STATE OF NEW JERSEY v. RICHARD CHIPPERO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6401-02T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RICHARD J. CHIPPERO,

Defendant-Appellant.

_______________________________________

May 13, 2008

 

Argued December 12, 2007 Decided

R

December 7, 2010

eversed and Remanded by Supreme Court December 29, 2009 Decided

 

Before Judges Stern, A. A. Rodr guez and

C. S. Fisher.

 

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 91-09-1510.

 

Yvonne Smith Segars, Public Defender, attorney for appellant (Mark Tabakman, Designated Counsel, on the brief).

 

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Assistant Prosecutor, on the brief).

 

PER CURIAM

 

This matter is now before us on a reversal of our judgment and a remand from the Supreme Court. See State v. Chippero, 201 N.J. 14 (2009) (Chippero II). Because we concluded in our first opinion that defendant Richard Chippero's convictions stemming from the July 23, 1991 homicide of Ermina Rose Tocci should be reversed, we did not address certain contentions. The Supreme Court, in reversing, has directed us to address those contentions. After a careful review we affirm.

The facts and procedural background are set out in the Supreme Court's decision and ours, and need not be restated at length here. In order to provide context, the testimony of some witnesses is summarized as part of the discussion.

I

THE CHARGE TO THE JURY IN ITS ENTIRETY WAS CONFUSING, MISLEADING AND PREJUDICED THE DEFENDANT AND THE COURT IMPROPERLY RESPONDED TO JURY REQUESTS FOR CLARIFICATION.

 

In addition to his contention regarding the entire charge, the defendant challenges several specific portions of the jury charges. We disagree.

The Lesser-Included Offenses Charge

At the charge conference, defendant asked for a reckless manslaughter charge, arguing that the element of recklessness or intent was a jury question. The State objected. Focusing on the number of stab wounds to Tocci's neck, the judge ruled that there was no rational basis to charge the jury on aggravated or reckless manslaughter.

Aggravated manslaughter is a criminal homicide wherein "the actor recklessly causes death under circumstances manifesting extreme indifference to human life." N.J.S.A. 2C:11-4(a). Second degree reckless manslaughter is a criminal homicide "committed recklessly." N.J.S.A. 2C:11-4(b)(1). The crime is aggravated manslaughter if the risk of death is a probability, and reckless manslaughter if the risk of death is a possibility. State v. Breakiron, 108 N.J. 591, 605 (1987).

"In general, when a lesser-included offense charge is requested by a defendant, the trial court is obligated, in view of the defendant's interest, to examine the record thoroughly to determine if there is a rational basis in the evidence for finding that the defendant was not guilty of the higher offense charged but that the defendant was guilty of a lesser-included offense." State v. Sloane, 111 N.J. 293, 299 (1988); N.J.S.A. 2C:1-8(e). The "rational basis" test of N.J.S.A. 2C:1-8(e) "imposes a low threshold . . . for permitting a charge on a lesser-included offense." State v. Crisantos, 102 N.J. 265, 278 (1986).

However, "sheer speculation does not constitute a rational basis." State v. Brent, 137 N.J. 107, 118 (1994). The lesser-included charge must be given if the proofs leave any room for dispute. Crisantos, supra, 102 N.J. at 278; State v. Sinclair, 49 N.J. 525, 542 (1967). It is only when "instructing a jury on a lesser-included offense would be so unanticipated by either party as to cause complete surprise, or so inconsistent with the defense as to undermine the fairness of the proceedings," that "the trial court may depart from this general rule . . . ." State v. Garron, 177 N.J. 147, 180-81 (2003), cert. denied, 540 U.S. 1160, 124 S. Ct. 1169, 157 L. Ed. 2d 1204 (2004).

On appeal, defendant does not explain the basis for his argument. Instead, he cites to two civil, out-of-state cases that discuss circumstantial evidence and speculation as support for the requested charge.1 Defendant, also relies on United States v. Glenn, 312 F.3d 58 (2d Cir. 2002), and explains in a footnote that the trial court gave a similar instruction to the jury in that case and was reversed.

