STATE OF NEW JERSEY v. ANGEL JIMENEZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4280-09T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANGEL JIMENEZ,

Defendant-Appellant.

________________________________________________________________

March 10, 2014

 

Submitted February 11, 2013 - Decided

 

Before Judges Sabatino, Fasciale and Maven.

 

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 07-08-1187 and 05-06-0821.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief).

 

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Kenneth Burden, Deputy Attorney General, of counsel and on the brief).

 

The opinion of the court was delivered by

MAVEN, J.A.D.

 

Following a jury trial, defendant Angel Jimenez was convicted of the first-degree murder of Isidro ("Max") Bueno, N.J.S.A. 2C:11-3(a)(1) and (a)(2) (count one); third-degree theft by unlawful taking, N.J.S.A. 2C:20-3a (count three);1 second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1) (count four); third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b (count five); third-degree hindering apprehension or prosecution, N.J.S.A. 2C:29-3(b)(1) (count six); third-degree hindering apprehension or prosecution, N.J.S.A. 2C:29-3(b)(4) (count seven); fourth-degree possession of marijuana with intent to distribute, N.J.S.A. 2C:35-5(a)(1) (count eight); and third-degree witness tampering, N.J.S.A. 2C:28-5(a)(1) (counts nine and ten). The jury also found defendant guilty of a second-degree certain person offense, N.J.S.A. 2C:39-7b. The jury acquitted defendant of felony murder, N.J.S.A. 2C:11-3(a)(3) (count two).

The court sentenced defendant to a term of life in prison, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, along with five-years' parole supervision on count one, and concurrent lesser terms on the other convictions. Defendant also received a consecutive term of ten years with a five-year parole disqualifier on the certain persons offense.

Defendant raises the following issues on appeal:

 

I. PROSECUTORIAL MISCONDUCT DURING CROSS-EXAMINATION, OPENING STATEMENT, AND SUMMATION DEPRIVED [DEFENDANT] OF A FAIR TRIAL.

 

II. THE TRIAL COURT ERRED WHEN IT RULED THAT THE POLICE HAD PROBABLE CAUSE TO SEARCH [DEFENDANT'S] GYM BAG; AS A RESULT OF THIS ILLEGAL SEARCH, ALL STATEMENTS AND EVIDENCE SHOULD HAVE BEEN SUPPRESSED AS FRUIT OF THE POISONOUS TREE.

 

III. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED A MOTION FOR MISTRIAL AND MOTION FOR NEW TRIAL DUE TO THE MEDICAL EXAMINER'S ERRONEOUS AND INADMISSIBLE TESTIMONY THAT MAX WAS NOT UNDER THE INFLUENCE OF COCAINE.

 

IV. THE TRIAL COURT'S JURY INSTRUCTIONS ON BOTH WITNESS TAMPERING COUNTS DEPRIVED [DEFENDANT] OF HIS RIGHT TO A FAIR TRIAL BY OPENING THE DOOR TO A CONVICTION BASED ON ACTS NOT CHARGED IN THE INDICTMENT. (Not Raised Below).

 

V. THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING [DEFENDANT'S] MOTION FOR JUDGMENT OF ACQUITTAL ON COUNT SEVEN, HINDERING PROSECUTION.

 

VI. THE TRIAL COURT ERRED IN FINDING THAT [DEFENDANT] VOLUNTARILY WAIVED HIS RIGHTS.

 

VII. THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING A MANIFESTLY EXCESS SENTENCE.

 

We have considered these arguments in light of the record and applicable legal standards. We affirm the conviction and sentence, but remand for a correction of the JOC to reflect count three as a third-degree offense.

I.

The following facts were adduced from the suppression hearing and trial proceedings. On March 21, 2005, Jose returned to his apartment to discover his roommate, Max, dead from a gunshot. Jose called 9-1-1 and officers from the Middlesex County Prosecutor's Office, the Perth Amboy Police Department, and the Middlesex County medical examiners' office responded. Officer John Haley recovered and logged the evidence from the apartment, including three bullet casings and a box of .25-caliber bullets found in an open dresser drawer. Haley observed a black gym bag at the foot of the bed, but did not collect it as evidence at that time.

Jose gave a statement to Sergeant Ivan Scott at police headquarters. He reported that Max's former roommate, whom he knew only as Angel, had come to the apartment earlier in the day to collect his personal belongings from a hallway closet. Jose followed Max's instruction and did not allow Angel into the apartment because Max said Angel had stolen his drugs and a .25 caliber handgun.

After hearing Jose's statement that Max had accused Angel of stealing from him, Lieutenant John Maslak returned to the apartment to look for any possessions that may have belonged to a person named Angel. Spotting the black gym bag, Maslak looked inside and saw paperwork containing the name Angel Jimenez. The contents of the bag included clothing, boxing gear, and mail containing defendant's name and multiple addresses. Maslak instructed Haley to log the gym bag as evidence, which he did.

With Maslak and Haley at the apartment, other officers canvassed the neighborhood in an attempt to identify and locate the person whom Jose had identified as Angel. In doing so, they learned the former roommate was Angel Jimenez, that he was a boxer, and that he had a girlfriend named Melissa who lived in Edison. The officers returned to the apartment to find that Maslak had already confirmed defendant's name from the contents of the gym bag, as well as several potential addresses, including that of Melissa.

