” towards defendant's front door.   Sewell asked Vogel to tell defendant to move his car because it was blocking Sewell's driveway, but Vogel just said “I'll be out in five minutes.”   Sewell heard “loud knocking on the door.”   He next heard A.M. “speak softly,” trying to get his attention.   She then disappeared into the alley leading to defendant's front door.   Sewell then noticed defendant standing in the alley, saying “he didn't kill anybody, he doesn't own a gun.”   Defendant was wearing pajama bottoms and no shirt and seemed “very calm” and “under composure.”   Defendant said to him “Bruce, you know me.   Look at me.   I'm covered in blood.”   Sewell silently looked up and continued to wash his Jeep. A few seconds passed, and defendant asked “[h]ey, dude, why are you still washing your Jeep?” Sewell responded that he was not becoming “involved in any domestic violence” and bent down to wash his tires.   When he stood up, he saw defendant lying in the road and heard police sirens.   Defendant was initially quiet, but Sewell thought he may have cried a little when police arrived.

Lieutenant David Struyk, the third officer on the scene, testified that when he arrived he saw defendant, covered in blood, lying in the middle of the street.   While Struyk bandaged a one-inch-long cut on defendant's wrist, he asked him what happened.   Defendant reported that a couple he met while playing pool in Pompton Lakes had spent the night in his apartment.   They left in the morning, but the male came back and tried to break into his residence.   He then said “[c]heck on the guy inside the house.   I think he's worse than I am.”

Defendant was taken to the emergency room of the local hospital.   He had abrasions on his left shoulder, forehead, left flank area, and lower back.   He also had “some bruising to the right side of his head,” and two lacerations on his left wrist.   One was three centimeters and one was one and one-half centimeters.

The tape of the 9-1-1 call defendant made to police was played to the jury.   When the 9-1-1 operator asked defendant to explain the problem, he replied, “suspect came into my house, tried to kill me,” “I defended myself with a knife,” and said that he thought the man was dead.   The operator asked for the man's name and defendant said, “I, I only know his name dude, so.”   He also said “[p]lease, I defended myself;  I think I'm going to die.”

A.M. testified that on Friday, March 11, 2005, at approximately 6:30 p.m., she and Vogel went to a restaurant bar to celebrate his twenty-second birthday.   She had about five light beers and Vogel “probably [had] a few more.”   At approximately 1:00 or 1:30 a.m., they drove to a pool hall, which was closing as they arrived.   Before they drove away, however, they encountered defendant, who was also attempting to enter the pool hall, and decided to go on together to a tavern called the Side Bar, although they were meeting for the first time.   While there, Vogel and defendant each had a beer;  the bar did not serve A.M. because of her age.   A.M. said defendant suggested that they return to his condominium because “his parents were away.”   In actuality, defendant was staying with an aunt.   Defendant said he had a bottle of vodka in his car, and Vogel bought a six-pack of beer for himself and A.M. After they arrived at the condominium at approximately 2:30 a.m., they continued to drink, including vodka drinks mixed by defendant.   He offered to let Vogel and A.M. sleep there, and they accepted.   All three spent time in a Jacuzzi near the master bedroom on the second floor, after defendant's aunt left the condominium to catch an early flight to Florida.   A.M. wore Vogel's t-shirt while in the Jacuzzi, which “covered everything,” and Vogel and defendant wore their “boxers.”   They stayed in the Jacuzzi until approximately 5:30 a.m., got dressed, and defendant showed them to the master bedroom.

Defendant “kept trying to have small talk” with A.M. while he “was ․ cleaning the bathroom,” but she was too tired to respond.   She told defendant that she was going to sleep and the last thing she remembered was “snuggling” with Vogel as defendant left the room.   A.M. woke up approximately five hours later;  Vogel was asleep on one side of the bed and defendant was seated on the other side, naked, staring at her.   Although A.M. did not recall removing her pants, they were on the floor.   She jumped out of bed, grabbed her pants, and ran to the bathroom to get dressed.   When A.M. returned, she started shaking Vogel to awaken him while defendant kept repeating, “I can't get in trouble for this, I thought you were awake, I thought you were awake, I can't get in trouble for this.”   Defendant told A.M. that they had sex, which she denied.   Defendant was “yelling and pacing and pacing and yelling I can't get in trouble for this, I thought you were awake, I thought you were awake.”   When Vogel finally stirred, she told him that they needed to leave immediately.   He dressed so quickly that he put his pants on backwards.   A.M. got into her car, “very upset and ․ crying.”   She returned to the condominium unit because Vogel was still inside talking to defendant and she told Vogel that they needed to leave.

As they drove away, Vogel asked her “what had happened,” and she responded that defendant “said that he had sex with me.”   Vogel then said “turn your car around right now, we need to have a talk.”   When they returned to the condominium, Vogel jumped out of the car and started pounding on the door.   A.M. pulled up in front of the house and turned the car around to park.   As she started to walk towards the townhouse, she saw defendant.   He “was already walking out and he was covered in blood and he came this close to my face and he said the police are on their way, your boyfriend is dead, I killed him.   And he had no remorse or anything.   He was just proud of what he did.”   A.M. ran into the residence and saw Vogel on his back on the ground trying to breathe.   She stayed beside him until the police arrived.

Ribitzki's police report was also read to the jury, including a statement attributed to A.M. that “she was passed out and that [defendant] raped her.”   The report also referred to defendant as “the guy who allegedly raped her.”   Defendant stipulated to the admission of the report.   Ribitzki did not testify.

During the subsequent sexual assault examination, A.M. said she was “unsure” what sexual contact had occurred.   No seminal material was found on A.M.'s clothing or on the rape kit specimens.   Testing did find the presence of amylase, a substance “found in high concentration in ․ saliva,” from samples taken from A.M.'s external genital area.   Jennifer Banaag of the New Jersey State Police DNA Laboratory Unit testified that the amount of DNA was inconclusive.   The external genital DNA specimens showed the presence of material from more than one individual, the major contributor being female, the minor contributor being male.   Vogel was excluded as a possible contributor.   The DNA was insufficient, however, for conclusive testing but Banaag nonetheless testified that defendant could “not be excluded as having contributed to this mixture” of DNA and only “one in 682” Caucasians could not be excluded.

Zhongxue H. Hua conducted the autopsy on behalf of the Newark Medical Examiner's Office.   He said Vogel was five feet ten inches tall and weighed 179 pounds.¹  Vogel was clothed in a pair of blue jeans worn backwards, a belt, a white sweater, and shoes.   The cause of death was sharp wounds to the neck, torso, and face.   Four injuries were located in the chin area, “three of them on the left side and one on the right side”;  two wounds were found on the “left side neck”;  four in the shoulder and chest area and the left axilla (armpit);  and one on the back of Vogel's left hand.   Of central importance was the five-inch-deep stab wound to the left side of the neck that punctured Vogel's lung and aorta.

Hua opined at some length that the wounds were inflicted when Vogel was unable to resist or fight back.   He said that the location of the wounds at shoulder level or above, and the fact that there were no injuries to the back, meant that the victim was “incapacitated or partially incapacitated, [could not] move, [could not] really fight.”   Hua attributed the victim's incapacitation as “the most probable, likely cause” to the clustering of the wounds in the upper body, in terms of “reasonable probabilit[ies].”   He considered the absence of wounds to other portions of the body to be extremely significant, adding that the wounds to the armpit and the back of the hand were probably “defensive” wounds and were the only defensive wounds.   Hua's opinion that the majority of Vogel's wounds were not defensive, and that he was incapacitated when injured, was expressed in terms of “medical certainty.”   Hua's written report made no mention of the question of whether Vogel's wounds were defensive or whether Vogel was capable of fighting back.

