STATE OF NEW JERSEY v. LAMONT T. RICHARDSON

NOT FOR PUBLICATION WITHOUT THE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.

LAMONT T. RICHARDSON,

Defendant-Appellant.

__________________________________

August 20, 2015

 

Argued February 24, 2015 Decided

Before Judges Fisher, Nugent and Accurso.

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment

Nos. 10-03-0271, 06-11-1118 and 08-03-0196.

Stephen P. Hunter, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Hunter, of counsel and on the brief).

Michael J. Mennuti, Assistant Prosecutor, argued the cause for respondent (Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney; Mr. Mennuti, on the brief).

PER CURIAM

Defendant Lamont T. Richardson was convicted by a jury of first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2), of his ex-girlfriend, twenty-three-year-old Ashle McKinney, and related weapons offenses. The jury also convicted him of fourth-degree tampering with evidence, N.J.S.A. 2C:28-6(1). The judge merged the weapons convictions with the murder count and sentenced defendant to a prison term of sixty years subject to the periods of parole ineligibility and supervision required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and to a one-year concurrent term with six months of parole ineligibility on the tampering conviction. Defendant appeals his conviction and sentence, raising the following issues

POINT I

THE IMPROPER ADMISSION OF BLATANT HEARSAY, OPINION TESTIMONY, AND NON-RELEVANT OTHER CRIMES EVIDENCE, WHICH THE PROSECUTOR ARGUED TO THE JURY THAT DEFENDANT ACTED "IN CONFORMITY" WITH, DENIED DEFENDANT A FAIR TRIAL. U.S. Const. Amend. XIV; N.J. Const. Art. I, 1.

POINT II

THE IMPROPER ADMISSION OF A NON-TESTIFYING MEDICAL EXAMINER'S AUTOPSY FINDINGS, THROUGH THE TESTIMONY OF ANOTHER MEDICAL EXAMINER, VIOLATED DEFENDANT'S RIGHT TO CONFRONT WITNESSES AND DENIED HIM A FAIR TRIAL. U.S. Const. Amend. VI, XIV; N.J. Const. Art. I, 1, 9, 10.

POINT III

THE FAILURE OF THE JURY INSTRUCTION TO ADDRESS THE "SHOWUP" IDENTIFICATIONS MADE YEARS AFTER THE INCIDENT BY [THREE WITNESSES] WAS PLAIN ERROR BECAUSE IDENTIFICATION WAS THE CENTRAL ISSUE IN THIS CASE. U.S. Const. Amend. XIV; N.J. Const. Art I, 1. (Not Raised Below).

POINT IV

DEFENDANT IS ENTITLED TO ADDITIONAL JAIL CREDITS; THE OVERALL SENTENCE WAS EXCESSSIVE. U.S. Const. Amend. VIII, XIV; N.J. Const. Art. I, 1, 12.

Although we agree that the judge erred in admitting certain testimony, we do not find that any evidentiary error, either alone or in combination, deprived defendant of a fair trial. Defendant's arguments regarding the autopsy evidence and the jury instructions are without merit. Accordingly, we affirm defendant's conviction.

We, however, reverse his sentence and remand for resentencing. In a supplemental submission after the briefs were filed, the public defender has presented a transcript in an unrelated proceeding in which the judge states in open court that he "always give[s] defendants convicted by a jury a minimum of 60 years NERA, and you can check my record." The public defender did check his record and has presented us with three other murder convictions within a two-and-one-half-year period of defendant's conviction in which the judge sentenced each defendant to a sixty-year NERA term. Because the judge's comments deprive us of confidence that he sentenced defendant in accordance with the Code and the Supreme Court's directives, we reverse the sentence.

McKinney was found strangled to death in her apartment in Trenton in June 2009. She and defendant had been seeing one another for more than a year and were the parents of a baby girl. A few weeks before her death, McKinney ended her relationship with defendant and asked him to move out. The State's theory was that defendant killed McKinney out of jealousy and a need to dominate and control her. The defense contended the police got the wrong man.

