STATE OF NEW JERSEY v. JOSEPH WALLACE

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3335-06T43335-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSEPH WALLACE,

Defendant-Appellant.

__________________________________

 

Submitted February 4, 2009 - Decided

Before Judges Stern, Rodr guez and Waugh.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-12-3008.

Yvonne Smith Segars, Public Defender, attorney for appellant (Sylvia Orenstein, Assistant Deputy Public Defender, of counsel and on the brief).

Anne Milgram, Attorney General, attorney for respondent (Jeanne Screen, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Joseph Wallace appeals his conviction for murder, N.J.S.A. 2C:11-3(a)(1), possession of a handgun without a permit on June 15, 2005, N.J.S.A. 2C:39-5(a), possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a), and possession of a handgun without a permit on July 1, 2005, N.J.S.A. 2C:39-5(b). He was sentenced to an aggregate of forty-years incarceration, subject to the parole ineligibility provisions of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. We affirm.

I

The following facts were presented at trial. On the evening of June 15, 2005, David Ortiz walked out of a grocery store on Third Street and Central Avenue in Newark. He saw Wallace, whom he said is commonly known as "Jay Jerk," across the street arguing with James McMillon. Wallace appeared angry and told McMillon that he should not be selling drugs on that block and that he was taking away his sales. Wallace was with someone known to Ortiz as "Jay Jay," who was later identified as John Boyd. Ortiz noted that Boyd had a cast on his arm. Wallace pulled out a black gun from his waist and shot McMillon twice; once in the stomach and once in the head. Boyd went through the victim's pockets before he and Wallace walked away.

Terrence Matthews, age sixteen, who had known Wallace for three or four years, also witnessed the shooting. He saw Wallace, who wore his hair in dreadlocks, arguing and acting aggressively toward McMillon, who was selling drugs. Wallace then shot McMillon with a black revolver. Matthews heard two shots and ran away. Matthews also recalled that Wallace was with a man who had a cast on his arm.

A third eyewitness, Adrienne Davis, drove up to the laundromat on the corner and saw a group of men. She pulled up and was talking to a friend on her cell phone. Davis heard two pops and then saw the victim fall to the ground. After the shooter shot the victim, he walked right in front of Davis's car and then started running, making a right turn at the first corner, as people yelled for him to stop. According to Davis, the shooter was very dark-skinned, wore his hair in dreadlocks, and was dressed in a white t-shirt, jeans, and black baseball hat. Davis left the area without going to the laundromat. She called 9-1-1 to report the shooting, but did not provide her name.

A fourth eyewitness, Maneerah Munoz, was going to the grocery store on the corner when she observed the shooting. Munoz saw four men standing together. One of them, using a black gun, shot the man standing in the middle twice, and then ran away. The shooter was wearing a white t-shirt, blue jeans, and a black hat. Munoz saw Matthews, whom she had known for eight to ten years, running away with the shooter.

Immediately after the shooting, Officer Ceasar Estella of the Newark Police Department received a call of shots fired and a man shot and injured. He drove to the scene with his partner, Officer Joe Tavares. The officers found the victim lying on his back with blood coming from the back of his head. The victim's wallet was next to him.

The next day, June 16, 2005, the police contacted Munoz, who gave a statement at police headquarters. Munoz told police that Matthews was at the scene and had run away with the shooter. She identified a photograph of Matthews.

Having received a phone call from Matthews' mother, the police located Matthews on June 17, 2005, and brought him to headquarters for questioning. Before beginning the interview, Matthews' mother was also brought to headquarters and given the option of being in the interview room. She opted to remain in the outer room while her son was questioned.

