STATE OF NEW JERSEY v. OMAR SAUNDERS

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NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1798-04T41798-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

OMAR SAUNDERS,

Defendant-Appellant.

________________________________________________________________


Submitted December 19, 2007 - Decided

Before Judges Lisa, Lihotz and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 03-08-2977.

Yvonne Smith Segars, Public Defender, attorney for appellant (Gilbert G. Miller, Designated Counsel, of counsel and on the brief).

Joshua M. Ottenberg, Special Deputy Attorney General, Acting Camden County Prosecutor, attorney for respondent (Linda A. Shashoua, Special Deputy Attorney General, Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Tried to a jury, defendant was convicted of first-degree murder, N.J.S.A. 2C:11-3a(1) or (2) (count one); second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a (count two); third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b (count three); third-degree terroristic threats, N.J.S.A. 2C:12-3a or 3b (count four); third-degree hindering apprehension or prosecution by concealment or destruction of evidence, N.J.S.A. 2C:29-3b(1) (count five); third-degree tampering with witnesses and informants, N.J.S.A. 2C:28-5a(1) (count seven); and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7 (count eight). After merging counts two and four with count one, Judge Millenky sentenced defendant on count one to thirty-five years imprisonment with a thirty-year parole disqualifier. On counts five and seven, the judge imposed four-year terms of imprisonment, and after merging count three with count eight, he imposed a term of seven years imprisonment with a five-year parole disqualifier on count eight. All sentences were ordered to run concurrently.

On appeal, defendant argues:

POINT I

THE PROSECUTOR ENGAGED IN MULTIPLE INSTANCES OF MISCONDUCT ON SUMMATION WHICH SINGULARLY AND CUMULATIVELY DEPRIVED DEFENDANT OF A FAIR TRIAL. (Partially Raised Below).

POINT II

THE TRIAL COURT ERRONEOUSLY EXCLUDED STATEMENTS OF DEFENDANT TO ALPHONSO HARRIS AND OF HARRIS TO INVESTIGATORS WHICH WERE ADMISSIBLE UNDER THE "OPENING THE DOOR DOCTRINE," THE "COMPLETENESS DOCTRINE," N.J.R.E. 106, AS PRIOR INCONSISTENT AND PRIOR CONSISTENT STATEMENTS, AND AS STATEMENTS UNDER THE STATE OF MIND EXCEPTION TO THE HEARSAY RULE.

POINT III

THE TRIAL COURT PERMITTED AND FACILITATED THE INTERJECTION OF EXTRANEOUS CONSIDERATIONS INTO THE JURY DELIBERATIONS.

POINT IV

THE COURT ERRONEOUSLY PERMITTED THE STATE TO ADDUCE EVIDENCE OF AN OTHER BAD ACT OF A DEFENSE WITNESS.

POINT V

THE COURT IMPROPERLY PERMITTED IRRELEVANT TESTIMONY WHICH IMPUTED A CRIMINAL DISPOSITION TO DEFENDANT. (Not Raised Below).

POINT VI

DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.

We reject these arguments and affirm.

I

On the evening of May 31, 2002, four young men, all Camden residents and friends, went to a club in Philadelphia, Pennsylvania. They were defendant, Donnell Jakes, Jose Alvarez, and Angelo Lopez. They went in Alvarez's car, a 1991 white Chevy Lumina. Defendant was wearing dark blue shorts, a white t-shirt, and a white "do rag." At the club, Jakes suggested that defendant was not able to hold his liquor, and the two argued. Alvarez and Lopez intervened. When the four men left the club, defendant and Jakes argued again over who should drive home, Jakes contending that defendant was too drunk to drive. Alvarez directed that defendant drive. During the trip, defendant and Jakes resumed the argument, calling each other names, and threatening each other. Jakes said to defendant, "you seen my work, Sixth Street," and defendant told Jakes, "you need my work," and, making a gesture with his hand and index finger in a trigger-like fashion, he said, "Pussy, I'll kill you," and "the reason why you are living right now is because I'm letting you live."

When the group returned to Camden, they made a stop at a bar, and then dropped Lopez off at his home. Defendant then stopped the car near the intersection of Pierce and North 26th Streets.

Defendant got out of the car and walked toward a nearby corner, while Alvarez and Jakes walked to a grassy area to urinate. Defendant had left the sight of the other men. Alvarez walked to the corner and looked up and down the block, but could not see defendant. Standing at the corner, Alvarez began yelling and screaming defendant's name. According to Alvarez, he was holding a bottle of Corona beer. While Alvarez was in that location calling for defendant, Jakes remained near the car.

A few minutes later, Alvarez saw defendant running down the block toward him. Alvarez asked defendant for his car keys. When defendant ran past Alvarez, he shoved the keys at Alvarez and continued on toward Jakes.

When defendant reached Jakes, he began to talk to him, then put his arm around Jakes's shoulders, hugged him and began walking in Alvarez's direction. Suddenly, defendant spun around, removed a gun from his pocket, and shot Jakes twice in the head at point-blank range. When Jakes fell to his knees, defendant fired one more shot. It was later determined that two gunshot wounds entered Jakes's head near his right ear, causing his death. The third shot grazed the front of his throat.

Defendant lived in the immediate area with his father, Alphonso Harris, at 1 123 North 26th Street. When a backyard light turned on, defendant ran up Pierce Street around the corner and down North 26th Street, in the direction of his home. Alvarez got into his car and circled the area for twenty to thirty minutes to see if Jakes was getting help. Alvarez claimed that when he saw police arrive on the scene, he left the area rather than talking to them because he was on parole and did not want to be caught out after hours.

