STATE OF NEW JERSEY v. SHAWN ROBERT JOHNSON (2011)

Defendant Shawn R. Johnson appeals his judgment of conviction for murder, attempted murder, and four weapons charges stemming from two gang-related shootings.   He advances numerous arguments on appeal, including improper jury instructions and various evidentiary errors, which he urges mandate reversal of his convictions and a new trial.   Defendant also challenges his aggregate sixty-year sentence as excessive.   We affirm in all respects.

I.

A.

Our summary of the facts is derived from the trial record that was presented to the jury, and formed the basis of its determination.   At approximately 1:00 p.m. on October 15, 2006, Jahmere Crooms was shot in the back outside Sheffield's Market in Asbury Park. He was subsequently transported to Jersey Shore University Medical Center (JSUMC) for emergency treatment where he was interviewed by law enforcement officers.

Crooms told Asbury Park Detective Alastair Sweeney that he had been inside Sheffield's Market with Tylik Pugh just before being shot.   When they exited, the two men passed a group of people arguing, heard gunshots, and started to run.¹  Crooms stated that as he fled from the scene he was shot in the back, but initially maintained that he did not know who had shot him.

More than a year later, on December 12, 2007, Crooms was arrested on unrelated drug charges and agreed, once again, to speak to the police about the October 15 shooting.   Crooms stated that he and five other individuals went to Sheffield's Market and encountered three men outside:  defendant, Tim Anderson, and a light-skinned male who was not known to Crooms.   According to Crooms, the two groups walked past each other when defendant and Anderson turned around and started shooting.   Crooms stated that both shooters were wearing black hoodies, black jackets, and jeans.   Crooms unequivocally identified defendant as the person who shot him.   Crooms denied that Pugh was present prior to or during the shooting but claimed that Pugh rode in the ambulance to the hospital with him.

Prior to the shooting, Nina Summerlin observed from her window a group of people congregated outside Sheffield's Market.   Among the crowd she identified Pugh, whose family resided in the same neighborhood as Summerlin, but she was unfamiliar with Crooms.   Minutes later, Summerlin heard gunshots and observed “two kids in black hoodies with jeans” running away from Sheffield's Market.   The other individuals scattered in various directions.

Pamela Elam was stopped at a traffic light near Sheffield's Market, which she confirmed was a “hangout spot” for residents.   She testified that she heard gunshots and saw two young men she described as being dressed in black hoodies and blue jeans.   Like Summerlin, she observed the two shooters running and the others scattering before them.

Three days after Crooms was wounded, on October 18, Pugh was fatally shot five times.   Brian Wilson was walking on Summerfield Avenue towards Prospect Avenue looking to purchase cocaine when he came across defendant.   He negotiated a twenty-dollar purchase with defendant but walked slightly ahead so that defendant could prepare “the twenty-cent piece.”   As Wilson turned the corner he saw Pugh, whom he knew, and stopped to greet him.   As Pugh continued past Wilson, Wilson heard gunshots behind him and turned around to see defendant standing over Pugh firing gunshots into Pugh's head.

Pugh was transported to JSUMC in critical condition and was pronounced dead the following evening.   An autopsy revealed five bullet wounds, four to the head and one to his right hand.   A ballistics analysis of the four bullets that were recovered from Pugh's body, along with the two bullets recovered from the October 15 shooting of Crooms, concluded that all six bullets were fired from the same firearm, which was most likely a .38 caliber handgun.

On October 21, 2006, an arrest warrant was issued for defendant for the murder of Pugh. An investigation of defendant's whereabouts led authorities to Pittsburgh, Pennsylvania where he was located and arrested by members of a United States Marshall's task force.   Defendant waived his Miranda ² rights and provided a formal statement on October 24, admitting to shooting both Crooms and Pugh in self-defense.³

With regard to the October 15 shooting, defendant told detectives that Pugh, who was with Crooms, shot at him and Anderson first.  “Scared,” defendant started to run, firing “a couple of times” towards Pugh and Crooms, only later learning that he had actually struck Crooms.   Defendant also stated that he “heard” that Pugh “shot at [his] house” later that evening.

As for the October 18 shooting, defendant stated that he and his then-girlfriend were walking on Summerfield Avenue when he saw Pugh and another male approaching them.   He asked Pugh, “did he shoot up my house,” at which point Pugh took out a black nine-millimeter gun and started to fire.   Defendant claimed that he then brandished his own pistol, which he described as a .38 caliber special revolver, shot back three times, and started to run.   Defendant stated that he never meant to kill Pugh, he “just shot back at him when he shot at me first that day.”