That same day, after reading Matthews the photograph display instructions, Detective Raul Diaz showed an array of six photographs to Matthews. According to Diaz, because Matthews was a juvenile, his guardian was present, although at trial Matthews could not recall that his mother was there and thought that she had not arrived until they called her to pick him up. Matthews selected Wallace's photograph and signed and dated the back of it. On the photograph selected, Diaz noted that Matthews was "relaxed and confident." On a form he signed, Matthews wrote that the person identified in the photograph, Wallace, was the person who "killed the guy" and "shot at the guy with a handgun." Matthews described the shooter as wearing a white t-shirt, pants, and Timberland boots. At trial, Matthews testified that he was not forced to pick out Wallace's photograph, and he identified Wallace in court as the person who had shot and killed McMillon.

On June 18, 2005, Ortiz met with the police. They showed Ortiz an array of six photographs. When he was shown a photograph of Wallace, Ortiz got very excited and said, "that's him." Ortiz signed and dated the back of Wallace's photograph. Ortiz identified Wallace as the person he had seen arguing about drug sales with "the boy that got killed on Central Avenue." In his statement prepared the same day, Ortiz did not tell police that he saw Wallace shoot anyone, but said only that he saw Wallace arguing with the victim. However, when Ortiz met with police the next day, on June 19, he said that he actually saw Wallace shoot McMillon. At trial, Oritz testified that there was no doubt in his mind that Wallace was the person who shot and killed McMillon.

On June 20, 2005, the police asked Munoz to return to the station because they had developed suspects and wanted to show her a photo array. Police showed Munoz an array of six photographs, and she selected Wallace's photo as that of the shooter and signed and dated the photo. At trial, Munoz identified Wallace and testified that she was one hundred percent sure that he was the shooter.

Although Davis had not provided her name when she called 9-1-1 after the shooting, the police eventually located her through her phone number, having subpoenaed the cell phone company. On June 24, 2005, Davis described the shooter as very dark-skinned, wearing his hair in dreadlocks, and dressed in a white t-shirt, jeans, and a black baseball hat. An officer attempted to have Davis look at photographs of potential suspects for identification, but Davis refused.

Based on the identification of Wallace as the shooter by Ortiz, Munoz, and Matthews, the police obtained a warrant for his arrest. On July 1, 2005, at about 6:45 a.m., the police went to 225 Hunterdon Street, Apartment 4N, in Newark for the purpose of arresting Wallace. The officers knocked on the apartment door and waited for about ten to fifteen minutes. Eric Murphy opened the door. As the police entered the small apartment, they saw Wallace, wearing only pants, and Boyd, who had a cast on his arm, walk out of a back bedroom together. Wallace and Boyd were arrested and secured.

The officers then entered the bedroom the men had just left. Through an open, accordion-type closet door, they saw a gun on top of a pile of clothes. The gun, a .357 caliber magnum revolver, was fully loaded with six rounds of ammunition. There was also a live bullet on the floor in the bedroom. The police allowed Wallace to get dressed and put on shoes, and then transported him to police headquarters. Wallace had two tattoos: one that said "Jay-Merk," and the other said, "Jay Jerk," the nickname by which Ortiz had known him.

An autopsy revealed that the victim died of gunshot wounds to the head and chest. Both bullets passed completely through his body. No spent bullets or casings were recovered at the scene of the shooting.

Detective Louis Alarcon of the Newark Police Department, an expert in the field of ballistics examination and firearms identification, examined the .357 caliber magnum revolver that had been seized from the apartment at which Wallace was arrested. He fired two test shots from the gun and determined that it was completely operable and in good working order. Because it was a revolver, spent shell casings remained inside the cylinder until manually removed. When asked why he referred to the finish of the gun as blue, Alarcon explained that the gun had a finish applied to it that is called "bluing," which is a color between blue and black, but depending on how much polish is used, the gun could appear bluish or blackish.

In June 2006, Wallace moved to sever count four of the indictment, which charged defendant with unlawful possession of a handgun on July 1, 2005. Decision on the motion was deferred.

In September 2006, Judge Betty Lester denied Wallace's request for a full Wade hearing on the admissibility of the pretrial identifications, holding that Wallace had not made the required threshold showing that there was some evidence of impermissible suggestiveness in the identification process. Wallace also renewed his motion to sever count four. Judge Lester held that, although she was "not prepared to sever this count from the trial," she would revisit the issue based on the evidence presented.