The parties stipulated into evidence the report of Bridget Verdino, the forensic toxicology expert employed by the New Jersey State Police Laboratory Toxicology Unit. Neither the stipulation nor any testimony, nor any comment by the court or counsel explained the results of the testing.   The report indicated the absence of “date rape” drugs from A.M.'s urine sample because it was insufficient for testing.

A narrated police DVD of the scene was played for the jury and introduced via the testimony of Detective Sergeant Stephen Seifried.   It depicts the front door of the residence leading to a wood floor entryway and a living room area.   The victim's body was inside at least ten feet left of the front entrance door.   He was lying in a pool of blood “bent over ․ with his knees under his chest, his body resting against a wall, and his head ․ turned toward the right.”  “[S]everal pieces of furniture” were “knocked over” and a wicker coffee table-trunk was “moved from its original position.”   A speaker on the entertainment center had been “toppled over,” a shelf was “askew,” and cassette tapes were strewn about the floor.

There was a large blood stain on the couch and blood splattered on a reclining chair.   An eight-inch-long knife blade lay on the floor by the wall to the kitchen.   The knife's blood-stained five-inch-long handle was “underneath [a] dining room chair.”   A trail of blood led from the living room towards the kitchen.   About two feet into the kitchen, the floor had “numerous blood drops” and “a smear” of blood.  “[T]here was blood on the wall” next to the kitchen phone.

Outside, “numerous blood drops on the walkway” led to the front door where defendant lay in the road, and “quite a few ․ puddles of blood” were on the concrete area outside the front door.   Seifried entered the ambulance where defendant was being treated, advised him of his Miranda ² rights and attempted to interview him.   Defendant “started yelling that he could not breathe and he did not want to die,” at which point Seifried stopped questioning him.

Defendant, who had no prior criminal history, testified on his behalf.   He said that when he, Vogel, and A.M. returned to the townhouse, they watched a movie, drank beer, and smoked marijuana.   When his aunt left at approximately 4:30 a.m. to go to the airport, they were watching a movie that continued until approximately 6:00 a.m. He further testified that A.M. removed all of her clothes “except her bra and her thong underwear” when they went into the Jacuzzi and that Vogel took off all his clothes.   Defendant only wore his boxer shorts.   He testified they spent close to three hours in the tub drinking and smoking.   When they got out, Vogel “barely dried off” before he went over to the bed and “just passe[d] out.”   Defendant said that A.M. also dried off and went to bed wearing her bra and thong underwear.   When he sat next to her, they talked for “[t]he better part of” an hour and one-half or an hour and forty-five minutes.   During this time their conversation became flirtatious and the two “ended up kissing.”   A.M. removed her underwear and defendant began to perform oral sex upon her even though Vogel was sleeping right next to her.   When Vogel rolled over, defendant stopped because he was afraid that Vogel would awaken.   He and A.M. began to argue because he stopped, and he became upset because he felt his hospitality was being abused.   Defendant walked towards the bathroom and when A.M. continued to yell, he threw her out, at which point she began to cry.   She shook Vogel to try and awaken him as defendant began to clean the cigarettes, bottles, and cups from the bathroom.   Vogel finally awakened and A.M. told him they had to leave.   Vogel dressed and defendant followed them down the stairs, where at the landing Vogel turned around, shook defendant's hand, and thanked him.   Defendant shook hands and accepted his thanks but did not respond.   Meanwhile, A.M. “was ․ pulling [Vogel] down the stairs” to leave.   They left, and defendant locked the door behind them.

Defendant returned to the bathroom to continue cleaning when he heard a loud knocking, “almost [a] banging,” on the door.   He had two cups and a cigarette in his hand and noticed a watch on the nightstand that did not belong to him.   He walked down the stairs and set the cups and cigarette on the railing while the banging continued.   Defendant said that although he could not be absolutely certain, he was “reasonably” sure that either Vogel or A.M. was at the door.

As defendant opened the door no more than a foot and one-half or two feet wide, Vogel punched him in the face.   Defendant claimed to have lost his balance as he tried to escape because of the force of the initial punch and to have fallen towards the living room.   Vogel “came in after” defendant, who bumped into the entertainment system.   Vogel hit defendant again and he fell into the coffee table-trunk;  Vogel pushed him towards the living room couch.

There was a knife on the coffee table-trunk that defendant said he used the prior afternoon to cut limes for vodka and tonics.   Defendant claimed that as he fell back onto the couch with Vogel on top of him he initially could not see anything as Vogel kept striking him.   When he looked up, he saw that Vogel had a knife in his right hand.   He put up his hand and the knife cut him.   Defendant could not get Vogel off because Vogel weighed more than he did.

Defendant and Vogel struggled for the knife;  defendant “ended up” with it.   As Vogel continued to punch him, defendant was “just trying to get him off me with the knife and I'm just wildly swinging at him.”   He claimed that even after he stabbed Vogel, Vogel continued to strike him.   Defendant pushed Vogel up and “finally ․ got him in the neck-in the side of the neck again and then that's when the knife broke.”   Vogel put his hand on his neck to remove the knife blade, defendant “freaked out,” and “threw the knife handle down.”

When asked about the 9-1-1 call, defendant explained that he used the word “suspect” because he could not remember Vogel's name.   He went outside and asked a neighbor for help, who ignored him and continued to wash his car.   When he walked out into the middle of the street, he became dizzy, “had tunnel vision,” and could not breathe.

Defendant testified that the bruises on the back of his shoulder came “from either hitting the trunk or ․ the couch” and that the knife scrape along his stomach, depicted in the photographs of his injuries taken five days after the incident, occurred while the two men wrestled for the weapon.   He further stated that he did not know if Vogel's punches had left bruises because there was no mirror in the jail.   Defendant acknowledged that the medical records from that night did not indicate that he had bruising on his face but explained that Vogel attempted to punch him many times, but connected only a few.

After defendant testified, the State presented Captain Charles Tucker, who interviewed defendant at the hospital on the afternoon of March 12, as a rebuttal witness.   Tucker said that defendant explained that he had met up with Vogel and A.M. at a bar and that they were drinking and smoking marijuana throughout the night.   When he awoke, the victim and the girl were leaving and he began to clean the house.   Defendant reported to Tucker that he did not remember what time they left, but only that shortly thereafter there was a banging on the door “like it was being kicked in.”   When he “opened the door [,] ․ a guy started punching” him.   The individual was chasing him as he retreated into the kitchen, where there was a knife, and they “both went for” the weapon.   Defendant claimed not to remember much after that, other than asking Sewell for help and Sewell telling him that he was busy washing his car.

The trial judge charged, over defendant's objection, aggravated manslaughter and reckless manslaughter.   The court gave the model jury charge on self-defense against an intruder, N.J.S.A. 2C:3-4c, at defendant's request, but also instructed the jury, over defendant's objection, as to general self-defense, N.J.S.A. 2C:3a and 2C:3b.

Defendant moved for acquittal on the murder and weapons charges at the end of the State's case pursuant to Rule 3:18-1.   After conviction defendant sought judgment of acquittal, Rule 3:18-2, or in the alternative, a new trial, Rule 3:20-1, as to all charges.   All of these motions were denied.

