STATE OF NEW JERSEY v. KENNETH A. DUCKETT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KENNETH A. DUCKETT, a/k/a

ANTON DUCKETT,

ANTWAIN DUCKETT,

MICHAEL KENNETH STEWART,

TODD BARCLIFF,

Defendant-Appellant.

________________________________

February 12, 2014

 

Submitted October 22, 2013 Decided

 

Before Judges Reisner, Ostrer and Carroll.

 

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 09-02-0457.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Karen E. Truncale, Assistant Deputy Public Defender, of counsel and on the brief).

 

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

 

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Kenneth Anton Duckett appeals from his conviction for first-degree murder, N.J.S.A. 2C:11-3(a); unlawful possession of a handgun, N.J.S.A. 2C:39-5(b), and possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a). He also appeals from the aggregate sentence of life in prison subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

On this appeal, defendant presents the following points for our consideration:

POINT I

 

THE COURT ERRED IN PRECLUDING THE DEFENSE OF PASSION/PROVOCATION WHICH EFFECTIVELY RESULTED IN THE DEFENDANT BEING TRIED WITHOUT THE PRESENTATION OF A DEFENSE.

 

A. It Was Incorrect To Hold A Pretrial.

 

B. The Ruling Was Wrong On The Evidence.

POINT II

 

THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS VIOLATED WHEN THE PROSECUTOR WAS PERMITTED TO REPEATEDLY INTERRUPT DEFENSE COUNSEL'S SUMMATION BY THE USE OF OBJECTIONS IN WHICH SHE REFUTED COUNSEL'S STATEMENTS AND CLEARLY IMPLIED THAT COUNSEL WAS IMPROPERLY DISTORTING EVIDENCE.

POINT III

 

THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS VIOLATED WHEN THE JURY WAS ALLOWED TO TAKE THE VIDEOTAPED STATEMENT OF E.D. INTO THE JURY ROOM TO BE PLAYED WITHOUT SUPERVISION AND OUTSIDE THE PRESENCE OF THE COURT, COUNSEL, AND DEFENDANT. (Not Raised Below.)

 

POINT IV

 

THE DEFENDANT WAS DEPRIVED OF A FAIR TRIAL WHEN THE COURT PERMITTED THE STATE TO ENTER INTO EVIDENCE MORE THAN 100 PHOTOGRAPHS THAT WERE CUMULATIVE, OR GRAPHICALLY DEPICTED THE VICTIM, OR IRRELEVANT TO THE ISSUES AND OVERWHELMINGLY PREJUDICIAL.

 

POINT V

 

AT THE PROSECUTOR'S REQUEST, THE COURT IMPROPERLY GAVE A SUPPLEMENTAL CHARGE EXPLAINING PREMEDITATED MURDER THAT WAS INAPPLICABLE TO THE CODE OFFENSE OF MURDER, AND DESIGNED TO COUNTERACT THE DEFENDANT'S STATEMENT THAT HE DID NOT PLAN TO SHOOT THE VICTIM.

POINT VI

 

THE CHARGE TO CONTINUE DELIBERATING AFTER THE JURY ANNOUNCED AN IMPASSE WAS FATALLY FLAWED AND COERCIVE. (Partially Raised Below.)

 

POINT VII

 

THE PROSECUTOR EXCEEDED THE BOUNDS OF PROPRIETY IN SUMMATION BY INFLAMING PASSIONS AND STATING THAT THE DEFENDANT PERMANENTLY SILENCED THE VICTIM AND THAT AS A RESULT SHE COULD NOT SPEAK OUT FOR HERSELF.

 

POINT VIII

 

THE TRIAL WAS SO INFECTED WITH ERROR THAT EVEN IF EACH INDIVIDUAL ERROR DOES NOT REQUIRE REVERSAL, THE AGGREGATE OF THE ERRORS DENIED THE DEFENDANT A FAIR TRIAL. (Not Raised Below.)

 

POINT IX

 

THE DEFENDANT WAS SENTENCED TO A MANIFESTLY EXCESSIVE LIFE TERM.

In a supplemental pro se brief, defendant presents two additional points:

POINT I

 

THE TRIAL COURT'S FAILURE TO APPLY THE THREE-STEP ANALYSIS MANDATED BY STATE V. GILMORE, 103 N.J. 508 (1986), AFTER DEFENDANT PRODUCED EVIDENCE THAT THE PROSECUTOR USED SEVEN OF HER [TWELVE] PEREMPTORY CHALLENGES TO EXCLUDE AFRICAN AMERICAN JURORS REQUIRES VACATING DEFENDANT'S CONVICTION AND REMANDING THE CASE FOR A NEW TRIAL. U.S. CONST. VI; XIV; N.J. CONST. ART. I, PARS. 5, 9, AND 10.

POINT II

 

DEFENDANT WAS DENIED A FAIR TRIAL UNDER THE U.S. CONST. V, VI, ART. I, PAR. 10, THE [N.J. CONST.], GUARANTEES CRIMINAL DEFENDANTS THE RIGHT TO TRIAL BY AN IMPARTIAL JURY. DEFENDANT[']S RIGHTS [WERE] VIOLATED WHEN THE DELIBERATING JURORS WERE INAPPROPRIATELY INFLUENCED WHILE DURING DELIBERATIONS[.] []IT WAS INJECTED INTO THE DISCUSSIONS THAT MAJORITY RULED, CAUSING THE MINORITY TO CHANGE THEIR VOTES.

Having thoroughly reviewed the record, we find no merit in any of those arguments, and we affirm the conviction and the sentence.

I

To briefly summarize, on June 26, 2008, defendant shot and killed his former girlfriend, Monica Paul, with whom he had a son and a daughter. The shooting occurred at a YMCA in Montclair, in front of numerous witnesses, including the couple's daughter. According to defendant, when he went to the YMCA to watch their son participate in a swim lesson, he and Paul got into an argument and she stated to him that the son was not his child. Defendant claimed that he "blacked out," and when he regained consciousness, he realized he had shot Paul, using a gun that he happened to be carrying for protection against local gang members. The State's forensic evidence indicated that he shot her six times. Defendant then fled to Brooklyn and stayed with a friend until he was apprehended by the federal Marshal's Service.

A. The Pre-trial hearing

The defense hinged on defendant's mental state at the time of the crime. Knowing that the defense intended to request a charge of passion/provocation manslaughter, N.J.S.A. 2C:11-4b(2),1 the State requested and was granted a pre-trial N.J.R.E. 104 hearing concerning the defense's proposed expert psychologist's testimony. At the hearing, the defense presented testimony from Dr. Kenneth McNiel.

McNiel testified that defendant tended to suppress anger and not to acknowledge it. He testified that, at the time of the shooting, defendant was not suffering from any psychosis. However, he opined that defendant was suffering from major depressive disorder, and due to his psychological condition, was more than usually susceptible to being "provoked" by certain statements his ex-girlfriend made to him. Those statements, which defendant recounted to McNiel, included the girlfriend's alleged threats to move out-of-state with the children and to keep defendant from visiting them, and her claim that the son was not defendant's child. McNiel opined that the killing was not planned in advance but rather was a crime of passion. He opined that, "given [defendant's] mental state at the time of the crime . . . the statements made to him by his girlfriend did provoke him."