Based on a careful review of the briefs and the evidence judged against the applicable standards, we conclude that the judge correctly determined that the trial record, viewed as a whole, did not support giving to the jury the lesser-included charges as aggravated and reckless manslaughter. No evidence was presented on the state of mind of the killer. Moreover, we conclude that Fegles, Olympia and Glenn provide no support for defendant's argument.

The Credibility Charge

Defendant also argues that the judge's charges on credibility and motive "went beyond the model charges and were improper." The record reveals that the judge first acknowledged that it was the jury's province to judge the credibility of witnesses. Discussing the use of prior inconsistent statements, the judge instructed that witnesses were testifying as to events that happened almost twelve years earlier. He said, "don't judge a witness's testimony more harshly than you would judge your own testimony" because it is hard to remember what happened that long ago. After the charge, but before deliberations, defendant objected. The judge then instructed the jury that:

when you consider any inconsistencies you should first consider the extent to which any inconsistency is really material or important to the issues in this case. And once you reach that determination, you may then consider all of the factors surrounding the inconsistent statements . . . . It is for you to decide the ultimate credibility of the witnesses and whether a prior statement that was made, no matter when or how long ago it was made . . . is more credible or less credible.

 

At the request of the parties, the judge also repeated the State's contentions as to witness Kevin McMenemy's observation on the day of the murder.2 The judge also repeated defendant's two alternate contentions: that McMenemy did not see defendant; and if it was defendant, he was not doing anything wrong.

We conclude that, even if the judge erred in instructing the jury to not judge the witnesses' testimony more harshly than they would judge themselves, the curative instructions given by the judge were sufficient to explain the jury's proper role in examining prior inconsistent statements. This instruction, read together with the rest of the charge adequately informed the jury of its function in assessing and weighing credibility. State v. Thompson, 59 N.J. 396, 411 (1971). Focusing on just the portion alleged as error is not appropriate. State v. Wilbely, 63 N.J. 420, 422 (1973); State v. Walker, 322 N.J. Super. 535, 546-53 (App. Div.), certif. denied, 162 N.J. 487 (1999).

 

 

 

The Motive Charge

The judge instructed that the State was not obligated to prove a motive; and, that if the State has proved all of the elements of the offense, the jury must find defendant guilty:

regardless of his motive or lack of motive. But, . . . you may consider [evidence of motive] insofar as it gives meaning to other circumstances. On the other hand, you may consider the absence of motive in weighing whether or not [defendant] is guilty of the crime charged.

Defendant challenges this instruction without explaining why the instruction was misleading. Nor does defendant cite any resulting prejudice from the charge.

Use Of The Term "Perpetrator"

The judge used the term "perpetrator" in reviewing McMenemy's testimony. Defendant argues that this effectively negated defendant's alternate theory that even if McMenemy did see defendant walking into his home, it did not mean that he committed the murder.

We perceive no error with respect to the use of the neutral term "perpetrator" by the judge. That term does not translate into "the defendant in this case."

The Search Warrant Charge

The judge instructed the jury that "the fact that a search warrant was issued is not evidence of guilt . . . [nor] a lack of guilt. A search warrant is nothing more than an order from a judge allowing a search of a particular place for particular items." Defendant challenges this instruction, but does not explain the basis for his objection. He argues that the purpose of this charge is to "negate any improper inference of guilt;" and the extra phrase, regarding lack of guilt, "undermined the salutary purpose of those charges."

We conclude that the instruction did not prejudice defendant. The judge merely neutralized the evidence about the search warrant.

The Sexual Assault Charge

Defendant also argues that the judge "badly mismanaged" the sexual assault charge by including the word "attempt." After the charge, defendant objected to the judge's use of the word "attempted" because defendant was not charged with attempted aggravated assault. In response, the judge advised the jury that defendant was not charged with attempting to commit any offense; and that in order to prove aggravated sexual assault, the State must prove that defendant engaged in sexual penetration.