Defendant raises the following points on appeal:

POINT I

THE COURT BELOW SHOULD HAVE GRANTED THE MOTION FOR JUDGMENT OF ACQUITTAL PURSUANT TO R. 3:18-2 AS TO COUNT 1 (MURDER) SINCE THERE IS INSUFFICIENT EVIDENCE TO PROVE THAT THE DEFENDANT DID NOT ACT IN SELF-DEFENSE;  [JUDGMENTS] OF ACQUITTAL MUST BE ENTERED AS TO THE AGGRAVATED MANSLAUGHTER AND WEAPONS CONVICTIONS AS THEY ARE CONTRARY TO THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND NEW JERSEY STATE CONSTITUTION (U.S. CONST.   AMEND.  XIV;  N.J. CONST.  (1947) ART. I, PAR. 10

POINT II

THE DEFENDANT'S AGGRAVATED MANSLAUGHTER CONVICTION AND WEAPONS CONVICTIONS MUST BE REVERSED IN THE INTEREST OF JUSTICE AND BECAUSE THE CONVICTIONS ARE AGAINST THE WEIGHT OF THE EVIDENCE AS THE STATE DID NOT PROVE BEYOND A REASONABLE DOUBT THAT THE DEFENDANT DID NOT ACT IN SELF-DEFENSE;  THE DEFENDANT'S AGGRAVATED MANSLAUGHTER AND WEAPONS CONVICTIONS ARE CONTRARY TO THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND NEW JERSEY STATE CONSTITUTION

POINT III

THE COURT BELOW ERRED IN DENYING THE MOTION FOR JUDGMENT OF ACQUITTAL AS TO COUNT 3 (POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE) CONTRARY TO THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTON AND NEW JERSEY STATE CONSTITUTION (U.S. CONST.   AMEND.  XIV;  N.J. CONST. (1947)

POINT IV

THE CONVICTION ON COUNT 3 (POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE) MUST BE REVERSED AS IT IS AGAINST THE WEIGHT OF THE EVIDENCE AND IS CONTRARY TO THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND NEW JERSEY STATE CONSTITUTION (U.S. CONST.   AMEND.  XIV;  N.J. CONST.  (1947) MANDATING A REVERSAL

POINT V

THE COURT BELOW ERRED IN DENYING THE MOTION FOR JUDGMENT OF ACQUITTAL AS TO COUNT 4 (UNLAWFUL POSSESSION OF A WEAPON) CONTRARY TO THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND NEW JERSEY STATE CONSTITUTION (U.S. CONST.   AMEND.  XIV;  N.J. CONST. (1947)

POINT VI

THE CONVICTION ON COUNT FOUR (UNLAWFUL POSSESSION OF A WEAPON) IS AGAINST THE WEIGHT OF THE EVIDENCE AND IS CONTRARY TO THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND NEW JERSEY STATE CONSTITUTION (U.S. CONST.   AMEND.  XIV;  N.J. CONST.  (1947) MANDATING A REVERSAL OF THE CONVICTION

POINT VII

THE COURT BELOW ERRED IN DENYING THE MOTION FOR JUDGMENT OF ACQUITTAL AS TO COUNT 5 (ATTEMPTED AGGRAVATED SEXUAL ASSAULT) CONTRARY TO THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND NEW JERSEY STATE CONSTITUTION (U.S. CONST.   AMEND.  XIV;  N.J. CONST. (1947)

POINT VIII

THE CONVICTION UNDER COUNT 5 (ATTEMPTED [AGGRAVATED] SEXUAL ASSAULT) IS AGAINST THE WEIGHT OF THE EVIDENCE AND IS CONTRARY TO THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND NEW JERSEY STATE CONSTITUTION (U.S. CONST.   AMEND.  XIV;  N.J. CONST.  (1947) MANDATING A REVERSAL

POINT IX

THE CONVICTION UNDER COUNT 5 (ATTEMPTED AGGRAVATED SEXUAL ASSAULT) MUST BE REVERSED DUE TO AN ERRONEOUS JURY INSTRUCTION WHICH DEPRIVED THE DEFENDANT OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL PURSUANT TO THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND NEW JERSEY STATE CONSTITUTION (U.S. CONST.   AMEND.  XIV;  N.J. CONST. (1947)

POINT X

THE CONVICTION UNDER COUNT 5 (ATTEMPTED AGGRAVATED SEXUAL ASSAULT) MUST BE REVERSED DUE TO THE ADMISSION OF EGREGIOUSLY PREJUDICIAL HEARSAY WHICH DEPRIVED THE DEFENDANT OF HIS SIXTH AMENDMENT CONFRONTATION RIGHT AND OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL PURSUANT TO THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND NEW JERSEY STATE CONSTITUTION

POINT XI

THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A JUDGMENT OF ACQUITTAL REGARDING THE CHARGE OF MURDER IN COUNT ONE, THEREBY NECESSARILY TAINTING THE JURY'S VERDICT FINDING THE DEFENDANT GUILTY OF THE LESSER INCLUDED OFFENSE OF AGGRAVATED MANSLAUGHTER;  THE OVERCHARGE ON THE MURDER COUNT RESULTED IN A COMPROMISE VERDICT WHICH MUST BE REVERSED [SIC] THE DEFENDANT'S DUE PROCESS RIGHT TO A FAIR TRIAL PURSUANT TO THE FOURTEENTH AMENDMENT AND NEW JERSEY STATE CONSTITUTION WAS VIOLATED

POINT XII

THE COURT ERRED IN CHARGING, OVER THE DEFENDANT'S OBJECTION, AGGRAVATED MANSLAUGHTER AND RECKLESS MANSLAUGHTER [SIC] THE DEFENDANT'S DUE PROCESS RIGHT TO A FAIR TRIAL PURSUANT TO THE FOURTEENTH AMENDMENT AND NEW JERSEY STATE CONSTITUTION WAS VIOLATED

POINT XIII

THE TRIAL COURT ERRED BY FAILING TO CHARGE PASSION/PROVOCATION MANSLAUGHTER SUA SPONTE AND DEFENDANT WAS DENIED A FAIR TRIAL AND DUE PROCESS OF LAW (U.S. CONST.   VI, XIV;  N.J. CONST.   ART I, PARAS. 1, 10)

POINT XIV

THE COURT ERRED IN CHARGING JUSTIFICATION, SELF-DEFENSE AND SELF-PROTECTION OVER THE DEFENDANT'S OBJECTION;  DEFENDANT WAS DENIED A FAIR TRIAL AND DUE PROCES OF LAW (U.S. CONST.   VI, XIV;  N.J. CONST.   ART I, PARAS. 1, 10)

POINT XV

THE TRIAL COURT ERRED IN ITS RE-INSTRUCTION CONCERNING THE BURDEN OF PROOF AS TO SELF-DEFENSE AND AS TO WHETHER VOGEL WAS AN INTRUDER;  DEFENDANT WAS DENIED A FAIR TRIAL AND DUE PROCESS OF LAW (U.S. CONST.   VI, XIV;  N.J. CONST.   ART I, PARAS. 1, 10)

POINT XVI

THE COURT'S INSTRUCTION ON SELF-DEFENSE CONSTITUTES PLAIN ERROR AND DEPRIVED DEFENDANT OF A FAIR TRIAL AND DUE PROCESS OF LAW (U.S. CONST.   AMENDS.  VI, XIV;  N.J. CONST.  (1947) ART. I, PARAS. 1, 10)

POINT XVII

THE COURT ERRED IN REJECTING DEFENDANT'S REQUEST REGARDING THE JURY'S SECOND REQUEST FOR RE-INSTRUCTIONS AND DEPRIVED DEFENDANT OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL (U.S. CONST.   AMENDS.  VI, XIV;  N.J. CONST.  (1947) ART. I, PARAS. 1, 10)

POINT XVIII

THE DEFENDANT WAS DEPRIVED OF [ ] HIS DUE PROCESS RIGHT TO A FAIR TRIAL DUE TO THE VERDICT SHEET (U.S. CONST.   AMENDS.  VI, XIV;  N.J. CONST.  (1947) ART. I, PARAS. 1, 10)