However, asked whether defendant had "adequate time to cool off," before shooting the girlfriend, McNiel responded "I believe there was adequate time for him to cool off, yes. He chose not to." McNiel elaborated:

I believe that given that he was not at imminent threat in the moment . . . in other words, his girlfriend . . . didn't have a weapon. . . . [H]e had no reason to believe she was an imminent threat to him, he certainly had the option to walk away, cool off.

It's my opinion that Mr. Duckett, in the moment, [was] so unaware of his emotional state and how angry he was, I believe at some point immediately prior to shooting, by his account, and the prior similar incidents, that he did blank out, if you will, a mild dissociative state, where he lost awareness of what he was doing, and in that state he may not have had adequate time. But in that state there [were] clearly other choices, clearly.

 

McNiel clarified that defendant's mental state contributed to his failure to "cool off" even though, objectively, he had sufficient time to cool off.

McNiel testified that defendant had told him about previous incidents in which he got into fights and "blanked out and ended up . . . causing someone more harm than he realized after the fact." According to McNiel, when defendant entered the YMCA, encountered Paul, and they started to have "words," defendant "was aware enough of what was going on that he could have" chosen to leave. However, when Paul made the "last statement" about the son not being defendant's child, defendant "had a brief disassociative moment, pulled a gun, walked across the room and shot her."

Over defense counsel's vigorous objection that the defense did not intend to present a claim of diminished capacity, the prosecutor asked McNiel whether defendant had the intent to shoot Paul at the moment when he "pulled out the gun and pointed at" her. McNiel responded that based on the witnesses' description of the shooting, defendant intended to shoot Paul, and it was a purposeful act, in the sense that it was not a random shooting.2

In an oral opinion placed on the record on November 4, 2010, the trial judge first considered N.J.S.A. 2C:4-2, which provides: "Evidence that the defendant suffered from a mental disease or defect is admissible whenever it is relevant to prove that the defendant did not have a state of mind which is an element of the offense." The judge stated that this provision was applicable to a diminished capacity defense, to show that a defendant could not form the requisite purpose or knowledge which are elements of the offense of first-degree murder. See N.J.S.A. 2C:11-3(a)(1) and (2) (defining criminal homicide as "murder" where the actor "purposely" or "knowingly" causes death of the victim). The judge reasoned that McNiel's testimony was not relevant to the standards set forth in N.J.S.A. 2C:4-2, because, according to the judge, defendant admitted having "the requisite mens rea for murder" but argued that "it was tempered by a reasonable reaction to . . . upsetting circumstances which deprived him of the mastery of his understanding."

The judge next considered the elements of passion/provocation manslaughter, and whether McNiel's testimony was admissible as to some or all elements of that offense. Citing State v. Mauricio, 117 N.J. 402 (1990), he reasoned that the crime had four elements, two of which (whether the provocation was adequate and whether defendant had time to cool off) were objective, and two of which (whether defendant was in fact impassioned and whether defendant in fact cooled off) were subjective. Relying on State v. Abrams, 256 N.J. Super. 390 (App. Div.), certif. denied, 130 N.J. 395 (1992), the judge concluded that the reasonable person standard applied in deciding the adequacy of the provocation, not whether a particular defendant was easily provoked. He concluded that McNiel's testimony was only admissible on the issues of whether defendant was impassioned in response to the victim's statements, and whether he in fact cooled off before shooting the victim.

The judge did not preclude the defense from offering a passion/provocation theory. He stated that he would decide whether to charge the jury on that theory based on the evidence presented at the trial. The judge ruled, however, that defense counsel could not mention "passion/provocation" in his opening statement. The judge further ruled that McNiel could testify to statements defendant made to him that McNiel relied on to make his diagnosis, but the jury would be instructed that those statements could not be considered for their truth.

B. The Trial

In her opening statement, the prosecutor told the jury that defendant's actions, both before and after the homicide, demonstrated that he went to the YMCA with a plan to kill Paul, and that he committed a purposeful and knowing murder. Defense counsel told the jury that there was no evidence that defendant planned to kill Paul, the killing was an instantaneous, unplanned crime of passion, and it was manslaughter not murder.

The State presented the following evidence in its case-in-chief. Defendant and Paul had been involved in an eleven-year relationship during which they had two children, E.D. (born in 1997) and N.D. (born in 2004). Sometime prior to April 2007, defendant and Paul ended their relationship and began dating other people.

In 2008, defendant resided in Orange with various members of his family, and Paul resided with the children in Montclair. With the parties' consent the judge told the jury he was taking "judicial notice" of the fact that Paul had sole custody of the children, subject to defendant's visitation on Monday and Wednesday evenings and every other weekend.3 The court also advised the jury that "[a]ll pick-ups and drop-offs were at curbside," and that "there was liberal phone contact and notifications between the parties regarding any other days upon which the parties could agree, including after school activities."

Rodney Campbell, who was dating Paul at the time of her death, testified that in early 2008, defendant had telephoned him on two occasions asking why he was "talking" to Paul.

The State presented the following evidence concerning events on the day of the homicide. On June 26, 2008, at 3:00 p.m., Officer Locksley Reid of the East Orange Police Department issued defendant, who was driving a white Jeep with New York license plates, traffic tickets for operating a motor vehicle while using a cell phone and for driving with an expired license. Defendant, who had been alone in the vehicle, called William Johnson (a/k/a "Storm") for assistance. Johnson drove Mustaffa Jackson (a/k/a "Mu") to defendant's location, and Jackson drove defendant home. Between 4:00 and 5:00 p.m. that evening, Owen Stewart, defendant's uncle, observed defendant and his son N.D. in defendant's residence.

In her videotaped statement to Detective Guy Trogani of the Essex County Prosecutor's Office, E.D., who was then ten years old, said that sometime before 5:00 p.m. on June 26, 2008, she called defendant and asked him to drive N.D. home for a swimming lesson.4 Defendant, who had never previously driven N.D. to the YMCA, "got mad" because he did not know about the lesson. When defendant dropped N.D. off at the curb in front of Paul's home, he told E.D., "you're in the middle of this, you act like a little adult." He then threw a package of cookies E.D. had asked him to bring onto the sidewalk and drove away. According to E.D., Paul, who had observed the interaction from a window, called defendant and told him that E.D. would not be returning to his house.

Prior to 6:00 p.m. that same evening, Paul, E.D., and N.D. arrived at the Montclair YMCA. Paul and E.D. watched N.D., who was in a combined starfish/kinder swim class with eighteen other children ranging from three to five years old, from the observation area located adjacent to the pool. Several YMCA employees and parents of children in the class, observed Paul sitting by a viewing window at a table in the crowded observation area with a young girl--presumably E.D.

Meanwhile, at 5:54 p.m., defendant again called Johnson, asked Johnson to drive him to Montclair, and offered to let Johnson use his vehicle after Johnson dropped him off at an undisclosed location. Johnson, who assumed defendant wanted to visit friends in Montclair, agreed to drive. Instead, defendant, who was wearing a black t-shirt, black jeans, and a hat, directed Johnson to the Montclair YMCA. Upon arrival, defendant exited the vehicle and said, "I'll be right back." Johnson parked the vehicle in front of the YMCA and waited.