Wallace moved to suppress the handgun seized from the apartment at which he was arrested on July 1, 2005. On October 18, 2006, Judge Lester held a pretrial admissibility hearing on the motion to suppress the gun, reserving decision at the conclusion of the proceedings. The following day, October 19, 2006, she issued an oral opinion denying the motion. The judge also revisited Wallace's motion to sever count four, but did not change her ruling.

After the jury had been selected, but prior to opening statements, the trial judge and counsel learned that a relative of the victim had made the following statement in the hallway outside of the courtroom in the presence of some of the jurors: "He's guilty, he killed my brother." Judge Lester questioned each juror in the presence of counsel, asking what, if anything, they heard. She allowed counsel to ask follow-up questions. Defense counsel requested that a new jury be chosen. Judge Lester denied that request, stating that she was satisfied the jurors would follow her instructions and decide the case without reference to the relative's statement.

The trial was held over several days in October 2006. The jury rendered a verdict, finding Wallace guilty on all four counts.

Wallace was sentenced on December 15, 2006. Judge Lester merged count three, second-degree possession of a weapon for an unlawful purpose, into count one, first-degree murder. On count one she imposed a sentence of forty years, with a parole ineligibility period of eighty-five percent of the sentence and a five-year period of parole supervision upon release pursuant to NERA. On counts two and four, third-degree unlawful possession of a gun without a permit, Judge Lester imposed five-year sentences, to run concurrently with the sentence imposed on count one. She imposed the required fines and penalties. This appeal followed.

II

On appeal, Wallace raises the following issues:

POINT ONE

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE OF THE GUN FOUND IN A WARRANTLESS SEARCH OF AN APARTMENT BELONGING TO HIS FRIEND'S GIRLFRIEND.

POINT TWO

COUNT FOUR OF THE COMPLAINT, CHARGING UNLICENSED POSSESSION OF THE GUN FOUND IN THE APARTMENT, SHOULD HAVE BEEN SEVERED.

POINT THREE

BECAUSE THE IDENTIFICATIONS ON WHICH THE STATE RELIED WERE RIFE WITH INCONSISTENCIES, IT FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT DEFENDANT WAS THE SHOOTER. THEREFORE, THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE AND MUST BE REVERSED. (Not Raised Below).

POINT FOUR

THE TRIAL COURT ERRED IN REFUSING TO EXCUSE A JUROR WHO COULD NOT SAY DEFINITIVELY THAT THE OUTBURST OF A RELATIVE OF THE VICTIM WOULD NOT INFLUENCE HER DELIBERATIONS.

POINT FIVE

THE PROSECUTOR'S MISCONDUCT IN VOUCHING FOR WITNESSES' CREDIBILITY DEPRIVED THE DEFENDANT OF DUE PROCESS AND A FAIR TRAIL. (Not Raised Below).

POINT SIX

THE JURY INSTRUCTIONS ON THE UNLAWFUL POSSESSION CHARGES WERE CONFUSING AND HAD THE TENDENCY TO REDUCE THE STATE'S BURDEN OF PROOF.

Having reviewed Wallace's arguments, the State's responses, and the record on appeal, we find Wallace's arguments to be without merit and not warranting an extended discussion in a written opinion on appeal. R. 2:11-3(e)(2). We nevertheless add the following.

A

Wallace argues that the trial judge erred when she denied his motion to suppress the revolver found at the apartment when he was arrested on July 1, 2005. His motion to suppress was the subject of an evidentiary hearing, after which Judge Lester concluded that the revolver was found during a permitted "protective sweep" of the type authorized by Maryland v. Buie, 494 U.S. 325, 327, 110 S. Ct. 1093, 1094-95 108 L. Ed. 2d 276, 281-82 (1990). Judge Lester stated:

Now, the Court feels that [Maryland v. Buie] . . . is controlling law on this situation. The officers . . . are permitted to make a cursory visual inspection of places where persons may be hiding when they are executing arrest warrants. And the reasons for this is obvious. It is a dangerous situation. The police have a right to fear [when] they go into private residence, [that] persons who may take objection to the arrest of a family member or colleague might seek to intervene in that situation, so there is a danger -- inherent danger to officers who are attempting to do that in a space that they're not familiar with. Such as someone else being home. It was also clear that there were a number of people there, and there were a number of adults there, and children there as well, so for the safety of all concerned, not only the officers under this situation, but the other persons in the apartment, and particularly younger persons in the apartment, and [] it was important that the place be [as] calm and secured as it could be under the situation where you are coming to arrest someone.

We are satisfied that Judge Lester's findings of fact, as to which our scope of review is "extremely narrow," were fully supported by the evidence adduced at the hearing. State v. De La Paz, 337 N.J. Super. 181, 190 (App. Div.), certif. denied, 168 N.J. 295 (2001). Although a trial judge's interpretation of the law is not entitled to such deference, ibid., we find that Judge Lester correctly applied Buie to uphold the search and resulting seizure. See also State v. Henry, 133 N.J. 104, 118 ("The police may also 'fan out' and conduct a protective sweep of the area if they have reason to believe that they may be in danger from other parties on the premises."), cert. denied, 510 U.S. 984, 114 S. Ct. 486, 126 L. Ed. 2d 436 (1993).

B

Wallace also contends that the trial judge erred in denying his several motions to sever count four, the weapons charge that related to the revolver found when he was arrested on July 1, 2005, several weeks after the murder. We apply an abuse of discretion standard in reviewing such decisions.

A court's severance decision will be reversed only for an abuse of discretion. State v. Chenique-Puey, 145 N.J. 334, 341 (1996). Central to deciding the motion is "whether, assuming the charges were tried separately, evidence of the offenses sought to be severed would be admissible under [N.J.R.E. 404(b)] in the trial of the remaining charges." State v. Pitts, 116 N.J. 580, 601-02 (1989). The admissibility of the evidence in both trials renders inconsequential the need for severance. State v. Coruzzi, 189 N.J. Super. 273, 299 (App. Div), certif. denied, 94 N.J. 531 (1983).

[State v. Davis, 390 N.J. Super. 573, 591-92 (App. Div.), certif. denied, 192 N.J. 599 (2007).]

In deciding a severance motion, in addition to prejudice to the defendant, "other considerations, such as economy and judicial expediency, must be weighed by the judge in making [the] determination." State v. Coruzzi, 189 N.J. Super. 273, 297-98 (App. Div.), certif. denied, 94 N.J. 531 (1983) (citing State v. Maddox, 153 N.J. Super. 201, 206-207 (App. Div. 1977)).

Here, Judge Lester determined that there was a sufficient evidential basis to admit the revolver as the possible murder weapon. She determined that the witnesses had made statements to the effect that Wallace used a black revolver. After personally inspecting the weapon, which was said to have "bluing" on it, she determined that it nevertheless looked black, which defense counsel conceded, and was consistent with the weapon described by the witnesses. That it was found with Wallace, albeit not on his person, when he was arrested two weeks after the murder, tied the weapon to him. Consequently, it would have been admissible at a separate murder trial under N.J.R.E. 404(b), not to show a "disposition" on Wallace's part to commit crimes, but "for other purposes," i.e., to tie the gun to Wallace. We note that the list of "other purposes" in N.J.R.E. 404(b) is not exclusive. See State v. Porambo, 226 N.J. Super. 416, 424-25 (App. Div. 1988).

We reject Wallace's assertion that he was prejudiced because, had count four been severed, Boyd would have taken "full responsibility" for the revolver at a separate trial. The prosecutor was present when Boyd pled guilty to possession of the revolver and represented to Judge Lester that he had not exculpated Wallace at that time. In addition, it is unclear why Boyd could not have given the same exculpatory evidence at the trial on the un-severed indictment.