The shooting occurred in the early morning hours of June 1, 2002, between 3:00 and 3:30 a.m. Later that morning, defendant approached Alvarez in Alvarez's backyard, and asked him if he had talked to anyone about what happened the night before. He told Alvarez, "we been friends for a long time, I know where you rest your head at, and I know where your son go to school at." Alvarez interpreted those comments as a threat. Defendant left.

Alvarez later told his sister what happened and, on her advice, Alvarez went to the prosecutor's office on June 3, 2002, and told them about the shooting. He consented to have his car searched, and he agreed to place a cell phone call to defendant and allow investigators to record the conversation.

Throughout the conversation (the tape recording of which was played for the jury and placed in evidence, along with a transcript, which is in the appellate record), defendant repeatedly told Alvarez that he wanted to meet with him in person. He suggested they needed to get their stories straight. At the beginning of the conversation, Alvarez accused defendant of "pop[ping] that boy," but defendant denied it. Later, Alvarez said, "You wild out on the kid you know what I mean?" Defendant responded, "True and deed now listen." Using street jargon, defendant asked Alvarez if the phone was tapped. Defendant commented that his family had already called a lawyer. Again using street jargon, Alvarez asked defendant whether he threw the gun away, to which defendant responded, "Hell yeah!"

Alvarez met again with investigators on June 12, 2002, and gave a further statement, acknowledging that some of the information he had previously provided was not accurate, including where he was standing when the shooting took place. Alvarez testified for the State at trial, relating the events in the manner as we have described them.

Lopez also testified for the State. He described the argument between defendant and Jakes regarding who would drive home. According to Lopez, defendant said to Jakes, "I'm letting you live right now. I'll kill you." Lopez said that he and Alvarez tried to make peace, but defendant continued to instigate a fight with Jakes.

Three individuals who lived in the immediate area of the shooting testified for the State. David Monserrate said that at about 3:00 a.m. on June 1, 2002, he heard someone on the corner outside screaming, calling out for someone. He looked out his window and saw a heavyset black man wearing jean shorts, a white shirt and a white hat walking down 26th Street toward the corner. A few minutes later, he heard four gunshots. He then saw the same individual running up the street in the opposite direction. When Monserrate looked out his back window, he saw Jakes lying on the ground.

Paul Rodriguez woke up around 3:30 a.m. when he heard dogs howling. Almost immediately, he heard three gunshots. He looked out his window and saw a white, four-door car parked near his house. An individual hurriedly got into it and drove away. Aida Rodriguez testified that she heard and saw the same thing. She added that after the police arrived she saw the white car driving slowly around the neighborhood, passing nearby three times, turning its headlights off as it neared the crime scene.

Investigator Ronald Moten of the Camden County Prosecutor's Office went to the crime scene. He found an empty shell casing near Jakes's body and a Corona beer bottle with some beer still in it across the street. Efforts to obtain fingerprints or DNA evidence from either item were unsuccessful. No murder weapon was ever recovered, and an examination of Alvarez's car produced no relevant evidence.

According to defendant's father, Harris, he heard defendant come in around 3:00 a.m. He went downstairs and saw defendant eating a snack at the dining room table. Because defendant was intoxicated, Harris helped him up to his bedroom, took his sneakers off and "almost put him to bed." He later checked on defendant several times, but defendant was "out like a light." When Harris woke up later that morning, defendant was gone.

Two days later, Harris learned that defendant was staying with defendant's cousin in Philadelphia. On that day, Harris went to Philadelphia to meet with defendant, who told him Jakes had been killed and there were rumors that defendant was involved in the death. Defendant told Harris he and Jakes had been arguing on the night of the murder and he had threatened Jakes. He explained, however, that the argument did not "go anywhere" and he did not shoot Jakes. He said Lopez started rumors about his involvement in Jakes's death by telling people about the argument. Defendant told his father he did not want to go to the police because it "was the summer time and he didn't want to be locked up," and he would "pay up when they catch up."

The investigation went cold for about six months, until December 12, 2002, when investigators learned defendant was in custody on unrelated charges in Vineland. Moten and another investigator went to Vineland to talk to defendant. As they entered the interrogation room, defendant blurted out, "I don't own a gun now and I've never owned a gun." He continued, "Donnell and me not only argued at the club -- Club Adrenaline that night, but we -- but we had several arguments and we made peace and everything was dobby." He said he would never shoot his friend over something as trivial as who was driving the car. He said that Jakes's family "kicked my door in looking for me and that was -- and that is why I moved my family out of Camden."

Defendant did not testify at trial. He called his father as a witness. Harris testified that no one threatened him in connection with Jakes's murder and no one kicked in the door of his home, where he and defendant lived. When asked if he ever told police that defendant complained about being threatened, Harris responded: "This is why Omar wasn't coming back -- that's why he didn't come home." He admitted, however, that he never told the police that defendant was threatened.

The defense strategy at trial was to attempt to raise a reasonable doubt that defendant killed Jakes by suggesting that Alvarez killed him.

II

Defendant argues that the prosecutor engaged in multiple instances of misconduct on summation that individually and cumulatively deprived him of a fair trial. He complains that the prosecutor repeatedly attacked the motives of defense counsel and misstated the record.