At trial, defendant did not testify but called five witnesses in his defense, including a mutual acquaintance of both defendant and Pugh, I-Born Henderson.   Henderson testified that defendant and Pugh were members of rival street gangs, the Bloods and MOB respectively.   He also confirmed that he had heard that defendant's residence was “shot up” soon after the October 15 shooting of Crooms.

Defendant's mother, Sharon Johnson, testified about a fight outside her home on October 14, which drew “[a]t least [forty] or [fifty] people,” including defendant, Crooms, and Pugh. Once everyone began to disperse, Johnson observed a gun fall out of Crooms's pocket before he ran off.

Julyssa Miles testified that on the evening of October 15, following the shooting outside of the Sheffield Market, she was present at defendant's house when “[i]t got shot up.”   She also testified that on October 18, as she and defendant walked past Pugh on Summerfield Avenue, she overheard defendant and Pugh exchange words about “the house being shot up,” and then heard gunshots behind her.   She ran, but looked back to see both defendant and Pugh with weapons in their hands.

Finally, Anderson testified that on October 15, he accompanied defendant to Sheffield's Market where they encountered Crooms.   Anderson and Crooms began arguing, at which point Crooms unzipped his coat and said “you know what it is,” which Anderson took to mean that “[h]e had [a weapon] on him.”   Anderson and Crooms “decided ․ to take it down the street” at which point Anderson heard gunshots, and ran, eventually meeting up with defendant.

B.

On April 30, 2007, a Monmouth County Grand Jury issued a seven-count ⁴ indictment charging defendant with first-degree attempted murder of Crooms, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (count one);  second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a) (counts two and five);  third-degree possession of a handgun without a permit, N.J.S.A. 2C:39-5(b) (counts three and six);  and murder of Pugh, N.J.S.A. 2C:11-3(a)(1) (count four).   Between June 3, 2008, and June 17, 2008, defendant was tried before Judge Ira E. Kreizman and a jury.   He was found guilty on all counts and sentenced to an aggregate term of sixty years imprisonment subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.⁵

On appeal, defendant raises the following points:

POINT I:  THE ABSENCE OF AN INSTRUCTION THAT THE STATE MUST DISPROVE SELF-DEFENSE AS AN ELEMENT OF MURDER, AKIN TO THE PASSION/PROVOCATION INSTRUCTION, REQUIRES THE REVERSAL OF DEFENDANT'S MURDER CONVICTION AND A REMAND FOR A NEW TRIAL.  (Partially raised below).

POINT II:  THE ABSENCE OF AN INSTRUCTION THAT PASSION/PROVOCATION CAN BE THE RESULT OF A CONTINUING COURSE OF VIOLENT CONDUCT, AS IT PERTAINS TO THE ONGOING GANG RIVALRY, MANDATES THE REVERSAL OF DEFENDANT'S CONVICTIONS AND A NEW TRIAL.  (Not Raised Below).

POINT III:  THE FAILURE OF THE TRIAL COURT TO ASK THE JURORS ANY QUESTIONS ABOUT BEING PHOTOGRAPHED DURING THE TRIAL BY SOMEONE IN THE AUDIENCE, MANDATES THE REVERSAL OF DEFENDANT'S CONVICTION AND A NEW TRIAL.  (Not Raised Below).

POINT IV:  THE EXCLUSION OF EVIDENCE THAT DEFENDANT'S HOUSE WAS TWICE AGAIN ATTACKED AFTER THE PUGH SHOOTING ABRIDGED DEFENDANT'S RIGHTS TO PRESENT A COMPLETE DEFENSE, MANDATING THE REVERSAL OF DEFENDANT'S CONVICTIONS AND A NEW TRIAL.

POINT V:  THE ABSENCE OF A LIMITING INSTRUCTION REGARDING TESTIMONY THAT DEFENDANT WAS A MEMBER OF THE BLOODS GANG MANDATES REVERSAL OF DEFENDANT'S CONVICTIONS AND A NEW TRIAL (Not Raised Below).

POINT VI:  THE ABSENCE OF AN INSTRUCTION ON ATTEMPTED PASSION/PROVOCATION MANSLAUGHTER MANDATES THE REVERSAL OF DEFENDANT'S CONVICTIONS AND A NEW TRIAL.

