STATE OF NEW JERSEY v. JAMES VAUGHN AKA HOWARD SMITH (2011)

Defendant, James Vaughn, appeals from his convictions for murder, N.J.S.A. 2C:11-3(a)(1) and (2);  felony murder, N.J.S.A. 2C:11-3(a)(3);  attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3(a);  burglary, N.J.S.A. 2C:18-2(a)(1);  unlawful possession of a weapon, N.J.S.A. 2C:30-5(b);  and possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a).   A motion for a new trial was denied.   Defendant was also charged under a separate indictment and convicted pursuant to N.J.S.A. 2C:39-7a as a person not to have weapons.   After a bench trial he was found guilty of this crime, and he was found to be subject to enhanced penalties pursuant to N.J.S.A. 2C:11-3b(4)(a) as the result of a prior murder conviction.   He was sentenced to life without parole on the murder conviction and to a consecutive twenty-year sentence with eighty-five percent parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, for the attempted murder.   Lesser concurrent sentences were imposed for other convictions.

On appeal, defendant presents the following arguments:

POINT I

THE TRIAL COURT ERRED BY FAILING TO INSTRUCT THE JURY REGARDING PASSION/PROVOCATION MANSLAUGHTER AS A LESSER INCLUDED OFFENSE OF PURPOSEFUL/KNOWING MURDER EMBODIED IN COUNT I, ESPECIALLY IN LIGHT OF ITS DECISION TO INSTRUCT THE JURY REGARDING ATTEMPTED PASSION/PROVOCATION MANSLAUGHTER AS A LESSER INCLUDED OFFENSE OF ATTEMPTED MURDER EMBODIED IN COUNT III.

POINT II

THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A NEW TRIAL SINCE THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY BY IMPERMISSIBLY UTILIZING THE DEFENDANT'S PREVIOUS CONVICTIONS AND RESULTING SENTENCE IMPOSED THEREON TO ESSENTIALLY INFORM THE JURY THE DEFENDANT HAD PREVIOUSLY BEEN CONVICTED OF MURDER.

POINT III

SINCE THE DEFENSE MADE A PRIMA FACIE DEMONSTRATION THAT THE PROSECUTOR EXERCISED A PEREMPTORY CHALLENGE ON CONSTITUTIONALLY-IMPERMISSIBLE GROUNDS, THE DEFENDANT IS ENTITLED TO A REMAND TO REQUIRE THE PROSECUTION TO DEMONSTRATE THE PEREMPTORY CHALLENGE IN QUESTION WAS JUSTIFIABLE, WITH THE TRIAL COURT MAKING SPECIFIC FINDINGS WITH RESPECT TO THE PROSECUTION'S PROFFERED REASON(S) FOR EXERCISING THE CHALLENGE IN QUESTION.

POINT IV

THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION TO PRECLUDE THE EXPERT TESTIMONY OF THE MEDICAL EXAMINER REGARDING THE RANGE AT WHICH THE VICTIM WAS SHOT ARISING OUT OF A VIOLATION OF THE STATE'S DISCOVERY OBLIGATION.

POINT V

THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A JUDGMENT OF ACQUITTAL WITH RESPECT TO COUNTS II AND IV OF THE INDICTMENT.

POINT VI

THE TRIAL COURT ERRED IN RULING THAT THE DEFENDANT'S PRIOR CONVICTIONS, OCCURRING OVER TWO DECADES PRIOR TO TRIAL, WERE ADMISSIBLE TO IMPEACH CREDIBILITY.

We reverse in part, remand in part, and conditionally affirm in part.

I.

The trial record indicates that defendant, an Irvington resident working in Morris Township, developed a close personal relationship with a family consisting of Maxine McCaden, a seventy-two-year-old woman, her daughter, Ruth Bernadette Kennedy, and Kennedy's daughter, Sherie Graves.   McCaden and Kennedy lived together in a house in Morristown;  Graves was a frequent visitor.   On Saturday July 19, 2003, defendant spent much of the afternoon at the McCaden/Kennedy household, drinking beer with a chaser of rum, first with McCaden, then with McCaden and Kennedy and, after 5:00 p.m., with the three women.   However, according to Kennedy and Graves, as time went on, defendant got “nasty” and then increasingly quiet.   At some point, Graves left the house with her children to return to the motel where she was then staying.   Eventually, defendant was asked by Kennedy to leave.   Although he did not immediately comply, instead getting himself another drink, he finally departed, speeding off in his truck.

