Opinion
DOCKET NOS. A-2592-08T4 DOCKET NOS. A-4537-08T3 DOCKET NOS. A-5034-08T3
08-01-2011
STATE OF NEW JERSEY, Plaintiff-Respondent, v. WILLIAM MANIGO, Defendant-Appellant. STATE OF NEW JERSEY, Plaintiff-Respondent, v. EUGENE DIX, Defendant-Appellant. STATE OF NEW JERSEY, Plaintiff-Respondent, v. DRAKE PRIMUS, Defendant-Appellant.
Yvonne Smith Segars, Public Defender, attorney for appellant William Manigo (Karen E. Truncale, Assistant Deputy Public Defender, of counsel and on the brief). Yvonne Smith Segars, Public Defender, attorney for appellant Eugene Dix (Gregory P. Jordan, Designated Counsel, of counsel and on the brief). Yvonne Smith Segars, Public Defender, attorney for appellant Drake Primus (William Welaj, Designated Counsel, of counsel and on the brief). Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent State of New Jersey in A-2952-08T4 (Marc A. Festa, Senior Assistant Prosecutor, of counsel and on the brief). Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent State of New Jersey in A-4537-08T3 (Christopher W. Hsieh, Senior Assistant Prosecutor, of counsel and on the brief). Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent State of New Jersey in A-5034-08T3 (Christopher W. Hsieh, Senior Assistant Prosecutor, of counsel and on the brief). Drake Primus, appellant in A-5034-08T3, filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa, Sabatino and Alvarez.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 06-03-0355.
Yvonne Smith Segars, Public Defender, attorney for appellant William Manigo (Karen E. Truncale, Assistant Deputy Public Defender, of counsel and on the brief).
Yvonne Smith Segars, Public Defender, attorney for appellant Eugene Dix (Gregory P. Jordan, Designated Counsel, of counsel and on the brief).
Yvonne Smith Segars, Public Defender, attorney for appellant Drake Primus (William Welaj, Designated Counsel, of counsel and on the brief).
Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent State of New Jersey in A-2952-08T4 (Marc A. Festa, Senior Assistant Prosecutor, of counsel and on the brief).
Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent State of New Jersey in A-4537-08T3 (Christopher W. Hsieh, Senior Assistant Prosecutor, of counsel and on the brief).
Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent State of New Jersey in A-5034-08T3 (Christopher W. Hsieh, Senior Assistant Prosecutor, of counsel and on the brief).
Drake Primus, appellant in A-5034-08T3, filed a pro se supplemental brief. PER CURIAM
These three appeals by three defendants who were jointly tried were calendared back-to-back, and we now consolidate them for disposition in a single opinion.
The three defendants were all charged in each of the six counts of the indictment with the following offenses: (1) second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) and N.J.S.A. 2C:2-6; (2) first-degree armed robbery, N.J.S.A. 2C:15-1 and N.J.S.A. 2C:2-6; (3) third-degree possession of a weapon (a box cutter knife) for an unlawful purpose, N.J.S.A. 2C:39-4d; (4) fourth-degree unlawful possession of a weapon (a box cutter knife), N.J.S.A. 2C:39-5d; (5) third-degree possession of a weapon (a baseball bat) for an unlawful purpose, N.J.S.A. 2C:39-4d; and (6) fourth-degree unlawful possession of a weapon (a baseball bat), N.J.S.A. 2C:39-5d.
The criminal episode occurred on December 6, 2005. The victim, Jason Zabotinsky, made several statements regarding the crime, and presumably would have testified at trial in accordance with those statements. However, he died of unrelated causes prior to trial. Accordingly, defendants moved to suppress his out-of-court statements. After conducting an evidentiary hearing pursuant to N.J.R.E. 104(a) on December 21, 2007, Judge Marmo ruled that the statement Zabotinsky made when the police first responded to the scene of the crime qualified as an exception to the hearsay rule as an excited utterance. The judge also found that the statement was non-testimonial, as a result of which it could be admitted without violating defendants' rights under the Confrontation Clause.
The case was tried over several days in July 2008, resulting in the following verdicts as to each defendant: On Count One, Manigo and Dix were each found not guilty of second-degree aggravated assault, but guilty of the lesser-included offense of third-degree aggravated assault, N.J.S.A. 2C:12-1b(7). On Count Two, Manigo and Dix were found not guilty of first-degree armed robbery, but guilty of the lesser-included offense of second-degree robbery, N.J.S.A. 2C:15-1. Manigo and Dix were found not guilty of Counts Three and Four. Primus was found guilty of the offenses charged in Counts One (second-degree aggravated assault), Two (first-degree armed robbery), and Four (fourth-degree unlawful possession of a box cutter knife); Primus was acquitted of Count Three.
On October 17, 2008, all three defendants were sentenced. The court granted the State's motion to impose discretionary extended-term sentences on all three defendants, who qualified for such sentencing as persistent offenders. See N.J.S.A. 2C:44-3a. The following sentences were imposed.
Manigo was sentenced for second-degree robbery to eighteen years imprisonment subject to an eighty-five percent parole disqualifier and three years parole supervision pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. For third-degree aggravated assault, he was sentenced to a concurrent term of five years imprisonment with a two-year parole disqualifier.
Dix was sentenced for second-degree robbery to fifteen years imprisonment with an eighty-five percent parole disqualifier and three years parole supervision pursuant to NERA. For third-degree aggravated assault, he received a concurrent five-year term with a two-year parole disqualifier.
In sentencing Primus, the court merged Court Four with Count Two (first-degree robbery), for which it imposed a term of thirty-five years imprisonment with an eighty-five percent parole disqualifier and five years parole supervision pursuant to NERA. On Count One (second-degree aggravated assault), the court imposed a concurrent nine-year term with an eighty-five percent parole disqualifier and three years parole supervision pursuant to NERA. The sentences were ordered to be served consecutively to a sentence Primus was then serving.
Manigo presents the following arguments: POINT I
THE COURT ERRED IN DENYING A MOTION FOR JUDGMENT OF ACQUITTAL FOR THE DEFENDANT AS TO ALL COUNTS OF THE INDICTMENT.POINT II
THE COURT ERRED IN ADMITTING THE VICTIM'S STATEMENT AS AN EXCITED UTTERANCE, THUS, VIOLATING THE DEFENDANT'S RIGHT OF CONFRONTATION.POINT III
A. The Statement Was Not An Excited Utterance.
B. The Defendant's Right Of Confrontation Was Violated By Admission Of The Victim's Statement.
THE DEFENDANT WAS SENTENCED TO A MANIFESTLY EXCESSIVE EXTENDED TERM OF 18 YEARS AS A PERSISTENT OFFENDER.Dix presents the following arguments: POINT I
THE TRIAL COURT ERRED IN DECIDING THE PRETRIAL MOTION AS IT DID; THE STATEMENT MADE BY JASON ZABOTINSKY TO THE POLICE WAS TESTIMONIAL IN NATURE AND SHOULD HAVE BEEN SUPPRESSED.POINT II
THE TRIAL COURT ERRED IN NOT SEVERING THE DEFENDANTS AND HOLDING SEPARATE TRIALS. (NOT RAISED BELOW).POINT III
THE COURT ERRED IN DENYING DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL.