POINT VII:  THE IMPOSITION OF A 40-YEAR TERM OF IMPRISONMENT FOR MURDER CONSECUTIVE TO A 20-YEAR TERM FOR ATTEMPTED MURDER WAS EXCESSIVE.

After a review of the parties' arguments, the record, and the applicable legal standards, we find no errors by the trial court, and affirm defendant's convictions and sentence.

II.

A.

Defendant argues that the trial court committed plain error by waiting to instruct the jury on self-defense until the conclusion of its instructions on the substantive offenses.   Specifically, defendant asserts that just as “the absence of passion/provocation, must be instructed to a jury as an element of murder, the absence of self-defense must be instructed as an element of murder.”   Defendant also takes issue with references to self-defense as “available” or “unavailable” during the jury charge as well as the lack of any mention of self-defense on the verdict sheet.

Plain error exists, in the context of jury instructions, if the claimed error, taken as a whole, and in conjunction with the strength of the arguments and evidence adduced at trial, was so prejudicial “that of itself [it] possessed a clear capacity to bring about an unjust result.' ” ⁶  State v. Walker, 203 N.J. 73, 90 (2010) (quoting State v. Burns, 192 N.J. 312, 341 (2007));  State v. Adams, 194 N.J. 186, 207 (2008).  “The error claimed must be so egregious that it ‘rais[es] a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached.’ ”  State v. Tierney, 356 N.J.Super. 468, 477 (App.Div.) (quoting State v. Macon, 57 N.J. 325, 336 (1971)), certif. denied, 176 N.J. 72 (2003).

After properly instructing the jury on the elements of murder and its lesser-included offenses, the court explained self-defense, stating in relevant part:

If you are satisfied that the State has proven each element to you beyond a reasonable doubt then you find the defendant guilty subject to my instruction in regard to self-defense.   However, if you find the State has failed to prove beyond a reasonable doubt any of the elements of the offenses as I have defined them, you find the defendant not guilty.

․

Self-defense exonerates a person who commits murder or serious bodily injury or significant bodily injury in the honest and reasonable belief that such action was necessary to prevent his own death or serious bodily injury, even though this belief was later proven mistaken.

․

The State has the burden to prove to you beyond a reasonable doubt that the defense of self-defense is untrue.

Also, in explaining the duty to retreat, the court stated,

If the State carries its burden [in proving that defendant could have retreated with complete safety], then you must disallow the defense.   If the State does not satisfy this burden, then you do have reasonable doubt, then it must be resolved in favor of defendant and you allow the claim of self-defense and acquit the defendant.

If there is “any evidence raising the issue of self-defense,” the court must instruct the jury on self-defense.  State v. Josephs, 174 N.J. 44, 102 (2009) (quoting State v. Kelly, 97 N.J. 178, 200 (1984)).   Furthermore, “the State is required to prove beyond a reasonable doubt that the self-defense claim does not accord with the facts;  acquittal is required if there remains a reasonable doubt whether the defendant acted in self-defense.”  Kelly, supra, 97 N.J. at 200.

Although there was sufficient evidence to warrant an instruction on self-defense, defendant cites no convincing authority to suggest that the absence of self-defense must be included as an element of murder, rather than considered separately, after the State has proven the substantive elements beyond a reasonable doubt.   In State v. Bryant, 288 N.J.Super.   27 (App.Div.), certif. denied, 144 N.J. 589 (1996), we considered the same issue, rejecting defendant's claim that the court's failure to “refer to the justifications of self-defense and defense of others in its instructions on the elements of murder” constituted “error - far less plain error.”  Id. at 40.   Accordingly, we find nothing improper about the court's presentation of the charge.   See State v. Delibero, 149 N.J. 90, 105 (1997) (holding that “the jury first had to consider whether defendant was guilty before considering whether he would be exculpated”).

Defendant's other arguments, that the verdict sheet failed to reference self-defense as an affirmative defense, or that the court's use of the words “available or unavailable” to describe the affirmative defense are also unpersuasive.   See State v. Branch, 301 N.J.Super. 307, 328 (App.Div.1997) (finding “no reason to conclude that the omission of self-defense from the verdict sheet” was plain error since “[t]here is no verdict per se of self-defense”), rev'd on other grounds, 155 N.J. 317 (1998).

B.