POINT XIX

THE PROSECUTOR'S CROSS-EXAMINATION OF DEFENDANT AND HIS SUMMATION DEPRIVED THE DEFENDANT OF HIS SIXTH AMENDMENT RIGHT TO A FAIR TRIAL AND FOURTEENTH AMENDMENT DUE PROCESS RIGHT AND STATE CONSTITUTIONAL RIGHT TO A FAIR TRIAL;  THE PROSECUTOR I) IMPROPERLY DENIGRATED THE DEFENDANT AND DEFENSE;  II) IMPROPERLY, INTERJECTED HIS PERSONAL BELIEFS [AND] IMPROPERLY VOUCHED FOR STATE'S WITNESSES;  III) IMPROPERLY EVOKED SYMPATHY FOR THE STATE'S WITNESS AND ALLEGED ATTEMPTED RAPE VICTIM;  IV) MISTATED THE EVIDENCE AND ENGAGED IN IMPROPER SPECULATION;  AND V) COMMITTED OTHER ERRORS MANDATING A REVERSAL OF EACH OF THE CONVICTIONS

SUBPOINT I

THE PROSECUTOR IMPROPERLY DENIGRATED THE DEFENDANT DURING CROSS-EXAMINATION AND IN HIS SUMMATION

SUBPOINT II

THE PROSECUTOR IMPROPERLY INTERJECTED HIS PERSONAL BELIEFS AND IMPROPERLY VOUCHED FOR THE STATE'S WITNESSES

SUBPOINT III

THE PROSECUTOR IMPROPERLY EVOKED SYMPATHY FOR THE STATE'S WITNESS AND ALLEGED ATTEMPTED RAPE VICTIM

SUBPOINT IV

IMPROPER SPECULATION AND MISSTATEMENTS BY THE PROSECUTOR [WERE] NOT BASED ON THE EVIDENCE ADDUCED AT TRIAL

SUBPOINT V

OTHER ERRORS COMMITTED BY THE PROSECUTOR DURING SUMMATION

POINT XX

THE TESTIMONY OF THE STATE'S EXPERT DR. HUA CONCERNING HIS OPINION DEPRIVED THE DEFENDANT OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL PURSUANT TO THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND NEW JERSEY STATE CONSTITUTION (U.S. CONST.   AMEND.  XIV;  N.J. CONST. (1947)

POINT XXI

THE ADMISSION OF THE PHOTOGRAPHS OF THE DECEDENT AND THE VIDEO OF THE CRIME SCENE DEPRIVED THE DEFENDANT OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL

POINT XXII

[THE] JUDGE ERRED IN ADMITTING INTO EVIDENCE THE DEFENDANT'S STATEMENTS TO CAPTAIN TUCKER MADE AT THE HOSPITAL IN VIOLATION OF HIS FIFTH AMENDMENT AND STATE PRIVILEGE AGAINST SELF-INCRIMINATION AND SIXTH AMENDMENT RIGHT TO A FAIR TRIAL

POINT XXIII

THE DEFENDANT SHOULD HAVE BEEN SENTENCED TO A TERM ONE DEGREE LOWER ON COUNT ONE (AGGRAVATED SEXUAL ASSAULT), OR AS A SECOND DEGREE OFFENDER PURSUANT TO N.J.S.A. 2C:44-1f(2) SINCE THE MITIGATING FACTORS SUBSTANTIALLY OUTWEIGH ANY AGGRAVATING FACTORS;  THE SENTENCE IS EXCESSIVE AND AN ABUSE OF DISCRETION AND IS VIOLATIVE OF DEFENDANT'S EIGHTH AMENDMENT AND FOURTEENTH AMENDMENT DUE PROCESS RIGHTS

POINT XXIV

THE DEFENDANT SHOULD BE SENTENCED TO A MINIMUM TERM ON COUNT ONE (AGGRAVATED MANSLAUGHTER) AND COUNT FIVE (ATTEMPTED AGGRAVATED SEXUAL ASSAULT) SINCE THE MITIGATING FACTORS SUBSTANTIALLY OUTWEIGH ANY AGGRAVATING FACTORS

POINT XXV

THE CONVICTION FOR UNLAWFUL POSSESSION OF A WEAPON (COUNT FOUR) MUST BE MERGED (AND DISMISSED) INTO COUNT ONE

POINT XXVI

THE CONVICTION FOR THE ATTEMPTED AGGRAVATED SEXUAL ASSAULT SHOULD EITHER BE MERGED WITH [THE] AGGRAVATED MANSLAUGHTER CONVICTION OR, AT THE VERY LEAST, THE SENTENCE BE RUN CONCURRENT

I.

a.

We address defendant's contentions of errors as to the jury instructions first.   By way of introduction, we note that “[a]n essential ingredient of a fair trial is that a jury receive adequate and understandable instructions.   Correct jury instructions are ‘at the heart of the proper execution of the jury function in a criminal trial.’ ”  State v. Afanador, 151 N.J. 41, 54 (1997) (citations omitted).   It has long been recognized that “ ‘[t]he “charge is a road map to guide the jury and without an appropriate charge a jury can take a wrong turn in its deliberations.” ’ ”  State v. Cuni, 303 N.J.Super. 584, 603 (App.Div.1997), aff'd, 159 N.J. 584 (1999) (quoting State v. Gartland, 149 N.J. 456, 475 (1997)).

We further note that where a defendant fails to object to challenged instructions as required under Rule 1:7-2, it will be presumed that the instructions were adequate.   See State v. Macon, 57 N.J. 325, 333 (1971).   The absence of any objection also indicates that trial counsel perceived no prejudice would result from the charge.   See State v. Wilbely, 63 N.J. 420, 422 (1973).   Consequently, where no objection is made, we reverse only if the error is “clearly capable of producing an unjust result.”   R. 2:10-2.

Plain error, in the context of a jury charge, is “ ‘[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant 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.’ ”  Afanador, supra, 151 N.J. at 54 (quoting State v. Jordan, 147 N.J. 409, 422 (1997)).   Generally, “[e]rroneous instructions are poor candidates for rehabilitation as harmless, and are ordinarily presumed to be reversible error.”  Afanador, supra, 151 N.J. at 54 (citing State v. Brown, 138 N.J. 481, 522 (1994)).   We therefore must examine the entire charge when reviewing the propriety of an instruction, whether it was ambiguous or misleading in the context of the trial, thereby resulting in prejudice to defendant.  State v. Hipplewith, 33 N.J. 300, 317 (1960).

b.

Bearing these principles in mind, we first examine defendant's contention, as addressed in Point XII, that the trial judge erred in charging the lesser-included offenses of aggravated manslaughter and reckless manslaughter because it resulted in a compromise verdict.   Defendant also contends in Point XIII that the passion-provocation manslaughter instruction should have been given by the court sua sponte.   He claims that the two unpublished Appellate Division opinions upon which the trial court relied in granting the State's request to charge the lesser-included offenses, actually support the proposition that passion-provocation should have been provided as well.

The trial court correctly stated that it must “charge lesser offenses ‘when the facts “clearly indicate ” the appropriateness of that charge,’ irrespective of the parties' wishes.”  State v. Perry, 124 N.J. 128, 193 (1991) (quoting State v. Choice, 98 N.J. 295, 298 (1985)).   This obligation arises whenever it is clear “that a jury could convict on the lesser while acquitting on the greater.”  State v. Jenkins, 178 N.J. 347, 361 (2004) (citations omitted).   An offense is an included offense when:

(1) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged;  or

(2) It consists of an attempt or conspiracy to commit the offense charged or to commit an offense otherwise included therein;  or

(3) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interest or a lesser kind of culpability suffices to establish its commission.

[N.J.S.A. 2C:1-8d.]