POINT IV
THE TRIAL COURT ERRED IN ALLOWING THE PROSECUTOR'S REMARKS DURING HIS SUMMATION WHICH WERE IMPROPER AND DENIED THE DEFENDANT A FAIR TRIAL; A REVERSAL IS WARRANTED. (NOT RAISED BELOW).
POINT V
THE TRIAL COURT ERRED IN ITS COMMENTS TO THE JURY AFTER THE VERDICTS WHEN IT INFORMED THE JURY THAT THE VICTIM WAS THERE TO BUY DRUGS AND THAT EACH OF THE DEFENDANTS HAD PRIOR CRIMINAL RECORDS. (NOT RAISED BELOW).
POINT VI
THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE AND SHOULD BE REDUCED.
In the brief filed by his appellate counsel, Primus presents the following arguments:
POINT I
THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY. (NOT RAISED BELOW).
POINT II
THE TRIAL COURT FAILED TO ADEQUATELY INSTRUCT THE JURY REGARDING ACCOMPLICE LIABILITY AND THE NEED TO DETERMINE THE DEFENDANT'S CRIMINAL CULPABILITY WITH RESPECT TO THE DIFFERENT DEGREES OF ROBBERY AND AGGRAVATED ASSAULT. (NOT RAISED BELOW).
POINT III
THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.In a pro se supplemental brief, Primus also presents these arguments:
POINT I
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT ADMITTED A "PARTIAL" EXCITED UTTERANCE AND DENIED THE DEFENDANT'S RIGHT TO CONFRONT WITNESSES AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1 PAR. 10 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE STATE'S USE OF ABSENTEE WITNESS TO PROVE ITS CASE.
POINT II
THE DEFENDANT WAS DENIED A FAIR TRIAL WHEN
THE TRIAL COURT FAILED TO ADMIT EXTRINSIC EVIDENCE OF PRIOR WRITTEN AND ORAL INCONSISTENT STATEMENTS CONTRARY TO N.J.R.E. 613.
POINT III
THE COURT'S FAILURE TO GIVE CURATIVE INSTRUCTION UNFAIRLY PREJUDICED DEFENDANT SINCE, CONTRARY TO THE EVIDENCE ADDUCED AT TRIAL, THE VICTIMS "ESOPHAGUS" WAS NEVER EXPOSED, AND THE POLICE WAS NOT OFFERED AS A MEDICAL EXPERT TO VALIDATE THIS CLAIM.
POINT IV
DEFENDANT'S CONVICTIONS MUST BE REVERSED AND THE CASE REMANDED FOR A NEW TRIAL, BEFORE WHICH AN EVIDENTIARY HEARING IS HELD TO DETERMINE WHETHER JASON ZABOTINSKY (VICTIM), THE ONLY EYEWITNESS, PAST PSYCHIATRIC HISTORY AND ILLEGAL SUBSTANCE ABUSE SHOULD'VE BEEN ALLOWED TO IMPEACH HIS CREDIBILITY.
We reject all of the arguments presented by all three defendants. Accordingly, we affirm their convictions and sentences in all respects.
I.
On December 6, 2005, at about 2:00 a.m., the Paterson police received a call advising of a crime in progress at 775 East 19th Street. The information was broadcast by radio, and within one to two minutes, Detectives Jaime Navarro, Carlos Charon, and Felix Arroyo arrived at the intersection of Park Avenue and Madison Avenue, a location near the one described in the dispatch, where they found Zabotinsky. The detectives were in plain clothes and arrived in an unmarked vehicle.
Zabotinsky had parked his pickup truck at an irregular angle and partially on the sidewalk. When the detectives arrived, another man was standing outside the truck. This individual, who was never identified and who left the scene, was trying to get Zabotinsky to calm down. Zabotinsky's throat had been slashed. A deep side-to-side laceration exposed his esophagus. Before the detectives asked Zabotinsky any questions, he stated that he was just robbed and pointed toward 17th Avenue and 19th Street, indicating that was the direction is which his assailants had gone. According to Charon, Zabotinsky said that "three individuals" had robbed him. Navarro, in describing what Zabotinsky said, did not say that he had specified the number of attackers.
Charon described his perception of the circumstances, acknowledging that it was a "very volatile situation," and was "[p]otentially violent." He described it as a crime in progress, and said it raised concerns in the minds of the detectives.
The detectives instructed Zabotinsky to remain at the scene with another officer who had arrived and to wait for medical assistance. The detectives then left, going in the direction Zabotinsky had indicated, to search for the assailants.
At the same time that the detectives had responded to Zabotinsky's location, Officers Robert Orozco and Jonathan Catrolla were also responding to the initial broadcast of a crime in progress. They were on patrol together and were about ten blocks from the reported location when they heard the dispatch. They were in police uniforms and driving a marked police vehicle. They activated their lights and siren and arrived at Madison Avenue and 17th Avenue within one minute of hearing the dispatch.
About one block from the location where Zabotinsky was found, Orozco and Catrolla encountered three men on 17th Avenue between Madison Avenue and 19th Street. The three were later identified as the three defendants. They were walking away from 19th Street, the area where Zabotinsky was located. They were the only individuals in the area. The officers got out of their vehicle and directed the men to stop. They did not comply, but continued walking toward the officers. Another Officer, Scott Eason, also arrived at the scene within about one minute of the dispatch. He approached Primus from behind and tackled him. Eason searched Primus and found a set of keys in his pants pocket, which was later determined to be Zabotinsky's.
Detectives Navarro, Charon and Arroyo arrived as the defendants were being detained by the other officers. Navarro retraced the route between the arrest location and the location where they had encountered Zabotinsky. He found a blue aluminum baseball bat, later identified as belonging to Zabotinsky. In the street, in front of 781 East 19th Street (very close to the location reported by the caller to the police, namely, 775 East 19th Street), Navarro located a size eleven Vans sneaker, several items of clothing, and an automobile insurance declaration page for Zabotinsky's policy. When the detectives had first encountered Zabotinsky, he was wearing no shoes. At trial, Zabotinsky's father identified the clothing and insurance document as articles belonging to his son. He also said that his son wore size eleven Van sneakers like the one recovered at the scene.