Specifically, defendant claims the prosecutor acted improperly by (1) asserting that the defense was trying to "fool" the jury; (2) commenting that defense counsel "wouldn't dare" ask any questions of Investigator Dianne Wilson, who interviewed Alvarez on June 3, 2002; (3) misstating the record concerning Rodriguez's cross-examination; (4) misstating the record concerning the timing of Alvarez's initial interview; (5) referring to evidence in the record as if defendant had given the testimony himself; (6) misstating the nature of defendant's argument with Jakes; (7) bolstering Moten's testimony by calling him a "man of honor"; (8) asking the jury to consider the fact that defendant spoke to a lawyer shortly after the shooting; (9) misstating Monserrate's testimony about his observations of the person he saw in the street; (10) mischaracterizing defense counsel's intentions in making his summation arguments; and (11) suggesting that Harris's testimony was scripted by the defense.

"'[I]t is well-established that prosecuting attorneys, within reasonable limitations, are afforded considerable leeway in making opening statements and summations.'" State v. DiFrisco, 137 N.J. 434, 474 (1994) (quoting State v. Williams, 113 N.J. 393, 447 (1988)), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed.2d 873 (1996). "So long as he [or she] stays within the evidence and the legitimate inferences therefrom the Prosecutor is entitled to wide latitude in his [or her] summation." State v. Mayberry, 52 N.J. 413, 437 (1968), cert. denied, 393 U.S. 1043, 89 S. Ct. 673, 21 L. Ed.2d 593 (1969). "Indeed, prosecutors in criminal cases are expected to make vigorous and forceful closing arguments to juries." State v. Frost, 158 N.J. 76, 82 (1999).

A prosecutor's wide latitude, however, is not unfettered. Williams, supra, 113 N.J. at 447. "A prosecutor's remarks and actions must at all times be consistent with his or her duty to ensure that justice is achieved." Id. at 447-48. Thus, it is as much a prosecutor's duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one. State v. Ramseur, 106 N.J. 123, 320 (1987). For example, it has long been established that a prosecutor may not declare a personal belief in a defendant's guilt in such a manner as to lead the jury to believe that his or her opinion is based on something other than the evidence adduced at trial, or otherwise encourage a jury to focus its attention on matters extraneous to the facts of the case. State v. Rose, 112 N.J. 454, 519-21 (1988); Ramseur, supra, 106 N.J. at 321; State v. Hawk, 327 N.J. Super. 276, 282 (App. Div. 2000).

When reviewing a prosecutor's conduct, it is important to remember that criminal trials create a charged atmosphere that often makes it difficult for the prosecuting attorney to stay within the orbit of strict propriety. Ramseur, supra, 106 N.J. at 320. "Prosecutorial misconduct is not ground for reversal of a criminal conviction unless the conduct was so egregious that it deprived defendant of a fair trial." Id. at 322.

In determining whether prosecutorial misconduct is prejudicial and denied defendant a fair trial, we consider whether defense counsel made a timely and proper objection. Id. at 322-23. If no objection is made, the remarks usually will not be deemed prejudicial. Id. at 323; State v. Wilson, 57 N.J. 39, 51 (1970).

In addition to giving the trial judge an opportunity to take corrective action, a timely objection signifies that the defense believes itself to have been prejudiced by the prosecutor's remarks. Conversely, a failure to object . . . indicates that in the atmosphere of the trial the defense did not believe that the prosecutor's remarks were prejudicial.

[Id. at 50-51; accord Frost, supra, 158 N.J. at 83-84.]

Defense counsel did not object to most of these comments during the prosecutor's summation, and most of the prosecutor's comments now raised on appeal were proper or, even if containing some impropriety, were not sufficient to warrant reversal. We begin our discussion with items (7), (8) and (9), which warrant full discussion.

In item (8), defendant argues that the prosecutor's remarks concerning his consultation with a lawyer violated his Sixth Amendment right to trial counsel and his right to fundamental fairness. He further argues that the prosecutor's insinuation that there was something unsavory about his knowing the definition of hearsay was prejudicial and fundamentally unfair.

The prosecutor made two specific comments regarding defendant's alleged cognizance of guilt. She pointed out that in the recorded phone conversation, defendant twice stated that he got a lawyer. She argued: "If you don't know what happened, if you have nothing to do with it, no one's charging you with anything, what are you calling a lawyer for?" She also noted that in the phone call, defendant identified certain information as "hearsay," commenting: "It's funny how he knew that." There was no objection to these comments.

In State v. Marshall, 123 N.J. 1, 123 (1991), the Court concluded that a prosecutor improperly commented on the defendant's retention of an attorney prior to his arrest. In so doing, it held that "a prosecutor's statement suggesting that retention of counsel is inconsistent with innocence impermissibly infringes on a defendant's constitutional right to counsel." Id. at 124. To determine whether the prosecutor's misconduct warranted a reversal of the defendant's conviction, the Court applied the harmless error standard set forth in Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828, 17 L. Ed.2d 705, 710-11 (1967). 123 N.J. at 125. Under Chapman, "before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt." 386 U.S. at 24, 87 S. Ct. at 828, 17 L. Ed. 2d at 710-11.

As in Marshall, the prosecutor's insinuation here that defendant's consultation with an attorney indicated a cognizance of guilt was "an impropriety that is inexcusable for a lawyer experienced in the trial of criminal cases." supra, 123 N.J. at 125. However, we are not persuaded that the impropriety warrants a reversal of defendant's conviction.

The prosecutor's comments on this subject were brief, and in the context of the whole trial, they were inconsequential. The evidence of defendant's guilt was overwhelming. Alvarez's testimony, which was corroborated by Lopez, revealed that defendant and Jakes engaged in a lengthy, heated argument after leaving Club Adrenaline and that defendant threatened to kill Jakes. Alvarez's account of the shooting was corroborated by the testimony of Monserrate and the Rodriguezes as well as physical evidence from the autopsy. In his telephone conversation with Alvarez, defendant made several incriminating statements including an admission that he disposed of the gun used in the crime. Defendant fled from Camden after the murder and did not return. In light of this evidence, the prosecutor's improper remarks were harmless beyond a reasonable doubt.