In this case, there was a substantial rational basis in the evidence to support the lesser-included offense of aggravated manslaughter and reckless manslaughter.   The difference between the two offenses is that:

[t]o be guilty of SBI murder, the defendant must have knowingly or purposely inflicted serious bodily injury with actual knowledge that the injury created a substantial risk of death and that it was “highly probable” that death would result.   In aggravated manslaughter, by contrast, the defendant must have caused death with an “awareness and conscious disregard of the probability of death.”   If, instead, the defendant disregarded only a “possibility ” of death, the result is reckless manslaughter.

[Jenkins, supra, 178 N.J. at 363 (citations omitted).]

The State requested the lesser-included offenses be charged given the crime scene circumstances and the brief lapse of time between the start of the confrontation and the killing.   The state argued that a jury could reasonably conclude that defendant's infliction of serious bodily injury was not undertaken with the actual knowledge he was creating a substantial risk of the victim's death, rather, that he disregarded the probability of death.   The jury could also rationally find that this sudden confrontation caused defendant to disregard the possibility of the victim's death from his own conduct.   The trial court agreed.   We also agree that the lesser-included instructions as to aggravated manslaughter and reckless manslaughter were warranted;  on the retrial of the matter, both should be given.

c.

Trial counsel did not request that the court instruct the jury on passion-provocation manslaughter, N.J.S.A. 2C:11-4b(2).   In any event, as the State points out, the issue is now moot as defendant has been acquitted of murder.   The jury cannot convict defendant of passion-provocation manslaughter because it too requires proof of a purposeful or knowing killing.   See N.J.S.A. 2C:11-4b(2), N.J.S.A. 2C:11-3a(1), and N.J.S.A. 2C:11-3a(2).   Criminal homicide becomes manslaughter when an act that would generally be murder, i.e. “purposely” or “knowingly” causing “death or serious bodily injury resulting in death,” “is committed in the heat of passion resulting from a reasonable provocation.”  N.J.S.A. 2C:11-3a(1), N.J.S.A. 2C:11-3a(2), and N.J.S.A. 2C:11-4b(2).   Because defendant was not convicted of murder, the issue of whether the passion-provocation instruction should be given on a retrial is moot.   See N.J.S.A. 2C:11-3a(1), N.J.S.A. 2C:11-3a(2), and N.J.S.A. 2C:11-4b(2).

d.

Defendant requested that the trial court give the use of force against an intruder instruction.   See Model Jury Charge Criminal, “Justification-Use of Force Upon an Intruder” (1991).   He objected to the judge giving the general self-defense charge.   See Model Jury Charge Criminal, “Justification-Self Defense-In Self Protection” (2006).   Defendant reiterates these concerns in Points XIV and XVI. We agree that the use of force against an intruder instruction was necessary and that the general self-defense charge should not have been given.

Defendant's argument relies principally on State v. Bilek, 308 N.J.Super.   1 (App.Div.1998).   In Bilek, the defendant was an apartment building superintendent who lived in a third-floor unit.  Id. at 5-6.   The Lapa family resided on the second floor.  Id. at 6. The Lapa's seventeen-year-old son became angry when he learned that the defendant had used profane language towards his younger sister.  Ibid. He went upstairs to the defendant's apartment to attempt to confront him, but defendant refused to answer the door.  Ibid. During dinner, the son reported the incident to his father, who also became irate.  Ibid. They both went upstairs to the defendant's apartment and this time, the defendant opened the door.  Ibid. The discussion “became quite heated” and as a result the defendant retrieved a gun from his bedroom.  Ibid. The Lapas fled when the defendant returned and pointed the gun at them.  Ibid.

The defendant claimed self-defense against an intruder;  he was acquitted of possession of a handgun with the purpose to use it against the father, but was convicted of fourth-degree aggravated assault based on the pointing.  Id. at 3. Although there was a significant factual dispute as to which party was the aggressor, and as to the extent of the entry by the Lapa father and son into the apartment, we nonetheless found there was “no reason for inclusion of the quite different general self-defense charge” in light of the language of the defense against an intruder instruction.  Id. at 11.

Defendant contends it is undisputed that Vogel gained entry into the apartment;  that he was angry and upset as a result of his conversation with A.M. The only reason for his presence was his wish to confront defendant.   Hence, in this case, like Bilek, “[t]he inclusion of the general self-defense charge, not tailored to the defense of one's dwelling, could only have been confusing at best, totally misleading at worst.”  Ibid. By giving the general self-defense instruction, defendant avers, the judge introduced the jury to concepts relating to proportionality of force which are inapplicable to the concept of self-defense against an intruder.   See id. at 12.

The State responds that giving the general self-defense instruction was not error because Vogel's status was a jury question.   The record is scant as to the facts or legal theory underpinning that position, which succeeded in the trial court, and which the state reiterates on appeal.   The prosecutor argued merely that because Vogel had been a guest in defendant's home for many hours prior to his return, a jury could reasonably find he was not an intruder.

But the jury was not provided with a legal basis to determine whether or not Vogel should have been considered an intruder.   The jury was told only that an intruder is someone “who is unlawfully in the dwelling” and “was not licensed or privileged to be in the dwelling.”   A license is “[a] personal privilege to do some particular act or series of acts on land without possessing any estate or interest therein.”   Black's Law Dictionary 919-20 (6th Ed.1990).   A licensee is “[a] person who has a privilege to enter upon land arising from the permission or consent, express or implied, of the possessor of land but who goes on the land for his own purposes rather than for any purpose or interest of the possessor.”  Id. at 921.   The word “intruder” in the context of self-defense “would exclude someone present on the premises by invitation or with permission.”  State v. Felton, 180 N.J.Super. 361, 364 (App.Div.1981).   Yet, the jury was not provided with any guidance as to the definition of the term “intruder.”   Even if it had been, as a matter of law, the State could not prove beyond a reasonable doubt that Vogel was not an intruder.

The State's argument that defendant lay in wait for Vogel with a knife at the ready was merely that - the State did not have any facts per se in support of that theory, rather, it suggested to the jury its interpretation of the manner in which the confrontation evolved.   The prosecutor took the position that defendant knew it was likely the victim would return, if for no reason than he saw someone else's watch on the nightstand in the bedroom.   The prosecutor also argued that the absence of any trace of limes meant that the knife could not have been left on the coffee table from the prior afternoon.   But again, the State was merely proffering a theory, as there was no actual testimony or other proof that defendant intentionally armed himself with a knife prior to Vogel's knock.   Even if defendant placed the knife on the coffee table intending to use it to defend himself, that fact alone does not defeat the claim that Vogel was an intruder, any more than the victims in Bilek were not intruders because the defendant went into his bedroom to grab a gun he then used to scare them off.

Furthermore, it is undisputed that Vogel's return to defendant's home was solely for the purpose of confrontation.   He asked to be driven there because his stated intent was to confront defendant.   When Sewell asked Vogel to ask defendant to move his car, Vogel stated merely that he would return in “five minutes,” establishing that he intended to discuss the matter with defendant very briefly.   A.M., Sewell, and defendant all stated that Vogel “bang[ed]” and “pound[ed]” on the door.   Neither A.M. nor Sewell heard any argument once Vogel stopped knocking on the door;  neither heard loud voices.   There is no factual basis for any inference that Vogel intended to politely request permission to enter the home, hear defendant's version of events, or otherwise engage in any kind of discussion by which a jury could conclude that defendant actually invited Vogel into his home before the physical altercation began.   Defendant did not dispute that he was aware that either Vogel or A.M. were at the door and that he willingly opened it.   There is no evidence, however, that he gave Vogel permission to enter his home.