Before 6:20 p.m., Kimberly Gilliam and Kayla Preston, who were working at the front desk at the YMCA, saw a man, who they identified at trial as defendant, enter the building. Defendant told them he was there to see his son swim, and asked for directions to the pool. Gilliam directed defendant, who appeared "[v]ery calm," to the pool observation area.

At approximately that same time, several parents of children in the swim class, who were seated or standing in the observation area, saw a man (identified as defendant by some of the witnesses) enter the room and walk toward Paul, who seemed very surprised to see him. Alice Bexon, who was standing approximately five feet from Paul, testified that she heard Paul say, "what the hell are you doing here," and heard defendant, who seemed relaxed and calm, respond in a challenging or confrontational manner that he was there to see his son. Jonathan Asuncion overheard Paul say, "'What are you doing here,'" heard defendant respond, "'I came to check out my son,'" and heard Paul reply, "'Your son is over there swimming.'" John Carlson heard Paul and the man speaking in "elevated voices."

Anthony Colon, a YMCA employee, who entered the room sometime after defendant, saw defendant and Paul engaged in a "heated discussion," so he remained in the room and watched them because "there was potentially something . . . wrong." Similarly, Natasha Richardson, a lifeguard, heard "loud talking" coming from the observation area and heard a man say, "I want to see my kids."

After this brief verbal encounter, several people saw defendant walk away from Paul, who remained seated, walk toward the pool, and stop at an observation window for a few seconds. Bexon said defendant "sort of saunter[ed] across" the room, and Carlson said defendant seemed anxious, nervous, and angry. Bexon and Carlson testified that Paul did not say anything to defendant as he walked away from her. But Asuncion thought he heard Paul mumble something, although he could not hear what she said, and Asuncion then heard defendant say, "You think you're tough?"

It was undisputed that defendant then turned and walked back toward Paul. Bexon heard defendant, who looked "very tense and sweaty," growl or mutter something "under his breath," in a "vicious tone," which "sounded very aggressive" and "scary." Bexon then heard Paul say "you're not going to do that," and saw Paul lean back in her chair. Carlson similarly heard Paul say, "what are you doing." And Colon said Paul looked shocked, scared, and very frightened. Asuncion and Colon then saw defendant reach for something at his waist, and Asuncion saw defendant pull out a gun and shoot Paul, who was still seated by the glass observation window.

Several parents and YMCA employees heard gunshots, some people saw flashes of gunfire, and Adam Wells, who was teaching the swim class, said he saw the observation area window shatter, saw a silver pistol, and then saw Paul "cascade from the chair." The parents in the observation area ran through the locker room and out to the parking lot, where they frantically searched for their children. E.D., who later told police that she heard defendant's voice and the gunshots, was ushered outside, where she saw Johnson sitting in defendant's vehicle. Johnson asked E.D., "what's the matter," but E.D., who was crying and frightened, backed away from him. Bexon invited the girl to sit in her van, and the child kept asking Bexon if her mother was "okay."

At the same time, Richardson, a lifeguard, hid several other children, including N.D., in a utility room adjacent to the pool. Later, Richardson was instructed by the police to wave a towel before exiting the utility room. Richardson walked with the children through the observation area, where Paul, who had been pronounced dead, was still perched on a chair covered with a sheet and surrounded by broken glass, blood, and brain matter.

Meanwhile, Gilliam and Preston, who had heard gunshots and breaking glass, hid under the front desk. From their vantage point, they saw defendant look down as he walked by, give them an angry look, and place a gun in his waistband. Defendant exited the facility, called Johnson, and asked Johnson to pick him up at "Ray's," a luncheonette close to the YMCA on the corner of Willow and Walnut Street.

At approximately that same time, Michael Villella arrived at the YMCA to bring his daughters to a 6:30 p.m. class. As Villella approached the reception area he heard a "loud noise," and saw people streaming out from the pool area. The police, who had arrived within minutes of the incident, told Villella there had been a shooting, and instructed him to go home. As Villella drove north on Willow Street he saw an African-American man wearing a white t-shirt, who he identified at trial as defendant, walking with "some urgency," while continuously looking around. Villella drove alongside defendant for a short distance and then parked his vehicle on the corner of Willow and Walnut Street. Villella saw defendant throw something into a bush, and then run down an alley. Villella exited his vehicle, saw a black ski mask, and called the police, who retrieved the item. Subsequent testing revealed that defendant was "the source of the major [DNA] profile" obtained from the ski mask.

Meanwhile, Johnson, who was not aware of the shooting, picked defendant up on Frink Street, a narrow one-way street across from Walnut Street. Johnson observed that defendant was "sweating a little bit," and was wearing a white tank top, not the black t-shirt he had previously worn. Defendant simply told Johnson "to go." As Johnson drove, defendant said he wanted to go home to Orange because he "wanted to get the banger" out of his house, which Johnson understood meant "a gun." Johnson asked, "'[d]id you do something to [Paul],'" and defendant responded, "[n]ope." Defendant told Johnson "that either way" Johnson would be "okay" because Johnson was wearing a yellow t-shirt and he was wearing dark colors. Johnson parked the vehicle, and observed defendant enter the house and exit a few minutes later wearing different clothes and carrying a bag. The police subsequently found defendant's vehicle parked approximately 300 feet from his residence. During a search of the vehicle the police found a black t-shirt and knit hat.

In the interim, the police secured the YMCA and began the crime scene investigation. James Milano, a detective with the Montclair Police Department, spoke to E.D., who seemed "terrified," and as a result of that conversation, the police issued a "BOLO" ("be on the lookout") for defendant and Johnson. During his investigation of the scene, Michael Bozsolak, a detective with the Essex County Prosecutor's Office, observed the decedent seated on a chair in the observation area. The glass window behind decedent's head had shattered, and he found one ballistic projectile on the floor behind her body, and found two more projectiles in the pool. Bozsolak took hundreds of photos of the crime scene, including some photos of decedent, many of which were admitted into evidence.

At about that same time, Ronald Redmond, a detective with the Montclair Police Department, found a stainless steel Smith and Wesson .357 revolver in a drainage culvert in an abandoned lot in the area of North Willow Street. John Manago, a detective with the Essex County Prosecutor's Office retrieved the handgun and found six expended shell casings in the cylinder. A firearms trace revealed that defendant did not have a permit for the gun, and that the gun had last been registered to an unidentified individual in 1981. Testing on the projectiles found in the YMCA and recovered from the decedent at the autopsy revealed that the casings were positive to the recovered weapon.

An autopsy revealed that the cause of death was a penetrating gunshot to the head.5 Paul sustained eight gunshot wounds, although some of the wounds resulted from the entry and re-entry of the same bullet, including: 1) a graze wound on her left scalp; 2) a wound on her left hand; 3) a penetrating wound to her right scalp, which caused a skull fracture and brain hemorrhage; 4) a perforating wound to her right upper chest; 5) a perforating wound to her right upper arm with associated stippling [gunpowder residue]; 6) a penetrating wound to her right chest; 7) a perforating wound to her right forearm; and 8) a small perforating wound to her right thigh that exited through her buttocks.