While defendant was away from the house, at approximately 10:00 or 11:00 p.m., McCaden and Kennedy were visited by a neighbor from the other side of the street, Marjorie Forbes.   The three were seated on the porch talking when defendant returned on foot.   Kennedy testified at trial that, while standing on the sidewalk, defendant directed Forbes to leave.   Forbes did not recall such a direction, but stated that something in defendant's manner caused her to leave.   Kennedy testified that defendant then entered the house without her permission, and as a result, she went to the phone in the kitchen to call the police.

As Forbes crossed to the other side of the street, she heard gunshots and Kennedy crying “Marge please help.”   Forbes returned to the house and immediately encountered McCaden, lying on the floor in a pool of blood coming from her head.   Forbes then proceeded to the kitchen where Kennedy was screaming.   As Forbes entered the kitchen, she saw Kennedy on the floor begging for help and stating “don't kill me, don't kill me.”   Nonetheless, Forbes witnessed defendant reloading his gun and firing at Kennedy several times, hitting her once in the head.   As he did so, he directed Forbes to go home, and he said either that “they are” or “she is” “fucking using me.”

Forbes then returned to her home, where she called the police.   The police witnesses testified that, on their arrival at the house, they found McCaden lying as Forbes had described near the front door.   She was dead.   There was no evidence that McCaden had moved after being hit.   Kennedy was in the kitchen, severely wounded from bullets to her hand, right bicep, left forearm, right breast, right upper abdominal quadrant, left thigh, and head.   When asked who had shot her, Kennedy replied “James, James.”   Kennedy was taken by ambulance to Morristown Memorial Hospital for treatment of her injuries.

Subsequent investigation, including an interview of Forbes, led to the identification of defendant as the likely perpetrator.   He was arrested some days later in North Carolina, still wearing trousers stained with blood that was linked by DNA testing to Kennedy.   A loaded .32-caliber handgun was found in defendant's truck and bullets were found in his possession that were ballistically linked to those at the crime scene.   Defendant had no firearm identification card.   Additionally, as demonstrated in a bench trial after the jury had returned its verdict in connection with the murder indictment, defendant had been convicted in 1976 for attempted murder and in 1980 for murder, and as a result, he was barred from possessing a gun.

Defendant testified at trial, claiming that he had engaged in a two-year intimate relationship with Kennedy, but that shortly before the shootings, she had taken up with other men, including her Spanish neighbors.   On the day of the shooting, Kennedy had bared her breasts to the neighbors while in defendant's company, causing him great upset.   Defendant also testified that Kennedy had told him that their relationship was at an end, because Kennedy's husband was soon to be released from a halfway house in Newark where he was then confined, and that Kennedy had only sought out defendant for sex.   Both Kennedy and her daughter, Graves, denied the existence of the relationship that defendant described.

Defendant testified in detail as to his activities on the day of the shootings, stating that he had consumed in excess of a dozen cans of beer and more than one-half of the bottle of rum found at the victims' residence.   However, he professed to have no recall whatsoever of the shootings themselves or his subsequent flight.   His counsel argued that the shooting of Kennedy was the result of passion arising from her rejection of him and the disclosure of her promiscuity.   Counsel argued additionally that McCaden had been accidentally shot as defendant aimed for Kennedy.   In this connection, counsel added up the weight of bullet fragments extracted from Kennedy's arm and the bullet found on the stairs near McCaden's body and claimed that, because their weight was similar to that of an intact bullet, the two sets of fragments were the result of the same shot.   However, no expert proof was offered to support this theory, if in fact it could be scientifically verified.

II.