In item (7), defendant claims the prosecutor improperly bolstered Moten's testimony by referring to him as a "man of honor" and "not a dishonest investigator." Defendant did not object at trial. He now argues that reversal is warranted because "[t]hese assertions could only have come from the prosecutor's personal knowledge of Moten" and thus constituted a personal vouching for Moten's integrity and credibility.

"A prosecutor may neither personally vouch for a witness nor refer to evidence beyond the record to support a witness's credibility." State v. R.B., 183 N.J. 308, 337 (2005) (citing State v. Walden, 370 N.J. Super. 549, 560 (App. Div.), certif. denied, 182 N.J. 148 (2004)). On their face, the prosecutor's remarks concerning Moten appear to do exactly that. To the extent the remarks were improper, however, they had no effect on the outcome of the trial.

During his summation, defense counsel asserted that Moten told Alvarez about the beer bottle so that Alvarez could later use it to bolster his story. In response, the prosecutor commented that defense counsel wanted the jury to believe that Moten "fed" information to Alvarez about finding a beer bottle near the scene of the murder. She argued:

Now, we saw Investigator Moten. He's a man of -- of honor, of training, of experience. Would it make sense to you that he would take a piece of evidence that he doesn't know whether it has anything to do with the case and feed that information to a witness while he's trying to determine the facts of the case? . . . That would seem to me to be dishonest. And I -- I just would submit to you that if anything Investigator Moten is not a dishonest investigator.

Moten's testimony at trial was not crucial to the prosecution. It provided a factual background as to the progress of the investigation, but supplied no independent proof of defendant's guilt. Much of Moten's testimony entailed introducing Alvarez's sister's taped interview and reading exculpatory statements made by defendant into the record. For that reason, Moten's credibility may have been more important to the defense than to the prosecution. Indeed, defense counsel stated in summation that "Moten seems to be a fairly capable guy. He's an experienced investigator. He seems to be a credible, experienced investigator, seems to be a guy who knows what he's doing." The prosecutor's remarks can thus be viewed as simply an agreement with defense counsel's already stated position.

Of course, defendant's real argument on this point centers on the Corona beer bottle. Alvarez testified that he was holding a bottle of Corona beer when defendant walked by and tossed the car keys to him. The discovery of a Corona beer bottle near the scene of the murder corroborated this testimony. Although no fingerprints or DNA were discovered on the bottle to link it with Alvarez, the fact that there was still some beer left in the bottle indicated that it had not been laying on the street very long.

On direct examination, Moten testified that on June 12, 2002, Alvarez told him that he had a Corona beer bottle in his hand that fell to the ground when defendant brushed by him. On cross-examination, defense counsel questioned Moten about the lack of fingerprints on the bottle, but never directly asked him if he planted the beer bottle story with Alvarez. On redirect, however, Moten denied mentioning the beer bottle to Alvarez and insisted that Alvarez was the first one to bring it up.

The prosecutor's statement could be viewed as vouching for this one point of Moten's testimony. Even if that were the case, however, it could not have produced an unjust result in the case. The testimony concerning the beer bottle (including its presence and specific location) was relatively minor in the overall context of the trial. More importantly, connecting Alvarez with the beer bottle could not have harmed defendant's case. Defendant's theory, as argued by defense counsel in closing, was that it was Alvarez who murdered Jakes. A piece of evidence that placed Alvarez at the scene of the crime bolstered that theory. Both sides agreed that Alvarez had been drinking that night and was intoxicated. Both sides agreed that Alvarez was on Pierce Street when Jakes was shot. The beer bottle simply confirmed what the defense accepted as true. Thus, it could not have led the jury to reach an unjust verdict.

In item (9), defendant argues that the prosecutor repeatedly misstated Monserrate's testimony concerning his observations of the person who walked by his house near the time of the murder. He claims the prosecutor's retraction of those comments was "grudging" and provided, at best, a "pseudo correction." He further claims that the court's instruction was "ineffectual."

The prosecutor remarked that Monserrate saw someone wearing clothes matching defendant's walking from the direction of defendant's house to the "direction where the screaming was coming from." She then embellished the point, stating:

The testimony regarding seeing Mr. Saunders or someone who looks like him exit the house across to the corner, we learn is corroborated by what Mr. Monserrate saw after he looked out of the window with the commotion. So, the commotion, the screaming was confirmed by Mr. Monserrate and the visual watching Saunders leave his house from across the street and walk toward the corner was confirmed by Mr. Monserrate.

Defense counsel objected, arguing that Monserrate never said he saw defendant walk across the street or leave defendant's house. The court agreed and directed the prosecutor to correct the statement. The prosecutor then said:

[Defense counsel] raised a good point. I misquoted what Mr. Monserrate said. I mis-spoke and I apologize. What Mr. Monserrate saw was he saw somebody walking from the -- across the street and to the left of his vision toward the direction of the corner on his side. Not exactly seeing somebody walk out of the defendant's home. So, if I mis-spoke then I apologize to you.

Later, when discussing Harris's testimony, the prosecutor again referred to Monserrate's testimony: "Mr. Monserrate appears to have seen somebody looking like [defendant] go in the house. I'm sorry, seems to have somebody come from the house. I mis-spoke." Defense counsel belatedly objected to this remark.