An arrest warrant for defendant was issued on June 27, 2008. A few days later, pursuant to a communications data warrant (CDW), the police received information that defendant had turned on his cell phone near a cell tower in Brooklyn, New York for approximately one minute. The police, who had received information that defendant had relatives in Brooklyn, interviewed defendant's relatives, but were unable to obtain any information as to his whereabouts. The police then learned that a call had been made from a pay phone on Church Street in Brooklyn to one of defendant's friends. The police systematically went from building to building in the area asking if anyone had seen a new man in the building. The superintendent of a building located on Troy Avenue told the police that as he entered Michelle Coombs's apartment to make a repair, a man he had never seen before pulled a newspaper up over his face. The police subsequently confirmed that the man was defendant, and executed the arrest warrant on July 8, 2008.

The defense presented several witnesses, beginning with defendant's testimony. Defendant admitted that he shot and killed Paul on June 26, 2008, at the Montclair YMCA, but claimed he did so in the heat of passion resulting from a reasonable provocation.6 Defendant, who had lost his job in August 2007 and was unemployed, alleged that he had had visitation with both children the weekend prior to the incident, and that N.D. had remained with him through Thursday, June 26, 2008. He claimed that he had had no verbal altercations with Paul during that period, but admitted they had been under a "[c]onstant strain since [they] broke up."

On the morning of June 26, 2008, defendant and N.D. shopped and played. Several friends and family members confirmed that on that date defendant seemed normal, was not upset or angry, joked, and was happy and calm. Later that afternoon, defendant changed into a black t-shirt and jeans, because he got wet when N.D. squirted him with a water gun, and then drove to a friend's house in Newark. En route, defendant received two traffic tickets, as previously described, and returned home at about 4:00 p.m. At approximately 5:00 p.m., defendant received a call from E.D., who asked him to bring N.D. home. Defendant admitted that he told E.D. he did not like her "tone." However, later when defendant dropped N.D. off, defendant said he simply tossed the cookies to E.D., and had not thrown them in anger. But Paul called defendant and said, "'[E.D.] is not coming over there. . . . You're not going to see them again.'"

At approximately 6:00 p.m., defendant called Johnson and asked for a ride to Montclair. He testified that he wanted to go to Montclair to watch N.D. swim, not to harm or shoot Paul, and he then planned to see friends who lived on Mission Street in Montclair. Defendant admitted he was carrying a concealed loaded .357 revolver, but claimed he had recently begun carrying the gun, which he had bought years ago in Newark, for protection as a result of altercations with gang members. He also admitted that he had a black ski mask, but testified that he had not intentionally brought the ski mask to the YMCA, but rather had simply left it in the pocket of his jeans the prior winter.

Defendant testified that he entered the YMCA, spoke to the receptionist, and then walked to the observation area. Upon entering the area, Paul asked, "'What the hell are you doing here?'" Defendant responded, "'I'm here to see [N.D.] swim,'" and then he and Paul started arguing. Defendant said he did not remember seeing E.D. in the room.

According to defendant, as he walked away from Paul, she said, "'[N.D.] ain't even your son anyway.'" At that point defendant "blacked out," lost consciousness, and "lost himself." He testified that the next thing he remembered was hearing glass break, which caused him to snap back and "regain[] [himself]." After he "snapped himself back," defendant moved back, said "'[s]hit,'" and knew he had to "get up out of there," because he did not "want to get caught with a gun, especially in Montclair."

Defendant called Johnson, who was unaware of the shooting, and asked him to pick him up at Ray's Luncheonette. As he walked toward the restaurant he heard lots of sirens and saw a police car. As he jogged across the street his "hat flew off." He then took off his black t-shirt, and when he attempted to put it in his back pocket, he found the black ski mask, which he threw away. As defendant entered the vehicle, he told Johnson to "get on the parkway" and then became withdrawn and tried "to rationalize what the hell just happened."

Later that night, defendant went to New York City because he knew the police would be looking for him, and he thought the officers would be "out to kill." He stayed in various places in the Bronx and in Harlem, and then contacted a friend who located a place for him to stay in Brooklyn. There, twelve days after the shooting, defendant was apprehended.

 

McNiel, a licensed psychologist, testified for the defense as an expert in forensic psychology. In July 2009, McNiel conducted two three-hour interviews with defendant, during which he administered the Milan Clinical Multiaxial Inventory ("MCMI-III"), a 175-question personality test used to assess psychological disorders and personality functioning. McNiel concluded that at the time of the incident, defendant was suffering from a "major depressive disorder," recurrent and severe, without psychotic features. Defendant also had antisocial personality traits with dependent and borderline features.

McNiel found that defendant had committed a purposeful act in shooting Paul "three times" at close range and in then fleeing the scene. Nonetheless, McNiel found that when Paul told defendant that N.D. was not his son, it triggered a "disassociate episode," during which defendant lost conscious control or awareness of what he was doing, and shot Paul. He opined that the dissociative episode lifted immediately after the shooting. McNiel explained that depression was just one factor in assessing defendant's state of mind at the time of the shooting, and that the combination of stress, depression, sadness, increasing anger, feelings of jealousy, fears of losing his children, financial strain, feelings of hopelessness, and overstimulation caused by the consumption of three cans of an energy drink, all contributed to causing defendant to "lose cognitive control." Further, defendant had only minimal awareness of the extent of his anger and depression in the days leading up to the incident. However, McNiel said he was not aware that before shooting Paul, defendant said, "'[y]ou think you're so tough,'" and admitted the statement could "[p]otentially" change his analysis.

In rebuttal, the State called Dr. Azariah Eshkenazi, a licensed forensic psychiatrist. Eshkenazi conducted one approximately forty-minute interview of defendant in May 2010. He found no evidence that defendant had suffered from a dissociative episode at the time of the shooting, and that defendant did not have a psychiatric condition that would prevent him from formulating an intent to act. He also found that defendant had not suffered from major depression at the time of the incident, because depression is a "very debilitating condition," and if defendant had suffered from that condition he would not have had the desire or energy to act. Eshkenazi agreed that defendant was probably suffering from depression and anxiety after the shooting in 2009, but attributed that emotional state to a "life circumstance problem," that is, being incarcerated and facing serious charges.

II

On this appeal, defendant contends that the trial judge erred in precluding him from presenting a passion-provocation defense. We cannot agree, and we affirm on this point substantially for the reasons cogently stated by the trial judge at the end of the N.J.R.E. 104 hearing. We add these comments.

As previously noted, a criminal homicide which would otherwise qualify as murder constitutes manslaughter where the killing "is committed in the heat of passion resulting from a reasonable provocation." N.J.S.A. 2C:11-4b(2)(emphasis added).

Passion/provocation manslaughter has four elements: the provocation must be adequate; the defendant must not have had time to cool off between the provocation and the slaying; the provocation must have actually impassioned the defendant; and the defendant must not have actually cooled off before the slaying. The first two criteria are objective, the other two subjective. If a slaying does not include all of those elements, the offense of passion/provocation manslaughter cannot be demonstrated.

 

[Mauricio, supra, 117 N.J. at 411 (citation omitted).]

 

Because the first two elements are objective, the court should decide whether they are sufficient. "[I]f they are supported by the evidence, the trial court should instruct the jury on passion/provocation manslaughter, leaving the determination of the remaining elements to the jury." State v. Galicia, 210 N.J. 364, 380 (2012) (citing State v. Robinson, 136 N.J. 476, 491 (1994)).