On appeal, defendant argues that the trial judge erred in declining to hold a hearing after the prosecutor exercised a peremptory challenge to excuse the only African-American person in the first jury panel who was qualified to sit as a juror.   That juror, the first to be chosen, was employed as an organizer for a health care union in New York City. He had a degree in labor relations from Rutgers University, and he was pursuing a graduate degree in the same subject from Cornell University.   The juror had been convicted of driving while intoxicated approximately two years earlier, and he had cousins who worked for the Federal Bureau of Investigation and the Drug Enforcement Administration.   He testified that neither his conviction nor his relationship to people in law enforcement would affect his ability to decide the case fairly.   The juror, who was unmarried, had four children and lived with a woman who was employed as an accountant.   He had traveled extensively, did not watch television with the exception of the BBC channel, and had a production company that staged performances of poetry.   The juror was the second person to be excused by the prosecutor.

At the conclusion of the first day of peremptory challenges, defense counsel moved for a hearing on the prosecutor's removal of the African-American juror pursuant to Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 1719, 90 L. Ed.2d 69, 82-83 (1986), a decision premised on federal equal protection grounds, and State v. Gilmore, 103 N.J. 508 (1986), a decision based on the State's constitutional guarantee of an impartial jury.  Id. at 522.   However, the trial judge denied counsel's motion, determining that counsel had not overcome the presumption of the constitutionality of the prosecutor's challenge by offering prima facie evidence “that the potential jurors wholly or disproportionately excluded were members of a cognizable group and that there [was] a substantial likelihood that the peremptory challenges resulting in the exclusion were based on assumption[s] about group bias, rather than an indication of situation specific bias.”

In reaching his conclusion, the judge recognized that the juror was a member of a cognizable group.   The judge then considered the following factors derived from Gilmore, 103 N.J. at 536:(1) whether the prosecutor struck most or all of the members of the identified group from the venire;  (2) whether the prosecutor used a disproportionate number of his peremptory challenges against the group;  (3) whether the prosecutor failed to ask or propose questions to the challenged juror;  (4) whether, other than race, the challenged jurors are as heterogeneous as the community as a whole;  and (5) whether the challenged juror, unlike the victims in the case, is of the same race as the defendant.

With respect to those factors, the judge noted that only two African-American males were included in the jury panels from which the prospective jury was selected, and that the other was excused for cause.   He also observed that the prosecutor had only exercised one prior challenge at the point that the African-American juror was excused, and this was not a disproportionate number.   The judge did not recall whether the prosecutor asked or proposed questions to the challenged juror.¹  With respect to the fourth factor, the judge stated that the prosecutor had indicated that he had a legitimate reason for exercising the challenge, but did not specify that reason.   The judge also noted that the juror, defendant and the victims were all of the same race.

From this analysis, the judge concluded:

So if I apply the criteria that I am to apply, even if [the juror] is in a cognizable group there's nothing before me yet to reveal that there's a substantial likelihood that the prosecutor exercised his peremptory challenge because of group bias as opposed to a situation specific bias.

I might point out also that most of the cases you read, in fact all of the cases that I've read, speak in terms of plural, in other words more than one challenge.

In analyzing the challenge as he did, the trial judge accurately applied the law as it was then articulated in New Jersey.   Our difficulty with his decision arises from the fact that, in State v. Osorio, 199 N.J. 486 (2009), the Supreme Court recognized that the formulation of defendant's prima facie burden adopted in Gilmore was no longer current because Johnson v. California, 545 U.S. 162, 125 S.Ct. 2410, 162 L. Ed.2d 129 (2005), undermined the validity of the California state precedent ² upon which Gilmore was premised.   Osorio, supra, 199 N.J. at 502.   According to the Osorio Court,

Johnson, supra, explained that rebutting the presumption of constitutionality of a peremptory challenge was not

intend[ed] to be so onerous that a defendant would have to persuade the judge - on the basis of all of the facts, some of which are impossible for the defendant to know with certainty - that the challenge was more likely than not the product of purposeful discrimination.

[Ibid. (quoting Johnson, supra, 545 U.S. at 170, 125 S.Ct. at 2417, 162 L. Ed.2d at 139).]