In its charge, the court instructed the jurors:

Arguments, statements, remarks, openings, and summations of counsel are not evidence and must not be treated as evidence. Although the attorneys may point out what they think important in this case, you must rely solely upon your understanding and recollection of the evidence that was admitted during the trial. You should note that there was no evidence in this case indicating that any witness saw Mr. Saunders entering or exiting his house. You must disregard any comments suggesting that such evidence is in this case. Whether or not the defendant has been proven guilty beyond a reasonable doubt is for you to determine based on all of the evidence presented during the trial. Any comments by counsel are not controlling.

[Emphasis added.]

Prompt and effective curative instructions can diminish the prejudicial effect of even flagrant prosecutorial misconduct. See State v. Timmendequas, 161 N.J. 515, 588-89 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed.2d 89 (2001); State v. Koedatich, 112 N.J. 225, 325 (1988), cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed.2d 803 (1989). The issuance of an immediate curative instruction is a critical factor in evaluating the appropriate remedy for an inappropriate statement by the prosecutor. State v. Murphy, 376 N.J. Super. 114, 124 (App. Div. 2005). "The type of necessary curative instruction is in the discretion of the trial court judge who is in the best position to decide what is needed." Hawk, supra, 327 N.J. Super. at 283.

Immediately following defense counsel's objection, the prosecutor corrected her misstatement by acknowledging that Monserrate did not see anyone walk out of defendant's house. Later, however, she made the same misstatement and did not clearly correct herself. Nevertheless, the court decided to address the problem through a curative instruction given as part of the jury charge. The court explicitly stated that no witness saw defendant entering or exiting his house. The court's action was plainly adequate to correct the prosecutor's inappropriate remarks.

This is not a situation where the prosecutor tainted the jury by expressing a personal belief in defendant's guilt or referring to evidence outside the record. Rather, her inappropriate comments consisted of a specific misstatement of the evidence. The court corrected any misperceptions by making it very clear to the jury what the evidence actually showed. Thus, no juror could have been misled by the prosecutor's remarks. Because the court's curative instruction corrected any prejudicial effect of the inappropriate comments, the impropriety does not constitute grounds for reversing defendant's conviction.

None of the other items defendant complains of regarding the prosecutor's summation are of sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). We provide these brief comments.

In items (1) and (10), defendant complains that the prosecutor told the jurors that defense counsel was trying to fool them and accused defense counsel of attempting to mislead the jury. We do not agree. In his summation, defense counsel forcefully and harshly criticized Alvarez, calling him "absolutely, utterly unbelievable," and repeatedly referring to him as a liar. Counsel repeatedly informed the jury that he knew what the prosecutor was going to tell the jury and warned the jurors not to believe it. Counsel expressed his belief that defendant was not a murderer, and that it was Alvarez who killed Jakes.

The prosecutor responded in kind. "Generally, remarks by a prosecutor, made in response to remarks by opposing counsel, are harmless." State v. C.H., 264 N.J. Super. 112, 135 (App. Div.), certif. denied, 134 N.J. 479 (1993). No objection was lodged, thus indicating that, in context, the remarks were not viewed as improper, inflammatory, or prejudicial.

In item (3), defendant claims the prosecutor misstated the evidence concerning Paul Rodriguez's cross-examination, in which he testified that a few days after the murder he was visited by two Puerto Rican men driving a white car, became frightened, and told them he did not see anything. In her summation, the prosecutor suggested that defense counsel was attempting to use that information to imply that "Alvarez had something to do with it because after all Mr. Alvarez is Hispanic." The prosecutor then reminded the jurors, however, that Harris testified that most of defendant's friends were Puerto Rican. In our view, the prosecutor's comment that defense counsel was attempting to connect Alvarez with the Puerto Rican men who visited Rodriguez was a reasonable observation and it was fairly addressed by her point that defendant also had Puerto Rican friends.

In item (5), defendant contends the prosecutor improperly referred to evidence in the record as if it had been elicited from defendant himself, and argues that in doing so she drew attention to defendant's failure to testify, thus infringing on his Fifth Amendment right to remain silent. There is no merit to the argument. In his summation, defense counsel repeatedly referred to things defendant said, which were in evidence by virtue of statements defendant made to various individuals. Defense counsel went so far as to urge the jury to compare defendant's credibility to that of Alvarez. Thus, by referring to defendant's statements, the prosecutor was simply adopting defense counsel's approach. The prosecutor qualified her references to defendant's statements by identifying the person to whom defendant was speaking at the time of the statements. The prosecutor in no way alluded to defendant's failure to testify. This was a proper response to defense argument.

In items (4) and (6), defendant claims the prosecutor misstated the evidence concerning the timing of Alvarez's initial interview and the nature of defendant's dispute with Jakes at Club Adrenaline. We are satisfied that the prosecutor's remarks on these subjects were substantially consistent with evidence in the case.

Nor do we find any merit to defendant's contention in item (11) that the prosecutor improperly suggested that Harris's testimony was scripted for the defense. The prosecutor remarked that "[Harris] was supposed to tell you I know my -- for a fact that [defendant] didn't have anything to do with it." While the comment might seem to have the meaning suggested by defendant, we find no impropriety when the comment is viewed in the overall context of the prosecutor's summation. The prosecutor discussed with the jury Harris's admission to Moten that he wondered whether defendant murdered Jakes. The prosecutor then made the questionable remark and said Harris did not really know whether defendant was guilty. Thus, the prosecutor appeared to be juxtaposing time frames and, rather than referring to the defense concocting Harris's testimony, it appears that she was referring to the thrust of Harris's initial testimony. In other words, although Harris's testimony that defendant came home intoxicated and went straight to bed was supposed to attest to defendant's innocence, its effect was weakened by Harris's statement to Moten.