Police located defendant at Melissa's Edison apartment. Officer Phillip Terranova feared defendant might become violent if he realized he was a suspect in a homicide. Therefore, he told defendant the police wanted to discuss recent burglaries with him. Defendant was cooperative and agreed to go with police to headquarters. Before the officers left the apartment, Melissa signed a consent search form allowing the officers to search her apartment. She also agreed to meet with detectives at the police department.

At headquarters, Sergeant Ivan Scott read defendant his Miranda rights.2 Defendant signed the back of the Miranda card acknowledging that he understood his rights. Scott conducted an unrecorded interview during which defendant explained that he had moved from Max's apartment weeks earlier after an argument in which Max accused him of stealing his cocaine. Defendant claimed he went to Max's apartment on March 20, 2005 to pick up his personal belongings, but left when no one answered the door. Defendant denied shooting Max or having any involvement in his death. The first interview lasted from 1:10 a.m. until 3:20 a.m.

Next, Scott interviewed Melissa, who told police that defendant had confessed to her about shooting Max, and stealing drugs and money from him. She later testified that defendant told her that he went to Max's apartment to pick up his gym bag. When he arrived, Max was high on cocaine and accused him of stealing his drugs. Defendant told Melissa that Max had a handgun and ordered him to get on his knees, but at the last moment, defendant pulled out a second gun from his own back pocket and shot Max in the chest and neck from a kneeling position. Melissa said defendant demonstrated the encounter for her. Defendant admitted to Melissa that he had stolen money and drugs from the apartment with the intent to sell the drugs. He claimed he had thrown the gun used to shoot Max into the river and discarded the clothing.

Melissa stated she had seen the same gun at her apartment two weeks before the shooting, when it fell out of defendant's pocket. Defendant had told her that Max had given him the gun for protection. Melissa let defendant hide the gun in the bottom drawer of her bedroom bureau. Defendant removed the gun from Melissa's apartment four days before the shooting, claiming he was going to sell it.

Scott returned to conduct a second unrecorded interview of defendant at 5:30 a.m. Defendant became upset when he heard Melissa's statement but gave another statement, that differed from the first. He admitted that when he went to Max's apartment on March 20, 2005, Max was not home and Jose would not let him into the apartment. According to defendant, Max told him to come back later that evening. When he returned at 8:30 p.m., Max was high on cocaine, threatened him with a gun, and forced him to his knees. Defendant said that when Max attempted to frisk him, he feared for his life, grabbed the gun, and shot Max from a kneeling position. Defendant claimed he then left the apartment, returned to Jesus's home, where he had been staying, and hid the gun.

After making this statement, Scott allowed defendant to compose himself. He then read defendant his Miranda rights again. Defendant executed another Miranda card and gave a recorded version of his story. Defendant then told the police where he hid the gun and a sweatshirt he had been wearing. He also admitted having marijuana in a suitcase in his room at Jesus's house. Defendant consented to a search of his belongings there and voluntarily accompanied the police to Jesus's house to show them where the items were located. Jesus signed a consent form permitting police to search his home and yard. Police found nineteen small bags of marijuana inside a suitcase in defendant's bedroom, a .25 caliber handgun in a tree, and a sweatshirt in the backyard.

At trial, Melissa testified for the State to having contact with defendant while he was in jail. She stated that on May 13, 2007, defendant called her and told her to say that she did not remember the details of her March 22, 2005 statement to police. He called again on May 18, 2007, and referenced the "thing" that had been located inside her bureau and told her that he "never had one," that Melissa had "never seen it," and that he "[n]ever had one. Never, never, never." Melissa testified that she believed he was referring to the gun.

The State also presented Andrew Falzon, M.D., the chief medical examiner for Middlesex County. Dr. Falzon performed the autopsy and testified as an expert forensic pathologist. He found Max sustained two gunshot wounds: one non-fatal bullet passed horizontally through Max's neck; and a second, fatal shot went through the top of his head and lodged in his tonsils. Dr. Falzon determined the fatal shot was discharged at close range. Dr. Falzon testified that Max had benzoylecgonine in his system, indicating that Max had consumed cocaine but was not high. Following defendant's objection, the court instructed the jury to disregard that statement because Dr. Falzon was not qualified as a toxicology expert.

Defendant presented two witnesses to attest to Max's violent demeanor when under the influence of drugs. Each witness recounted an incident when Max had threatened them with a gun while under the influence of cocaine.

Defendant testified he was at the apartment to retrieve his gym bag. He claimed Max was high on cocaine and put a gun to his head while forcing him to kneel on the floor. As he attempted to grab the gun, defendant claimed Max shot himself in the neck. Defendant allegedly gained control of the gun, and shot Max in the head as Max lunged toward him. Defendant claimed he acted in self-defense.

II.

We begin by addressing defendant's argument that because the search of the gym bag was illegal, his statement and all physical evidence obtained therefrom should have been suppressed. The State counters defendant had no expectation of privacy in items he left in Max's apartment. We reject that particular notion. The case upon which the State relies on that discrete point is inapposite.3 While it is unclear whether Max invited defendant back to the apartment that day, it is undisputed that defendant maintained an interest in collecting his personal property there, including the gym bag.