To the contrary, the only reasonable inference that can be drawn from the testimony, and the condition of the home as depicted on the DVD, was that Vogel acted immediately once defendant opened the door.   The entire sequence of events took place over very few minutes.

If Vogel was an intruder, defendant was justified in using deadly force to counter any unlawful force Vogel threatened to inflict.   See id. at 12.   The disproportionality of the force employed by defendant should not have played a role in the jury's consideration.   Despite this key difference between the two theories of self-defense - that in general self-defense, the proportionality of an actor's response is considered by a jury, and that in self-defense against an intruder, disproportionality is not a consideration - the disproportionality concept was introduced in the general self-defense instruction.

As we said in Bilek, a heated confrontation ensued once the door was opened and although “[w]hat actually occurred and who were the aggressors was disputed ․ it is fairly clear that whatever occurred did so in the entranceway of the apartment, if not inside.”  Id. at 13.   This made the Lapas intruders;  in this case Vogel's entry to confront defendant makes him an intruder.   The jury's sole focus should have been whether the circumstances otherwise met the relevant standards for self-defense against an intruder.   The jury should have been focused on, as spelled out in the instruction, whether Vogel's attack was “sudden and unexpected” and whether defendant's belief that he needed to protect himself was reasonable.   See Model Jury Charge Criminal, “Justification-Use of Force Upon an Intruder.”

Accordingly, we reverse and remand for a new trial because both instructions were given to the jury.   It was error to give the general self-defense instruction, premised on very different legal concepts not applicable in this case.   The giving of the instruction was at best confusing, and at worst misleading, and resulted in prejudice to defendant.

e.

In Point XVI, defendant also argues that he was denied a fair trial because the model jury instructions on use of force against an intruder incorrectly state the law and were misleading and confusing.   Defendant asserts the model charge provides a common-law definition of “reasonable belief” that differs from the statutory definition contained in N.J.S.A. 2C:3-4c.

The model charge includes the statutory definition of “reasonable belief” and, in addition, states that the term “reasonable” is “measured ․ by what a jury finds reasonable ․ based on an objective standard-that is, by how an ordinary reasonable person with a detached viewpoint would view it.   A subjective belief, based on the viewpoint of the defendant, is immaterial.”   Model Jury Charge Criminal, “Justification-Use of Force Upon an Intruder” (1991).   The reasonableness of the belief is a jury question which must be assessed by application of an objective standard.   Analysis of a defendant's state of mind by any standard other than an objective one is neither plausible nor reasonable.

Defendant's reliance on State v. Kelly, 97 N.J. 178 (1984), in support of his contention is misplaced.   In that case, reasonable belief was defined in the context of general self-protection rather than defense against an intruder.   See id. at 197-200.   Moreover, that case also stressed that the reasonableness of a defendant's belief is a question for the jury to decide.   Id. at 204.   An objective standard must be employed, and the issue must be decided by the jury, because to do otherwise would make any honest belief reasonable - a result not intended by the statute.   The Legislature provided a more objective basis for a jury's consideration of reasonableness when it expanded a defendant's right to use deadly force when confronted with an intruder in his home.   See N.J.S.A. 2C:3-4c;  Cannel, New Jersey Criminal Code Annotated, comment 1 on N.J.S.A. 2C:3-4(c) (2010).   We therefore do not find that the model jury charge's explanation of the distinction between an honest and a reasonable belief is subject to misunderstanding by a jury, or is in any other way improper.   We are not convinced by defendant's contention that the model charge is fatally flawed and deprived him of a fair trial.

II.

Defendant argues in Point XX that it was plain error for the medical examiner to have been permitted to testify that it was “a medical certainty” that the nature of the injuries the victim suffered “strongly suggest[ ] Mr. Vogel was incapacitated.   To what degree, I cannot really say.   Obviously, it was not in the degree where he can put up an active, resistant ․ fight.”

The medical examiner also testified that there was a marked absence of defensive wounds on the victim's body, with the exception of a small cut on the back of his left hand.   No written report was provided to defense counsel including the expert's opinion as to the victim's incapacitation.   The medical examiner defined the term “medical certainty” as “an educated probability, a medical certainty․  [I]t can be a hundred percent, but it's not necessary to be a hundred percent.”   The medical examiner was repeatedly asked on direct whether or not Vogel was able to defend himself, and he repeatedly responded that at the time the injuries were inflicted, Vogel was incapacitated.

Defense counsel did not object to this testimony;  therefore, any error must be one “capable of producing an unjust result” because our review is pursuant to the plain error analysis.   R. 2:10-2.   See also State v. Summers, 176 N.J. 306, 316 (2003).   Whether the error warrants reversal depends upon the extent to which it is possible the claimed error “led to an unjust verdict.”   Macon, supra, 57 N.J. at 335.

As the trial court stated in denying the motion for a new trial, it is true that “the fact that [expert opinion testimony] that may embrace the ultimate fact issue in dispute does not render it inadmissible.”   There are explicit guidelines, however, as to the appropriate use of hypothetical questions intended to “embrace the ultimate fact issue in dispute,” and, generally, these rulings have arisen in the area of narcotics cases.   See State v. Odom, 116 N.J. 65, 81-82 (1989) (citation omitted).   Certainly the medical examiner can testify that the manner of death was a homicide.   He can testify as to the absence of defensive wounds.   See State v. Baluch, 341 N.J.Super. 141, 185 (App.Div.2001).   But, although the medical examiner's testimony did not explicitly state that defendant was guilty, he clearly stated that the victim was incapacitated when attacked.   In this case, the testimony was the functional equivalent.   See id. at 85.   Additionally, it gave the prosecutor an important weapon to add to his arsenal of inappropriate closing arguments, which we shall discuss shortly.

The questions put to the medical examiner were specific, not general and hypothetical in nature.   He was asked to opine, for example, whether, “within a reasonable degree of medical probability ․ Vogel was able to defend himself when these life threatening wounds were inflicted[.]”  His response to the question was no.   Moreover, his expertise did not warrant his conclusions about the conduct of the victim when the wounds were inflicted.   His testimony should have been limited to the nature of the wounds on the victim's body and the absence of wounds.   By going one step further, he intruded into the jury's province.   The probative value of his testimony was substantially outweighed by the risk of prejudice in this case.   See Summers, supra, 176 N.J. at 312 (citing State v. Berry, 140 N.J. 280, 298 (1995)) (stating that expert opinions must be excluded in such situations).   The medical examiner acknowledged not having seen the video of the crime scene, and having only engaged in a conversation with the prosecutor about the matter.   His speculation that Vogel was incapable of resistance cut mortally into the heart of defendant's theory of the case.

The prosecutor in summation argued to the jury that defendant was lying when he said that he and the victim struggled until defendant inflicted the fatal wounds.   As the prosecutor said, quoting the medical examiner, “if this was a fight between two combatants ․ [y]ou would expect to see a bunch of defensive injuries.”   The prosecutor went on to say:

in [the medical examiner's] opinion, within a reasonable degree of medical certainty, this is not how it happened.   It did not happen the way that [defendant] sat here under oath and told you it happened.

If you accept [the medical examiner's] testimony, the testimony of an expert in this field, you know that [defendant] was lying to you about how this happened because [the medical examiner] said to you, “Within a reasonable degree of medical certainty, at the time that the majority of these injuries were inflicted on ․ Vogel, he was incapacitated, not standing up repeatedly punching [defendant].   He was incapacitated, not capable of defending himself.”

The prosecutor then went on to describe a hypothetical, detailed scenario in which defendant sat astride the victim while he stabbed him repeatedly, cutting his own wrist in the process.   It is noteworthy that in denying defendant's motion for a new trial, the court relied upon an opinion the expert did not express, namely, that the victim's level of intoxication rendered him incapable of resistance.   The expert never made that statement.   This mistaken recollection was a natural consequence of the medical examiner's overbroad testimony, however.   We are satisfied that the prejudice created by the expert testimony regarding the victim's ability to resist was highly prejudicial and warrants reversal as an independent ground.