Defendant argues that he was entitled to an ill-treatment charge in addition to the standard passion/provocation instruction because of the violent enmity he claims existed between his and the decedent's respective street gangs.   Specifically, he urges that the court's instruction that “mutual combat between a victim and a defendant may constitute adequate provocation ․ [if] waged on equal terms,” improperly limited the jurors' attention to “the brief moments of confrontation between defendant and Pugh,” rather than the overall gang rivalry of which defendant and Pugh were a part.   Because defendant did not request such an instruction at trial, we apply the plain error rule to determine whether the claimed error was “clearly capable of producing an unjust result.”  R. 2:10-2.

Criminal homicide constitutes passion/provocation manslaughter when it is “committed in the heat of passion resulting from a reasonable provocation.”   N.J.S.A. 2C:11-4(b)(2).   Passion/provocation manslaughter has four elements:  1) the provocation must be adequate;  2) the defendant must not have had time to cool off between the provocation and the killing;  3) the provocation must have in fact impassioned the defendant;  and 4) defendant must not have cooled off before committing the killing.  State v. Mauricio, 117 N.J. 402, 411 (1990).

In some cases, evidence of prior physical abuse or other prolonged mistreatment has been sufficient to satisfy the provocation element of passion/provocation manslaughter.  State v. Harris, 141 N.J. 525, 572 (1995);  State v. Lamb, 71 N.J. 545, 551 (1976);  State v. Guido, 40 N.J. 191, 211 (1963).  “When there is evidence that the decedent has, in the past, consistently physically abused [defendant or] one with whom the defendant stands in close relationship, and that the defendant knows of that abuse,” a finding of provocation can be premised upon that abuse.  State v. Coyle, 119 N.J. 194, 227 (1990).

Here, none of the foregoing facts suggest a pattern of physical abuse or ill-treatment by Pugh towards either defendant or a relative or spouse of defendant to warrant an ill-treatment charge.   See State v. Bishop, 225 N.J.Super. 596, 601-03 (App.Div.1988).   Moreover, the mere existence of a rivalry between defendant's and Pugh's respective street gangs is insufficient to satisfy the provocation prong of passion/provocation manslaughter.   See State v. Madden, 61 N.J. 377, 399 (1972) (rejecting proposition that “racial or like antagonism or grievances may constitute provocation”).   Therefore, the passion/provocation charge was proper.

C.

Defendant asserts for the first time on appeal that the trial court's failure to question members of the jury about possibly being photographed by courtroom spectators denied him due process and the right to an impartial jury, requiring a new trial.   As before, we review this newly-minted perceived failure for plain error, that is, whether the error was “clearly capable of producing and unjust result.”  R. 2:10-2.

The defense called its last trial witness on the morning of June 11, 2008, but did not rest before recessing for lunch.   When the court reconvened after lunch, it stated outside the presence of the jury that one of the jurors had informed a sheriff's officer during the break that “[the juror] believed that somebody associated with [the] case ․ people in the audience have been in close proximity to the jury and may be taking pictures of the jurors.”   The court admonished those in the courtroom that taking pictures of the jurors is “a violation of the basic rules of this courthouse and all courthouses,” and that any violator “could end up in jail.”   The jury was called into the courtroom, and the trial resumed without any further comments about the juror's disclosure and without objection from either counsel, after which the defense rested.

Relying primarily on State v. R.D., 169 N.J. 551 (2001), defendant asserts that if the individuals taking pictures were “allied with the victims,” such photography had the capacity to influence the jury in a way akin to intimidation.   According to defendant, “[i]t [was] the duty of the court to ask probing questions to protect the impartiality of the jury,” id. at 563, not just caution those present in the courtroom that such behavior was prohibited.

Both the United States and New Jersey Constitutions guarantee criminal defendants the right to a fair trial before an impartial jury.   N.J. Const. art.   I, § 10;  U.S. Const. amend.   VI. A defendant is entitled to a jury “ ‘free from the taint of extraneous considerations and influences.’ ”   State v. Scherzer, 301 N.J.Super. 363, 486 (App.Div.1997) (quoting Panko v. Flintkote Co., 7 N.J. 55, 61 (1951)).   If “the intrusion of irregular influences into jury deliberations ‘could have a tendency to influence the jury in arriving at its verdict in a manner inconsistent with the legal proofs and the court's charge,’ ” a new trial must be ordered.  Ibid. In criminal cases, “a presumption of prejudice attaches when there is ‘any private communication, contact, or tampering, directly or indirectly, with a juror during a trial about the matter pending before the jury,’ ” and the burden is on the State to prove that the contact was harmless.  Scherzer, supra, 301 N.J.Super. at 487 (quoting Remmer v. United States, 347 U.S. 227, 229, 74 S. Ct. 450, 451, 98 L. Ed. 654, 656 (1954)).  “The test is not whether the irregular matter actually influenced the result, but whether it had the capacity [to do] so.”  R.D., supra, 169 N.J. at 558 (quoting Panko, supra, 7 N.J. at 61);  State v. Wormley, 305 N.J.Super. 57, 69 (App.Div.1997), certif. denied, 154 N.J. 607 (1998).