In this case, the availability of the defense turned on the adequacy of the claimed provocation. We agree with the trial judge that, as a matter of law, the alleged provocation was not adequate to support a passion/provocation charge, because the provocation consisted only of words, with no threat of violence.

According to the couple's daughter, E.D., shortly after defendant dropped off N.D. at Paul's home at about 5:00 p.m., Paul called defendant and told him that E.D. was upset when he threw the cookies at her and, if he was going to hurt the children, he would not be allowed to see them. Defendant testified that, right after he dropped off N.D., Paul told him that he would not be allowed to see the children. According to defendant, just before the shooting, at about 6:30 p.m., Paul stated to him that N.D. was not his son. He testified that the latter statement caused him to "black out" and shoot Paul. We conclude that neither of Paul's alleged statements would constitute adequate provocation for a homicide committed in the heat of passion, and hence could not possibly support a passion/provocation jury charge.

In Mauricio, the Court emphasized that the adequacy of the provocation is a purely objective standard and that, in enacting the statute, the Legislature specifically considered and rejected a subjective standard for the reasonableness of the provocation. Mauricio, supra, 117 N.J. at 411. Consistent with that legislative history, we have held that the adequacy of the provocation does not depend on whether a particular defendant is easily provoked because of psychological problems. Abrams, supra, 256 N.J. Super. at 398. "[I]n drawing a line between murder and manslaughter, there was no purpose to subject others to harm at the hands of those easily provoked and subjectively prone to violence. On the contrary, the aim of the law was to protect the innocent from mortal attack by the psychologically sick or immature who are unable to exercise normal self-control as well as by those motivated by evil." State v. Pratt, 226 N.J. Super. 307, 317 (App. Div. 1988).

It is well established that mere words, even if offensive or upsetting, do not constitute adequate provocation for committing a homicide. State v. Crisantos, 102 N.J. 265, 274 (1986). That rule was reaffirmed in Mauricio, supra, 117 N.J. at 413. The Court's description of the adequacy standard is instructive:

In addressing that question we are reminded that words alone do not constitute adequate provocation. State v. Crisantos, supra, 102 N.J. at 274. Nor do a bump and an insult by the victim. Nor does conduct that is alleged to have been sexually frustrating. On the other hand, the Court has held that a threat with a gun or knife might constitute adequate provocation.

 

[Id. at 413-14 (additional citations omitted) (emphasis added).]

Defendant contends that the judge should have left the adequacy issue to the jury, but we cannot agree with that argument. If the alleged provocation is of a type that could be adequate, such as an assault on the defendant, or even an assault on a member of the defendant's family, the issue of adequacy is generally left to the jury. Robinson, supra, 136 N.J. at 491. However, defendant's reliance on Robinson is misplaced here, because in this case the alleged provocation consisted only of words, which as a matter of law are inadequate to constitute "reasonable provocation." Mauricio, supra, 117 N.J. at 413. Further, there was no evidence of any prior violence or course of threatening conduct by Paul against defendant, and nothing in her alleged statement could be construed as a threat of violence against defendant. See State v. Rambo, 401 N.J. Super. 506 (App. Div.), certif. denied, 197 N.J. 258 (2008) (finding that, absent any history of violence, wife's threat to burn down the house was not adequate provocation for husband's shooting her); State v. Vigilante, 257 N.J. Super. 296, 303, 305-06 (App. Div. 1992) (finding that in light of the father's history of violent abuse, father's threat to kill defendant could constitute reasonable provocation).

The defense did not even proffer evidence that Paul had previously attempted to keep defendant from seeing the children. To the contrary, in proceedings outside the jury's presence, the trial judge found that even though Paul had obtained a domestic violence restraining order against defendant (a fact properly concealed from the jury), Paul had told the Family Part judge that defendant was a good father and she agreed that he should have visitation with the children. Further, N.D. had just spent nearly a week staying with defendant at his home. Hence, there was no objectively reasonable basis for defendant to believe that Paul would keep him from seeing his children.7

Defendant's reliance on McNiel's testimony - that he was suffering from major depression and stress and experienced a dissociative moment when he shot Paul - is unpersuasive, and his reliance on State v. Pitts, 116 N.J. 580 (1989), is misplaced. In Pitts, the defendant claimed that he killed his girlfriend and her companion after he got into a physical struggle with the companion and stabbed him to death. Id. at 589-90. He claimed that, due to his post-traumatic stress disorder, resulting from combat in Vietnam, he thought the girlfriend was an assailant when she approached him during the struggle, and he stabbed her as well. Id. at 592. Pitts involved provocation in the form of a physical fight, and is not on point here. We agree with the trial judge that McNiel's testimony was relevant to whether defendant was subjectively impassioned. However, that testimony was not relevant to whether defendant was responding to an objectively adequate provocation. Like the trial judge, we conclude he was not. Defendant's remaining arguments on this point warrant no discussion. R. 2:11-3(e)(2).

Defendant's Points II, III and IV are without sufficient merit to require discussion in a written opinion, beyond the following brief comments. See R. 2:11-3(e)(2). Defendant contends that the prosecutor repeatedly interrupted his summation with improper objections. After reading the transcript of defense counsel's summation we find no basis to disturb the verdict. Most of the objections had a reasonable basis, the trial judge responded appropriately, and after each objection defendant's very able attorney continued his closing argument without missing a beat.

Defendant contends that the judge should not have allowed the jury to view E.D.'s videotaped statement in the jury room, without the court's supervision. While defendant is correct that "[p]laybacks, like read-backs, should take place in open court with all parties present," State v. Miller, 205 N.J. 109, 123 (2011) (citing State v. Burr, 195 N.J. 119, 134-35 (2008)), we conclude that this argument is barred by the doctrine of invited error. See State v. A.R., 213 N.J. 542, 561-63 (2013) (holding the defendant was barred by invited error from raising objection on appeal, where defense counsel encouraged the jury to view a video in the jury room). But even if we consider the contention, we find no plain error under the circumstances of this case. See R. 2:10-2.

Both sides agreed to permit E.D.'s taped statement to be introduced in evidence in lieu of the child's live trial testimony, to spare the child the trauma of testifying. In his summation, defense counsel read to the jurors from the transcript of E.D.'s statement and encouraged them to view the tape, telling them that they would have it in the jury room. He did not object when the jurors asked for the tape during their deliberations. Further, in her statement, E.D. was not willing to identify defendant as the shooter, and she confirmed defendant's testimony that Paul told him he would not be allowed to see the children. Therefore, the defense believed that her statement was helpful. Finally, given the overwhelming evidence of defendant's guilt, we find no likelihood that this invited error resulted in a miscarriage of justice. See State v. Macon, 57 N.J. 325, 336, 338 (1971).