The State presented more than a dozen friends, neighbors and family members to testify about specific events they had seen or heard demonstrating the tumultuous relationship that existed between defendant and McKinney. Two of McKinney's friends testified that about a year before her death, when McKinney was pregnant, they witnessed an argument between the two of them in McKinney's apartment. Defendant was angry, and although McKinney repeatedly asked him to leave, he refused to go. Instead, defendant set an armful of McKinney's clothes on fire. The police were summoned, the fire was extinguished, and defendant finally left with some of his things. He subsequently pled guilty to criminal mischief. Although McKinney broke up with defendant after that episode, they were back together by the time their baby was born in October 2008.

Several of McKinney's neighbors testified that defendant was at McKinney's apartment two or three nights a week during the early part of 2009. They claimed to have heard loud arguments and defendant asking McKinney where she had been. One neighbor testified that defendant would bang or kick at McKinney's door yelling, "I know you're in there." Another testified that defendant would bang at the door for twenty or thirty minutes at a time. Sometimes McKinney would let him in, but other times she would not. When the neighbor saw McKinney alone, he claimed she would smile and speak, but if she were with defendant she would keep silent and put her head down. He testified that, "She had acted like she was scared, like he didn't want her talking to anybody else."

McKinney's mother testified to seeing McKinney with a black eye in May, two months before she died. According to McKinney's mother, McKinney

comes in the house, mom, mom, you got Benadryl. And she comes in the kitchen and I'm looking for Benadryl and looking at her face and half her face is swollen up and I say you don't need no damn Benadryl. He done punched you in your face. But I'm still looking for Benadryl and then I go to the freezer and I get her some peas and I put it on her face and I told her you got to leave him before he wants to kill you.

McKinney's mother testified that McKinney said she was "done with" defendant after this incident, even though he said he was sorry.

A friend of McKinney's testified she saw McKinney with the black eye as well, and that McKinney told her how it had happened. According to the friend

There was an incident at the end of May where she had stated she went out, somebody had dropped her off home. She didn't know that he was around. Somehow [an] argument occurred between the both of them. They was in the hallway leading to the house. Words was said. They pushed each other. She went to go push him. He pushed her. He swung back and hit her and she caught a black eye.

On cross-examination, defense counsel asked, "What did she tell you about how she caught the black eye?" The witness answered, "They were arguing. They were pushing. She went to go push him off. He went to go push her. She swung. He swung. And she got hit."

The same friend testified that she was present when McKinney asked defendant to move out of the apartment during the first days of June, a few weeks before she was murdered. The friend testified that McKinney called to help her find McKinney's lost State of New Jersey supplemental nutrition assistance electronic benefits card. By calling a toll-free information number, they learned that someone had used the card at the corner store. McKinney's friend testified she heard McKinney accuse defendant of taking it, defendant deny it, and the argument that ensued between the two of them. According to the friend, it was not the first time that McKinney's money and things had "turned up missing." McKinney sought the assistance of her father in getting defendant to move out that day. Although defendant initially refused to vacate, he eventually left with his things in a green pull-string bag. McKinney's friend drove him to his mother's house.

After defendant moved out, he would still come over to visit the baby. McKinney also left the baby with defendant's mother for a weekend visit at least once during this period. According to McKinney's friend, McKinney's apartment was vandalized several times in June after defendant moved out. One day, several items of clothing were missing. A couple of days later, "there was stuff poured all over her bed, all over her floor" and her hair products were out of place. Once, a dress McKinney had just bought was found soiled in a kitchen cupboard. On other days, McKinney would come home from work to find chemicals from the closet poured out, laces to her sneakers cut, the bathtub overflowing, or the gas turned on in the kitchen.

The friend testified McKinney had started a new job and that she usually gave McKinney a ride home from work during this period and would either go upstairs to her apartment with her or wait to see McKinney "stick her hand through the back window to let [the friend] know everything was okay." According to the friend, they adopted this routine because the acts of vandalism occurred while McKinney was at work and she was thus uncomfortable entering her apartment after work, thinking someone "was out to bother her." Neither woman could figure out how anyone was getting into the apartment, as the door and windows appeared to be locked. A neighbor whose apartment shared a fire escape with McKinney's testified she saw defendant on the fire escape a few times in the weeks before the murder. She also remembered seeing him with a key during this time period, although McKinney's friend was adamant that McKinney had never given him one.