Pursuant to Johnson, “a defendant satisfies the requirements of [the] first step [of a three-step process of evaluating a peremptory challenge] by producing evidence sufficient to draw an inference that discrimination has occurred.”  Johnson, supra, 545 U.S. at 170, 125 S.Ct. at 2417, 162 L. Ed.2d at 139.

Finding the standard articulated in Gilmore to be more stringent than that adopted in Johnson, the Osorio Court adopted Johnson 's modification of the burden of proof applicable in establishing a prima facie case of discriminatory jury selection.  Osorio, supra, 199 N.J. at 503.   However, the Court emphasized that its decision, like that in Gilmore, was “tethered to our State Constitution, which mandates that, ‘[i]n all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury [.]’  N.J. Const. art.   I, ¶ 10 (emphasis supplied).”  Ibid.

Because of its foundation in federal constitutional principles of equal protection, applicable to the states, we regard Johnson to be controlling in this case, despite the somewhat delayed recognition of its impact on state constitutional law.   We also recognize that the trial judge in this case imposed a more stringent standard than Johnson dictates when determining that defense counsel had not made out a prima facie case.   When we reevaluate the evidence in light of the Johnson/Osorio standard, we find that prima facie evidence of an unconstitutional challenge exists as the result of the prosecutor's use of a peremptory challenge to excuse the only qualified African-American from a trial of a defendant of the same race, despite the fact that the victims were also African-American.   As defendant notes in his brief on appeal, the juror in question appeared to be eminently qualified to judge the case, and the reason for his dismissal was far from evident.   In a circumstance in which no pattern of challenges could be established because of the paucity of African-Americans in the jury panel, we are unwilling to conclude that the fact that only one African-American juror was challenged fatally undermines defense counsel's prima facie case.   Were we to hold otherwise, discriminatory challenges could escape judicial review whenever the representation of minorities in a jury panel was particularly low.

We therefore remand the matter to the trial court for a hearing as to the basis for the prosecutor's peremptory challenge and a determination by the judge as to whether the prosecutor's conduct was unconstitutionally discriminatory.

III.

In this matter, Morris County Deputy Medical Examiner Carlos Fonseca had issued an autopsy report that described McCaden's wound as a “perforating gunshot wound of left temple of undetermined range.”   On a later page of the report, the doctor described “four, minute, red punctiform abrasions ․ below the entrance wound, averaging 1/32nd of an inch in diameter, and interspersed in an area that measures one and a quarter inches by one-half inch.”   The doctor continued by stating, in a section captioned “microscopic examination,” that “skin from face adjacent to entrance [of] gunshot wound with minute areas of denudation of squamous epithelium” had been examined with “no gunpowder residues noted.”   There was no mention of “stippling” in the report.

Immediately before the commencement of trial, defense counsel learned that Dr. Fonseca was going to render an opinion, based on the existence of the abrasions, as to the distance from which the gun had been fired.   Prior to the doctor's appearance at trial, defense counsel moved to bar the testimony, arguing that he was unfairly surprised by it and that it was not contained in the doctor's report.   After considerable argument, the judge denied the motion, basing his determination on McCalla v. Harnischfeger Corp., 215 N.J.Super. 160, 171 (App.Div.), certif. denied, 108 N.J. 219 (1987), which held that “the logical predicates for and conclusions from statements made in [a] report are not foreclosed.”   According to the judge, the information in the medical examiner's report about abrasions to the victim's face was sufficient to put the defense on notice that there could be testimony about the distance between the shooter and the victim, and that the medical examiner could testify on that subject because his conclusion was logically drawn from the factual information contained in his report.   Defense counsel could cross-examine the medical examiner about the scientific basis for his opinion.

At trial, the prosecutor examined the doctor at length regarding the significance of the abrasions, eventually eliciting his opinion that, within a reasonable degree of medical probability,³ the abrasions were consistent with gun powder stippling, and that stippling will be seen when a .32 caliber handgun is fired within one to two feet of the victim.