We likewise find no reversible error in the trial court admitting multiple crime scene and autopsy photographs in evidence.8 Because the trial judge did not rule on the passion/provocation issue until the charge conference, the State needed to introduce enough evidence to meet its burden of disproving all the elements of that defense, including the absence of adequate provocation and defendant's opportunity to cool off and walk away. The photographs were relevant to demonstrate the layout of the crime scene, the position of the victim vis- -vis defendant, the ease with which defendant could have walked away from the situation, and the fact that Paul was shot while shrinking back and raising her arms defensively rather than while physically confronting defendant. See State v. Thompson, 59 N.J. 396, 419-21 (1971). Further, the judge limited the number of both crime scene and autopsy photos admitted. We cannot find that the judge abused his discretion in admitting the evidence. See State v. Feaster, 156 N.J. 1, 82 (1998) (we review trial judge's evidentiary rulings for abuse of discretion); State v. Moore, 122 N.J. 420, 466-67 (1991). Nor can we find a likelihood that the photos led the jury to return a guilty verdict when it otherwise might have acquitted defendant. See R. 2:10-2.

Defendant argues in his point V that the court erred in charging the jury that no specific period of time was required between the formation of the purpose to kill and the killing. This argument must be considered in the context of the trial. In summary, the State's position was that defendant went to the YMCA intending to kill Paul and, to that end, brought a gun and recruited Johnson to drive him to and from the Y. Defendant's position was that he never had a plan to kill Paul, and the killing was a spontaneous act that occurred when he "blacked out" after hearing her say that N.D. was not his son. Of course, the State did not have to prove that defendant planned the shooting in advance, so long as it proved he had the requisite mens rea at the time of the shooting. State v. Breakiron, 108 N.J. 591, 609 (1987) (quoting State v. Ramseur, 106 N.J. 123, 268 (1987)). However, whether he had a plan was certainly relevant to whether it was more or less likely that he intended to shoot Paul at the moment when he shot her.

Hence each side presented evidence relevant to whether defendant had a plan. For example, defendant presented evidence that he told Johnson that Johnson could run errands with his car after dropping him at the Y, and that he made advance plans to meet friends after the trip to the Y. The defense theory was that if defendant had planned to kill Paul at the Y, he would have known that he needed to flee afterward and would not have planned to meet friends or let his getaway driver go off to run errands after dropping him at the Y.

During the charge conference, the prosecutor expressed concern that, because the defense had so strongly emphasized evidence that defendant had no advance plan to kill Paul, the jury might be confused and believe that proof of advance planning was required. The prosecutor therefore requested a supplemental charge that the law does not require "any particular length of time . . . between the formation of the purpose . . . to kill [and] its execution. It is not necessary that the deliberation continue for a day, an hour, a minute. It is enough that the design to kill or the purpose or intent be fully conceived at the time of the homicide." Defense counsel objected, argued that the law no longer required premeditation, and explained that he had not argued "that there had to have been a plan," but rather argued that defendant never had an intent to kill, and had killed Paul when he "blanked out," in a "brief dissociative period." The court reserved decision pending defense counsel's closing argument.

Defense counsel repeatedly argued in summation that at no time did defendant have an intent or plan to kill Paul. Instead, defense counsel argued the shooting occurred while defendant had a "brief disassociative episode that impaired" his "awareness and appreciation for what he was doing." And, defense counsel told the jury that "the State's responsibility in this case is to prove there was an intent to commit murder." Significantly, he also argued that:

Because there's evidence . . . that [defendant] had plans to do something [else] that evening, therefore, there was not this intent. And, although, yes, intent does not have to be proven necessarily as happening that day, or earlier that day or whatever; certainly, at some point you have to find that there was this intent in order to convict him of murder.

 

[(Emphasis added).]

 

The court, in accordance with the Model Jury Charge (Criminal), "Murder" (2011), instructed the jury on the elements of murder, aggravated manslaughter, and reckless manslaughter, and then charged that:

As our law applies to murder, aggravated manslaughter, . . . under our law, the law does not require that any particular length of time need intervene between the formation of the purpose to kill and its execution. It is unnecessary that deliberation and premeditation should continue for a day, or for an hour, or a minute. It is enough that the design to kill be fully and clearly conceived in the mind, and purposely and knowingly executed.

 

[(Emphasis added).]

 

During deliberations the jury asked the court to define "intent as it applies to this case," and to re-read the charge on murder, aggravated manslaughter and reckless manslaughter. With regard to intent, the judge instructed the jury that "there are certain elements of a crime that the State must prove beyond a reasonable doubt. Those elements refer to states of mind. . . . So there's not a specific definition. The elements . . . that substantiate proof beyond a reasonable doubt is a state of mind." The judge then repeated the model charge on murder, aggravated manslaughter and reckless manslaughter, but did not include the additional language as to the time element. On the following day, the judge, in response to another request by the jury, re-read the charge on aggravated manslaughter, but again, did not include the additional language.

Defendant argues that by initially including the language the State requested, the judge was undermining the defense theory of the case, giving an erroneous charge, and this error was prejudicial. We agree with defendant that proof of "deliberation and premeditation" is no longer required to prove first-degree murder, as it was prior to the adoption of the Criminal Code. See State v. Gardner, 51 N.J. 444, 457-59 (1968). While, in context, the judge undoubtedly meant no more than "advance planning," the supplemental charge language may have been confusing to the jury.

However, we do not find that the supplemental instruction was prejudicial to the defense. If anything, it may have suggested to the jury that the State had an additional burden to prove elements that the prosecutor had not even addressed in her closing argument. Perhaps that is why the jury requested re-instruction on "intent" and on murder, aggravated manslaughter and reckless manslaughter. The re-instruction followed the model charge, without the supplemental language. We find no possibility that the initial use of the supplemental charge language could have produced an unjust result.

Nor did the charge undermine the defense. In fact, defense counsel said much the same thing in his closing, albeit more simply. He told the jury that "intent does not have to be proven necessarily as happening that day, or earlier that day" but that to find defendant guilty of murder the jury needed to find that there was intent "at some point." We find no basis to disturb the verdict because of an error in the jury charge.

Through counsel and in his pro se brief, defendant argues that the trial judge gave the jury an erroneous charge to continue deliberations. Defense counsel did not object to the charge at the time, and we find no plain error. R. 1:7-2; R. 2:10-2.

The issue arose in this context. In his final charge to the jury, the judge gave an entirely correct instruction on conducting their deliberations. On December 23, 2010, after three days of deliberations, the jury sent out a note. Rather than reading the note to counsel, the judge told them the jury had indicated that they had reached an impasse and requested direction as to how to proceed. In fact, the note stated: "[W]e have taken several votes. We stand at nine jurors voting one way, three open/questionable. Please advise what this means to the case. We request some direction." Although the judge later read the note into the record, at the time he paraphrased because he did not want to reveal the jury's votes to the attorneys.

In response to this note, the judge gave the jury a modified State v. Czachor, 82 N.J. 392, 405 n.4 (1980) charge, which we have quoted below. Except for the addition of the underlined parts and the omission of the bracketed parts, the charge was substantially in accord with Model Jury Charge (Criminal), "Jury Instructions on Further Jury Deliberations" (2013):

It is your sworn duty as jurors, to consult with one another and to deliberate with a view at reaching a verdict in this case [reaching an agreement, if you can do so without violence to individual judgment]. Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence with your fellow jurors.

 

In the course of your discussions and deliberations do not hesitate to re-examine your own views of things, and you may change your opinion if you are convinced it is incorrect, but do not surrender an honest conviction as to the weight or effect of evidence solely because of an opinion of a [your] fellow juror[s] [or for the mere purpose of returning a verdict].