The jury heard testimony that more than three weeks before she died, McKinney made an appointment through the Mercer County Board of Social Services at Womanspace, an agency that provides services to survivors of domestic violence and sexual assault. The head of the agency testified that McKinney failed to show up for her first appointment and it was rescheduled for June 26, the Friday preceding her death. Although McKinney appeared for that appointment, she was late and the person she was scheduled to see had to leave the office. McKinney was provided a "packet of information with safety planning information about restraining orders and [Womanspace's] 24 hour hotline and . . . shelter" and given an appointment for the following Monday morning. McKinney was murdered sometime in the early morning hours of Sunday, June 28.

That Saturday night, McKinney went to her friend's house for a birthday party with the baby. The friend testified that McKinney was wearing a long hair weave pushed back into a little ponytail. She had jeans and a silver belt packed in the baby bag she carried "in case it got cold later." The friend testified she saw both in the bag when she went through it to get a diaper for the baby. The party broke up about 9:00 p.m.; McKinney stayed a while and left with the baby in a cab about midnight.

The medical examiner testified that McKinney was killed between 2:00 a.m. and 6:00 a.m. by ligature strangulation. She stated the "broader ligature" marks around McKinney's neck were consistent with strangulation by a belt of about one inch wide. The medical examiner testified that the silver belt, the remains of which were recovered by police after the murder, was consistent with the ligature marks on the body and could have been used to strangle McKinney. The witness explained that the absence of ligature marks on the back of the neck indicated that McKinney's assailant was behind her. McKinney would have lost consciousness in about fifteen to twenty seconds, but the assailant would have needed to apply continuous pressure for three minutes to cause death.

McKinney had a cell phone given to her by a friend. Early on the morning of June 28, 2009, shortly after the time-of-death window set by the medical examiner, that phone was used to text two men that McKinney had dated before she began seeing defendant.

One of the men testified that he met McKinney in 2004 or 2005 and they dated for about a year. He claimed to have met defendant only once. The man testified he had not seen McKinney in some months until two or three weeks before her death when he chanced upon her at a bus stop. He gave her a ride on that day and on three or four other occasions and they exchanged cell phone numbers.

The man testified he was awakened on June 28 by a text message from McKinney inviting him in vulgar terms to come to her apartment for sex. He "automatically assumed that was her boyfriend" because McKinney herself "never talked . . . or sent me a message like that," and rolled over and went back to sleep. Cell phone records indicated the text was sent at 7:28 a.m.

The other man had a relationship with McKinney back in 2001 and was the father of her older daughter. They broke up when he was incarcerated. When he was released from prison in 2004, McKinney sent him pictures of their daughter, and he saw the child. He then moved to Pennsylvania, and the two lost touch.

In June 2009, he inquired after her with a mutual friend. He testified that McKinney "ended up calling me out of the blue and we was talking and she let me talk to my daughter and we talked a couple times after that." They also texted back and forth a few times about their daughter. He did not see McKinney in person. He testified he spoke with her the afternoon before her murder to see if she wanted to join him for dinner and a movie, but she said she could not get a babysitter.

At 7:58 a.m. on June 28, he received a text from McKinney saying, "Phil, come to the house. I want to do it." The man had never been to McKinney's apartment and "thought it was kind of crazy" because McKinney did not talk like that or "come at me like that." The man texted back a couple of times and then got a text with McKinney's address and the message, "I'ma leaving da door open, bring condom." He texted back, "all right love" and received an "okay" in return at about 8:30 a.m.

About that time, a neighbor of McKinney's was in his kitchen by the window when he saw a man he identified as defendant "throwing some clothes on the sidewalk." The neighbor testified

I saw [defendant] throwing the clothes by the sidewalk, right on the side of the building, and then I just seen him going to the front of the building, pick up a plastic bag, the one that you get from the corner stores. Went back to the clothes, pick it up, went to the back of the bushes that's behind the building, and he started lighting the clothes up with a lighter, putting on fire.