In his closing, defense counsel argued that the bullet that struck McCaden had first passed through Kennedy's arm.   However, the prosecutor utilized the medical examiner's testimony to support his position that her killing had been direct and intentional.   The prosecutor stated:

S-6 for identification.   This was the chart, the diagram, the sketch that Dr. Fonseca drew while he was performing the autopsy.   And he made a special note in his sketch to include four, what he calls, abrasions on Maxine McCaden's face, on the left-hand side of her face.   He noted four of them, okay?   He told you that if there was gun powder residue, that would mean that the person was in very close proximity, maybe like a foot, maybe even less than a foot.   But there was some what he called loose - he wouldn't exactly call it stippling, but it was consistent with stippling, but he felt more comfortable calling it abrasions.   But the critical part of what he's saying is, and this is what you have to understand, those abrasions, they don't come from the bullet hitting - entering into the skull.   They come from the gun.   They come from the heat of the barrel of his gun.   When the gun is fired, it releases heat.   Those abrasions that were caused by heat were caused by the gun, the gun hitting - being so close to her face.   That's what caused those abrasions near the bullet's entry wound, not the bullet.

So if somebody fired into Ruth Bernadette Kennedy and the bullet somehow magically went through her, ricocheted back, and then went into Maxine McCaden, that's not consistent with the medical proof because the gun necessarily then would've had to have been pointed at Ruth Bernadette Kennedy and she would have the gun powder and the abrasions of the stippling.   Okay, do you understand that?   It comes from the heat of the gun.   And the doctor told you that she was shot from within, he said, 2 feet ultimately within a reasonable degree of medical probability.   So she was shot by this defendant at very close range.

We have stated in State v. Bellamy, 329 N.J.Super.   371 (App.Div.2000):

“the rules of discovery as well as the rules of evidence are designed to accomplish fairness.”  State v. Kearney, 109 N.J.Super. 502, 505 (Law Div.1970).   A defendant is entitled to know the State's case against him within reasonable time to permit the preparation of a defense.   R. 3:13-3.   Indeed, “[t]he principal purpose of our discovery rules is to assure the parties every legitimate avenue of inquiry prior to trial to enhance the search for the truth.”  State v. Burnett, 198 N.J.Super. 53, 58 (App.Div.1984), certif. denied, 101 N.J. 269 (1985).

[Id. at 376.]

Pursuant to Rule 3:13-3(c)(9), the State is obligated to disclose to a criminal defendant the

names and addresses of each person whom the prosecutor expects to call to trial as an expert witness, the expert's qualifications, the subject matter on which the expert is expected to testify, a copy of the report, if any, of such expert witness, or if no report is prepared, a statement of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion․

Testimony based on information that is requested but not provided may be barred at trial upon application of the defendant.   R. 3:13-3(c)(9).   Nonetheless, the choice of sanctions for any discovery violation lies within the discretion of the trial judge.  State v. Labrutto, 114 N.J. 187, 205 (1989);  State v. Toro, 229 N.J.Super. 215, 223 (App.Div.1988), certif. denied, 118 N.J. 216 (1989).   In determining whether the testimony should be precluded, the judge should consider whether there was any design to mislead, whether the defense was unfairly surprised by the evidence, and whether any prejudice would result from admission of the evidence.  Labrutto, supra, 114 N.J. at 205.

In this case, the State provided the defense with Dr. Fonseca's autopsy report in a timely fashion.   The difficulty is that the report contained the doctor's statement that McCaden suffered a “perforating gunshot wound to the left temple of undetermined range.”   The report did not suggest that the firing range had been determined in any fashion, and it did not set forth what that range was.   Although the report also mentioned the minute abrasions, the doctor did not state in the report that he regarded the abrasions as the equivalent of the stippling that would be found when a gun was fired at close range.   Indeed, the doctor noted the absence of microscopic evidence of gunpowder residues, which the doctor testified were normally associated with stippling.   Thus, we find that the autopsy report did not provide fair notice to the defense of the testimony to be elicited from the medical examiner on the issue of the firing distance.