III.

Defendant raises multiple instances in Point XIX of alleged misconduct by the prosecutor in summation and during cross-examination of defendant.   Prosecutorial misconduct warrants reversal when it deprives a defendant of his right to a fair trial.  State v. Nelson, 173 N.J. 417, 460 (2002) (citations omitted).   In assessing whether the instances of misconduct are sufficiently egregious to warrant reversal, we “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 [to be] stricken from the record and instructed the jury to disregard them.”  State v. Frost, 158 N.J. 76, 83 (1999) (citations omitted).

In assessing separate claims of prosecutorial misconduct, we first determine “whether the prosecutor's legal [and] factual assertions were accurate,” and “whether the comments were confined to the evidence revealed [to the jury] during the trial and [the] reasonable inferences to be drawn” therefrom.   State v. Smith, 167 N.J. 158, 182 (2001).   In this instance, defense counsel did not object to several of the improper statements at trial.   In combination, the statements to which objection was made and those to which no objection was made, clearly had the capacity to cause an unjust result.   See R. 2:10-2.   We will only address those claims of error which may be relevant to a retrial.

Prosecutors are expected to forcefully and vigorously argue the State's case to the jury, and they are afforded considerable leeway in doing so.  State v. Harris, 141 N.J. 525, 559 (1995).   Their argument, however, must be “reasonably related to the scope of the evidence presented.”  Frost, supra, 158 N.J. at 82 (citation omitted).   Prosecutors simply cannot “make inaccurate legal or factual assertions during a trial.”  Id. at 85 (citation omitted).   It is improper for a prosecutor to inject his or her own conclusions regarding a witness's beliefs or thoughts when there is no basis in the record.   See State v. Moore, 122 N.J. 420, 462 (1991).

The prosecutor opened his closing remarks by stating it was pointless for him to observe that, for example, A.M. “had a very credible demeanor,” and defendant had an “incredible demeanor” because he was an advocate for the State.   He went on to opine that defendant's statements to police about the incident were “an absolute lie, an absolute lie.”

The prosecutor next argued that defendant's conduct after the stabbing was carefully calculated, nothing more than dramatics intended to misdirect the police.   He made reference to A.M.'s statement that defendant looked at her “very coldly” when he told her that he had killed her boyfriend, that defendant's response to the neighbor's refusal to become involved in the incident was moderate, but that when the police arrived, defendant put on a “show for the cops.”   In fact, the prosecutor said, as an example of defendant's “selective shock” after the incident, that “suddenly, he's laying in the middle of the road, you know, crying, yelling.   For what?   It's a show for the cops;  the 9-1-1 call, his actions upon the arrival of the police.   It's a show for the cops.”

The neighbor, in fact, never heard defendant either yell or raise his voice.   Aburomi, the first officer on the scene, testified only that he saw defendant “making his way out to the street” and that “[h]e was covered in blood and kind of like collapsed in front of” the patrol car.   Essentially, the prosecutor argued that defendant's conduct after the killing was part of a deliberate scheme to cover up his crime - but in doing so he relied upon mischaracterizations of defendant's statements.

We agree with defendant that the prosecutor's closing statement was unfounded that there was “zero” possibility that the victim's wounds could have been inflicted by a person “wildly swinging” a knife.   The prosecutor's hypothetical scenario of defendant astride a helpless victim, that should have been presented to the jury as nothing more than a theory, became hard fact when he supported the image with the improper expert's opinion.   Even these characterizations were overstatements, as the medical examiner never went as far as to specifically say that there was no possibility that the wounds were inflicted by someone wielding a knife wildly.

Furthermore, the prosecutor also improperly referred to A.M. acting like a “rape victim” during his closing, by implication making defendant a “rapist.”   These remarks went outside the record because no expert testified as to how rape victims act, and the State's proofs did not support a claim that A.M. was raped.   See State v. Bradshaw, 195 N.J. 493, 510 (2008).   The remarks were not objected to during trial, although they were quoted in defendant's motion for a new trial.   In denying the motion for a new trial, the court found that the remarks were “fair comment.”   We do not agree.   These comments were designed to improperly inflame the jury against defendant.

Similarly, during his closing the prosecutor referred to A.M. as having woken up “while [defendant] was in the middle of doing something to her.”   That too was inaccurate;  A.M. consistently said defendant was sitting next to her, naked and looking at her when she awakened, as opposed to actively engaging in some inappropriate sexual contact at that moment.   See State v. Smith, supra, 167 N.J. at 178 (prosecutor's comments must be limited to evidence and reasonable inferences which may be drawn from the evidence).   When joined with the prosecutor's characterization of defendant's conduct as having been “illegal, something disgusting, and something morally bankrupt,” references to A.M. as a rape victim, and the incorrect statement that when she awakened defendant was in the midst of some sexual offense, the prosecutor's summation was highly prejudicial.   These instances of prosecutorial misconduct warrant reversal and retrial on the charge of attempted aggravated sexual assault in addition to the other offenses.

IV.

Defendant also argues in Point X that the trial court erred by permitting Aburomi to read to the jury verbatim his police report summary of A.M.'s at-the-scene statement, admitted on the basis that it was an excited utterance, an exception to the hearsay rule.   See N.J.R.E. 803(c)(2).   Defendant contends that the reading of the nearly 400-word police report was not only error but highly prejudicial, as it included A.M.'s accusation that defendant “raped” her.   Aburomi read his report to the jury after the completion of a Rule 104(a) hearing outside their presence.   An excited utterance is one “relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition and without opportunity to deliberate or fabricate.”  N.J.R.E. 803(c)(2).   See also State v. Cotto, 182 N.J. 316, 327-28 (2005) (citation omitted).

Aburomi's testimony during the Rule 104(a) hearing was couched in general terms.   Prior to the hearing, Aburomi testified that he physically lifted A.M. away from the victim and could not elicit any explanation from her until some unspecified time elapsed because she was “screaming and crying.”   He then spoke with her outside the crime scene over the course of half an hour or forty minutes, “not long.”   During the Rule 104(a) hearing, Aburomi said it took her “several minutes to compose herself” before he could “get[ ] any logical information out of her.”   He said she “was still very excited, but she was able to at least give me the story of what transpired.”   The bulk of his Rule 104(a) testimony was the reading of his report, repeated later to the jury.   It is puzzling that his description of A.M.'s level of agitation sharply contrasts with the extent of detail included in her statement.   Aburomi did not explain whether she provided specifics spontaneously or as the result of questioning, or whether there was any lapse in time between when he began to speak to her and when the statement was completed.   We do not know if he was provided a general outline by A.M., which he then reviewed with her.   We do not know if the succinct chronology of events contained in his summary of her statement was the product of his editing, as opposed to the manner in which she presented the information.

The trial judge's findings after the Rule 104(a) hearing were limited, basically an iteration of the language of the rule.   He did not articulate any analysis of the reason why Aburomi's testimony warranted admission of his report:

THE COURT:  All right.   I'm going to allow the testimony as an excited utterance, the reason being ․ what she stated is related to a very startling event.   The proximity in time is within one half hour.   Is that correct, Officer?

THE WITNESS:  Yes, Your Honor.

THE COURT:  All right.   She's still under the stress of the event, even after she's calmed down, and I find it's admissible under ․ an excited utterance, exception under Rule 8032, and I'll permit the testimony.   Thank you.