In summary, we see no abuse of Judge Lester's discretion in her denial of Wallace's motion to sever count four, which she carefully considered on several occasions.

C

Wallace argues, for the first time on appeal, that the verdict was against the weight of the evidence. His argument is premised on inconsistencies in the testimony of the various witnesses at trial and arguments that the State's witnesses were not credible. Issues of credibility were for the jury to determine, State v. Bradshaw, 195 N.J. 493, 509 (2008), and the jury clearly found the State's witnesses credible.

Because Wallace failed to move for a new trial on that basis in the Law Division, the issue is not properly before us. R. 2:10-1 ("In both civil and criminal actions, the issue of whether a jury verdict was against the weight of the evidence shall not be cognizable on appeal unless a motion for a new trial on that ground was made in the trial court."). We recognize that we "can proceed to the merits, if we choose, in the interest of justice." State v. Smith, 262 N.J. Super. 487, 511 (App. Div.), certif. denied, 134 N.J. 476 (1993). We do not do so because our review of the record finds ample support for the jury's verdict and no basis for us to conclude that "it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1.

D

Wallace contends that his conviction should be reversed because the trial judge erred in denying his application to dismiss the initial jurors and select a new jury panel because a member of the jury "equivocated" when questioned about her reaction to the incident in the courthouse hallway, in which a relative of the victim yelled: "He's guilty, he killed my brother."

In State v. R.D., 169 N.J. 551, 557 (2001), the Supreme Court outlined the importance of taking appropriate action when something occurs outside of the courtroom that may taint the jury.

The Sixth Amendment of the United States Constitution and Article I, paragraph 10 of the New Jersey Constitution guarantee criminal defendants "the right to . . . trial by an impartial jury." U.S. Const. amends. VI, XIV; N.J. Const. art. I, 10; see also Sheppard v. Maxwell, 384 U.S. 333, 362-63, 86 S. Ct. 1507, 1522, 16 L. Ed. 2d 600, 620 (1966) (stating that due process requires accused receive trial by impartial jury free from outside influence); State v. Williams, 93 N.J. 39, 60 (1983) (same). That constitutional privilege includes the right to have the jury decide the case based solely on the evidence presented at trial, free from the taint of outside influences and extraneous matters. State v. Bey, 112 N.J. 45, 75 (1988) (Bey I); State v. Biegenwald, 106 N.J. 13, 32 (1987); Williams, supra, 93 N.J. at 60. "Securing and preserving an impartial jury goes to the very essence of a fair trial." Bey I, supra, 112 N.J. at 74 (quoting Williams, supra, 93 N.J. at 60). In Bey I we stated:

Of particular significance here is that aspect of impartiality mandating "that the jury's verdict be based on evidence received in open court, not from outside sources." As expressed by Justice Holmes, "[t]he theory of our system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print." We recently noted the longstanding nature of this Court's commitment to the "[p]reservation of the jury's independence from extraneous--even judicial--influences." The Court has consistently required trial courts to protect both the jurors and their deliberations from illegitimate influences that threaten to taint the verdict.
 
[Bey I, supra, 112 N.J. at 75 (internal citations omitted).]

[Ibid.]

In R.D., the Court outlined the steps to be taken in cases of possible taint, particularly the voir dire of the members of the jury followed by the use of "appropriate discretion to determine whether the individual juror, or jurors, 'are capable of fulfilling their duty to judge the facts in an impartial and unbiased manner, based strictly on the evidence presented in court.'" Id. at 558 (quoting State v. Bey, 112 N.J. 45, 87 1988) (Bey I).

As soon as she heard about the incident in the hallway, Judge Lester questioned each of the jurors in the presence of counsel, as she was required to do by R.D. and Bey I. She then concluded that the jurors had not been tainted and declined to excuse them and select a new jury.

An appellate court applies the "abuse of discretion" standard in reviewing such decisions.