We distinguish McCalla, where an expert was permitted to address the presence of defects in a crane posited by plaintiff's expert, but was not permitted to testify on defendant's behalf that the crane was safely designed, 215 N.J.Super. at 164, because his report contained a net opinion that the crane had been “constructed in conformance to accepted practice and violated no known codes or standard applicable thereto.”  Id. at 165.   On appeal we held that the trial judge had taken too narrow a view of the matter, particularly when plaintiff's counsel had failed to conduct a deposition of the expert to determine the basis for his report.  Id. at 172.   In the circumstances presented, we held that the expert should have been permitted to testify fully, with an opportunity provided to plaintiff's counsel to explore the basis for the expert's conclusions.  Ibid.

In contrast to McCalla, in the present matter, the medical examiner did not give a net opinion in his autopsy report, but rather gave a conclusion at odds with his trial testimony.   Moreover, the opportunities for discovery of the examiner's opinions in this criminal matter are not comparable to those available in a civil context.

In many respects, this case resembles State v. Russo, 243 N.J.Super. 383, 406-07 (App.Div.1990), certif. denied, 126 N.J. 322 (1991), in which we found a violation of the rules of discovery to have occurred when the prosecution failed to disclose an opinion of the medical examiner, reached after his autopsy report had been released, regarding the positions of the victim when two shots entered his body.   In Russo, we found that the prosecutor's failure to provide the requisite discovery did not deny defendant a fair trial because defendant claimed, only, that he lacked the requisite state of mind to have committed a knowing or purposeful murder, and the position of the victim's body had limited or no relevance to that defense.   Id. at 408.

In contrast, in the present case, the evidence introduced by the prosecutor directly undercut defense counsel's theory that defendant shot McCaden accidentally while aiming for or shooting Kennedy.   Further, it provided strong support to the prosecutor's theory that the shooting was purposeful or knowing.

We acknowledge that other evidence at the trial suggests the weakness of defendant's theory as to what occurred on the night of the shooting.   Although it is difficult to tell from the record on appeal how far separated the two women were when they were shot, it appears that at least ten feet separated them.   There is no evidence that either moved substantially from the locations where they were found by Forbes and by the police.   Nonetheless, we see nothing that would preclude a claim that, while defendant was aiming at Kennedy, McCaden got in the way and was hit by a bullet that was not intended for her.   We therefore conclude that the trial judge misused his discretion in permitting the testimony at issue to be elicited and that defendant's conviction for the knowing or purposeful murder of McCaden must be reversed.⁴

As the result of our conclusion in this regard, we decline to address defendant's argument that the trial court erred in failing to instruct the jury on passion/provocation manslaughter as a lesser included offense to the charge of purposeful and knowing murder.

IV.

Assuming for purposes of this opinion that defendant is not ultimately successful in his Batson/Gilmore challenge, a matter as to which we express no substantive opinion, we reject his argument that the trial court erred in denying his motion for a judgment of acquittal on charges of burglary and felony murder, made at the close of the State's case and at the conclusion of the evidence, because the State failed to prove that he entered the victims' home without permission.

When this motion was made at trial, it was rejected by the trial judge, who found sufficient evidence to prove the crimes based on testimony by Kennedy that she asked defendant to leave the premises, he objected, and when he returned later in the evening, she immediately entered the house to call the police and was followed by defendant who then shot both her and McCaden.

Rule 3:18-1 provides that:

At the close of the State's case or after the evidence of all parties has been closed, the court shall, on defendant's motion or its own initiative, order the entry of a judgment of acquittal of one or more offenses charged in the indictment or accusation if the evidence is insufficient to warrant a conviction․

“On a motion for judgment of acquittal, the governing test is:  whether the evidence viewed in its entirety, and giving the State the benefit of all of its favorable testimony and all of the favorable inferences which can reasonably be drawn therefrom, is such that a jury could properly find beyond a reasonable doubt that the defendant was guilty of the crime charged.”  State v. D.A., 191 N.J. 158, 163 (2007);  State v. Reyes, 50 N.J. 454, 458-59 (1967).   “[T]he court ‘is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the State.’ ”  State v. Papasavvas, 170 N.J. 462, 521 (2002) (quoting State v. Kluber, 130 N.J.Super. 336, 341 (App.Div.1974), certif. denied, 67 N.J. 72 (1975)).   We are bound by the same standard.  State v. Moffa, 42 N.J. 258, 263 (1964).