Having noted that, we now moved onto the substantive analysis of the State's failure to procure a warrant, and the applicable constitutional exception. The court conducted a pre-trial suppression hearing to consider defendant's claim. The court denied the motion, finding the search of the gym bag was lawful because exigent circumstances justified the warrantless search. Furthermore, the court held the gun, the sweatshirt, and the marijuana were admissible, as they had been located pursuant to a consent search. Lastly, the court found defendant had waived his Miranda rights voluntarily and knowingly, and thus held the confession admissible.

In our limited review of a suppression motion, we defer to the trial court's underlying factual findings "so long as those findings are supported by sufficient credible evidence in the record." State v. Handy, 206 N.J. 39, 44 (2011) (quoting State v. Elders, 192 N.J. 224, 234 (2007)). Such factual determinations will not be disturbed even if an opportunity for independent review could lead to a different conclusion. State v. Johnson, 42 N.J. 146, 162 (1964). A trial court's legal conclusions are not afforded the same deference. State v. Mann, 203 N.J. 328, 337 (2010). "When a question of law is at stake," appellate review is plenary. Ibid.

"The touchstone of search-and-seizure analysis is one of reasonableness, for that is what both the Fourth Amendment [of the United States Constitution] and the New Jersey Constitution ultimately require in protecting citizens from 'unreasonable' intrusions." State v. Wright, 431 N.J. Super.558, 593 (App. Div. 2013) (citingState v. Rockford, 213 N.J.424, 440-41 (2013)). "When determining the propriety of a warrantless seizure, '[t]he question is not whether the police could have done something different, but whether their actions, when viewed as a whole, were objectively reasonable.'" State v. O'Donnell, 203 N.J.160, 162 (quoting State v. Bogan, 200 N.J.61, 81 (2009)), cert. denied, ___ U.S. ___, 131 S. Ct. 803, 178 L. Ed. 2d 537 (2010).

A.

When a search is conducted without a warrant, the State must show that an exception to the warrant requirement applies. State v. Pineiro, 181 N.J. 13, 19 (2004). One such exception is when "an officer has probable cause to believe that a crime has been or is about to be committed and the officer is faced with exigent circumstances." State v. Nishina, 175 N.J. 502, 515 (2003) (emphasis added) (citing State v. DeLuca, 168 N.J. 626, 632-33 (2001)). "'Probable cause exists if at the time of the police action there is a well-grounded suspicion that a crime has been or is being committed.'" Ibid. (quoting State v. Sullivan, 169 N.J. 204, 211 (2001)). A finding of probable cause requires "a practical, common-sense decision whether, given all the circumstances . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place." State v. Johnson, 171 N.J. 192, 214 (2002) (alteration in original) (citation and internal quotation marks omitted).

Proof of both exigent circumstances and probable cause "may excuse police from compliance with the warrant requirement." State v. Walker, 213 N.J. 281, 289 (2013) (quoting State v. Bolte, 115 N.J. 579, 585-86, cert. denied, 493 U.S. 936, 110 S. Ct. 330, 107 L. Ed. 2d 320 (1989)). In determining whether the circumstances in a particular case are in fact exigent, courts consider multiple factors:

(1) the degree of urgency involved and the amount of time necessary to obtain a warrant; (2) reasonable belief that the contraband is about to be removed; (3) the possibility of danger to police officers guarding the site of contraband while a search warrant is sought; (4) information indicating the possessors of the contraband are aware that the police are on their trail; (5) the ready destructibility of the contraband and the knowledge that efforts to dispose of narcotics and to escape are characteristic behavior of persons engaged in narcotics traffic; (6) the gravity of the offense involved; (7) the possibility that the suspect is armed; (8) the strength or weakness of the facts establishing probable cause[;] and (9) the time of the entry.

 

[State v. Deluca, 325 N.J. Super. 376, 391 (App. Div. 1999), aff'd, 168 N.J. 626 (2001).]

 

"[E]xigent circumstances will be present when inaction due to the time needed to obtain a warrant will create a substantial likelihood that the police or members of the public will be exposed to physical danger or that evidence will be destroyed or removed from the scene." State v. Johnson, 193 N.J. 528, 553 (2008), certif. denied, 201 N.J. 272 (2010); see also State v. Cassidy, 179 N.J. 150, 160 (2004) (stating "circumstances have been found to be exigent when they preclude expenditure of the time necessary to obtain a warrant because of a probability that the suspect or the object of the search will disappear, or both." (internal quotation marks omitted). On this score, "[a] deadly weapon poses a special threat to both the public and police, and its presence is a significant factor in evaluating whether there are exigent circumstances which justify a warrantless search." State v. Wilson, 362 N.J. Super. 319, 333 (App. Div.), certif. denied, 178 N.J. 250 (2003).