Finally, in item (2), defendant argues he was prejudiced by the prosecutor's comment that Investigator Wilson was so "strong and clear in her memory of what happened" that defense counsel "wouldn't dare" ask her any questions. Defense counsel objected, and at sidebar the court admonished the prosecutor for making an inappropriate comment and directed her to move on to another topic. Defense counsel did not request that the remark be stricken or that any curative instruction be given. The comment was inappropriate. However, it was brief, isolated, and somewhat ambiguous in its meaning, and we conclude that it did not have the capacity to taint the jury.

We are satisfied that none of the prosecutor's summation comments, either individually or cumulatively, deprived defendant of a fair trial. The comments do not provide a basis for reversal of his conviction.

III

Defendant argues that the court erred in refusing the defense proffer of certain statements that defendant made to Harris on June 3, 2002. Specifically, he contends he should have been allowed to introduce evidence that he told Harris that Jakes's "partners" were looking to shoot or "bang" him; that "folks" from Jakes's family were looking for him; and that he received a phone call the day after the murder telling him not to come back to the block. He claims these statements were admissible under N.J.R.E. 106, the opening the door doctrine, the completeness doctrine, the state of mind exception to the rule against hearsay, and as prior inconsistent statements. He asserts that the prosecution's selective admission of some of defendant's statements and not others was "willfully misleading" and left the jury with the impression that defendant had not been threatened. We find no mistaken exercise of discretion in excluding this evidence.

On direct examination, Harris testified that he spoke to defendant in Philadelphia on June 3, 2002. At that time, Harris learned that Jakes had been murdered and that defendant was concerned about rumors that he was involved in the killing. When defense counsel asked Harris what defendant told him about why he was in Philadelphia, the prosecutor objected. Defense counsel argued that the testimony was relevant to the issue of flight, but when the court asked him what exception would allow the statement to be admitted, counsel replied: "There probably isn't one, Judge." The court sustained the prosecutor's objection.

On cross-examination, Harris stated that no one threatened him in his home on North 26th Street; no one kicked in his door. Harris further testified that defendant admitted he argued with and threatened Jakes. He said defendant also told him Lopez started the rumor that defendant and Jakes had been arguing.

The prosecutor then questioned Harris as follows:

Q. Do you remember indicating to Investigators . . . Wilson and Moten whether Omar had indicated he was threatened?

A. This is why Omar wasn't coming back -- that's why he didn't come home --

Q. I asked you do you remember indicating -- indicating to Investigators Wilson and Moten whether Omar said he was threatened?

A. No.

Q. Okay. Do you remember whether or not you indicated to Investigators Wilson and Moten whether Omar was threatened by any member of the Jakes family or friends on behalf of the Jakes family?

A. No.

On redirect, defense counsel asked Harris to review the transcript of a statement that he gave to investigators with specific regard to what defendant told him on June 3, 2002. When defense counsel asked Harris if defendant told him whether he had any involvement with Jakes's murder, the prosecutor objected. Defense counsel proposed to have Harris read the following three statements into the record:

[Defendant] said, Dad, no. He said I did not have anything to do with it. He said yes, me and the boy did beef, but it didn't go anywhere. He said he threatened me, I threatened him, and that was it.

. . . .

This is when he tells me about this is case and this -- this boy getting killed and then I'm thinking that he was the one who killed him. And I asked Omar at that time. I said well, did you have anything to do with it. He said, no, I did not have anything to do with it.

. . . .

[Jakes's] partners were looking for me to shoot me, to bang me, you know what I mean.

The court found that the first two statements were made contemporaneously with the inculpatory statement already elicited by the prosecution. It concluded that "[i]n this situation, the State having brought these issues to the fore, they can only be understood, that is the meaning of these statements can only be understood in the full context in which they are made. Therefore, I find that they are admissible."

The court then addressed the third statement, which in its entirety read:

I said okay. I said well, what do you want to do. He says, Dad, I can't go back to Camden. He says his partner's looking for me to shoot me, to bang me. You know what I mean. They actually think that I'm the one that ah, ah, that -- that murdered him.

The court noted that no part of this statement had been presented by the State in cross-examination. The prosecutor asked Harris if anyone threatened him, not whether anyone threatened defendant. Reasoning that it was not necessary to read this statement in order to understand the phrasing the State offered, the court concluded it would not be admitted.

Harris subsequently read the first two statements into the record.

Defense counsel next asked Harris about a statement he made to Moten later in the interview about whether he knew if defendant had been threatened. Harris explained that he told investigators that he "didn't know anything of the sort." When defense counsel asked Harris to consult an earlier page of the interview transcript, the prosecutor objected and the court refused to allow that line of questioning to proceed. Later, defense counsel returned to the same subject, asking Harris if defendant said anything else about why he did not want to come in to talk to the police. Harris responded: "[Defendant] had said that he had gotten a phone call." The court called the parties to the bench to discuss the admissibility of this testimony. Out of the jury's hearing, Harris whispered to the court what he proposed to say:

My answer was that my son told me that -- that what -- the morning after this incident had taken place that he got a phone call telling him not to come to the block because they had accused him of -- of -- of -- of killing this boy and he did not -- and they told him not to come to the block that morning because his family was looking for him to do something to him, to hurt him. So this is how my son wound up over in Philly over his cousin's house.

The court said that Harris's proposed testimony was hearsay and asked defense counsel if there was an exception that would allow its admission. Defense counsel replied: "I mean, I can't come up with a reason to get around the hearsay." Concluding that Harris's proposed testimony involved hearsay imbedded in hearsay, the court found it inadmissible.