Defendants were transported to police headquarters and processed. No money or evidence was found on Manigo or Dix. However, Primus' sweater was stained with blood. DNA testing revealed that the blood on Primus' sweater was Zabotinsky's.
After the three defendants were detained, Zabotinsky drove his pickup truck approximately one block to their location. He identified them as his assailants. This occurred about twelve to fourteen minutes after the attack. In the course of that encounter, Zabotinsky made other statements regarding the attack on him.
Zabotinsky was then transported to the hospital in an ambulance. While in the ambulance, Charon briefly interviewed Zabotinsky, and received further information from him about the incident while medical treatment was being administered. Subsequently, Zabotinsky gave a formal statement to the police.
At trial, none of the defendants testified or called any witnesses.
II.
All three defendants argue that the judge erred in admitting the statement Zabotinsky made when the detectives first arrived at the scene. They argue that the statement was not properly found to constitute an excited utterance, as a result of which it should not have been admitted as an exception to the hearsay rule. They further argue that the statement was testimonial, as a result of which its admission was precluded under the Confrontation Clause.
A.
At the December 21, 2 00 7 Rule 104(a) hearing, Judge Marmo considered the four statements made by Zabotinsky. He ruled that the last three (the show-up identification at the scene, the ambulance interview, and the formal statement) were inadmissible, and those statements are not a subject of this appeal. The disputed issue pertains only to Zabotinsky's statement to the detectives when they first arrived, stating that he was robbed and that the perpetrators went in a particular direction. And, one of the detectives testified at trial (although not at the Rule 104(a) hearing) that Zabotinsky quantified the number of perpetrators as three.
Charon was the only witness at the hearing. He testified that he and Navarro arrived in the same vehicle, and Arroyo arrived in a separate vehicle. He described the manner in which Zabotinsky's truck was parked as we have previously described it. He said when he first encountered Zabotinsky he was "shaken up," "nervous," and had a slash on his throat from one side of his neck to the other. When Zabotinsky lifted his head, Charon could see that the cut was deep and that part of his esophagus and neck tissue were exposed. He said Zabotinsky was "nervous and frantic," but doubted that Zabotinsky appreciated the extent of his injury. Charon said he told Zabotinsky to keep his head down and that he tried to calm him down.
When asked about the exact conversation he had with Zabotinsky, Charon read from his report: "[Zabotinsky] immediately uttered that he had just been robbed and that the suspects fled down East 19th Street towards 17 th Avenue. At that time we noticed the blood around his neck area. I instructed him to remain there until we checked the area [for] the suspects." Charon further testified that Zabotinsky made the statement before Charon or any of the other detectives said anything to him. About three to four minutes had elapsed between the dispatch and the detectives' initial encounter with Zabotinsky.
Charon said that the detectives had their badges showing, but they "didn't even get to say that [they] were police officers when he advised [them] that he had just been robbed."
Based upon that testimony, Judge Marmo found that Zabotinsky's statement was admissible. He set forth his reasons as follows:
Now taking that body of law and applying it to what we have here, let me say that I have nothing before me to contradict the testimony of Detective Charon with regard to the time lines he's given us and to the condition of the victim upon his arrival. And from that I can readily find as a fact that he arrived in the presence of the victim almost immediately after this incident occurred, because the dispatch is that the robbery is in progress.
And when he arrives the statement that is made by the victim is not even in response to a question. Certainly this person has had their throat slashed from side to side, they're excited, shaken up as he said, nervous as you can imagine. This is minutes after this incident happened. And without being [in] response to any statement put to him, the uncontradicted testimony is that [Zabotinsky] tells him that he was just robbed and the suspects fled toward East 19th [Street] and 17th [Avenue].
Now because this is such a critical ruling for the parties, although I'm frankly comfortable with how I've drawn the line here and where I've struck the balance, I'm satisfied that this is admissible — this is not testimonial, this was not made looking towards a future prosecution. This was made for the purposes of reporting just what happened and telling the police what — giving the police information as to what they are dealing with. In any event this is a judgment as to this particular area. So I find that to be admissible.
Defendants argue that because the police arrived three to four minutes after the incident occurred, there was a sufficient lapse of time to enable Zabotinsky to deliberate and fabricate in crafting the statement. They contend that Zabotinsky was no longer under the stress of the event because (1) he was subsequently able to drive his truck to the location where the defendants were detained for purposes of making an identification, and (2) he was able to provide a statement at police headquarters later that night which omitted information he previously gave that he was in the area to buy drugs with two other individuals.
B.
Hearsay is generally excluded from evidence. N.J.R.E. 802. Excited utterances are an exception to the rule. See N.J.R.E. 803(c)(2). An excited utterance is a "statement 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).
The trustworthiness of an excited utterance derives from its relation to the event from which it emanates, such that "[i]f the circumstances reveal that there was sufficient time to contrive or devise a self-serving falsehood, admissibility should be denied. It must appear that the statements were unpremeditated emanations of the event and so connected with it as to preclude the idea that they were products of calculated policy." Cestero v. Ferrara, 57 N.J. 497, 502 (1971). The stress or shock of the event must "still the reflective faculties" of a person so that the utterance is a "spontaneous and sincere response to the . . . external shock." State v. Branch, 182 N.J. 338, 365 (2005) (quotation omitted).
Various factors should be considered to determine whether there was an opportunity to fabricate or deliberate: (1) the element of time; (2) the circumstances of the incident; (3) the mental and physical condition of the declarant; (4) the nature of the utterance; (5) the continuing influence of the excitement caused by the external shock; and (6) whether the statement was in response to questions. Id. at 366; State v. Long, 173 N.J. 138, 159 (2002). Although there are multiple factors, crucial to this inquiry is whether the declarant is still under a continuing state of excitement when the statement is made; it is that condition which provides trustworthiness. State v. Cotto, 182 N.J. 316, 328 (2005); State v. Lyle, 73 N.J. 403, 413 (1977); State v. Baluch, 341 N.J. Super. 141, 182 (App. Div.), certif. denied, 170 N.J. 89 (2001).
Applying these principles here, we have no hesitancy in concluding that Judge Marmo's finding that Zabotinsky was still under the stress of being robbed and having his throat slashed and did not have sufficient time to deliberate and fabricate about what he said to the detectives is well supported by the record.