Guided by these principles, we are satisfied the record evidence supports the trial court's finding of both probable cause and exigent circumstances for the warrantless search of the gym bag. As to the former, the officers clearly had a well-grounded suspicion that a crime had been committed based on their discovery of Max's body at the apartment. See Sullivan, supra, 169 N.J. at 211. In addition, given Jose's statement to Scott, there was a fair probability that the bag contained information that would lead to defendant's identification.

With respect to the latter, the suppression court considered the police officers' testimony regarding their efforts to identify the shooter, and the investigatory actions as a whole. In denying the suppression motion, the judge stated

I'm satisfied . . . that there still remained exigent circumstances that would have justified the police seizing the bag and looking for evidence, looking first of all for the first article, but also any evidence that would have allowed them to quickly apprehend the defendant who was at least, as they call it, a person of interest in the investigation.

 

. . . .

 

[I]t's reasonable police conduct for the police to try to locate this defendant and . . . whoever else might have been involved in this homicide, and therefore, the initial crime scene investigation was rightly an exigent circumstance search . . . And, again, I believe exigent circumstances existed when the bag was obtained. It seemed at that point in the middle of the night, after obtaining a search warrant, would give the perpetrator of a homicide many hours to either flee further from the scene or discard evidence.

 

. . . .

 

[A]t that point the police had been investigating for several hours. They had good reason to believe that somehow the defendant may have been involved in this homicide. They did not yet know all of . . . the accurate information about him such as his last name and, most importantly, his whereabouts, nor had they recovered the weapon.

 

So at that point time is of the essence, and exigent circumstances dictate that they should very rapidly look at the seized [] bag, look at it and see where the defendant may have gone, his name, so on and so forth. Obviously, if there was any type of identification in there . . . that would have been very critical information.

 

As the court explained, the record supports a finding of exigent circumstances justifying the warrantless search of the gym bag given the officers' need to identify and locate a homicide suspect, a potential flight risk, as well as their need to locate the murder weapon.4

Defendant nevertheless argues that because the search of the gym bag was illegal, the contents of the gym bag and any derivative evidence obtained therefrom, such as the murder weapon and his confession, should have been suppressed as fruit of the poisonous tree. See State v. James, 346 N.J. Super. 441, 453 (App. Div.) ("To give full effect to the exclusionary rule, it is not merely the evidence that was unconstitutionally obtained that is excluded, but also, generally, its use."), certif. denied, 174 N.J. 193 (2002). Because the warrantless search of the gym bag satisfied an exception to the warrant requirement, we find the trial court properly admitted into evidence the contents of the bag and the evidence obtained as a result of that search.

B.

Defendant asserts the police deceived him into going to the police station by claiming they wanted to talk about burglaries. He therefore contends he did not voluntarily and knowingly waive his Miranda rights. He also claims the court erred by rejecting his expert's testimony that he was not competent to waive his Miranda rights due to an acute stress disorder. We conclude these claims lack merit.

During the suppression hearing, the court heard testimony from Peter M. Crain, M.D., a forensic psychiatrist. Dr. Crain examined defendant more than one year after the murder, and based his analysis on documents detailing defendant's behavior following the shooting. He opined that defendant suffered from acute stress disorder, a temporary condition similar to post-traumatic stress disorder. According to Dr. Crain, defendant was dazed and confused when he was at the police station, and emotionally distressed at the time he provided his formal confession. As a result, he posits, defendant could not have voluntarily waived his Miranda rights. Dr. Crain added that defendant's calm behavior was actually "withdrawal" associated with his mental disorder. He conceded, however, that defendant lacked signs of mental illness during his July 2006 evaluation.

Defendant testified at the suppression hearing. Defendant's testimony indicated he understood why the police came to Melissa's apartment, and he did not claim confusion over Terranova's claim that the police were interested in talking to him about burglaries. Terranova admitted lying to defendant about the reason for wanting to speak with him, but stated defendant was never handcuffed, nor ever told he was under arrest. The court acknowledged that Terranova had lied in order to persuade defendant to come to the police station, but found the deception did not cause the confession.

Once at the station, defendant twice expressed that he understood his Miranda rights after they were read to him, and he signed Miranda warning cards. Although defendant started to cry after confessing to killing his friend, Scott did not describe defendant as hysterical or unable to control his emotions. Rather, defendant was responsive. At the conclusion of the hearing, the court found that defendant voluntarily and knowingly waived his Miranda rights, that his will was not overborne, and that his mental state did not render him incapable of validly waiving his rights.

We defer to the trial court when credibility determinations are at issue. See Elders, supra, 192 N.J. at 245 (trial court's "findings were entitled to deference unless they were 'clearly mistaken' or 'so wide of the mark' that the interests of justice required appellate intervention"). The court rejected Dr. Crain's testimony, instead accepting the more reliable and credible testimony of the police officers who observed defendant's behavior within hours of the murder. The officers noted that defendant appeared calm, alert, and coherent. He did not appear to be under the influence of any alcohol or drugs. The court also noted that no one had any problems communicating with defendant. We therefore discern no basis to disturb the court's ultimate finding that defendant made a knowing and voluntary waiver, rendering his confession admissible.