The neighbor said he was about twenty or thirty feet away, on the second floor. Defendant looked up, saw the neighbor watching and stared back "like why you looking at." The neighbor testified defendant went around to the front of the building and came back five or ten minutes later to check the burning clothes. Defendant then returned to the front of the building and got into a black taxicab with the number forty-two on it, putting a "between green and blue" sack in the trunk of the cab. The neighbor testified another neighbor, a woman, saw the bush catching fire and poured about two gallons of water on it about five minutes after defendant left.

Another neighbor testified he awoke to the smell of smoke. As he checked around his apartment, he saw defendant through the window at the front of the building about six or seven feet away. He testified he saw the "whole side of [defendant's] face," which he recognized because "I know him. So I know his face." He knew defendant by sight as McKinney's boyfriend, knew his street name was "Rel," and had seen him around the building, sometimes pushing the baby in a stroller. He'd also grown up with defendant's mother. Looking out another window and seeing the smoke was coming from the bushes and not from inside his apartment, he returned to bed.

A Trenton Housing Authority security camera recorded a man the morning of June 28, burning items in a bush at the rear of McKinney's building and walking back and forth. Two of McKinney's friends identified the man on the video as defendant.

Police recovered from the bush fire the charred remains of

a silver belt that (a) McKinney's mother identified as a gift she had given McKinney for Mothers' Day 2009, (b) a friend identified as the same one she had seen in McKinney's baby bag the night before the murder, and (c) the medical examiner said was consistent with the ligature marks around McKinney's neck;

a hair weave that one of McKinney's friends identified as belonging to McKinney and another identified as the one McKinney was wearing the night before the murder; and

black material consistent with the black leggings McKinney was wearing the night before the murder.

The police also recovered a pair of latex gloves jammed inside a hole in a door nearby. Police tested a cigarette butt found in McKinney's apartment for DNA, as well as the gloves, McKinney's clothes and scrapings from under her fingernails. Defendant's DNA was found on the cigarette butt and he could not be ruled out as a contributor to the other samples.

A driver for Economy Cab who drove a black cab with "42" on the back, received a call on the morning of the murder from a man who wanted a ride from McKinney's street. The driver arrived in about five or ten minutes and picked up a man who put a laundry bag in the trunk of the cab. The driver picked defendant's picture from a stack of photographs at the police station, saying he was fifteen percent sure that was the customer he picked up. He could not, however, identify defendant in the courtroom, saying he only got a look at the customer when he paid the fare and did not really see his face at all.

At 8:32 a.m. on June 28, the dispatcher for another cab company, Diamond Cab, received a call from a man requesting a cab for one person at McKinney's building. No one was there when the Diamond Cab driver arrived.

Cell phone records for a phone maintained by defendant's mother showed brief calls placed to both Economy Cab and Diamond Cab at 8:32 a.m. on June 28. Those two calls were the first calls made on that phone that day. An expert in mobile cellular analysis testified that the calls to the cab companies originated in the "geographical area close to Ashle McKinney's residence."

The man who received a text from McKinney early that morning and agreed to meet her at her apartment, decided to have breakfast before he went over. He texted her at 9:41 a.m., "I'm downtown, on my way." He sent a couple of other texts but received no response to any of them. He also tried to call her cell phone, but got no answer.

He arrived at her apartment between 11:00 and 11:30 a.m. He knocked on the door and called out, but got no response. Hearing the baby crying, he went in. The baby was in the playpen in McKinney's bedroom and had "messed on herself," so he got a basin of water, cleaned her up, and put a diaper on her. He testified he sat in the living room and put the baby "in her little chair" in the same room. The television was on, although no program was playing, so he put in a DVD.

The man testified he tried calling McKinney again and saw her phone flashing on the couch in the same room. Feeling nervous and that something "wasn't right," he went to the neighbors' apartment to ask if they knew McKinney's whereabouts. While he was talking to the neighbor, the neighbor's little sister went into McKinney's apartment and pointed into one of the bedrooms. The man went in and discovered McKinney's body and called 911.

When the police arrived, they found McKinney's body, dressed in a bra and panties, on the floor. There was no sign of forced entry or a major struggle in the apartment, and no defensive wounds on the body.