We deem it insignificant that about ten minutes after this statement, Zabotinsky was capable of driving his truck one block to the location where defendants were detained. It is equally insignificant that later that evening he gave a statement containing some inconsistencies with earlier information he had provided. The evidence was sufficient to establish that at the time he made the initial statement, Zabotinsky was nervous, frantic, and was suffering from a serious neck wound. Another individual was standing by Zabotinsky's truck attempting to calm him down. The attack had just occurred. The record supports the finding that Zabotinsky remained under the stress of the robbery and assault at the time of this statement.
Defendants theorize that it was Zabotinsky who made the emergency call to the police, and there was no evidence to establish how long after the incident he made that call nor how long it took the police to issue a radio dispatch. First, "even a somewhat lengthy delay will not always prevent a statement from being admissible" under the excited utterance exception. Long, supra, 173 N.J, at 159. Applying the factors discussed in Long, there is ample evidence here to establish that Zabotinsky was under a continuing state of excitement when he made the statement.
There is nothing in the evidence to establish that Zabotinksy made the call to the police. It was never determined in the investigation who made the call. The fact that a specific street address was given by the caller makes it more likely that a neighborhood resident made the call. The call reported a crime in progress, not one that had previously occurred. Standard police protocol would dictate that the dispatch of the incident be broadcast immediately. All of this constitutes circumstantial evidence corroborating that the attack had occurred very shortly before the disputed statement was made.
Very significantly, the statement was not made in response to police questioning. And, of course, it was not made during a stationhouse interrogation. The content of the statement is further evidence of a spontaneous exclamation, as opposed to a carefully thought out and crafted statement. Zabotinsky did not provide a detailed description of the events that had occurred. He stated the conclusion that he had been robbed and that the attackers went in a certain direction.
C.
We turn now to the other aspect of the admissibility of this statement, the Confrontation Clause issue. Our resolution of this issue requires a determination of whether Judge Marmo erred in finding that the statement was not testimonial. Part of that analysis requires consideration of whether the statement was made during an ongoing emergency. This trial was conducted before the United State Supreme Court's recent decision in
Michigan v. Bryant, 562 U.S. ___, 131 S. Ct. 1143, 179 L. Ed. 2d 93 (2011), a case with facts very similar to these, in which the Court provided significant guidance regarding the admissibility of statements such as that made by Zabotinsky.
We begin by summarizing the development over the last several years of Confrontation Clause jurisprudence. Even if a statement falls within a recognized exception to the hearsay rule, it still must satisfy the Confrontation Clause. Branch, supra, 182 N.J, at 369-70 ("Crawford rv. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004)] is a reminder that even firmly established exceptions to the hearsay rule must bow to the right of confrontation."). The Sixth Amendment to the United States Constitution and Article I, Paragraph 10 of the New Jersey Constitution guarantee a criminal defendant the right to confront witnesses against him. U.S. Const, amend. VI; N.J. Const, art. I, ¶ 10. The right to confrontation is essential to a fair trial; it requires a defendant to have a "'fair opportunity to defend against the State['s] accusations.'" Branch, supra, 182 N.J, at 348 (quoting State v. Garron, 177 N.J. 147, 169 (2003), cert, denied, 540 U.S. 1160, 124 S. Ct. 1169, 157 L. Ed. 2d 1204 (2004)). The right of confrontation is exercised through cross-examination, the "'greatest legal engine ever invented for the discovery of truth.'" Ibid, (quoting California v. Green, 399 U.S. 149, 158, 90 S. Ct. 1930, 1935, 26 L. Ed. 2d 489, 497 (1970)).
However, "the Confrontation Clause does not condemn all hearsay." Id. at 349 (citing Crawford v. Washington, 541 U.S. 36, 51, 124 S. Ct. 1354, 1364, 158 L. Ed. 2d 177, 192 (2004)). "An established and recognized exception to the hearsay rule will not necessarily run afoul of the Confrontation Clause. A defendant's confrontation right must accommodate legitimate interests in the criminal trial process, such as established rules of evidence and procedure designed to ensure the efficiency, fairness, and reliability of criminal trials." Ibid. (quotations and citations omitted).
In Crawford v. Washington, supra, the United States Supreme Court held that the Confrontation Clause is violated by admitting an absent witness's testimonial statement unless the witness was unavailable to testify and the defendant had a prior opportunity to cross-examine the witness. 541 U.S. at 54, 124 S. Ct. at 1365-66, 158 L. Ed. 2d at 194. In Davis v. Washington, the Court clarified what constitutes a testimonial statement. 547 U.S. 813, 822, 126 S. Ct. 2266, 2273-74, 165 L. Ed. 2d 224, 237 (2006) .
Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.
[Ibid.]
The Davis Court's application of this standard is informative. In Davis, a 911 emergency operator spoke telephonically with a woman who was in the midst of an ongoing domestic disturbance with her former boyfriend. Id. at 817, 12 6 S. Ct. at 2271, 165 L. Ed. 2d at 234. The operator asked the woman questions about events as they were happening; the woman was not describing past events, and was not responding to questions during an interrogation that took place hours after the events had occurred. Id. at 827, 126 S. Ct. at 2276, 165 L. Ed. 2d at 240. The court found that any reasonable listener would have recognized that the woman was facing an ongoing emergency; of note, during the conversation, the woman told the operator that her former boyfriend ran out and left with someone in a car. Id. at 818, 827, 126 S. Ct. at 2271, 2276, 165 L. Ed. 2d at 234, 240.
The Court found that the statements were made to the operator to resolve the present emergency, not to detail past events. Id. at 827, 126 S. Ct. at 2276, 165 L. Ed. 2d at 240. Specifically, the operator made efforts to "establish the identity of the assailant, so that the dispatched officers might know whether they would be encountering a violent felon." Ibid. Thus, the statements had the "primary purpose" of enabling police to "meet an ongoing emergency." Id. at 82 8, 12 6 S. Ct. at 2277, 165 L. Ed. 2d at 240. The Court determined the woman's statements to the emergency operator, at least up to the time the former boyfriend fled from the house and left in a car, were not testimonial. Id. at 829, 126 S. Ct. at 2277, 165 L. Ed. 2d at 241.
New Jersey courts recognize and follow Crawford and Davis when addressing hearsay statements and the Confrontation Clause. See State v. Buda, 195 N.J. 278, 299-308 (2008); State ex rel. J.A., 195 N.J. 324, 341-51 (2008).
Most recently, the United States Supreme Court addressed the issue of testimonial statements and ongoing emergencies again, this time in the context of a case in which officers responded to a radio dispatch that a man had been shot.