 

Again, ladies and gentlemen, you are not partisans in this matter, you are judges. You are the judges of the facts.

 

All the facts have been presented, all the evidence is before you, and I'm going to instruct you to abide by your oath and go back into the jury room and complete your task, as per your oath. I'm going to order you back to continue your deliberations.

 

[(Emphasis added).]

 

Defense counsel did not object, but asked, "is that the charge that is recommended by the Supreme Court," and the judge responded, "it's contained in the model jury charge." The jury reached a unanimous verdict one hour and twenty minutes later. After the verdict, two jurors wrote to the court that they felt their fellow jurors pressured them into returning a guilty verdict, and that some of the jurors felt that "majority ruled" and would not listen to their view of the evidence. Neither letter stated that the jurors felt the judge coerced or pressured them into returning a verdict.

In denying defendant's motion for a new trial, the judge explained that when he added to the Model Charge

the words ["]I'm going to instruct you to abide by your oath,["] I was referring to that paragraph: It is your sworn duty as jurors to consult with one another and deliberate with a view at reaching a verdict in this case. That's what I was referring to, to abide by their oath, go back into the jury room to try to reach a verdict. And [defense counsel] takes umbrage with the words ["]and complete your task.["] Again, I'm referring to their sworn oath to deliberate with one another to reach a verdict. And I ordered them back in to continue their deliberations, which I don't think in any way, shape or form is objectionable.

 

. . . .

 

[I] do not believe that my charge . . . taken in context with the note would warrant the granting of a new trial. I do not believe that I in any way, shape or form impinged upon their free will or conveyed to them that they must return a verdict of guilty. I simply indicated that they should follow their oath and try to reach a verdict without surrendering their true convictions.

In addressing the letters from the two jurors, the judge also recalled that he polled the jury right after the verdict, and remembered that those two jurors volunteered to be polled when it appeared that he might have skipped them. At that time, they stated a guilty verdict without hesitation, and the judge noted nothing in their demeanor suggesting that they were reluctant, unhappy, or uncomfortable with the verdict.

A trial court has discretion to order a jury to continue deliberating after they have announced a deadlock, State v. Czachor, supra, 82 N.J. at 407, but cannot coerce a jury into reaching a verdict, State v. Figueroa, 190 N.J. 219, 240 n.9 (2007). In Czachor, the Court disapproved the Allen9 charge, then in general use, because it was directed at coercing dissenting jurors to go along with the majority:

It is fair to say that the typical Allen charge does not simply remind jurors of their duty to cooperate in collective deliberations. It has a rather different thrust. The charge is intended to undo a jury deadlock. It tends therefore to focus upon possibly the weakest links in the chain locking the jury in disagreement, namely, the minority holdouts on the jury. Hence, the charge usually admonishes specifically and pointedly only those in the minority to reconsider their beliefs in light of the adverse position held by the majority. It also exerts pressures upon jurors by casting indirectly upon them a personal responsibility and sense of guilt for the impasse. It does so through various references to such matters as the expense and waste of a mistrial, the need for a retrial, and the cost and inconvenience of a new trial. The charge further intimates that the dissenting jurors may not be acting properly or conscientiously since another similar jury will be called upon in a new trial to perform the identical task and presumably will achieve it, i.e., reach a unanimous verdict on the same evidence. Moreover, dissenting jurors are usually asked to consider these extraneous factors at a time when they are most vulnerable to judicial suasion to compose differences.

 

An instruction that explicitly directs only the dissenters to doubt the reasonableness of their convictions is inherently one-sided. By encouraging acquiescence in the majority's position, such a charge undermines the requirement that a verdict in a criminal case reflect unanimity of agreement freely arrived at by each juror.

 

[Czachor, supra, 82 N.J. at 398-99 (citations omitted).]

To avoid that unfair coercion, the Court adopted a more neutrally-worded model charge, which encouraged jurors to continue deliberating and to consider each other's views without sacrificing their own "honest convictions." In State v. Figueroa, the Court emphasized the unfairness of the Allen charge in coercing "hold-out" jurors:

In Czachor, we concluded that "the Allen charge conveys both blunt and subtle pressure upon the jury, pressure which is inconsistent with jury freedom and responsibility. Such a charge does not permit jurors to deliberate objectively, freely, and with an untrammeled mind." . . . In particular, we noted that the record we there reviewed demonstrated that the charge was repeated three times, each time with an inappropriate focus on the dissenting jurors and with references to the inconvenience and cost of a retrial should the jurors be unable to agree.

 

[Figueroa, supra, 190 N.J. at 233 (citations omitted).]

 

As the Court indicated in Figueroa, in evaluating a jury instruction that deviates from the language approved in Czachor, the critical issue is whether the charge "improperly influenced the dissenting jurors to change their votes." Id. at 238. In Figueroa, the trial court not only omitted language about the jurors not giving up their honest convictions, but also implicitly threatened to keep the jurors deliberating over the weekend if they did not reach a verdict. Id. at 226-27. Further, in light of the significant credibility issues in that case, the jury might have gone either way, and there was a real possibility that the charge coerced a guilty verdict. Id. at 240-41.

We cannot reach the same conclusion here. We have indicated that "[t]he charge to the jury is the road map for the jury to follow in its quest for the truth. There is little room for shortcuts or abbreviated charges which may preclude the jury from finding its way." State v. Allen, 308 N.J. Super. 421, 431-32 (App. Div. 1998). On the other hand, the charge is to be viewed in context, and not every deviation in wording from the model charge is fatal to a conviction. See State v. Gartland, 149 N.J. 456, 473 (1997); State v. Wilbely, 63 N.J. 420, 422 (1973).

We certainly do not approve of the trial judge deviating from the model charge through omissions and additions which, in a different case, might have warranted reversal. The judge should have given the model charge in its entirety and should not have added the final paragraph directing the jury to "complete [its] task." Nor do we condone the judge's offhand comment to counsel that the language was "from the model charge," which may have led counsel to refrain from raising an objection. For that reason, a plain error analysis is not appropriate.

Although it is a close case, given this record, we find no prejudicial error in the variations between the instructions given and the model charge. First, the jury did not announce a deadlock, but indicated that nine jurors were voting one way and three were undecided. It was clearly appropriate to instruct them to continue deliberating. While the judge's instructions omitted the language about not changing views solely for the purpose of reaching a verdict, the instructions included the critically important language about not abandoning honestly held views.

There is no doubt that the charge given varied somewhat from the model charge approved in Czachor. However, the charge in no way resembled the coercive Allen charge the Court disapproved in Czachor. The judge did not belittle or single out the jurors who were in the minority, or suggest that they should pay more careful attention to the views of the majority. See Czachor, supra, 82 N.J. at 403-05. Nor did the charge in any way suggest that a mis-trial would waste public resources. Id. at 398. And it included the most important language the Court focused on in State v. Figueroa, 190 N.J. 219, 240 (2007), by reminding the jurors not to "surrender [an] honest conviction as to the weight or effect of evidence solely because of an opinion of [a] fellow juror."