We first address defendant's contention that the judge erred in admitting testimony of prior bad acts under N.J.R.E. 404(b). The State made a pre-trial motion seeking to admit the bulk of the evidence of which defendant complains.1 The court took testimony over the course of three days and issued a thirty-page opinion addressing each item of testimony, admitting some and excluding others. Defendant does not contend that the judge failed to apply the four-prong Cofield2 test for the admission of bad act evidence or that the judge erred in finding that the evidence showed other conduct similar in kind and reasonably close in time to the currently charged conduct, that was established by clear and convincing evidence, and had a probative value not outweighed by prejudice to him.3 Cofield, supra, 127 N.J. at 338 (listing the second through fourth prongs of the Cofield analysis).

Defendant limits his argument to the first prong of Cofield, that the evidence was not relevant to a disputed material issue in the case.4 He contends that it was improper to admit any evidence under N.J.R.E. 404(b) because defendant's state of mind "was not at issue in this case," and the victim's state of mind was "irrelevant." Specifically, he argues that "defendant's intent was not a disputed issue because this was an identification case and the defense theory was that the State had the wrong man." He further notes that there was no serious dispute at trial that McKinney's assailant actually intended to kill her, as opposed to intending some lesser degree of bodily harm.

Although defendant is correct that the perpetrator's intent to kill was not at issue, defendant's motive for killing McKinney was both relevant and disputed. Excerpts from the closing arguments make the point clearly. The prosecutor argued

Every time Ashle McKinney wanted to leave and gain back control of her life, the defendant had to assert his dominance and power over her. Whether it was burning her clothes in July of 2008 or stealing her money in June of 2009 or vandalizing her apartment during that period of time, or physically assaulting her during that period of Mother's Day of 2009, he had to show her what the consequences would be if she didn't toe the line.

In June of 2009, she had gained the courage and the strength to end the relationship finally for good, but abusers like the defendant who need the power of control have to have the last word. So in his final act of power and dominance over her, the only thing left in defendant's depraved mind was to senselessly and brutally squeeze the last ounces of life out of Ashle McKinney, because if he couldn't have her, no one else would.

Defense counsel countered with the following

The State wants you to believe that Lamont Richardson was so upset by the breakdown of this relationship with Ashle that he lost control, killed her, strangled her, that asking him to leave was the thing that pushed him beyond his ability to contain himself.

But what do we really know? We know that Lamont didn't live with Ashle. He had moved out earlier in the month. He hadn't been living with her. He was staying there a few nights a week, three, maybe four nights a week, but he lived at his mother's house. When she threw him out, he had a place to go. We know that Lamont and Ashle still had some kind of an amicable relationship. We heard that Lamont came over to her house on the 26th to see the baby. No problem, no arguments, no fighting, no resistance. They had a child together and that part seemed to be working out. He would come visit. He would take the child for a walk. We heard a lot of talk about people seeing him walking the baby on the sidewalks. I suggest to you that Ashle asking Lamont to move out did not cause a lot of stress to him. It was going to be relatively little change in his lifestyle.

The question for the jury was not only whether defendant was the man witnesses saw burning McKinney's clothes on the morning after the murder, but also whether that same man had strangled McKinney to death. The latter question rested on a complex web of circumstantial evidence and motive linking defendant to the crime.

Proof of motive can "aid the jury, particularly in a case resting upon circumstantial evidence, in determining who the person was who committed the crime." State v. Carter, 91 N.J. 86, 102 (1982). Our Supreme Court has noted that evidence of motive has a "special role" and the "unique capacity to provide a jury with an overarching narrative, permitting inferences for why a defendant might have engaged in the alleged criminal conduct." State v. Calleia, 206 N.J. 274, 293 (2011). "Often, motive must be pieced together; potential motivating factors must be gleaned from evidence that does not itself bespeak criminal intent but merely explains what events might have led the accused to commit a criminal act." Ibid.