Even if defendant suffered from acute stress disorder, as Dr. Crain claimed, mental illness does not necessarily invalidate a confession. In State v. Glover, 230 N.J. Super. 333, 342 (App. Div. 1988), certif. denied, 121 N.J. 621 (1990), the court rejected the defendant's claim that his confession was involuntary and should have been suppressed because his mental state prevented him from making a knowing and voluntary waiver of his Miranda rights. In that case, the defendant had acted normally when he was apprehended by police, and stated that he understood his Miranda rights as he waived them. Ibid. Furthermore, the Glover court explained there was no evidence that the defendant had not exercised his free will when he waived his rights. Ibid.

Similarly, in the present case, defendant's demeanor was calm and alert, as described by the police officers who observed him waive his Miranda rights. The evidence in the record supports the finding that defendant possessed the ability to understand and waive his rights.

III.

We now address defendant's claim that the prosecutor's remarks made during opening statements, cross-examination, and summation constitute prosecutorial misconduct. Specifically, defendant alleges the prosecutor accused him of "tailoring" his testimony, and further violated both his right to a presumption of innocence and his right to require the State to prove its case beyond a reasonable doubt. These claims are unavailing.

Prosecutors must act in accordance with fundamental principles of fairness. State v. Wakefield, 190 N.J. 397, 436 (2007), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008). They may be zealous in enforcing the law, but must refrain from engaging in "conduct lacking in the essentials of fair play[.]" Id. at 437 (internal quotation marks omitted). Thus, prosecutors "'should not make inaccurate legal or factual assertions during a trial and . . . must confine their comments to evidence revealed during the trial and reasonable inferences to be drawn from that evidence.'" Ibid. (quoting State v. Reddish, 181 N.J. 553, 641 (2004)).

When reviewing a prosecutor's statements, an appellate court must evaluate "the severity of the misconduct and its prejudicial effect on the defendant's right to a fair trial and conclude that prosecutorial misconduct is not grounds for reversal of a criminal conviction unless the conduct was so egregious as to deprive defendant of a fair trial." Ibid. (internal quotation marks omitted). To that end, reversal is justified when the prosecutor's conduct was "clearly and unmistakably improper" and "substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his defense." State v. Papasavvas, 163 N.J. 565, 625 (2000).

While one instance of misconduct may not warrant reversal, the cumulative effect of multiple instances may create the requisite prejudice to require reversal. State v. Rodriguez, 365 N.J. Super. 38, 49 (App. Div. 2003), certif. denied, 180 N.J. 150 (2004). In addition to the statement itself, a reviewing court should examine (1) "whether defense counsel made a timely and proper objection"; (2) whether the prosecutor's comment was withdrawn and when; and (3) whether the court provided a curative jury instruction. State v. Zola, 112 N.J. 384, 426 (1988), cert. denied, 489 U.S. 1022, 109 S. Ct. 1146, 103 L. Ed. 2d 205 (1989).

Defendant alleges the prosecutor wrongly accused him of tailoring his trial testimony by purportedly changing his story regarding Max's death from that which he gave to the police. "A tailoring allegation is a claim that a witness has adapted his testimony to conform to other evidence that has been produced during a trial." State v. Feal, 194 N.J. 293, 305 (2008). Claiming that a defendant tailored his or her testimony to conform to the facts testified by other witnesses is a violation of that defendant's constitutional rights, State v. Daniels, 182 N.J. 80, 97-98 (2004), as it undermines a defendant's right to a fair trial. Id. at 98.

Prosecutors are prohibited from making general accusations of tailoring, or attacks against the defendant's credibility in the absence of any "specific evidentiary basis that the defendant has tailored his testimony[.]" Ibid. A prosecutor, however, may make specific allegations of tailoring, but in a limited fashion. Id. at 98-99. "The prosecutor's comments must be based on the evidence in the record and the reasonable inferences drawn therefrom." Id. at 99. As a bright-line rule, it is impermissible for a prosecutor to explicitly "reference the defendant's attendance at trial or his ability to hear the testimony of preceding witnesses" as the basis for defendant's ability to tailor his testimony. Ibid.

During cross-examination, the prosecutor asked: "Mr. Jimenez, isn't what you're doing now, you told Sergeant Scott what you believe happened and what you're doing now is trying to mold your testimony to fit the physical evidence and the facts?" Defendant did not object to this question. The prosecutor further asked, "[t]he reason you describe it differently now [is] because you know it's not physically possible for Max to have been shot like that?" Defendant objected to the form of the question, alleging it was an "argument." The court overruled the objection, allowing the question because it was on cross-examination.

The prosecutor similarly implied in summation that defendant had tailored his testimony:

"[W]e know he comes to court, he knows, he's seen the evidence and he knows that his story to the police and story to [Melissa] is completely inconsistent with the evidence so he concocts another story to try to explain the physical evidence that he [thinks] is consistent with the physical evidence but it is not."

 

Defendant did not object to the prosecutor's closing remark.