As a general rule, however, the manner in which a court chooses to handle jury matters is at the discretion of the trial court.  Scherzer, supra, 301 N.J.Super. at 487-88;  see also State v. Wakefield, 190 N.J. 397, 496-97 (2007), cert. denied, 552 U.S. 1146, 128 S.Ct. 1074, 169 L. Ed.2d 817;  R.D., supra, 169 N.J. at 559-60.   A trial court's conclusion as to whether a juror or jurors who have been exposed to outside influence “ ‘are capable of fulfilling their duty to judge the facts in an impartial and unbiased manner, [and] based strictly on the evidence presented in court,’ ” will not be disturbed absent a clear abuse of discretion.  R.D., supra, 169 N.J. at 558-60 (quoting State v. Bey, 112 N.J. 45, 87 (1988)).

Upon learning what had transpired during the recess, the juror's observations were reported in open court and the trial resumed without objection from either counsel.   As the State points out, “neither the judge nor the litigants perceived the reported event as having the capacity to intimidate, influence, or prejudice the jurors” at the time.   Moreover, the juror who reported what he thought he saw did not request to be excused, nor is there any suggestion that he felt intimidated by what he believed he observed.   The trial court, “relying on [its] own objective evaluation of the potential for prejudice,” Scherzer, supra, 301 N.J.Super. at 488, and without any evidence that members of the jury had actually been photographed, did all that was required by putting the juror's observation on the record.  Ibid. Accordingly, we find no abuse of discretion, let alone plain error, in the trial court's decision to resume the trial in the manner that it did.

D.

Defendant contends that the exclusion of evidence concerning two attacks on his house following the Pugh shooting, on November 7 and 8, “abridged [his] right[ ] to present a complete defense,” requiring a new trial.   He argues that he was entitled to present evidence of the November attacks to “illuminate [both] the viciousness of Pugh's gang,” and the reasonableness of defendant's belief that deadly force was necessary to protect himself from Pugh.

Defendant sought to admit evidence of three separate incidents in support of his claim of self-defense:  1) the October 15 drive-by shooting of his residence following the wounding of Crooms;  2) a November 7 drive-by shooting of his residence;  and 3) a November 8 incident in which flammable liquid was poured on the front porch of his residence.   Defendant did not seek to attribute these incidents to Pugh himself, but to members of Pugh's street gang, with which he was affiliated.

The trial court allowed evidence of the October 15 drive-by shooting which occurred prior to the October 18 shooting of Pugh, but precluded testimony concerning the later incidents, which took place following Pugh's death and defendant's arrest.   The court ruled that such evidence had no bearing on the reasonableness of defendant's state of mind during the October 18 confrontation with Pugh, stating that the later attacks were “irrelevant to the psychological state, mental state that [defendant] found himself in when he shot in self-defense.”   Moreover, even if relevant, the court found that such evidence would be “totally confusing to a jury.”

Appellate review of evidentiary rulings is limited to a search for abuse of discretion.  Estate of Hanges v. Metro.   Property & Cas. Ins. Co., 202 N.J. 369, 383 (2010).   As long as the “ ‘findings undergirding the trial court's decision ․ are supported by adequate, substantial and credible evidence on the record,’ ” we will not disturb them.  Id. at 384 (quoting MacKinnon v. MacKinnon, 191 N.J. 240, 253-54 (2007)).

The self-defense statute, N.J.S.A. 2C:3-4, justifies the use of deadly force when an individual subjectively and reasonably believes that such force is necessary to protect himself from death or serious bodily harm.   The defendant must have subjectively believed that deadly force was necessary to defend against death or serious bodily injury, and such a belief must have been objectively reasonable under the circumstances.  State v. Jenewicz, 193 N.J. 440, 450 (2008).   Pursuant to N.J.R.E. 404(b), a defendant may present evidence of the violent character of a victim to support the reasonableness of his belief that deadly force was necessary, as long as he has actual knowledge of those acts.  Jenewicz, supra, 193 N.J. at 462-63.