In our view, the supplementary instruction cured any misstatement by the judge. It conforms to N.J.S.A. 2C:14-2(a)(3), which sets out the elements of aggravated sexual assault. Moreover, defendant was acquitted of aggravated sexual assault at the second trial. Therefore, the challenged instruction did not prejudice defendant.

Testimony Read-Back

Defendant contends that the judge erred by responding to the jury's request for a read-back of the testimony of Mary Giaquinto, Leonard Falabelda and Barbara Traube, "regarding the time that [defendant] allegedly approached them, and what he said to them."

Giaquinto, who lived at the trailer park, had testified that she went outside when she saw the police lights on July 23, 1991. Giaquinto was speaking to another neighbor when a male voice behind her said "someone got stabbed. Some woman got stabbed." The man disappeared. Giaquinto could not identify the man, but he was wearing a white tee-shirt. Later that night, she saw the man sitting in a lounge chair. She did not know the man's name, but she saw him once after that night riding around the block on his bicycle.

Falabella and his wife Traube lived across the street from Tocci. Falabella knew defendant. When he and his wife saw the police vehicles, they went outside with their dogs. About a half hour after the police arrived, defendant came across the street to play with the dogs. Defendant told Falabella and Traube that the woman across the street had been stabbed. Falabella asked defendant how he knew that. He replied that he had heard it over the police scanner.

Traube corroborated her husband's testimony. According to her, defendant told them that around 11:00 p.m. he had heard on the police scanner that Tocci had been "found in a puddle of blood, stabbed."

Before the read-back, defendant asked for Giaquinto's testimony to be read in its entirety. The prosecutor objected. The judge ruled that only the requested portion would be read. He noted that the jury nodded when asked if they wanted only the selected portions read to them. Defendant pressed his objection and requested a mistrial. The judge denied the request. After the selected portions were read to the jury, defendant again moved for a mistrial and later raised the issue in his motion for a new trial.

"It is firmly established that '[w]hen a jury requests a clarification', the trial court is 'obligated to clear the confusion.'" State v. Savage, 172 N.J. 374, 394 (2002) (quoting State v. Conway, 193 N.J. Super. 133, 157 (App. Div.), certif. denied, 97 N.J. 650 (1984)). The judge is also required to ascertain the meaning of the jury's request. Savage, supra, 172 N.J. at 394. Here, the judge did not abuse his discretion when he directed that only the requested portion of the testimony be read.

To summarize, we find no support for the allegation that the entire charge was confusing, misleading and prejudicial. No party is entitled to have the jury charged in his or her own words. All that is necessary is that the charge as a whole be accurate. Thompson, supra, 59 N.J. at 411; Walker, supra, 322 N.J. Super. at 546-53. Read as a whole, the charge given here met this standard.

II

THE CONVICTIONS OF DEFENDANT FOR MURDER AND POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE ARE INCONSISTENT WITH HIS ACQUITTALS ON AGGRAVATED SEXUAL ASSAULT AND FELONY MURDER.

 

We are not persuaded.

Although defendant was found not guilty of aggravated sexual assault, it is settled that convictions do not have to be consistent with each other. The Supreme Court has held that "[c]onsistency in the verdict is not necessary [because] [e]ach count in an indictment is regarded as if it was a separate indictment." State v. Muhammad, 182 N.J. 551, 578 (2005) (quoting State v. Banko, 182 N.J. 44, 53 (2004)). Moreover, "[a] jury verdict will not be set aside unless it clearly and convincingly appears that there was a miscarriage of justice under the law." State v. Johnson, 203 N.J. Super. 127, 134 (App. Div.), certif. denied, 102 N.J. 312 (1985).

III

THE VERDICT IS AGAINST THE WEIGHT OF THE EVIDENCE AND THE DEFENDANT IS ENTITLED TO A NEW TRIAL ON THIS BASIS AS WELL AS ON THE BASIS THAT SEVERAL LEGAL ERRORS WERE COMMITTED BY THE TRIAL COURT DURING HIS TRIAL.