Here, the prosecutor's questions during cross-examination and his remarks during summation were pointed in nature and targeted the change in defendant's testimony based on the physical evidence and the testimony of Officer Scott and Melissa. Such specific allegations of tailoring were permissible, as they were sufficiently "based on the evidence in the record and the reasonable inferences drawn therefrom." Ibid. We therefore conclude that the question to which defendant objected does not constitute harmful error, and the questions and remarks to which defendant failed to object do not constitute plain error. See R. 2:10-2. (reversal warranted only when error is "clearly capable of producing an unjust result"). Moreover, the lack of a contemporaneous objection is a strong indicator that defendant's trial attorney did not perceive the questioning to be unduly prejudicial, or perhaps thought strategically that it would be better for defendant to respond to the question rather than have the court potentially strike it and leave the jurors wondering about how defendant would have responded.

Defendant further contends the prosecutor violated his constitutional rights by making certain remarks during his opening statement and summation, which allegedly "trampled on [defendant's] right to the presumption of innocence and to have the burden of proof rest with the [S]tate." During his opening statement, the prosecutor remarked:

At first I want to confess to you that I am a little bit at a disadvantage only because my best witness to the shooting is dead because the defendant shot him. There are no eyewitnesses to the shooting which is not surprising since crimes conceived in hell are rarely witnessed by angels.

 

The prosecutor continued by arguing that

[t]he evidence will show that the defendant did things that guilty people do when they kill someone. The evidence will show that the defendant fled from the scene and never called the police. He did not call the police and say, hey, this guy came at me with a gun and I had to shoot him to protect myself. Never told that to the police on his own. Never called the police. Did not even have the decency to summon medical attention and other assistance for [Max] who lie on the floor bleeding.

 

The prosecutor finished his opening statement by stating:

I'm simply trying to point out to you like Max every one of us has the right to live and no one had the right to take his life like his life was taken that particular day.

 

There is not an old, not an old expression but a well-known expression that no one is above the law and no one is beneath its protections. Understanding this concept and applying it to the facts of this case is critically important in this case. As you listen to the facts of this case I'll just ask you to keep one thing in mind. Please understand that defendant is not above the law and Max was not beneath its protection.

 

Defendant did not object to the above statements, although he later moved for a mistrial "based upon the comments of the prosecutor in his opening." The trial court judge, however, reacted, sua sponte. After excusing the jury, the judge expressed disapproval of the prosecutor's comments, stating he found the opening "quite upsetting." He specifically took issue with the phrase, "crimes conceived in hell are rarely witnessed by angels," and directed that such phrases are better used in summations. The judge also expressed disapproval over the defendant's purported obligation to call the police, which, defendant argues, improperly shifted the burden to prove self-defense. The judge further stated the prosecutor had "walk[ed] on very thin ice in making that kind of opening."

When the jury returned, the court gave the following curative instruction, which echoed a previous instruction it had issued during the prosecutor's statement:

Remember at all times what counsel says is not in evidence. Counsel can be emotional, counsel can be demonstrative, counsel can be very stressful in his arguments that's all good and positive, you should listen to all that, but you will find your facts from the evidence and testimony that you hear in this courtroom. That's what you must use as a basis for your final determination.

 

Before delivering this instruction, the court informed defense counsel that while a curative instruction was necessary, he did not believe the jury would be unduly tainted by the prosecutor's comments at this stage in the proceedings. See State v. Loftin, 146 N.J. 295, 365-66 (1996) (trial court is in best position to determine whether a curative instruction will remove any prejudice to a defendant so that a mistrial would not be warranted).

Inasmuch as defendant did not object to the prosecutor's statement we reject his claim of prejudice. See Papasavvas, supra, 163 N.J. at 625 ("Generally, if no objection was made to the improper remarks, the remarks will not be deemed prejudicial. Failure to make a timely objection indicates that defense counsel did not believe the remarks were prejudicial at the time they were made."). Although the court took umbrage to the prosecutor's comments, the statements were not so prejudicial as to deny defendant a fair trial. Because the trial court promptly delivered its curative instruction, id. at 614, which adequately addressed the prosecutor's errors, we find no error.5

Further, defendant challenges the prosecutor's comments during summation in which the prosecutor told the jury that defendant did not act in self-defense because he did not tell the police that he shot Max or where the gun was hidden right away. He contends such statements improperly shifted the State's burden of proof and undermined his presumption of innocence. Because the State is given significant leeway to make forceful comments during its closing, as long as those comments are related to the evidence presented at trial, we discern no error in the challenged commentary. See State v. Frost, 158 N.J. 76, 82 (1999).

IV.

We next consider defendant's argument that the trial court committed reversible error by giving an improper jury instruction on witness tampering, causing his conviction for acts not charged in the indictment. The indictment charged defendant with two counts of witness tampering under N.J.S.A. 2C:28-5(a)(1).6

The judge instructed the jury that

[i]n order for you to find the defendant guilty of violating this statute the State must prove beyond a reasonable doubt each of the following elements: The investigation was pending or about to be instituted and the defendant purposely attempted to induce or otherwise knowingly caused a witness or informant to testify falsely to withhold any evidence, information, document or thing . . . .

 

The second element that is also required by the State to prove beyond a reasonable doubt is that defendant purposefully attempted to induce or otherwise knowingly caused a witness or informant to testify falsely or withhold any information, document or thing. The State contends defendant purposely attempted to have [Melissa] testify falsely in this criminal proceeding. Give [sic] false information in the investigation.

 

[Emphasis added.]