Because of that, "motive is treated somewhat differently than other types of evidence," and "a 'wider range of evidence' is permitted to prove motive, so long as it remains a material issue in a case." Id. at 293-94 (citations omitted). "'Any evidence which has a legitimate bearing on the question of motive is as a general rule admissible' so long as it 'at least to a slight degree tend[s] to establish the existence of the motive relied on.'" Id. at 293 (quoting 41 C.J.S. Homicide 325 (2006)). When evidence provides proof of motive, a "strong showing of prejudice" is necessary to exclude such evidence under the balancing test of N.J.R.E. 403. Id. at 294.

Accordingly, we conclude the judge correctly determined that defendant's motive was a disputed, material issue and evidence of defendant's prior conduct or state of mind that tended to establish that motive was properly admitted under N.J.R.E. 404(b).

We disagree with defendant's contention that McKinney's state of mind "was not relevant at all." The Court in Calleia rejected "a per se rule that hearsay statements by a deceased victim may never be admitted under the state-of-mind exception to prove motive." 206 N.J. at 295. Instead, the Court held that "when a victim's state-of-mind hearsay statements are relevant to show the declarant's own conduct, and when such conduct is known or probably known to the defendant, it also can give rise to motive, and the statements become admissible [under the state-of-mind exception of N.J.R.E. 803(c)(3)] for that purpose, subject to the usual balancing under N.J.R.E. 403." Id. at 296. The Court made clear, however, that "a prosecutor must demonstrate that a defendant knew or likely knew of a victim's conduct in order for the victim's conduct to provide motive evidence." Id. at 297.

Applying those principles to the evidence at trial, in accordance with our established standard of review,5 we find no error in the court's admission, following the Rule 404(b) hearing, of the July 2008 incident in which defendant burned McKinney's clothes. The judge admitted the eyewitness testimony of that event "because it illustrates the volatile nature of their relationship and how [d]efendant reacted when Ashle told him to leave her apartment." Admission of this evidence was well within the judge's discretion as it clearly tended to show defendant's state of mind when McKinney previously threatened to break off their relationship as well as his motive for killing her less than a year later when she did finally break with him.

Similarly, we find no error in the judge's admission of the testimony regarding the June 2009 argument when McKinney accused defendant of taking her electronic benefits card and demanded that he move out. Coming, as it did, at the time McKinney asked defendant to move out of her apartment, the testimony supported the inference that McKinney's state of mind was that the relationship was permanently at an end in the early days of June. Because this evidence further showed that defendant was aware that McKinney blamed him for the missing money when she threw him out, it tends to establish that he was aware that she intended a permanent break, which in turn gives rise to motive. Accordingly, both the direct and hearsay portions of this testimony were admissible on the issue of defendant's motive in accordance with Calleia, supra, 206 N.J. at 296.

The testimony regarding McKinney's black eye and the acts of vandalism in McKinney's apartment in the weeks before her death are closer questions.

Regarding McKinney's black eye, we do not find that the judge's admission of that testimony as a prior bad act under Rule 404(b) was an abuse of his discretion. The evidence has a tendency to show the nature of their relationship and defendant's ongoing motive to control McKinney, in that when she pushed him, he shoved her back. The statements as to how she had acquired the black eye, however, were hearsay, and we do not agree that they could properly be considered statements of McKinney's then existing physical condition or pain under N.J.R.E. 803(c)(3). Although part of McKinney's statement to her mother could be broadly interpreted as an expression of present physical discomfort, because she went to her mother asking for Benadryl and her mother provided a cold pack, that was obviously not the point of the testimony. The clear import of the testimony was to convey to the jury that defendant had caused the injury, not that the injury caused McKinney pain.

Although we find admission of those hearsay statements to have been error, we cannot conclude admission of the testimony requires reversal of defendant's conviction. There was considerable, properly-admitted evidence that defendant and McKinney frequently argued. The testimony about this incident revealed that it was McKinney who escalated the argument to physical pushing, and that she "caught" the black eye in the mutual shoving and swinging that followed. Because the testimony did not unfairly suggest that defendant had a propensity for initiating physical violence against McKinney, and the judge delivered a lengthy limiting instruction that the testimony could only be used as relevant to state of mind and could not be used for any other purpose, we conclude the error was harmless.