Evidence of the post-crime November attacks was properly excluded on grounds of relevance and juror confusion.   We reject the contention the these events were material to illuminating the “viciousness of Pugh's gang” and disagree with the suggestion that alleged acts of retaliation occurring after defendant's arrest influenced defendant's subjective belief that deadly force was necessary to protect himself against Pugh before they ever occurred.   Accordingly, the evidence was properly excluded on grounds of relevance and the potential for juror confusion.

E.

Defendant argues that the absence of a limiting instruction concerning defendant's membership in the Bloods street gang was plain error, requiring reversal of his conviction and a new trial.   Specifically, defendant urges that the court should have informed the jury that defendant's affiliation with the Bloods could not be used to prove defendant's propensity for violence, “disposition to murder Pugh,” or “generally act in a lawless and criminal manner.”

At trial, the State offered evidence that defendant was a member of the Bloods street gang to establish defendant's motive, stemming from the gang-related animosity between defendant's and Pugh's gang connections.   Such evidence was properly admitted pursuant to N.J.R.E. 404(b), which allows evidence of other crimes, wrongs, or acts to prove “motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.”   The evidence was also relevant to defendant's defenses, because it tended to support his self-defense and passion/provocation arguments.

Moreover, as the State contends, evidence of the defendant's and decedent's rival street gangs was “part of the res gestae of the charged crimes.”   In general, “[e]vidence of events that take place during the same time frame as the crime charged in the indictment will not be excluded if the evidence establishes the context of the criminal event, explains the nature of, or presents the full picture of the crime to the jury.”  State v. Cherry, 289 N.J.Super. 503, 522 (1995).   Both defendant and Pugh were active members of enemy street gangs at the time of the shooting.   Therefore, the trial court did not err in failing to issue a limiting instruction, which was never requested at the time of trial, to the jury.

Even if the court's failure to provide a limiting instruction, sua sponte, was error, it certainly did not rise to the level of plain error.   As we have already noted, reversal for plain error is only proper where there is reasonable doubt “ ‘as to whether the error led the jury to a result it otherwise might not have reached.’ ”  State v. O'Brien, 200 N.J. 520, 542 (2009) (quoting Macon, supra, 57 N.J. at 333).   The State's case relied in large part on defendant's custodial statement in which he admitted to shooting both Crooms and Pugh, albeit in self-defense.   Additionally, defendant was accused of shooting a foe, not an innocent bystander.   As such, reference to defendant's membership in the Bloods street gang was substantially less likely to have been unfairly held against him as gang membership was deployed as a double-edged sword by defendant to impugn Pugh.

Finally, the fact that defendant did not object to the myriad references to his membership in the Bloods at trial suggests either that he believed them to be “of no moment,” Macon, supra, 57 N.J. at 333, or even possibly to his benefit.   Our Supreme Court has noted, “to rerun a trial when the error could easily have been cured on request, would reward the litigant who suffers an error for tactical advantage either in the trial or on appeal.”  Ibid. Accordingly, we find no error, let alone plain error.

F.

Defendant asserts that the absence of an instruction on attempted passion/provocation manslaughter was plain error, mandating reversal of his attempted murder conviction and a new trial.   Because defendant failed to request the instruction below, this court reviews the claimed error under the plain-error paradigm.  State v. Ingram, 196 N.J. 23, 42-43 (2008).  “In the context of a jury charge, plain error requires demonstration of ‘[l]egal impropriety of 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.’ ”  Burns, supra, 192 N.J. at 341 (quoting State v. Jordan, 147 N.J. 409, 422 (1997)).

If a defendant requests that a particular charge be given, he need only establish a “rational basis” for the charge.  State v. Walker, 203 N.J. 73, 86 (2010).   If, however, defendant fails to request a charge on a lesser-included offense, a court should include it sua sponte only where the record “clearly indicates the appropriateness of such a charge.”  Id. at 87;  State v. Denofa, 187 N.J. 24, 42 (2006);  State v. Robinson, 136 N.J. 476, 491 (1994);  State v. Noble, 398 N.J.Super. 574, 596 (App.Div.), certif. denied, 195 N.J. 522 (2008).