 

As a threshold matter, defendant did not raise this issue below. As a result, defendant has waived his right to challenge the jury instructions on appeal. R. 1:7-2. Consequently, we review the issue under the plain error rule, which requires reversal only if error was "of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2; see also State v. Afanador, 151 N.J. 41, 54 (1997) (same).

With respect to jury charges, "[e]rroneous instructions on matters or issues that are material to the jury's deliberation are presumed to be reversible error in criminal prosecutions." State v. Jordan, 147 N.J.409, 422 (1997). In general, a criminal defendant should be charged in accordance with the evidence and arguments presented at trial. See, e.g., State v. Delibero, 149 N.J. 90, 101-02 (1997).

We are satisfied the judge in this case properly molded the instructions to the facts. He explained that the applicable section of the witness tampering charge the State presented was in relation to defendant's request that Melissa testify falsely. We conclude the court properly delivered instructions in accordance with the facts of this case and the language of N.J.S.A.2C:28-5(a)(1).

We further conclude there was no plain error because the evidence presented at trial could have led the jury to find that defendant had encouraged Melissa to "testify or inform falsely." N.J.S.A. 2C:28-5(a)(1). The State did not present any argument at trial of an attempt to have Melissa "withhold any testimony, information, document, or thing," but rather only to "testify or inform falsely." In rejecting defendant's claim, we conclude there was no plain error, as the jury had sufficient facts to apply to the relevant section of the statute, N.J.S.A. 2C:28-5(a)(1). Defendant suffered no harm or prejudice.

V.

We now turn to defendant's contentions that the trial court abused its discretion by denying his requests for a mistrial and later, the motion for a new trial. He contends the medical examiner's testimony that Max had consumed cocaine, but was not under its influence at the time of his death, resulted in a manifest denial of justice.

During his testimony, Dr. Falzon described the cocaine and benzoylecgonine found in Max's body and stated that the presence of benzoylecgonine in the body suggests the person consumed the drug, but they are not under the influence at that time. Defendant objected and moved for a mistrial. The court heard defendant's argument and denied the motion. Instead, the court provided the jury with a curative instruction:

We'll continue with the examination of Dr. Falzon. Before we do so I indicated to you during the course of the voir dire process there may [be] times I'll give you an instruction. I'm giving you such an instruction now. You are to disregard the last statement of the doctor concerning the effects of the cocaine and/or cocaine metabolite on the decedent. Forensic pathologist[s] must be [] qualified to testify in that area and he's not been qualified to testify in the area of toxicology results. You are to disregard that opinion.

Defendant did not object to the curative instruction and proceeded with his cross-examination of Dr. Falzon.

At sentencing, defendant moved for a new trial, again arguing that, among other errors, defendant was denied a fair trial due to Dr. Falzon's statement. The court denied the motion, explaining that it had sustained defendant's objection at the time the statement was made, and the issue was argued at length and previously ruled upon.

"The decision to grant or deny a mistrial is entrusted to the sound discretion of the trial court, which should grant a mistrial only to prevent an obvious failure of justice." State v. Harvey, 151 N.J. 117, 205 (1997) (citation omitted). We "should defer to the decision of the trial court, which is in the best position to gauge the effect of the allegedly prejudicial evidence." Ibid. The trial judge in this case perceived no obvious failure of justice. We agree.

Defendant argues his entire defense was predicated upon Max being high on cocaine, thus necessitating his shooting Max in self-defense. He contends the court's curative instruction was faulty because it did not inform the jury that the medical examiner's testimony was untrue. Defendant further asserts the prosecutor intentionally elicited the statement, and that he did not have an opportunity to present an expert that could have contradicted the medical examiner's unexpected testimony. Defendant's claims are fatally flawed.

The record reflects that the judge had immediately addressed defendant's objection. The jury was unequivocally instructed to disregard the statement, because Dr. Falzon was not qualified to testify in the area of toxicology results. It is presumed that the jury can follow the instructions provided by the court. State v. Burns, 192 N.J. 312, 335 (2007). We are satisfied the curative action was sufficient to address the objection raised. Thus, there was no judicial abuse of discretion in denying the motions.

Defendant's additional arguments with respect to the expert's testimony are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

VI.

Defendant asserts the court erred by denying his motion for judgment of acquittal on count seven, hindering prosecution, because he should not be charged with declining to incriminate himself. We are not persuaded by this argument.

When a motion for judgment of acquittal is made at the close of the State's case, the trial court must deny it if "viewing the State's evidence in its entirety, be that evidence direct or circumstantial," and giving the State the benefit of all reasonable inferences, "a reasonable jury could find guilt of the charge beyond a reasonable doubt." State v. Reyes, 50 N.J. 454, 459 (1967). This court uses the same standard as the trial judge in reviewing a motion for judgment of acquittal. SeeState v. Bunch, 180 N.J.534, 549 (2004).

On such a motion, the court "is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the State." State v. Muniz, 150 N.J. Super. 436, 440 (App. Div. 1977) (citing State v. Kluber, 130 N.J. Super. 336, 341-42 (App. Div. 1974), certif. denied, 67 N.J. 72 (1975)), certif. denied, 77 N.J. 473 (1978). "If the evidence satisfies that standard, the motion must be denied." State v. Spivey, 179 N.J. 229, 236 (2004).