We also consider the following factors. Unlike Figueroa, the evidence of defendant's guilt was overwhelming. See Figueroa, supra, 190 N.J. at 239. The most likely source of the jury's difficulty in reaching a verdict was the prior, erroneous instruction about "premeditation," which we previously described. In this context, the variations between the charge given and the Model Charge were unlikely to have had a coercive effect on the undecided jurors, id. at 238, and the verdict could in no way be described as a miscarriage of justice. Finally, although two jurors wrote letters a couple of weeks after the trial,10 complaining that they felt the majority did not listen to their views, we give considerable weight to the trial judge's first-hand observations when he polled those two jurors. He recalled that, at that time, they gave no indication that they were uncomfortable with the verdict.11 Taken in context, we do not find that the charge was coercive and we find no error warranting reversal of the conviction.

Defendant's points VII and VIII are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

In his pro se brief, defendant argues that he was denied a fair trial because the prosecutor excused seven African-American jurors. Defendant's counsel did not raise a Gilmore objection until the day after jury selection was completed, as the attorneys were about to give their opening statements. See State v. Gilmore, 103 N.J. 508 (1986). At that point, he placed on the record that defendant was African-American, and the State had excused seven African-American jurors. Because defense counsel raised the objection after jury selection was over, the prosecutor did not have her notes from jury selection with her in court. However, the prosecutor pointed out that the jury, as finally selected, was ninety percent African-American, and that she had declared the jury satisfactory several times, at points when it had a similar racial composition. Defense counsel did not disagree with either of those statements. The judge determined that the trial would continue, and counsel could, if they wished, address the issue on another day, when the prosecutor had her notes available. The issue was never raised again by either side.

In order to rebut the initial presumption that the jury was properly selected, the defense must set forth a prima facie case of discriminatory selection, by producing evidence including the following:

(1) that the prosecutor struck most or all of the members of the identified group from the venire; (2) that the prosecutor used a disproportionate number of his or her peremptories against the group; (3) that the prosecutor failed to ask or propose questions to the challenged jurors; (4) that other than their race, the challenged jurors are as heterogeneous as the community as a whole; and (5) that the challenged jurors, unlike the victims, are the same race as defendant.

 

[State v. Osorio, 199 N.J. 486, 504 (2009) (quoting State v. Watkins, 114 N.J. 259, 266 (1989)).]

 

If the defendant presents a prima facie case, the burden shifts to the prosecution to "articulate clear and reasonably specific explanations of its legitimate reasons for exercising each of the peremptory challenges." Ibid. (quoting Gilmore, supra, 103 N.J. at 537). In this case, we find that the State was under no obligation to justify the peremptory challenges, because the defense failed to present a prima facie case. Indeed, it is clear on this record that defense counsel was making a mere pro forma Gilmore challenge, solely to preserve a possible issue for appeal. The defense presented no evidence that the prosecutor challenged a disproportionate number of African-American jurors, as compared to non-African-American jurors, or that she failed to meaningfully question the jurors she excused. Nor did the defense present evidence as to any of the other Osorio factors, other than the fact that the excused jurors were of the same race as defendant. However, given that ninety percent of the jury was African-American, that fact alone was insufficient.

Under these circumstances, there was no basis to infer that defendant was deprived of a jury "'drawn from a representative cross-section of the community,'" State v. Andrews, 216 N.J. 271, 280 (2013) (quoting Gilmore, supra, 103 N.J. at 525), and no need for the court to conduct a further inquiry.

Finally, we address defendant's argument that the life sentence was excessive. We cannot agree. Defendant shot the unarmed victim six times, in front of their daughter, and in the middle of a YMCA crowded with parents and children. Indeed, because he shot in the direction of the swimming pool, bullets went through the glass wall of the observation room and fell into the pool where young children were swimming. Therefore, the trial judge properly considered aggravating factor one, that the crime was committed in an especially brutal and heinous manner. See State v. Fuentes, ___ N.J. ___ (2013) (slip op. at 31-36) (discussing the proper application of factor one).

Further, in finding aggravating factors three, six and nine, the trial judge appropriately considered defendant's six prior indictable convictions, his twenty-two prior arrests, and the fact that several prior probationary and prison terms had not prevented him from committing this crime. The judge properly considered this defendant, as an individual, and the need to deter him from future similar offenses. Id. at 36-40; State v. Thomas, 188 N.J. 137, 153 (2006). In short, we find no abuse of discretion or other error in the sentence, and no reason to second-guess the trial judge's decision to impose a life sentence. See State v. Bieniek, 200 N.J. 601, 608 (2010). Defendant's arguments on this point do not warrant further discussion. R. 2:11-3(e)(2).

Affirmed.

 

 

 

1 N.J.S.A. 2C:11-4b(2) provides that "[c]riminal homicide constitutes manslaughter when . . . [a] homicide which would otherwise be murder under [N.J.S.A. 2C:11-3] is committed in the heat of passion resulting from a reasonable provocation."

2 At the close of the trial testimony, defense counsel did ask the judge to give the jury a diminished capacity charge, and the judge gave the charge.

3 The State moved in limine to admit sanitized versions of an October 6, 2007 temporary restraining order (TRO), an October 11, 2007 final restraining order (FRO), and a March 11, 2008 amended FRO, which prohibited defendant from engaging in further acts of domestic violence against Paul, and from communicating with, stalking, or harassing her. The court, after reviewing the orders and a transcript of the proceedings, ruled that it would advise the jury of the custody arrangement and visitation schedule contained in the orders, but barred any reference to the actual orders as prejudicial.

4 A DVD of E.D.'s videotaped statement, taken at the Montclair Police Headquarters about two-and-a-half hours after the shooting, was played for the jury in lieu of E.D.'s testimony.

5 Thomas Blumfeld, a pathologist, performed the autopsy on June 26, 2008; however, he subsequently passed away and Lila Perez, another forensic pathologist, testified at trial without objection as to the autopsy results.

6 Defendant admitted he had been convicted of: possession of cocaine for the purpose of distribution in 1993; possession of CDS in 1995; third-degree using false statements in 1998; distribution of a CDS in 1998; possession of CDS with intent to distribute in 2003; and conspiracy to commit theft by deception in 2004.

7 This case is completely unlike State v. Erazo, 126 N.J. 112 (1991). In that case, the defendant and the victim had a longstanding violent relationship. Id. at 118. Just before the killing, the victim deliberately cut her own hand and threatened to get defendant's parole revoked by accusing him of cutting her. Id. at 124. Her words and actions, which also included attempted battery against another woman in the room, were sufficient provocation to warrant a passion/provocation charge. Id. at 123-24.

 

8 We required the State to submit all of the photographs, which were not in either party's appendix, and we have reviewed them.

9 Allen v. United States, 164 U.S. 492, 501, 17 S. Ct. 154, 157, 41 L. Ed. 528, 531 (1896).

10 At the post-trial motion hearing, defense counsel told the judge that the two jurors had telephoned his office a few days after the trial, but he refrained from listening to their concerns in detail, advising them instead to write to the judge.

11 We acknowledge that "[f]or strong policy reasons, courts 'have generally refused to accept from jurors, for the purpose of impeaching a verdict, any evidence of the discussion which they may have had among themselves while considering their verdict.'" State v. Koedatich, 112 N.J. 225, 288 (1988) (citation omitted), cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989).