Michigan v. Bryant, supra, 562 U.S. at ____, 131 S. Ct. at 1150, 179 L. Ed. 2d at 102. Officers found the victim lying on the ground next to his car in a gas station parking lot. Ibid. The officers asked the victim what happened, who shot him, and where the shooting occurred, to which the victim responded that "Rick" had shot him. Ibid. The victim told officers that he spoke with the defendant through the closed back door of the defendant's home, and when the victim turned to leave, he was shot through the door; he then drove to the gas station. Ibid. Thereafter, emergency medical services arrived and transported the victim to a hospital, where he died a few hours later. Ibid.
The Bryant Court noted that this case required the Court to provide additional clarification about what Davis meant by "'the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.'" Id. at ____, 131 S. Ct. at 1156, 179 L. Ed. 2d at 108 (quoting Davis, supra, 547 U.S. at 822, 126 S. Ct. at 2273, 165 L. Ed. 2d at 237). The Court described the analysis as follows:
As we suggested in Davis, when a court must determine whether the Confrontation Clause bars the admission of a statement at trial, it should determine the "primary purpose of the interrogation" by objectively evaluating the statements and actions of the parties to the encounter, in light of the circumstances in which the interrogation occurs. The existence of an emergency or the parties' perception that an emergency is ongoing is among the most important circumstances that courts must take into account in determining whether an interrogation is testimonial because statements made to assist police in addressing an ongoing emergency presumably lack the testimonial purpose that would subject them to the requirement of confrontation. As the context of this case brings into sharp relief, the existence and duration of an emergency depend on the type and scope of danger posed to the victim, the police, and the public.
[Id. at __, 131 S. Ct. at 1162, 179 L. Ed. 2d at 114-15 (emphasis added and footnote omitted).]
Applying that analysis to the facts, the Court stated:
For their part, the police responded to a call that a man had been shot. As discussed above, they did not know why, where, or when the shooting had occurred. Nor did they know the location of the shooter or anything else about the circumstances in which the crime occurred. The questions they asked . . . were the exact type of questions necessary to allow the police to "'assess the situation, the threat to their own safety, and possible danger to the potential victim'" and to the public, Davis, 547 U.S., at 832, 126 S. Ct. 2266, 159 L. Ed. 2d 224 (quoting Hiibel v. Sixth Judicial Dist. Court of Nev., Humboldt Cty. , 542 U.S. 177, 186, 124 S. Ct. 2451,
159 L. Ed. 2d 292 (2004)), including to allow them to ascertain "whether they would be encountering a violent felon," Davis, 547 U.S., at 827, 126 S. Ct. 2266, 165 L. Ed. 2d 224. In other words, they solicited the information necessary to enable them "to meet an ongoing emergency." Id. , at 822, 126 S. Ct. 2266, 165 L. Ed. 2d 224.
[Bryant, supra, 562 U.S. at _, 131 S. Ct. at 1165-66, 179 L. Ed. 2d at 118-19 (footnotes omitted).]
Accordingly, the Court held that the victim's identification and description of the shooter and the location of the shooting were not testimonial hearsay, and thus not barred at trial by the Confrontation Clause. Id. at __, 131 S. Ct. at 1166-67, 179 L. Ed. 2d at 119.
The case before us is very similar to Bryant. The detectives responded to Zabotinsky's location in response to a dispatch that advised of a crime in progress. As in Bryant, the detectives did not know why or how Zabotinsky's throat had been slashed, by whom, where the assailant or assailants were, or the specific location where the crime had occurred. The situation was aptly described as "volatile." Zabotinsky's statement was made spontaneously and voluntarily, not in response to police interrogation. As in Bryant, the information the detectives received from Zabotinsky enabled them to respond to an ongoing emergency, in which they might seek out and find armed attackers that had just committed a violent crime.
The information received was not solicited for future prosecution, it came as part of the initial contact between police and a victim, immediately following a violent crime, and prior to the apprehension of potentially violent criminals. Once the detectives learned this information from Zabotinsky, they left him at the scene with another officer and went in pursuit of his attackers.
Further, unlike in Bryant, there is no need for us to ascertain the "primary" purpose of police interrogation that elicited the disputed statement. This is because there was no interrogation at all. Defendants hypothesize that had Zabotinsky not spoken first, the detectives surely would have asked him what happened. Therefore, defendants suggest that the circumstances were tantamount to police questioning, similar to what occurred in Bryant. Even if that is so, the result is the same. The only purpose was not to memorialize past events for purposes of a future prosecution, but to deal effectively and sensibly with an ongoing emergency in the immediate aftermath of a violent crime.
Accordingly, we agree with Judge Marmo that Zabotinsky's statement when first encountered by detectives at the scene was not testimonial, and its admission in evidence did not violate defendants' Confrontation Clause rights.
III.
Manigo and Dix argue that the trial court erred in denying their motions for judgment of acquittal at the end of the State's case. They contend that there was no evidence linking them to the crime beyond their mere presence at the scene where they were detained. They therefore contend that "absent rank speculation" there was not sufficient evidence from which a jury could rationally find them guilty beyond a reasonable doubt of committing the crime. This argument requires little discussion.
When a defendant moves for a judgment of acquittal pursuant to Rule 3:18-1, a trial judge must determine "whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt." State v. Reyes, 50 N.J. 454, 459 (1967). In reviewing the denial of a motion for judgment of acquittal, we apply the same standard as the trial court. State v. Moffa, 42 N.J. 258, 263 (1964); see State v. Bunch, 180 N.J. 534, 548-49 (2004) (applying the Reyes standard).
At the end of the State's case, Dix's attorney argued that there was no direct evidence tying Dix to the crime, the truck, or anything that was alleged to have been stolen. Counsel argued that Dix was not found with anything on his person, and there was no DNA evidence connecting Dix to the crime. Further, no weapon was found on Dix. Judge Marmo rejected the argument. Applying the Reyes principles he reasoned as follows:
But following the time lines and sequence of events, it's clear that this person was the victim of a robbery. It's clear that property was taken from him. It's clear that he claimed three people robbed him if the jury accepts that. There is a time line of within a minute perhaps of this that a crime in progress that the three people were found together. One of them had the keys that belonged to the victim and had the victim's blood on his clothing, if the jury accepts that evidence. That the property of the victim was taken, it's clear from where the victim's vehicle was left that he was set upon. He didn't park the vehicle that way. Putting all of these things together, the jury could reasonably infer that the people who were found that went in the direction that the victim said they went, were the people who are involved in what happened to him, and from that I'm satisfied that the State is entitled to have the jury — have their case go forward as to Mr. Dix.The Judge denied similar motions made on behalf of Primus and Manigo for the same reasons.