Under the burglary statute, a person is guilty of the crime

if, with purpose to commit an offense thereon or thereon he:

(1) Enters a ․ structure․

[N.J.S.A. 2C:18-2a(1).]

A person is guilty of felony murder pursuant to N.J.S.A. 2C:11-3(a)(3) if he causes the death of a person while “engaged in the commission of, or an attempt to commit, or flight after committing or attempting to commit ․ burglary․”

The record reflects testimony by Kennedy that defendant, Kennedy and her mother spent the evening of July 19 eating cold cuts and drinking beer.   Eventually, Kennedy asked defendant to leave “[b]ecause he was nasty.”   However, he did not do so immediately.   Rather, in reaction to Kennedy's request, he slammed his glass “down hard,” whereupon Kennedy “just asked him to take the glass and take the bottle with him.”   Still, defendant failed to leave, so Kennedy closed the door and left him outside.   Eventually, she heard his truck speed off.

Later, Forbes came over, and while Kennedy and her mother were talking to Forbes, defendant returned.   According to Kennedy, “[w]e were on the porch, he walked up on the sidewalk, and he asked Marjorie to leave.”   She testified:  “I walked into the kitchen because he came back, and I went into the kitchen to use the phone to call the police.”   When she did so, defendant pulled a gun.   Kennedy stated that she called the police because defendant came back, and she did not expect him to do so, nor did she invite him into the house.

Forbes testified similarly that defendant approached the house while she was sitting on the porch with Kennedy and McCaden.   Although she did not recall being ordered by defendant to leave, something in his manner impelled her to do so.   The shootings followed.

We regard this evidence, although contested by defendant, to be sufficient to sustain the State's burden.

V.

Defendant argues additionally that the trial judge erred by ruling that sanitized versions of his prior convictions were admissible to impeach his credibility, and that misuse of those convictions by the prosecutor in his closing statement provided sufficient grounds for the new trial that defendant requested and was denied.   We reject these arguments.

The record reflects that defendant was advised at trial that, if he testified, the State would attempt to impeach his credibility with evidence of his 1976 conviction for the attempted murder of his girlfriend, for which he was sentenced to an indeterminate term of ten-to-twelve years, and his 1980 conviction for the murder of his girlfriend, for which he was sentenced to thirty years in prison and was released in 1992.

The trial judge authorized the State to introduce this evidence in a sanitized fashion that disclosed only the date of the crime, its degree and the sentence imposed.   In doing so, the judge acknowledged that the crimes had been committed more than ten years previously.   However they were serious crimes of a nature similar to those for which he was then being tried.   Moreover, the 1980 murder had been committed while defendant was on parole for the 1976 crime, and the present crimes occurred only eleven years after defendant's release from prison for the 1980 murder.

Defendant testified, and the sanitized evidence was admitted both during his direct and cross-examination.   Additionally reference was made to the evidence by the prosecutor in his summation.   The jury was instructed both during testimony and later in the jury charge that it could consider the information only as it affected defendant's credibility.

We find no abuse of discretion in the judge's determination to permit the State to utilize this evidence in the fashion that it did.  State v. Sands, 76 N.J. 127, 144 (1978).  N.J.R.E. 609 provides that “[f]or the purpose of affecting the credibility of any witness, the witness' conviction of a crime shall be admitted unless excluded by the judge as remote or for other causes.   Such conviction may be proved by examination, production of the record thereof, or by other competent evidence.”   In Sands, the Court held that “[o]rdinarily, evidence of prior convictions should be admitted and the burden of proof to justify exclusion rests on the defendant.”  Sands, supra, 76 N.J. at 144.   In determining whether exclusion should occur, “[t]he trial court must balance the lapse of time and the nature of the crime to determine whether the relevance with respect to credibility outweighs the prejudicial effect to the defendant.”  Id. at 144-45.   Moreover, the Sands court stated:

it is appropriate for the trial court in exercising its discretion to consider intervening convictions between the past conviction and the crime for which the defendant is being tried.   When a defendant has an extensive prior criminal record, indicating that he has contempt for the bounds of behavior placed on all citizens, his burden should be a heavy one in attempting to exclude all such evidence.   A jury has the right to weigh whether one who repeatedly refuses to comply with society's rules is more likely to ignore the oath requiring veracity on the witness stand than a law abiding citizen.   If a person has been convicted of a series of crimes through the years, then conviction of the earliest crime, although committed many years before, as well as intervening convictions, should be admissible.

[Id. at 145.]

In the present case, defendant's crimes were not numerous.   However, they were certainly serious.   Given their nature, and after consideration of the time that defendant spent in custody, we do not regard them as sufficiently remote to require that they not be utilized for purposes of impeachment.   The fact that defendant's prior crimes did not involve dishonesty does not immunize them from disclosure.  State v. Brunson, 132 N.J. 377, 388 (1993).   Nor was there anything improper in the manner in which they were sanitized.  State v. Hamilton, 193 N.J. 255, 268-69 (2008);  Brunson, supra, 132 N.J. at 391-92;  State v. Sinclair, 57 N.J. 56, 63 (1970).   As a final matter, the trial judge fulfilled its obligation to issue limiting instructions both when the evidence was introduced and during the jury charge.   See N.J.R.E. 105;  Brunson, supra, 132 N.J. at 390;  Sands, supra, 76 N.J. at 142 n.3;  Sinclair, supra, 57 N.J. at 63-64.

As a final matter, we find nothing improper in the prosecutor's use of defendant's record in his summation, which was carefully circumscribed so as to relate solely to defendant's credibility as a witness at trial.  Sinclair, supra, 57 N.J. at 63 (holding “there is no doubt that the State may refer to the prior convictions in summation as long as it limits references to the credibility of the accused.”).

In summary, we remand the matter for a hearing as to the basis for the prosecutor's exercise of a peremptory challenge to remove the only qualified African-American juror from the jury;  we reverse defendant's conviction for the knowing or purposeful murder of McCaden and remand for a new trial.   If the remand hearing does not disclose a constitutional violation, the remainder of defendant's convictions are affirmed.

Reversed in part, remanded for a hearing as to the constitutionality of the prosecutor's peremptory challenge, and if found constitutional, affirmed in part.

FOOTNOTES

FN1. The transcript discloses that all questioning was by the judge..  FN1. The transcript discloses that all questioning was by the judge.

FN2. People v. Wheeler, 583 P.2d 748 (Cal.1978)..  FN2. People v. Wheeler, 583 P.2d 748 (Cal.1978).

FN3. We find this standard appropriately utilized.  State v. Harvey, 121 N.J. 407, 431 (1990), cert. denied, 499 U.S. 931, 111 S.Ct. 1336, 113 L. Ed.2d 268 (1991);  State v. Smith, 262 N.J.Super. 487, 519 (App.Div.), certif. denied, 134 N.J. 476 (1993);  State v. Freeman, 223 N.J.Super. 92, 116 (App.Div.1988), certif. denied, 114 N.J. 525 (1989)..  FN3. We find this standard appropriately utilized.  State v. Harvey, 121 N.J. 407, 431 (1990), cert. denied, 499 U.S. 931, 111 S.Ct. 1336, 113 L. Ed.2d 268 (1991);  State v. Smith, 262 N.J.Super. 487, 519 (App.Div.), certif. denied, 134 N.J. 476 (1993);  State v. Freeman, 223 N.J.Super. 92, 116 (App.Div.1988), certif. denied, 114 N.J. 525 (1989).

FN4. If defendant is not retried on this charge, resentencing is required, as defendant no longer would meet the requirements of N.J.S.A. 2C:11-3b(4)(a)..  FN4. If defendant is not retried on this charge, resentencing is required, as defendant no longer would meet the requirements of N.J.S.A. 2C:11-3b(4)(a).

PER CURIAM