The court's reasoning was sound in excluding the proffered statements regarding defendant's reasons for fleeing Camden. Before considering the legal merits of defendant's argument, however, we note that whether the court erred in its ruling on the defense proffer is of little significance because defendant was not prejudiced by the exclusion of this evidence.

Defendant's explanation of why he left Camden was placed in front of the jury in several different ways. On cross-examination, Moten read aloud a portion of the statement that defendant made in Vineland:

I was not the person that shot Donnell Jakes and I don't know why the people have been saying I was responsible. I know people in the streets have been spreading rumors that I was responsible for shooting Donnell but the rumors were not true. I would never shoot nor kill anyone let alone my boy over something as petty as an argument about who would drive a vehicle. I took the keys to the vehicle because Donnell was too drunk to drive. Donnell and me not only are -- argue at the club, and then in parenthesis it has Club Adrenaline, that night but we had several arguments and we made peace and everything was dolly, and then again in parenthesis that it's fine. . . . I did not own a gun then and I don't own a gun now. Why would I kill my boy? I loved Donnell like a brother and would never harm him. In fact, I was too messed up to attend his funeral. His family kicked my door in looking for me and that was -- and that is why I moved my family out of Camden. I did not shoot Donnell. . . .

[Emphasis added.]

Further, Harris's responses to several questions alluded to defendant's explanation for his flight. For example, when asked if defendant was threatened, he responded that was the reason defendant was in Philadelphia. Also, when asked why defendant did not want to talk to the police, Harris said defendant told him he got a phone call the day after the murder. Harris's testimony would have left little doubt in the jurors' minds that defendant told his father he had been threatened.

In addition to the testimonial evidence, defense counsel stated in summation:

[Defendant] gave an explanation for why it was that he left Camden after the shooting took place. I think it's a reasonable explanation. As a matter of fact, it's a similar explanation to the one that Alvarez gave you about why it was that he came into the police eventually. Fear of the family and/or friends of Donnell Jakes who might do something to the people that they believe were responsible for this shooting.

And, defendant's explanation was presented to the jury as part of the court's flight charge:

There has been some testimony in the case from which you may infer that the defendant fled shortly after the alleged commission of the crime. . . . [T]he defense has suggested this explanation: That the family of his victim had kicked his door in and that is why he moved his family out of Camden. If you find the defendant's explanation credible, you should not draw any inference of the defendant's consciousness of guilt from the defendant's departure.

The statements the defense sought to elicit from Harris were simply cumulative evidence of defendant's explanation for his flight. The jury was well aware of defendant's professed reasons for leaving Camden. The exclusion of the proffered statements could not have prejudiced defendant.

We now address defendant's substantive arguments. We conclude that the arguments fail to establish that the trial court mistakenly exercised its discretion in refusing to admit Harris's statements to investigators recounting certain declarations that defendant allegedly made to him.

Defendant's argument that these declarations were admissible under the "state of mind" exception to the rule against hearsay, N.J.R.E. 803(c)(3), is not cognizable on appeal because it was not raised in the trial court. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (holding that appellate courts will decline to consider issues not properly presented to trial court when opportunity for such presentation is available unless questions so raised on appeal go to jurisdiction of trial court or concern matters of great public interest). Moreover, defense counsel admitted that the proffered statements were hearsay not admissible under any exception to the rule.

Defendant's contention that the statements were admissible as inconsistent prior statements by Harris is unavailing. N.J.R.E. 803(a)(1) exempts from the hearsay rule "[a] statement previously made by a person who is a witness at a trial or hearing, provided it would have been admissible if made by the declarant while testifying and the statement . . . is inconsistent with the witness' testimony at the trial." The excerpts from Harris's statement to investigators that the defense sought to introduce fail to qualify under N.J.R.E. 803(a)(1) for two reasons. First, the statement Harris gave to the investigators would not have been admissible if made by Harris while testifying because it was hearsay; i.e., it repeated defendant's out-of-court statement and was offered to prove the truth of the matter stated. Second, the statement Harris gave to the investigators was not inconsistent with his trial testimony. Harris testified that he was not personally threatened and that he did not recall telling the police that defendant had been threatened. He explained that he simply had no personal knowledge of any threats. This testimony is not inconsistent with Harris's statement to the investigators about defendant's explanation for his flight.

Defendant's argument that the statements were admissible under N.J.R.E. 106 lacks legal merit. N.J.R.E. 106, which is generally considered a codification of the common law "doctrine of completeness," provides that "[w]hen a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which in fairness ought to be considered contemporaneously." New Jersey courts have adopted federal authority interpreting Fed. R. Evid. 106 and held that under the completeness doctrine, "'a second writing may be required to be read if it is necessary to (1) explain the admitted portion, (2) place the admitted portion in context, (3) avoid misleading the trier of fact, or (4) insure a fair and impartial understanding.'" State v. Lozada, 257 N.J. Super. 260, 272 (App. Div.) (quoting United States v. Soures, 736 F.2d 87, 91 (3d Cir. 1984), cert. denied, 469 U.S. 1161, 105 S. Ct. 914, 83 L. Ed.2d 927 (1985)), certif. denied, 130 N.J. 595 (1992). The determination of whether fairness requires inclusion of an exculpatory portion of a defendant's statement rests in the sound discretion of the trial judge. Ibid.