The judge applied the correct legal standard. His application of that standard to the State's evidence correctly supported the conclusion that a rational fact-finder could find defendants guilty beyond a reasonable doubt of the crimes charged. The judge did not err in denying defendants' motions for acquittal.
IV.
For the first time on appeal, Dix argues that the trial court erred in failing to sua sponte sever the defendants' trials. He argues that the defenses of the various defendants were antagonistic and mutually exclusive because each defendant would naturally argue that he had nothing do to with the robbery, and it was either one or both of the others who must have robbed Zabotinsky. Thus, Dix asserts that "the jury will be limited to believing only one of the defendants and, therefore, finding the other guilty." We do not agree.
Two or more defendants may be charged in the same indictment "if they are alleged to have participated in the same act or transaction" that constitutes "an offense or offenses." R. 3:7-7. Rule 3:15-2 governs relief from prejudicial joinder in criminal cases. According to the Rule, "[i]f . . . it appears that a defendant or the State is prejudiced by a permissible or mandatory joinder of offenses or of defendants in an indictment or accusation the court may order an election or separate trials of counts, grant a severance of defendants, or direct other appropriate relief." R. 3:15-2(b).
In general, there is a preference to try co-defendants jointly. State v. Robinson, 253 N.J. Super. 346, 364 (App. Div.), certif. denied, 130 N.J. 6 (1992). Where the evidence against all defendants is largely the same, a joint trial is preferred as it promotes (1) the efficiency in the judicial system, (2) the convenience of witnesses and victims, (3) the avoidance of inconsistent verdicts, and (4) a more accurate assessment of relative culpability. State v. Sanchez, 143 N.J. 273, 282 (1996). The decision whether to grant a motion for severance is within the sound discretion of the court. State v. Brown, 170 N.J. 138, 160 (2001) (quoting State v. Scioscia, 200 N.J. Super. 28, 42 (App. Div.), certif. denied, 101 N.J. 277 (1985)).
The "danger of association" that inheres in all joint trials is itself insufficient to justify severance; so long as the separate status of the co-defendants can be maintained by proper instructions to the jury, severance is not necessary. State v. Brown, 118 N.J. 595, 605 (1990). However, separate trials are necessary when the "co-defendants' 'defenses are antagonistic and mutually exclusive or irreconcilable.'" Brown, supra, 170 N.J, at 160 (quoting State v. Brown, 118 N.J. 595, 605 (1990)). But, "[i]f the jury can return a verdict against one or both defendants by believing neither, or believing portions of both, or, indeed, believing both completely, the defenses are not mutually exclusive." Brown, supra, 118 N.J, at 606.
In State v. Yormark, a conspiracy and substantive offenses were charged against four co-defendants, and the men were tried together. State v. Yormark, 117 N.J. Super. 315, 331 (App. Div. 1971), certif. denied, 60 N.J. 138 (1972). The trial court instructed jurors repeatedly to give consideration separately to each defendant, for the crimes charged, and consider evidence only as it related to the particular defendant to whom it applied. Ibid. We found no reason to believe that the jury did not comply with the court's instructions, and affirmed the trial court's denial of the defendants' motions for severance. Id. at 331-32.
This case involved four defendants, three of whom sought additional review after the decision in State v. Yormark, 117 N.J. Super. 315 (App. Div. 1971). The subsequent history, as to defendant Yormark, is provided above. The following is the subsequent history as to defendant Mulvaney. State v. Yormark, 117 N.J. Super. 315 (App. Div. 1971), vacated in part on other grounds and remanded sub nom. State v. Mulvaney, 61 N.J. 202 (1972). Next is the subsequent history for defendant Perwin. State v. Yormark, 117 N.J. Super. 315 (App. Div. 1971), certif. denied sub nom. State v. Perwin, 60 N.J. 138, cert, denied, 409 U.S. 862, 93 S. Ct. 151, 34 L. Ed. 2d 109 (1972).
If an error is not brought to the attention of the trial court, we will not reverse on the ground of such error unless the appellant can show plain error, that is, an error "clearly capable of producing an unjust result." R. 2:10-2. The possibility of an unjust result must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971).
In this case, none of the three defendants testified or presented any witnesses. The arguments of the three defense attorneys in summation did not establish versions of the events which were antagonistic or mutually exclusive. The defenses were not irreconcilable. Evident from the verdict, the jury did not believe the defense of any of the three defendants, and found them guilty of the offenses or lesser included offenses as detailed above. As in Yormark, the court instructed the jury to consider evidence as it applied to each of the three defendants, and there is no reason for us to suspect that the jury violated that mandate.
There was no error, let alone plain error, in not sua sponte ordering severance of defendants.
V.
For the first time on appeal, Dix and Primus argue that the trial court erred in allowing the prosecutor to make certain remarks during summation, which denied them of a fair trial. During the prosecutor's summation, none of the three defendants objected to any of the comments he made. We are therefore guided by the plain error standard in our review on this point.
A.
We begin by setting forth the basic principles governing analysis of this issue. Prosecutors are afforded considerable leeway in closing arguments so long as their comments are reasonably related to the scope of the evidence presented. State v. Harris, 141 N.J. 525, 559 (1995). In criminal cases, prosecutors are expected to make vigorous and forceful arguments to juries. Ibid. As Justice Clifford stated:
Criminal trials are emotionally charged proceedings. A prosecutor is not expected to conduct himself in a manner appropriate to a lecture hall. He is entitled to be forceful and graphic in his summation to the jury, so long as he confines himself to fair comments on the evidence presented.
[State v. DiPaglia, 64 N.J. 288, 305 (1974) (Clifford, J., dissenting) (citations omitted).]
Nevertheless, "[t]he primary duty of a prosecutor is not to obtain convictions, but to see that justice is done." State v. Ramseur, 106 N.J. 123, 320 (1987). Thus, prosecutorial misconduct can be a ground for reversal where the misconduct was so egregious that it deprived a defendant of a fair trial. Ramseur, supra, 106 N.J, at 322; State v. Frost, 158 N.J. 76, 83 (1999). In determining whether a defendant's right to a fair trial has been denied, the court considers such factors as whether defense counsel made a timely objection, whether the remark was withdrawn promptly, whether the trial judge ordered the remarks stricken, and whether the judge instructed the jury to disregard them. Ramseur, supra, 106 N.J, at 322-23. Also, to determine whether the prosecutor's misconduct was sufficiently egregious, the court must take into account the tenor of the trial and how responsive counsel and the court were to the improprieties at the time that they occurred. Frost, supra, 158 N.J, at 83 (quoting State v. Marshall, 123 N.J. 1, 153 (1991), cert, denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993)).