Rule 3:20-1 provides that the trial judge shall not grant a motion for a new trial unless, "having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a manifest denial of justice under the law." The judge must "canvass the record, not to balance the persuasiveness of the evidence on one side as against the other, but rather, to determine whether reasonable minds might accept the evidence as adequate to support the jury verdict." Dolson v. Anastasia, 55 N.J. 2, 6 (1969) (quotations omitted). Our review is not limited to a determination of whether the trial court committed an abuse of discretion. Id. at 7. Rather, we must make our own determination as to whether there was a miscarriage of justice. Ibid. We defer to the trial judge only with respect to those intangible aspects of the case not transmitted by the written record--such as witness credibility, demeanor and the feel of the case. Ibid.; R. 2:10-1; State v. Perez, 177 N.J. 540, 555 (2003). The evidence should be sifted to determine whether the jury could rationally have found beyond a reasonable doubt that the essential elements of the crimes were present. State v. Horne, 376 N.J. Super. 201, 208 (App. Div.), certif. denied, 185 N.J. 264 (2005); State v. Brooks, 366 N.J. Super. 447, 454 (App. Div. 2004).

Judged against that standard, and mindful that the evidence here is largely circumstantial, we determine that the proofs adequately support the jury's verdict. Therefore, there was no miscarriage of justice.

IV

THE TRIAL COURT ERRED BY ADMITTING INTO EVIDENCE THE FACT THAT A TELEPHONE CALL WAS MADE FROM THE MIDDLESEX COUNTY JAIL TO KEVIN MCMENEMY AND ALSO ERRED BY ALLOWING A TRANSPARENCY TO BE USED BY DOCTOR DEFOREST DURING HIS TESTIMONY.

 

On October 5, 1991, McMenemy was paged at work three times. He answered the third call, which was collect. The caller identified himself as John Simmons, Tocci's former live-in boyfriend, and called McMenemy by name. According to McMenemy, the caller said "something to the effect, that I had claimed that I had seen a white individual near [the victim's trailer]". He described the voice as "very soft spoken" and not Simmons' voice. McMenemy described the conversation:

I asked him why he would call. . . . He stated that, you saw a white man, walking from [the victim's trailer], and I killed Rosie.

 

. . . .

 

Then he said, he wanted to talk to me. And that he was at [a go-go bar] on Route 130.

McMenemy said that the caller just needed to talk to someone and told McMenemy to bring the police. Believing the "confession" was "bogus," McMenemy reported the conversation to the police.

The telephone calls were traced to the Middlesex County Jail (MCJ). Anthony Vitenza, employed by the Middlesex County Prosecutor's Office assigned to the MCJ, investigated defendant's whereabouts on the day of the telephone calls. Vitenza testified that defendant was housed in the "C-pod," which was in "maximum security," on October 5, 1991.

Defendant is asking us to reverse our earlier ruling that "[t]here can be no doubt that [the now-challenged] evidence was admissible." State v. Chippero, No. A-6836-01T3 (App. Div. December 31, 2002) (slip op. at 3). Defendant did not appeal that ruling to the Supreme Court. Thus, the earlier decision is binding. Particularly in a case that has been remanded by the Supreme Court twice. See State v. Myers, 239 N.J. Super. 158, 164 (App. Div.), certif. denied, 127 N.J. 323 (1990) ("An appellate decision which is interlocutory in the sense that it does not terminate the case nevertheless finally decides the meritorious issue.").

We reject the second argument that the judge erred by allowing Dr. Peter DeForest to use an overlay transparency showing the sole pattern of the sneaker seized from defendant's bedroom. Defendant contends that the transparency had been "doctored" to "make it fit the print that was found on Tocci's back" to mislead the jury into believing that defendant's sneaker made the imprint. This, defendant argues, was highly prejudicial.

Dr. DeForest testified for the State as an expert in criminalistics, specifically footwear impressions and blood spatters. He examined the crime scene photographs and blood stain patterns. Comparing an impression on Tocci's back to the T-956 sneaker seized from defendant, DeForest opined that the impression "was made by a shoe with the same outsole pattern." He concluded that the impression was made by the right T-956 sneaker seized from defendant's bedroom "or one of the same design."