In this case, the "admitted portion," which was elicited by the prosecution on cross-examination, consisted of defendant's declarations to Harris that defendant and Jakes had been arguing and that Lopez had spread rumors about the argument around the neighborhood. On redirect, the court allowed Harris to read the portion of his statement surrounding these declarations in order to explain them and place them in context. The two statements that the court would not allow Harris to read, however, were not necessary to complete the testimony elicited by the prosecution. The fact that defendant told Harris that Jakes's partners were looking to shoot him and that he received a threatening phone call did not explain defendant's declarations about his argument with Jakes, did not place those declarations in context, was not necessary to avoid misleading the jury, and was not necessary to ensure a fair understanding of the declarations. The information concerning why defendant claimed to have fled Camden constituted a different topic and time frame than the information concerning his argument with Jakes. Thus, the court did not abuse its discretion in refusing to admit the proffered statements under N.J.R.E. 106 or the doctrine of completeness.

For much the same reasons, the court did not err in refusing to admit the statements under the opening the door doctrine. "The 'opening the door' doctrine is essentially a rule of expanded relevancy and authorizes admitting evidence which otherwise would have been irrelevant or inadmissible in order to respond to (1) admissible evidence that generates an issue, or (2) inadmissible evidence admitted by the court over objection." State v. James, 144 N.J. 538, 554 (1996). The doctrine allows a party to elicit otherwise inadmissible evidence when the opposing party has made unfair prejudicial use of related evidence. Ibid.

Here, Harris's reading of the entire statement that set forth defendant's declarations about the argument with Jakes corrected any unfair or prejudicial use the prosecution made of the inculpatory statements. The prosecution did not make unfair use of any part of defendant's explanation to Harris of why he fled Camden. Thus, no corrective action was necessary under the opening the door doctrine.

The court did not err in excluding defendant's double-hearsay statements concerning his reason for flight. Moreover, even if the court's ruling were questionable, the exclusion of this evidence did not prejudice defendant. Defendant's arguments on this point present no basis to reverse his conviction.

IV

The arguments raised by defendant in Points III, IV, V and VI lack sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). We provide these brief comments.

Defendant argues that the trial court allowed extraneous considerations to be interjected into jury deliberations by failing to investigate the jurors' concern for their physical safety, by telling the jurors they were in danger, and by failing to instruct the jurors that their concerns should play no role in their deliberations. Defendant further argues, for the first time on appeal, that the court erred in not conducting a voir dire of each juror to determine whether he or she had safety concerns.

We are satisfied from our review of the record that the manner in which Judge Millenky addressed this issue was entirely appropriate. Further, he addressed the issue in a manner completely consistent with defendant's requests and recommendations. Trial court actions which were induced, encouraged or acquiesced in or consented to by defense counsel ordinarily will not form the basis for reversal on appeal. State v. Harper, 128 N.J. Super. 270, 277 (App. Div.), certif. denied, 65 N.J. 574 (1974). "The doctrine of invited error operates to bar a disappointed litigant from arguing on appeal that an adverse decision below was the product of error, when that party urged the lower court to adopt the proposition now alleged to be error." Brett v. Great Am. Recreation, Inc., 144 N.J. 479, 503 (1996).

Defendant argues that the court erred in allowing the prosecutor to elicit from a defense investigator, Jerome Kee, testimony pertaining to the circumstances of Kee's resignation from the Camden County Prosecutor's Office. Kee apparently left that employment under unfavorable circumstances. The prosecutor's questioning in this regard was very limited and did not delve into details of the circumstances surrounding Kee's leaving the prosecutor's office. The testimony was properly admitted to demonstrate potential bias on Kee's part. See N.J.R.E. 607; State v. Gorrell, 297 N.J. Super. 142, 149 (App. Div. 1996).

Defendant argues that the court committed plain error by allowing the State to adduce evidence that defendant was at a police station in Vineland when he gave his December 12, 2002 statement to Moten. Defendant argues that, because he was not arrested for Jakes's murder at that time, the jury would likely have inferred that he had been arrested in Vineland for an unrelated crime. Thus, defendant claims that other bad acts evidence was admitted in violation of N.J.R.E. 404(b), which denied him of a fair trial. We do not agree.

The prosecutor was careful to direct the questioning of Moten in a manner that avoided informing the jury that defendant was being held at the Vineland police department on unrelated charges. The testimony was presented in a manner to suggest that the Vineland police station was merely a convenient meeting place to conduct the interview. Whether the jury might have inferred that defendant was in custody on other charges is speculation. We find no error, let alone plain error, on this point.

Finally, defendant argues that his sentence is manifestly excessive. The aggregate base term of thirty-five years is only slightly above that minimally required for murder. And, defendant's resulting parole disqualifier of thirty years is the minimum required for murder. With respect to the aggravating and mitigating factors found by the trial judge, we note an inherent inconsistency in the finding of the presence of aggravating factor (3), the risk that defendant will commit another offense, and mitigating factor (9), the character and attitude of the defendant indicate he is unlikely to commit another offense. See N.J.S.A. 2C:44-1a(3) and b(9). We otherwise find the aggravating and mitigating factors well supported by the record. Even if aggravating factor (3) were deleted from the sentencing analysis, the result would be the same. Therefore, any error in the inconsistent findings on those factors is harmless. The sentence is not manifestly excessive or unduly punitive and does not constitute a mistaken exercise of discretion. See State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Ghertler, 114 N.J. 383, 393 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).

Affirmed.

Defendant was acquitted of count six, third-degree hindering apprehension or prosecution by preventing or obstructing a witness from providing testimony, N.J.S.A. 2C:29-3b(2) and (3).

Throughout the record, Lopez is referred to by his street name, "Dave Doe."

(continued)

(continued)

41

A-1798-04T4

February 29, 2008