The abuse of discretion standard of review should pertain when reviewing such determinations of a trial court. Application of that standard respects the trial court's unique perspective. We traditionally have accorded trial courts deference in exercising control over matters pertaining to the jury. See State v. Simon, 161 N.J. 416, 466 (1999) (holding court has discretion over whether to exclude juror from jury pool based on responses to questions on voir dire); State v. Harvey, 151 N.J. 117, 214 (1997) (noting that jury sequestration is decision generally left to discretion of trial court), cert. denied, 528 U.S. 1085, 120 S. Ct. 811, 145 L. Ed. 2d 683 (2000); State v. Czachor, 82 N.J. 392, 407 (1980) (stating that court has discretion in ordering jury to continue deliberating after it has announced deadlock). Many state and federal courts also apply an abuse of discretion standard of review to a trial court's decision not to voir dire remaining members of the jury following the excusal of a single juror. E.g., United States v. Davis, 177 F.3d 552, 557 (6th Cir.1999) (finding trial court abused its discretion in failing to question other jurors where excused juror admitted expressing his fears to other jurors); United States v. Cantu, 167 F.3d 198, 202 (5th Cir.), cert. denied, 528 U.S. 818, 120 S. Ct. 58, 145 L. Ed. 2d 50 (1999) (applying abuse of discretion standard of review to trial court's decision not to voir dire remaining jurors). . . .

[Id. at 559-60.]

In support of his argument, Wallace quotes only a small portion of the exchange between Judge Lester and the juror in question. The issue raised here must be decided in light of the entire exchange, which we consequently quote in full:

THE COURT: It has been brought to my attention that there was a comment made in the presence of the jury while you were waiting for me to bring you into the courtroom this morning. Is that correct?

JUROR: Yes.

THE COURT: Were you present?

JUROR: I wasn't. I was in the restroom, so --

THE COURT: You were in the restroom?

JUROR: Yes.

THE COURT: Did you hear after the fact what happened?

JUROR: Yeah. When I walked into the room right behind me, they were talking about it, I heard the story.

THE COURT: What did you hear?

JUROR: I heard that the woman [,] I guess the victim's [] sister, I think it was, made a comment to some of the jurors that something like he's guilty. I don't remember the whole story exactly.

THE COURT: But you got at least the part she made the statement?

JUROR: I heard that she was laughing about it.

THE COURT: What did you think about that?

JUROR: I thought it was pretty wrong of her to say. Pretty outrageous thing, especially if she was laughing.

THE COURT: Really not a laughing matter.

JUROR: Yes.

THE COURT: What influence or impact do you feel that would have upon you in your service as a fair juror in this trial?

JUROR: Um, I don't really think it has an influence because of the nature of what happened, and if she was laughing, and that she said it at all -- it just seems kind of [a] crazy thing [to] say, so --

THE COURT: What influence do you feel that having heard that would have on your decision making process [as a] juror?

JUROR: I don't know. I guess it would like kind of be in my head thinking about why she would say it, but I think I could look at the case fairly.

THE COURT: You understand that what you have to decide the case upon is what you hear in this courtroom?

JUROR: Yes.

THE COURT: You understand that you have an obligation to follow the law?

JUROR: Yes.

THE COURT: Are you prepared to do that?

JUROR: Yes.

THE COURT: For certain?

JUROR: Yes.

THE COURT: Okay.

When the exchange is viewed in its entirety, we find no basis for concluding that Judge Lester abused her discretion in failing to exclude the juror at issue, or the entire panel. She had the opportunity to see and hear that juror's responses and was in the best position to decide whether one or all of the jurors would be able to disregard the outburst and decide the case solely on the evidence presented at trial and her instructions, which were appropriate.

E

For the first time on appeal, Wallace argues that the prosecutor inappropriately "vouched" for the credibility of witness during her summation. The prosecutor argued in her summation that the witnesses had no "reason or motive" to lie and that they had "no axe to grind against [Wallace]" and "no ill will." Wallace argues that two of the witnesses, Ortiz and Matthews, had pending charges and were either promised or hoped for leniency.