At trial, DeForest used an overlay transparency of the impression. DeForest also repeatedly admitted that his opinion was limited because: (1) there was no scale in place to measure the impression because the impression was not noticed at the time the crime scene was processed; (2) he did not have a high quality imprint that revealed the individual features of the sneaker and there was too much blood; and (3) he was unable to find other T-956 sneakers for comparison. When explaining the use of the overlay, DeForest testified:

This [overlay] is not of particular importance here at all because . . . we don't have a size. We don't know what the actual size of the image in the photograph is.

 

On cross-examination, DeForest again admitted the limitations of his opinion and stated that "[w]e're not saying that that particular shoe made that mark." In addition, defendant's mother denied that the T-956 sneakers found in defendants's bedroom belonged to him.

"There is nothing inherently improper in the use of demonstrative or illustrative evidence." State v. Scherzer, 301 N.J. Super. 363, 434 (App. Div.), certif. denied, 151 N.J. 466 (1997). We will reverse a trial court's ruling on the admission of demonstrative evidence only if the ruling constituted an abuse of discretion. State v. Feaster, 156 N.J. 1, 82 (1998), cert. denied, 532 U.S. 932, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001).

In this context, and with the limitations of the evidence clearly imparted to the jury, we conclude that the judge did not abuse his discretion in allowing the use of the overlay. For the same reason, a limiting instruction was not necessary.

V

THE TRIAL COURT ERRED BY ADMITTING THE AUTOPSY PHOTOS AS THEY WERE UNDULY PREJUDICIAL AND NOT PROBATIVE.

 

"The admissibility of photographs of a crime victim rests within the discretion of the trial judge and [this] ruling will not be overturned in the absence of a palpable abuse of that discretion." State v. Micheliche, 220 N.J. Super. 532, 544-45 (App. Div.), certif. denied, 109 N.J. 40 (1987). Such palpable abuse exists where the relevance of the photograph will unquestionably be overwhelmed by its inherently prejudicial nature. State v. Moore, 122 N.J. 420, 466-67 (1991).

Here, the photographs and the related medical testimony were relevant as to the cause of the victim's death, and whether the murder was committed either purposefully or knowingly. N.J.R.E. 401. Defendant does not explain his argument that the autopsy photographs were particularly gruesome or graphic. The fact that seven other photographs of the victim at the crime scene were introduced as evidence without objection significantly weakens defendant's argument that the specific two photographs of the victim (S-34 and S-35) were inflammatory and distracted the jury.

VI

THE TRIAL COURT ERRED BY NOT SEQUESTERING THE JURY SO THEY WOULD NOT HAVE BEEN AFFECTED BY THE HIGHLY PREJUDICIAL PUBLICITY THAT OCCURRED DURING THE TRIAL WHICH PREJUDICED DEFENDANT'S RIGHT TO A FAIR TRIAL.

 

Pursuant to R. 1:8-6(a), "[t]he jury shall not be sequestered in any action . . . unless the court, in its discretion, so orders on the finding that there are extraordinary circumstances requiring sequestration for the protection of the jurors or in the interests of justice." See also State v. Harvey, 151 N.J. 117, 214 (1997), cert. denied, 528 U.S. 1085, 120 S. Ct. 811, 145 L. Ed. 2d 683 (2000).

Here, defendant has not shown any extraordinary circumstances. The crime occurred in July 1991, several years before the second trial.

VII

THE CONDUCT OF THE PROSECUTOR, WHICH EXCEEDED THE BOUNDS OF PROPER ADVOCACY, DENIED DEFENDANT OF A FAIR TRIAL.

 

Defendant argues that the prosecutor's conduct "exceeded the bounds of proper advocacy" and denied defendant a fair trial because in his summation, the prosecutor "improperly castigated defense counsel" and "denigrated the concept of reasonable doubt."