Attempted passion/provocation manslaughter is a lesser-included offense of attempted murder.   See Robinson, supra, 136 N.J. at 491.   According to defendant, the trial court was obliged to instruct the jury on attempted passion/provocation manslaughter because the first two objective factors of the offense, adequate provocation and insufficient cooling-off time, were “clearly indicated” by the evidence.

Defendant testified that during the October 15 incident, after being fired upon, he “shot a couple of times towards [Crooms and Pugh] and just kept running because [he] was scared.”   The defense maintained that defendant acted in self-defense, not as the result of passion or rage.   In fact, defense counsel practically disavowed the possibility that defendant's actions were the result of passion/provocation in his summation stating, “we don't believe that's the case here.”

Viewing the facts in the light most favorable to the accused, Mauricio, supra, 117 N.J. at 412;  State v. Taylor, 350 N.J. Super 20, 38 (App.Div), certif. denied, 174 N.J. 190 (2002), and considering the alleged error “in light of the entire charge and ․ ‘the overall strength of the State's case,’ ” we do not believe the court's failure to sua sponte instruct the jury on the lesser-included offense of attempted passion/provocation manslaughter amounted to plain error.  Walker, supra, 203 N.J. at 90 (quoting State v. Chapland, 187 N.J. 275, 289 (2006)).   While there was some evidence in the record to support the two objective factors of attempted passion/provocation manslaughter, they were not “clearly indicated by the evidence” in light of contradictory evidence, Robinson, supra, 136 N.J. at 482, 491, and defendant's theory of the case.

G.

Finally, defendant contends that his aggregate sixty-year sentence was manifestly excessive.   The sentencing court found five aggravating factors including:  “the gravity and seriousness of the harm inflicted on the victim,” N.J.S.A. 2C:44-1(a)(2);  defendant's risk of recidivism, N.J.S.A. 2C:44-1(a)(3);  defendant's involvement in organized crime, N.J.S.A. 2C:44-1(a)(5);  the extent of defendant's prior criminal record, N.J.S.A. 2C:44-1(a)(6);  and the need to deter, N.J.S.A. 2C:44-1(a)(9).   No mitigating factors were identified.

Appellate review of sentencing decisions is limited to whether there has been a “clear abuse of discretion.”  State v. Evers, 368 N.J.Super. 159, 173 (App.Div.2004).   We must determine first, whether the correct sentencing guidelines were followed;  “second, whether there is substantial evidence in the record to support” those findings;  and third, “whether in applying those guidelines to the relevant facts the trial court clearly erred by reaching a conclusion that could not have reasonably been made upon a weighing of the relevant factors.”  State v. Roth, 95 N.J. 334, 365-66 (1984).   Our role is not to substitute our “assessment of aggravating and mitigating factors for that of the trial court” but to determine whether the sentence imposed, as well as the aggravating and mitigating factors considered, “ ‘were based upon competent credible evidence in the record.’ ”  State v. Bieniek, 200 N.J. 601, 608 (2010) (quoting Roth, supra, 95 N.J. at 364).

Defendant argues that his consecutive sentences should be vacated because of the factors laid out in State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L. Ed.2d 308 (1986).   The factors to be considered by a court in imposing a concurrent or consecutive sentence are:

(a) the crimes and their objectives were predominantly independent of each other;  (b) the crimes involved separate acts of violence or threats of violence;  (c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;  (d) any of the crimes involved multiple victims;  (e) the convictions for which the sentences are to be imposed are numerous.

[Id. at 644.]

In imposing two consecutive sentences for defendant's murder and attempted murder convictions, the sentencing court found that

on October 15, 2006, Jahmere Crooms was shot in the back.   That was attempted murder.   It was at a different location, on a different date, a different victim than what happened on October 18 th.   I am absolutely convinced that a consecutive sentence is appropriate.

The sentencing court's concise application of the Yarbough factors, including the fact that defendant committed separate acts of violence, against separate persons, at separate times, supports a consecutive sentence.   See Yarbough, supra, 100 N.J. at 643-44;  see also State v. Cassady, 198 N.J. 165, 181-82 (2009);  State v. Molina, 168 N.J. 436, 441-42 (2001).

Defendant also challenges the court's application of aggravating and mitigating factors.   Specifically, he disputes the court's finding of aggravating factor number two, “the gravity and seriousness of the harm inflicted on the victim,” N.J.S.A. 2C:44-1(a)(2), and also urges that the court should have found, as mitigating factors, that defendant “acted under a strong provocation” and that “there were substantial grounds tending to excuse or justify the defendant's conduct, though failing to establish a defense.”   N.J.S.A. 2C:44-1(b)(3) and (4).