N.J.S.A. 2C:29-3(b)(4) provides that a person commits an offense if he gives false information to a law enforcement officer with the purpose of hindering his own detention or investigation. Defendant argues that his convictions for hindering prosecution should be reversed because a refusal to cooperate or a refusal to give information to police is not the same as giving false information.

The State presented evidence that during the interview with Sergeant Scott, defendant initially denied any involvement with Max's homicide. Defendant then gave a recorded statement confessing that he shot Max in self-defense and maintained the self-defense theory at trial. Thus, there was an ample basis for a jury to conclude that defendant gave false information to police as prohibited by N.J.S.A. 2C:29-3(b)(4). Accordingly, the judge properly denied defendant's motion for a judgment of acquittal at the close of the State's case.

VII.

Defendant complains the court abused its discretion by imposing a manifestly excessive sentence. He argues the court failed to balance applicable mitigating and aggravating factors; erred by imposing both a life term and a consecutive sentence; improperly sentenced defendant on the crime of theft; and incorrectly listed the fines on the judgment of conviction, all of which require a remand for re-sentencing.

Our review of a sentence is limited. State v. Roth, 95 N.J. 334, 364 (1984). We must determine whether the correct sentencing guidelines have been followed. Id. at 365. When a trial court follows the sentencing guidelines, we should not second-guess the sentencing court's decision. State v. Cassady, 198 N.J. 165, 181 (2009). Indeed, an appellate court "'does not sit to substitute its judgment for that of the trial court.'" State v. Jabbour, 118 N.J. 1, 6 (1990) (quoting State v. O'Donnell, 117 N.J. 210, 215 (1989)). We are "expected to assess the aggravating and mitigating factors to determine whether they 'were based upon competent credible evidence in the record.'" State v. Bieniek, 200 N.J. 601, 608 (2010) (quoting Roth, supra, 95 N.J. at 364-65).

Applying these standards, we discern no reason to disturb the sentence. First, the trial judge followed the sentencing guidelines. Second, the record supports the judge's findings of aggravating factors N.J.S.A. 2C:44-1(a)(3) (the risk that the defendant will commit another offense);-1(a)(6) (the extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted); and -1(a)(9) (the need for deterring the defendant and others from violating the law). The court particularly noted aggravating factor three. Based on defendant's juvenile adjudications and adult criminal record, specifically noting his multiple institutional infractions for fighting with inmates during his incarceration pending trial, the court determined there was a substantial risk that defendant could commit another offense.

The court found no mitigating factors and rejected defendant's request for mitigating factors three and four, finding the evidence and jury verdict did not support their application. We agree with the State that a guilty verdict for murder implies the jury did not find defendant's self-defense claim credible. Thus, there were no grounds to find an excuse for defendant's conduct, or that he had acted in any form of self-defense.

Because the aggravating factors substantially and indeed overwhelmingly outweighed the nonexistent mitigating factors, we cannot find fault in the court's sentencing determinations. Defendant's remaining sentencing claims are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We only add that, as stated previously, the JOC incorrectly lists count three, theft by unlawful taking, as a first-degree rather than a third-degree offense. Accordingly, we remand for a correction of the JOC.

Affirm convictions and sentences. Remand for the correction of the JOC.

 

 

 

1 The initial charge in count three was first-degree armed robbery. Defendant was convicted of the lesser included offense of theft by unlawful taking. The Judgment of Conviction (JOC) incorrectly lists this offense as a first-degree offense.

2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

3 In State v. Arias, 283 N.J. Super 269, 281 (Law Div. 1992), the trial court determined the defendant had no expectation of privacy in the items seized in the home that he commandeered at gunpoint. Unlike the defendant in Arias, who had neither owned, rented, nor been an invited guest in the home, defendant had lived in Max's apartment up until shortly before the shooting.

4 Even if, hypothetically, exigent circumstances were deemed lacking, the police seizure and examination of the bag and its contents were arguably justifiable under the inevitable discovery doctrine. See State v. Smith, 212 N.J. 365 (2010), cert. denied, ___ U.S. ___, 133 S. Ct. 1504, 185 L. Ed. 2d 558 (2013). Once the crime scene was secured and the investigation progressed, there is a considerable possibility that the police would have obtained judicial permission to search or inventory the various objects located in the shooting victim's bedroom, including the bag.

5 We approve the judge's rapid response to those comments he deemed may have drawn too close to the line. While we do not find prejudicial error in this case, we do not condone such statements. Prosecutors must be ever mindful that zealous advocacy has its boundaries, and there are significant ramifications for crossing the line and potentially violating a defendant's constitutional rights to a fair trial. See State v. Vallejo, 198 N.J. 122, 134 (2009).

6 The statute pertaining to witness tampering provides, in relevant part:

 

A person commits an offense if, believing that an official proceeding or investigation is pending or about to be instituted or has been instituted, he knowingly engages in conduct which a reasonable person would believe would cause a witness or informant to:

 

(1) Testify or inform falsely[.]

 

[N.J.S.A. 2C:28-5(a)(1).]