In order to put the prosecutor's comment in context, we first look to excerpts of defense counsel's summation. Defense counsel gave a long explanation of the reasonable doubt standard and the historical reason for such a high standard. He suggested that "the evidence in this case is beyond a reasonable doubt only in the minds of an overzealous prosecution."

Defense counsel also said that reasonable doubt was an "honest and reasonable uncertainty" and then explained what each of those words meant. He went through the evidence, numbering the examples of reasonable doubt present, and concluded with:

I suggest to you that in order to convict Richard Chippero you would have to entirely disregard all of the other evidence in this case and give the benefit of the doubt to the State on every questionable aspect of the evidence they claim proves their case. This is the opposite, exactly the opposite of what you are supposed to do. You are supposed to give the benefit of the doubt to Richard Chippero. And this case is not close to proof beyond a reasonable doubt.

The prosecutor replied on summation:

The defense would like you to think that proof beyond a reasonable doubt is an impossible burden. Well, let me tell you it's not. There's nothing mystical or magical about it. And it is not an impossible burden to overcome. It's not an imaginary doubt and it is not beyond any doubt and you will hear those words again from [the trial judge]. What it is is a constitutional principle that comes to life in criminal trials throughout this country every day of the year. It's a burden which is required in criminal cases in every state and in every county and it is a burden which a prosecutor overcomes each and every day of the year and convicts [sic] a defendant of the crime for which he is charged. What reasonable doubt is not something created by a defense theory with no evidence. It is not based upon maybes and it is not based upon speculation. A defense theory based upon maybes and speculation is not reasonable doubt.

 

Defendant also challenges the prosecutor's comparison of reasonable doubt to an jigsaw puzzle with missing pieces. The prosecutor stated:

[y]ou have produced a picture of what appears to be a woman in a robe, draped in her robe standing on a pedestal. You can't see her face or head. . . . Can reasonable people disagree as to what is contained in that puzzle? Would reasonable people say it's not the same thing? Ladies and gentlemen, that is reasonable doubt. Can reasonable people agree upon what the evidence shows?

Pursuant to New Jersey law: "prosecuting attorneys, within reasonable limitations, are afforded considerable leeway in making opening statements and summations." State v. Williams, 113 N.J. 393, 447 (1988). This latitude is bound by parameters established by decisional law and by ethical considerations. Ibid. In considering issues of prosecutorial misconduct, we must first determine whether misconduct occurred. State v. Frost, 158 N.J. 76, 83 (1999). Misconduct will only constitute grounds for reversal where it was so egregious that it deprived the defendant of a fair trial. State v. DiFrisco, 137 N.J. 434, 474 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996); State v. Marinez, 370 N.J. Super. 49, 55 (App. Div.), certif. denied, 182 N.J. 142 (2004). In determining whether a claim of prosecutorial misconduct exists, we look to the "tenor of the trial and the responsiveness of counsel and the court to the improprieties when they occurred." State v. Timmendequas, 161 N.J. 515, 575 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001).

We "review the challenged portions of a prosecutor's summation in the context of the entire summation." State v. Vasquez, 374 N.J. Super. 252, 262(App. Div. 2005). "'Prosecutors are permitted to respond to arguments raised by defense counsel as long as they do not stray beyond the evidence.'" Id. at 260 (quoting State v. Morais, 359 N.J. Super. 123, 131 (App. Div.), certif. denied, 177 N.J. 572 (2003)). Indeed, the court "must take into account defense counsel's 'opening salvo.'" Morais, supra, 359 N.J. Super. at 133.

Here, we conclude that defendant's claims are weak when reviewed in context. The prosecutor's comments regarding the reasonable doubt standard were in direct response to defendant's closing argument, and were a fair and appropriate comment on the law.