Because Wallace did not object to the summation at trial, it is evaluated on appeal by the plain error standard. See R. 1:7-2 and R. 2:10-2; see also State v. Macon, 57 N.J. 325, 336-37 (1971). "Under that standard, '[a] reviewing court may reverse on the basis of unchallenged error only if it finds plain error clearly capable of producing an unjust result.'" State v. Bunch, 180 N.J. 534, 541 (2004) (quoting State v. Afanador, 151 N.J. 41, 54 (1997)).

To determine whether prosecutorial misconduct in summation warrants reversal, we must assess whether the misconduct "was so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999) (citations omitted). In making this assessment, we must consider "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) (citations omitted), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). The prosecution's duty to achieve justice does not forbid a prosecutor from presenting the State's case in a "vigorous and forceful" manner. State v. Ramseur, 106 N.J. 123, 320 (1987) (citation omitted). Indeed, the Supreme Court has recognized that "criminal trials create a 'charged atmosphere . . . [that] frequently makes it arduous for the prosecuting attorney to stay within the orbit of strict propriety.'" Ibid. (quoting State v. Bucanis, 26 N.J. 45, 56, cert. denied, 357 U.S. 910, 78 S. Ct. 1157, 2 L. Ed. 2d 1160 (1958)).

The issue of witness credibility was raised by Wallace during summation. As we observed in State v. Walden, 370 N.J. Super. 549, 560 (App. Div.), certif. denied, 182 N.J. 148 (2004):

A prosecutor may argue that a witness is credible, so long as the prosecutor does not personally vouch for the witness or refer to matters outside the record as support for the witness's credibility. State v. Scherzer, 301 N.J. Super. 363, 445 (App. Div.), certif. denied, 151 N.J. 466 (1997). See also State v. Staples, 263 N.J. Super. 602, 605 (App. Div. 1993) (prosecutor may not express a personal belief or opinion regarding the truthfulness of his or her witness's testimony); State v. Frost, 158 N.J. 76 (1999) (improper for prosecutor to imply that police had no motive to lie).

See also State v. Bradshaw, 392 N.J. Super. 425, 437 (App. Div. 2007) ("[A] prosecutor is permitted to respond to defense counsel's arguments."), aff'd on other grounds, 195 N.J. 493 (2008).

We are satisfied that the language used by the prosecutor during summation did not amount to improper personal vouching for the credibility of the witnesses.

F

Wallace also for the first time on appeal asserts that the trial judge's charge to the jury on the possession counts was confusing and resulted in a reduction of the State's burden. We note that Wallace raised no objection to that aspect of the charge when it was discussed by Judge Lester following the charge conference.

Although the plain error standard of Rule 2:10-2 applies to our review, we must assure ourselves that any defects in the charge were not consequential. Indeed, "[e]rroneous jury instructions on matters material to a jury's deliberations are ordinarily presumed to be reversible error." State v. Jackmon, 305 N.J. Super. 274, 277-78 (App. Div. 1997), certif. denied, 153 N.J. 49 (1998). Where a jury charge was "inadequate to guide the jury in the course its deliberation should take," the conviction is to be reversed. Id. at 290. Moreover, jury charges providing "incorrect instructions of law 'are poor candidates for rehabilitation under the harmless error theory.'" State v. Harrington, 310 N.J. Super. 272, 277 (App. Div.) (quoting State v. Weeks, 107 N.J. 396, 410 (1987)), certif. denied, 156 N.J. 387 (1998).

We review the jury charge as a whole in order to determine its overall effect. State v. Vasquez, 374 N.J. Super. 252, 263 (App. Div. 2005). In so doing, we have found nothing "sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." Ibid. In her charge, Judge Lester was very careful to distinguish between the two weapons counts and her charge cannot rationally be understood to have shifted or lessened the State's burden of proof. We find no error in the charge.

III

In summary, having considered each of the points raised on appeal, we find no basis for reversal and affirm Wallace's conviction on all four counts.

 
Affirmed.

United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).

(continued)

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A-3335-06T4

April 29, 2009