A trial judge is accorded great discretion in making decisions relating to the admissibility of excited utterances.  Truchan v. Sayreville Bar, 323 N.J.Super. 40, 50 (App.Div.1999) (citations omitted).   Generally, decisions regarding the admission of evidence are reviewed under an abuse of discretion standard.  State v. Buda, 195 N.J. 278, 294 (2008).   In order for adequate appellate review, however, there must be adequate findings of fact.   See R. 1:7-4.

The State failed to establish the necessary evidentiary foundation for the admission of A.M.'s account as an excited utterance, therefore the judge erred in his admission of the statement.   It is not clear from the foundation the State attempted to establish whether A.M.'s narrative was an “uncontrolled response from shock before reflection would allow the statement to be fabricated or influenced by self-interest.”  Negron v. Melchiorre, Inc., 389 N.J.Super. 70, 87 (App.Div.2006) (citation omitted).   The factual question left unanswered by the State and ignored by the judge was whether “the declarant [ ] had the opportunity to deliberate or fabricate the testimony.”  Ibid. On this prong of the excited utterance exception, the nature of the statement is a critical consideration.  Cotto, supra, 182 N.J. at 330-31 (citing State v. Branch, 182 N.J. 338, 366 (2005)).   Statements consisting of narratives of past events in response to police questioning are generally not considered statements exclamatory of and coincident with the happening of the startling event.  Ibid.

The State may be able to establish, should it attempt to introduce A.M.'s statement during the course of the retrial, that the statement was made “under the stress of excitement caused by the event” - namely, the unforeseen stabbing of her boyfriend.   See N.J.R.E. 803(c)(2).   The agitation of the moment may indeed have “ ‘suspend[ed] the declarant's powers of reflection and fabrication,’ and consequently minimize[ed] the possibility that the utterance will be influenced by self-interest and therefore rendered unreliable.”   State v. Long, 173 N.J. 138, 158 (2002) (quoting 2 McCormick on Evidence § 272, at 204-05 (5th Ed.1999)).   But we simply do not know if this was the case.   That A.M.'s narrative may have been in response to questions did not in and of itself render it inadmissible.  Truchan, supra, 323 N.J.Super. at 50.   Our comments assume that should the State attempt to present the statement to the jury, A.M. will be again called as a witness and will testify.   See State v. Branch, 182 N.J. 338, 357-67 (2007).   But the State must establish “[t]he crucial element [of] the presence of a continuing state of excitement that contraindicates the likelihood of fabrication and provides trustworthiness.”  State v. Lyle, 73 N.J. 403, 415 (1977).   On the present record, the proofs do not support such a finding.

This error was compounded by permitting Aburomi to read A.M.'s statement.   When asked if he remembered her statement, Aburomi said that he did, at which point defendant objected, and the court conducted the Rule 104(a) hearing.   Despite Aburomi's response, the prosecutor asked him to read the report to the jury.   It was an abuse of discretion to permit him to read A.M.'s statement to the jury both because he remembered it and therefore did not need to read it, and because even if he had testified from memory, no proper foundation was established prior to admission of the material.

V.

Defendant also contends in Point VII that there were insufficient proofs of attempted aggravated sexual assault;  accordingly, he asserts his motion for judgment of acquittal should have been granted.   He acknowledged having engaged in oral sex with A.M.;   A.M. characterized it as being without her knowledge or consent, and defendant characterized it as consensual.

A trial court will not set aside a jury's verdict as against the weight of the evidence “unless, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a manifest denial of justice under the law.”   R. 3:20-1.   We apply substantially the same standard on review.  State v. Gaikwad, 349 N.J.Super. 62, 82 (App.Div.2002).   The trial judge's “ruling on such a motion shall not be reversed unless it clearly appears that there was a miscarriage of justice.”   R. 2:10-1.   We agree that, given the many instances of errors in this trial, the jury's verdict should be reversed.   We do not agree, however, that defendant is entitled to acquittal, as we do not consider the court's denial of the motion to have been a miscarriage of justice given the proofs in the case.

The trial court denied defendant's motion for acquittal on the basis that the jury found A.M.'s testimony to be more credible than defendant's and that the evidence was sufficient for the jury to find beyond a reasonable doubt that defendant did commit attempted aggravated sexual assault.   Defendant bases his demand for acquittal on the grounds that A.M.'s version of events was not plausible, because of the improbability of her having slept through the removal of her clothing, among other factors.   But this case rested on credibility determinations within the sole province of the jury, and a jury is always free to accept or reject any portion of the evidence.  State v. Ciuffini, 164 N.J.Super. 145, 154 (App.Div.1978).   Significant errors were committed during the course of this trial, among which we number the jury being told that A.M.'s claims initially were of a rape and the prosecutor's mischaracterizations of the proofs related to the attempted sexual assault.   Although defendant is not entitled to acquittal, he is most certainly entitled to a new trial.   Nonetheless, the State presented sufficient evidence for the retrial of the matter to be warranted.

VI.

Defendant also contends in Point XXII that the court erred when it failed to suppress the statement he made to Tucker when interviewed at the hospital.   The argument is premised on the purported violation of his Fifth Amendment right against self-incrimination because of the claim that his mental condition did not allow him to make a knowing, intelligent, and voluntary waiver of his right against self-incrimination.   The proofs offered at the pretrial hearing were that defendant had significant levels of blood alcohol as well as marijuana in his system.   Tucker began to question defendant in the emergency room at 1:50 p.m. and did not see any signs that defendant was either intoxicated or under the influence, however.   He read defendant his Miranda rights and defendant agreed to make a statement.

The trial court found that defendant was not under the influence such that he could not have made a knowing, intelligent, and voluntary waiver of his right to remain silent.   Nothing in the record indicates to the contrary.   The fact defendant may have been traumatized, that his blood alcohol level was .202, and that he showed traces of marijuana in his blood, is not sufficient to defeat admissibility.   We defer to the court's ruling on this score and conclude that Tucker's testimony met the standards for a waiver of the right to remain silent at any subsequent trial.   See State v. Presha, 163 N.J. 304, 312-13 (2000).   Defendant was able to respond to directions from medical staff, did not otherwise appear to be confused, and was not suffering from any significant physical injury.   There was no error on this score.

VII.

In Point XXI, defendant asserts that the admission of the video of the crime scene and the autopsy photographs was prejudicial and should be suppressed in the event of a new trial.   We were not supplied copies of the autopsy photographs.   The photographs were not been described in any detail.   Therefore we cannot rule on their inflammatory potential.   See State v. Sanchez, 224 N.J.Super. 231, 249-51 (App.Div.), certif. denied, 111 N.J. 653 (1988).

We see no basis for preclusion of the video.   Its probative value was significant;  if anything, it supports defendant's testimony with reference to the struggle in the living room.  N.J.R.E. 403.   See also State v. Kemp, 195 N.J. 136, 148-49 (2008).   It did not prejudice defendant.   It depicted the victim on his knees lying in a pool of blood but it also depicted the chaos in the living room and drops of blood leading into the kitchen, out the front door, and into the street.   The admission of the videotape was not an abuse of discretion.   But see State v. Taylor, 350 N.J.Super. 20, 35-38 (App.Div.), certif. denied, 174 N.J. 190 (2002) (finding the admission of a video tape depicting victim's actual death to be reversible error).

VIII.

All of defendant's remaining arguments on appeal are moot.   They relate either to the murder charge or to the court's decision with respect to the murder charge, or become moot because of the retrial of the matter.   We will therefore not consider them further.

Reversed and remanded.

FOOTNOTES

FN1. The uniform intake form described defendant as five feet eight inches tall and 145 pounds..  FN1. The uniform intake form described defendant as five feet eight inches tall and 145 pounds.

FN2. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L. Ed.2d 694 (1966)..  FN2. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L. Ed.2d 694 (1966).

PER CURIAM