Defendant also argues that several comments made by the prosecutor denigrated defense counsel and shifted the burden of proof to defendant. The Prosecutor said:

In his opening statement and his summation now defense counsel has indicated that he was not pointing his finger at anyone or at any two people as a possible killer of Ermina Tocci. I suggest to you that actually belies his efforts in this courtroom. We know he wants you to look at Anthony Tocci and John Simmons and he definitely wants you to look at obviously one more than the other. But as much as the State's proofs indicate that Richard Chippero is the murderer the same proofs eliminate Anthony Tocci, John Simmons and anyone else.

The prosecutor then detailed why the evidence does not implicate Anthony or Simmons.

After reviewing McMenemy's testimony, the prosecutor stated that "the defense wants you to believe that Kevin McMenemy has become part of this grand scheme to frame his client." During a large part of his summation, defense counsel presented Simmons as the real killer with the proceeds of a life insurance policy as a motive. He extensively reviewed Simmons's testimony, including his lying about his relationship with Tocci and highlighted the trace evidence linked to Simmons. It is clear that defense counsel intended to portray Simmons as the real killer and, therefore, the prosecutor appropriately responded to that claim.

We conclude that the comments of counsel were neither improper nor denigrating of defense counsel. Defendant argued that the State charged the wrong man, and the prosecutor responded in kind.

We conclude that this statement on its own is innocuous. The prosecutor was likely responding to defense counsel's argument that McMenemy's description of the person he saw "magically" changed to fit defendant. In fact, defense counsel repeated McMenemy's testimony about seeing the same person later riding his bike, claimed that McMenemy was "making this up for the first time," and that his testimony was "not reliable or trustworthy." The prosecutor was appropriately responding to that argument.

Defendant also argues that the prosecutor "virtually accused the defense of staging evidence" when referring to defense photographs of the crime scene taken well after the murder.

At the start of his summation, the prosecutor indicated that he wanted "to comment on a couple of things generally inferred by [defense counsel]." He then stated:

what the State has not done is try to deceive you. What the State has not done in attempting to prove its case to you is show photographs taken a year and a half after the murder, photographs of the crime scene in an attempt to show you that the police may have done something that they didn't do.

Defendant did use photographs taken of the trailer long after the crime scene had been released by the police in his cross-examination of State witnesses. Although inartfully stated, the prosecutor's comment about the age of the photographs was a fair comment on the evidence. Thus, we disagree with defendant's contentions that the above comments were improper.

Mistrial Motions

Although defendant made numerous motions for a mistrial, he challenges only two such motions on appeal. First, defendant challenges the denial of the motion for a mistrial after Vitenza testified that defendant was confined in the maximum security portion of the MCJ. Second, defendant argues that the reference to "the jury" during the read-back of the testimony of Middlesex County Medical Examiner Marvin Shuster, alerted the jury that defendant had been previously tried, and "prejudiced defendant beyond what a cautionary instruction could cure." Shuster's testimony from the first trial was read into the record because he had died.

The decision as to whether a mistrial should be declared is entrusted to the sound discretion of the trial judge. Harvey, supra, 151 N.J. at 205; State v. Winter, 96 N.J. 640, 647 (1984). The standard governing the grant of a mistrial is the same as that for a new trial:

whether or not the error is such that manifest injustice would result from continuance of the trial and submission of the case to the jury. The consideration of the mistrial motion, however, has one additional element, namely the court's determination of whether or not the prejudice resulting from the error is of a nature which can be effectively cured by a cautionary instruction or other curative steps.

 

[Pressler & Verniero, Current N.J. Court Rules, comment 5.1 on R. 3:20-1 (2011); State v. Hightower, 146 N.J. 239, 266 (1996).]

 

A mistrial is an extraordinary remedy that should be granted only to prevent a manifest injustice. State v. Ribalta, 277 N.J. Super. 277, 291 (App. Div. 1994), certif. denied, 139 N.J. 442 (1995). The decision "should not be disturbed when . . . there is no clear showing that the court abused its discretion or that the defendant suffered actual harm." State v. LaBrutto, 114 N.J. 187, 207 (1989). In fact, the trial court is best-equipped to gauge the effect of the improper evidence on the jury and whether it is curable by a cautionary or limiting instruction. Winter, supra, 96 N.J. at 646-47. Accordingly, appellate courts generally defer to the trial court's discretion unless manifest injustice would result. LaBrutto, supra, 114 N.J. at 207.