While an attorney may make remarks that constitute legitimate inferences from the facts, State v. Perry, 65 N.J. 45, 48 (1974), he or she may not go beyond the facts before the jury, State v. Farrell, 61 N.J. 99, 103 (1972). An unfair attack on defense counsel can warrant reversal. State v. Sherman, 230 N.J. Super. 10, 15-19 (App. Div. 1988). However, a prosecutor's remarks may be harmless if they are only a response to remarks by opposing counsel. State v. DiPaglia, 64 N.J. 2 88, 297 (1974).
Generally, if defense counsel does not make an objection to the alleged improper remarks, the remarks will not be deemed prejudicial. Frost, supra, 158 N.J, at 83. "The failure to object suggests that defense counsel did not believe the remarks were prejudicial at the time they were made. The failure to object also deprives the court of an opportunity to take curative action." Id. at 84.
B.
In light of these principles, we consider the asserted improprieties.
Dix argues that the prosecutor improperly (1) told the jury that it did not need to deliberate much because there were "absolute facts" in the case, (2) advised the jury it could take a preliminary vote in deliberations, (3) told jurors that although they normally could not do anything about tragic events that they heard on the news, in this case there was something they could do, meaning convict the defendants, (4) implied that if Zabotinsly was available to testify, his testimony would support the prosecution's case, (5) accused defense counsel of making up that Zabotinsky called the police in an attempt to rehabilitate himself from a drug transaction, without evidence to support that claim, and (6) told the jury his theory that someone else made the emergency call and told police there was a gun to induce the police to respond quickly, when there was no evidence to support that theory.
Primus argues that the prosecutor improperly (1) denigrated defense counsel by contending that counsel was trying to mislead the jury, (2) emphasized that the officers had no reason to lie, and (3) asked rhetorical questions about the defendants' motives, thus impermissibly commenting on the defendants' failure to testify.
Although some of the remarks were improper, they did not rise to the level of plain error, and, even when considered cumulatively, they did not deprive defendants of a fair trial.
The comment suggesting that the case contained "absolute facts," when considered in context, was an appropriate reference to circumstantial evidence that was not in dispute. After all, the State's case against these defendants was circumstantial and did not rely upon facts that are typically disputed in a trial. The comment about a preliminary vote was innocuous, and was, in any event, overridden by the judge's detailed instructions regarding the manner in which jurors should deliberate.
We agree with Dix that the prosecutor should not have told the jurors they could "do something" in this case. It is improper for a prosecutor to make a statement that is "'nothing less than a call to arms'" because it promotes a sense of partisanship incompatible with the role of the jury. State v. Goode, 278 N.J. Super. 85, 89 (App. Div. 1994) (quoting State v. Holmes, 255 N.J. Super. 248, 251-52 (App. Div. 1992)). In Goode, the prosecutor stated, during his opening statement, that the charges were serious and the case provided jurors the opportunity to "make a difference" in their community, that being to convict the defendant. Ibid. He repeated this theme in his summation, noting "I said to you you're going to be able to make a difference in your community. This is one situation where you can finally do something and say yes, drugs exist. I hate them . . . But this time I can do something. I can make a difference." Id. at 90. We determined that argument to be improper. Ibid.
The prosecutor's comment in this case had the tendency to inflame partisanship within the jury. However, this was a single comment, made in passing, that did not rise to the level of impropriety found in Goode. In Goode, the prosecutor made it a repetitive theme in opening and closing statements that the jury could do something and make a difference by convicting the defendant in that case. The statement in this case, while improper, does not rise to that level. There was no objection by counsel at trial about this statement. Any error was harmless.
After commenting that the State's case was circumstantial, the prosecutor contrasted such a case with a "direct case" in which there would be an eyewitness "who could say what happened." The prosecutor then continued: "There was, there is no more." Dix argues that these comments implied that the prosecutor had knowledge, based on evidence outside the trial record, that if Zabotinsky were alive his testimony would have corroborated the prosecution's case. We disagree. This cryptic comment was neutral in the manner in which it was presented. It merely focused the jury's attention on the fact that its analysis would have to rely on circumstantial evidence because there were no eyewitnesses to provide direct evidence.
The next comment complained of by Dix was the prosecutor's reference to Primus' attorney. The prosecutor accused that attorney of making up evidence, namely that Zabotinsky called the police in an attempt to rehabilitate himself from a possible drug transaction. The prosecutor referred to that as "pure fantasy," arguing that there was no evidence to support such a theory. Referring to that attorney, the prosecutor said that "the attorney who's trying to do justice is not necessarily the attorney who's the loudest, and in this case you are the people who are trying to do justice." The prosecutor then went on to set forth his own theory that a neighborhood resident most likely made the call to the police. Primus joins in this argument, claiming that by telling the jury that defense counsel was not trying to do the right thing, the prosecutor improperly told the jury that the defense was trying to subvert justice.
To the extent that the prosecutor's comments used terms such as "pure fantasy," and referred to a defense attorney as the one who is the "loudest" but not necessarily the one who is "trying to do justice," the prosecutor's comments were improper. A prosecutor is not permitted to denigrate defense counsel by casting unjustified aspersions on either counsel or the defense. Frost, supra, 158 N.J, at 86. It is also improper for the prosecutor to suggest that defense counsel's role is to confound or confuse the jury. State v. Kounelis, 258 N.J. Super. 420, 428 (App. Div.), certif. denied, 133 N.J. 429 (1992). "Defense counsel should not be subjected to disparaging remarks for simply doing his or her job." Frost, supra, 158 N.J, at 86.
However, we are again confronted with comments that were not objected to by any of the three defense attorneys in the courtroom. Therefore, we must assume that, in the context of the trial, these attorneys did not deem the comments prejudicial. Also, the trial court was prevented from issuing an appropriate curative instruction.
In and of themselves, the prosecutor's comments specifically regarding the identity of the emergency caller were not improper. The prosecutor had the right to argue that the theory espoused by Primus' attorney that Zabotinsky made the call was not supported by the evidence but was mere speculation. On the other hand, the prosecutor made a plausible argument in support of his theory that a local resident was likely the caller. The jury could infer either result based upon its analysis of all of the facts and circumstances that might reasonably lead to such an inference. Either way, the identity of the emergency caller was not particularly important to the jury's fact-finding function.
Any impropriety in these remarks by the prosecutor was not clearly capable of producing an unjust result. Therefore, we do not find plain error.