It is well-settled that facts that go to establishing “elements of a crime for which a defendant is being sentenced should not be considered as aggravating circumstances in determining that sentence.”  State v. Kromphold, 162 N.J. 345, 353 (2000).   To do so would be considered “double-counting.”  Cassady, supra, 198 N.J. at 183.   In finding aggravating factor number two, the court recalled testimony that “[h]e's been shot.   We know [Pugh] was alive because he remained alive in the hospital for a while and [defendant] straddled [the victim] and fired three more shots directly into his head.”   The court also found that defendant “knew or reasonably should have known that the victim was particularly vulnerable.”

It is undisputed that Pugh's actual death was an essential element to the charged crime of murder.   The sentencing court found the three additional gunshots to Pugh's face, including two “right into his eye socket,” after he had already been shot twice to constitute an aggravating circumstance.   The court's finding that Pugh was “particularly vulnerable” was also supported by a factual basis, in that Pugh was on the ground and had already been shot twice when defendant inflicted three more shots to his head.   See State v. Abrams, 256 N.J.Super. 390, 403-04 (App.Div.1992).

Given our deferential standard of review, we discern no abuse of discretion in the court's application of aggravating factor number two.  Kromphold, supra, 162 N.J. at 358 (“[E]ncompassed by ․ aggravating factor [two] is a broader and less precise concept that permits the exercise of sound discretion by the sentencing court in determining whether the extent of the harm to the victim warrants application of that aggravating factor.”).

Similarly, mitigating factors three and four were properly disregarded.   Mitigating factor three applies when a defendant “acted under a strong provocation.”  N.J.S.A. 2C:44-1(b)(3).   Factor four applies when “[t]here were substantial grounds tending to excuse or justify the defendant's conduct, though failing to establish a defense.”  N.J.S.A. 2C:44-1(b)(4).   The court found that defendant shot Pugh “in cold blood” and “without conscience.”   He further ruled that the “rumor on the street” that Pugh had shot up defendant's house on October 15 was insufficient to show that defendant acted under a strong provocation or that he was justified in shooting Pugh three days later.   Because the sentencing court gave adequate consideration to the claimed mitigating factors and made factual findings in support of its determination that neither factor applied, we will not disturb them.  State v. L.V., 410 N.J.Super. 90, 108-09 (App.Div.2009), certif. denied, 201 N.J. 156 (2010);  State v. Blackmon, 202 N.J. 283, 297 (2010) (noting that courts are afforded even wider discretion in identifying mitigating factors at sentencing).

Affirmed.

FOOTNOTES

FN1. According to Detective Sweeney and Monmouth County Prosecutor's Office Detective Pamela Ricciardi, Crooms was generally uncooperative at the hospital, and later wavered about whether Pugh was, in fact, inside the market with him..  FN1. According to Detective Sweeney and Monmouth County Prosecutor's Office Detective Pamela Ricciardi, Crooms was generally uncooperative at the hospital, and later wavered about whether Pugh was, in fact, inside the market with him.

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).

FN3. Defendant's statement was videographed and viewed by the jury during the trial..  FN3. Defendant's statement was videographed and viewed by the jury during the trial.

FN4. The seventh count charged defendant's girlfriend with hindering apprehension of defendant, N.J.S.A. 2C:29-3(a)..  FN4. The seventh count charged defendant's girlfriend with hindering apprehension of defendant, N.J.S.A. 2C:29-3(a).

FN5. The sentencing court imposed a twenty-year term -- subject to the NERA -- for the attempted murder of Crooms, and merged counts two and three with count one.   A consecutive term of forty years was imposed for the murder of Pugh, which included the merger of counts five and six with count four..  FN5. The sentencing court imposed a twenty-year term -- subject to the NERA -- for the attempted murder of Crooms, and merged counts two and three with count one.   A consecutive term of forty years was imposed for the murder of Pugh, which included the merger of counts five and six with count four.

FN6. Defendant claims that this issue was “partially raised below.”   The record, however, clearly reflects that he accepted the jury charge as given..  FN6. Defendant claims that this issue was “partially raised below.”   The record, however, clearly reflects that he accepted the jury charge as given.

PER CURIAM