We conclude that the judge did not abuse his discretion by failing to grant defendant's motions for a mistrial. The judge gave a curative instruction immediately after Vitenza mentioned that defendant had been housed in the maximum security portion of the MCJ. The judge advised the jury that no inference should be drawn from the fact that defendant was in prison on the present charges, and the unit in which defendant was housed is irrelevant.

We concluded that the challenged errors were harmless because the judge gave an immediate curative instructions to the jury to disregard such evidence. The jury is presumed to have followed that instruction. State v. Manley, 54 N.J. 259, 271 (1969).

VIII

THE SENTENCE IMPOSED WAS UNJUST, INAPPROPRIATE AND MANIFESTLY EXCESSIVE.

 

Defendant argues that the life sentence with a thirty-year period of parole ineligibility, rather than a thirty-year sentence, was "unjust, inappropriate and excessive". Specifically, defendant argues that the murder was not so "brutal, depraved or heinous as to warrant a life sentence." He also argued that the judge: failed to recognize mitigating factors; failed to make a specific finding of the need to deter this particular defendant; and "double-counted the elements of the offense as aggravating factors."

The judge found three of the aggravating factors enumerated in N.J.S.A. 2C:44-1a: (1) the nature and circumstances of the offense and the role of the actor therein; (3) the risk that defendant will commit another offense; and (9) the need to deter defendant and others from violating the law. The judge found factor (1) "because this act was committed in an especially heinous, cruel or depraved manner." He specified that this finding was not based on the death but on the fact that there were multiple stab wounds in the front of the Tocci's neck, which indicates that she was aware that she was about to be killed. This resulted in suffering, even if it was not for an extended time period.

The judge found aggravating factor (3) because the murder occurred just one month after defendant had been paroled; and defendant had "a history [of] ignoring authority." Aggravating factor (9) applied because of defendant's criminal history, which included a 1990 conviction for aggravated arson, burglary and theft, and a 1987 conviction for aggravated assault.

The judge found none of mitigating factors enumerated in N.J.S.A. 2C:44-1b, and rejected as a factor defendant's "unfortunate background." On appeal, defendant argues that his criminal record was "not that lengthy or extensive," and that he had a "horrible upbringing" and endured many adversities as a child.

We conclude that the sentencing factors identified by the judge are supported by the evidence. State v. Johnson, 42 N.J. 146, 161 (1964). The sentence is in accord with the sentencing guidelines and based on a proper weighing of the factors. State v. O'Donnell, 117 N.J. 210, 215 (1989). The sentence does not shock our judicial conscience. State v. Roth, 95 N.J. 334, 364-65 (1984), see also State v. Bieniek, 200 N.J. 601, 608-09 (2010).

We also reject the defendant's abusive upbringing as a mitigating factor. Absent a showing of mental illness or compulsion, a life history filled with adversities does not mitigate criminal conduct.

Defendant also contends:

THE TRIAL COURT ERRED BY DENYING THE MOTIONS FOR A JUDGMENT OF ACQUITTAL.

 

THE ERRORS COMMITTED, IN THEIR ENTIRETY, DENIED DEFENDANT A FAIR TRIAL.

 

We determine that these arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

A

ffirmed.

1 Fegles Constr. Co. v. McLaughlin Constr. Co., 205 F.2d 637, 639 (9th Cir. 1953); and Olympia Oyster Co. v. Rayonier, Inc., 229 F. Supp. 855, 861 (W.D. Wash. 1964).

2 McMenemy, a former neighbor of Tocci, contacted the North Brunswick police. He told them that on the day of the murder, he picked up his stepdaughter at her mobile home, located near Tocci's. At 2:39 p.m., while waiting for her, he saw a man "walking quickly" near the front of the victim's mobile home into the immediately-adjacent mobile home. This was defendant's residence. The man was perspiring, but there was no blood on the man or his clothing.