Primus argues that the prosecutor improperly vouched for testifying police officers, stating that they had no reason to lie. This argument is in reference to the prosecutor's recounting of testimony that the police arrived within a minute of the dispatch, followed by this comment: "Now is there any reason not to believe that? Why on earth would anybody not believe that?" Later in that line of argument, the prosecutor referred to what Officer Orozco said he found when he arrived at the scene:
Why is Officer Orozco lying? Why would he make that up? He gets a call of a crime with a gun, flies down there, he sees three guys, this is what he saw. Why does he make
that up? What possible reason would he make that up? Now Officer Orozco was adamant and clear, the three men were together and they were walking down 17 th Ave. away from East 19th Street towards Madison.
It is improper for a prosecutor to contend that police had no motive to lie. Goode, supra, 27 8 N.J. Super, at 90. This point should be distinguished, however, from those situations in which the prosecutor suggests to a jury that an officer will suffer repercussions if he or she lied under oath. See State v. Staples, 263 N.J. Super. 602, 604-06 (App. Div. 1993); State v. West, 145 N.J. Super. 226, 233-34 (App. Div. 1976), certif. denied, 73 N.J. 67 (1977).
Prosecutors must recognize the limits beyond which their advocacy may not stray. Here, in personally vouching for the credibility of the State's witnesses, in suggesting that police witnesses are believable because of their status as policemen and in suggesting that an acquittal could significantly jeopardize their professional careers, the prosecutor violated fundamental restraints against prosecutorial excess.
[Staples, supra, 263 N.J. Super, at 606-07.]
Applying these principles, it was improper for the prosecutor to suggest that the responding officers did not have any reason to lie, and to pose the hypothetical asking why they would lie at trial. However, the comments were not so inflammatory as in other cases in which convictions have been reversed on this ground. See Frost, supra, 158 N.J, at 82-89; Goode, supra, 278 N.J. Super, at 88-92.
In the context in which the argument was made, the prosecutor was not vouching for Orozco's testimony on the basis that he was a police officer and, that because of his status as such, he would not be likely to tell a lie. The argument was more to the effect that there would be no reason for "anyone" to lie in these circumstances, rather than simply describing what he or she saw when he or she arrived at a location. Stated differently, the argument was that there was no dispute about what Orozco found there. All of the evidence was that the three men were at the location where they were apprehended, and they were there at a particular time. Thus, the argument really was that this was an undisputed fact so there was no reason to have to question Orozco's credibility on the point.
The use of the phraseology involving police officers not lying is generally prohibited and should not have been used. However, the manner in which it was used and the purpose for which it was used do not implicate the typical concerns for the prejudice that can result. We perceive no significant prejudice in these circumstances, and conclude that any error was harmless.
Primus' final argument about the prosecutor's summation comments deals with a series of rhetorical questions that the prosecutor posed. Primus argues that this technique constituted an improper comment on the defendants' choice not to testify. We have reviewed the comments and find the argument unavailing. The prosecutor's technique was a proper method of commenting on the circumstantial evidence and urging the jury to find certain permissible inferences from that evidence.
In our review of the entire trial record and the summations of all counsel in light of the trial evidence, we are satisfied that, although the prosecutor made several improper remarks, those improprieties, neither individually nor cumulatively, were so egregious as to deprive defendants of a fair trial. Accordingly, the improprieties do not provide a basis for reversal.
VI.
Primus argues that the accomplice liability instruction was inadequate. The argument primarily focuses on the judge's failure to closely follow the structure and language of the model jury charge. In doing so, Primus contends that the judge omitted portions of the model charge (1) instructing that an accomplice and the principal may be found equally responsible or responsible to a lesser degree, (2) requiring that for a defendant to be found guilty for another's conduct he must be found to have acted as the principal's accomplice and also to have had the purpose to commit the specific crime alleged, (3) requiring the State to establish that the defendant solicited, aided, or agreed to aid or attempted to aid in planning or committing the alleged crime, (4) requiring the State to prove that the defendant possessed the criminal state of mind that is required to be proved against the person who actually committed the act, and (5) directing the jury to either find guilt of the charge or move on to consideration of lesser included offenses.
None of the defendants objected to the charge as given, and we are accordingly guided by the plain error standard, which we have previously described. Our review of the entire accomplice liability charge satisfies us that the judge correctly and adequately explained all of the principles of accomplice liability, although not following the precise format set forth in the model charge.
Our conclusion is bolstered by the jury verdict. The jurors did not find all three defendants guilty of the same offenses. While finding Primus (who had Zabotinsky's keys in his pocket and Zabotinsky's blood on his sweater) guilty of the charged offenses of first-degree armed robbery and second-degree aggravated assault, they found Manigo and Dix not guilty of those offenses but guilty of lesser-included offenses. It is clear that the jurors understood that they could assess differing degrees of culpability among the participants in the crime, and they did so.
With respect to Primus's pro se supplemental brief, we have addressed his argument in Point I. His arguments in Points II, III and IV lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
VII.
Dix argues that the court erred in making comments to the jury after the verdict was returned, informing the jury that Zabotinsky was there to buy drugs and that each of the defendants had a prior criminal record. Although Dix acknowledges that this post-verdict conduct could not have influenced the verdict, he argues that it "may have displayed an attitude towards [Dix], . . . which may have had an effect on the impartiality and fairness of the proceedings and which may have easily carried over to the judge's view of the sentencing that should have been imposed." This argument is completely unfounded. Dix has pointed to nothing in this record that would suggest that Judge Marmo conducted these proceedings in anything other than a completely fair and impartial manner.
VIII.
Finally, all three defendants argue that their sentences are excessive. We disagree. In each case, Judge Marmo articulated sufficient reasons for imposing extended term sentences in accordance with the controlling legal principles. See State v. Pierce, 188 N.J. 155, 162 (2006). The judge made findings in each case regarding the applicability of aggravating and mitigating factors, and those findings were supported by sufficient credible evidence in the record. The judge articulated cogent reasons for finding the applicable factors and appropriately weighed and balanced them in determining the sentence to be imposed in each case. Those sentences were not manifestly excessive or unduly punitive and did not constitute a mistaken exercise of the court's discretion. State v. Bieniek, 200 N.J. 601, 612 (2010); State v. O'Donnell, 117 N.J. 210, 215 (1989); State v. Ghertler, 114 N.J. 383, 392-93 (1989); State v. Roth, 95 N.J. 334, 365-66 (1984).
Affirmed.
I hereby certify that the foregoing
is a true copy of the original on
file in my office
____________________
CLERK OF THE APPELLATE DIVISION