With regard to the strange acts of vandalism that occurred in the weeks between McKinney ending her relationship with defendant and her murder, their timing and the targeted, personal nature of the incidents themselves, coupled with the testimony that defendant had been seen on the fire escape and around the apartment during those weeks, tended to show that defendant was the vandal and that, contrary to defense counsel's contention in summation that "Ashle asking [defendant] to move out did not cause a lot of stress to him," defendant was motivated to punish McKinney for rejecting him.

Although defendant contends that McKinney merely told her friend about these incidents, the friend's testimony appears to have been based, at least in part, on personal knowledge, as she testified that, during the period when the incidents were occurring, she would sometimes accompany McKinney into the apartment when she took her home from work and sometimes wait in her car for McKinney's wave from the window. The witness testified that if McKinney went inside without her and the apartment was in disarray, McKinney would come back down the steps and the two of them would go inside to deal with whatever they found.

Clearly, McKinney's friend could testify to what she observed of the vandalism occurring in McKinney's apartment. The closer question is whether she could testify regarding McKinney's statements that she suspected defendant of the vandalism, that she wanted to move and "to get her life in order."

The State's theory was that defendant and McKinney were in an abusive relationship marked by defendant's need to dominate and control her. The prosecutor argued that defendant exercised his power and control by demonstrating the consequences McKinney would suffer if "she didn't toe the line." In order to admit McKinney's statements under Rule 803 as state-of-mind hearsay evidence, the State had to demonstrate that defendant "knew or likely knew" that McKinney suspected him of the vandalism and was taking steps to further distance herself from him. See Calleia, supra, 206 N.J. at 297.

Defendant contends generally that "the only thing this evidence tended to prove was the victim's fear of the defendant, which has repeatedly been found not admissible in New Jersey." See State v. Benedetto, 120 N.J. 250, 259-61 (1990). But he does not draw our attention to any testimony about the vandalism to demonstrate that fact.6 The prosecutor appears to have taken care not to elicit any such statements from the witness.

The judge concluded that the statements were relevant to McKinney's state of mind and defendant's intent and motive, reasoning that as McKinney tried more forcefully to extract herself from their relationship, defendant's need to exercise even greater control motivated him to destroy her property and eventually take her life. The Court in Calleia declared that "when testimony regarding a decedent's state of mind establishes a fact that, if known by defendant, could give rise to a motive, such testimony is admissible subject to balancing under Rule 403." 206 N.J. at 295-96. As the judge's reasoning that McKinney's belief that defendant was behind the vandalism induced her to further distance herself from defendant, which she expressed to her friend and which defendant could certainly surmise by her failure to reconcile with him, finds support in the record, we conclude he acted within his discretion in finding the evidence admissible under the state-of-mind exception of N.J.R.E. 803(c)(3) to prove motive.

Even if the judge erred in admitting McKinney's statements about the vandalism and her intent to further distance herself from defendant, however, reversal of his conviction is not required. Even where evidence of prior bad acts is improperly admitted, where there is "overwhelming proof" of guilt submitted by the State that is "independent of the other-crimes evidence," the error is harmless. State v. Gillispie, 208 N.J. 59, 93 (2011); see also State v. Soto, 340 N.J. Super. 47, 65 (App. Div.) (holding that hearsay testimony that the defendant was involved in a robbery was harmless error in view of the other proofs establishing guilt), certif. denied, 170 N.J. 209 (2001).

Here, the State presented a very strong, albeit largely circumstantial, case against defendant apart from the bad acts evidence. Given the record, we conclude any error with regard to the admission of these hearsay statements was very likely harmless. We likewise reject defendant's argument that the prosecutor "compounded" the judge's errors under N.J.R.E. 404(b) by arguing in summation that the nature of their relationship was one in which defendant was motivated to control McKinney and to punish her when she failed to "toe the line" and that her murder was "in conformity" with that nature. Although the prosecutor's employment of the phrase "in conformity" was undoubtedly a poor choice, counsel did not object to the prosecutor's statement when made and the jury was properly instructed in the use they could make of the 404(b) evidence admitted.

Defendant also complains on appeal about the admission of other testimony - about arguments between defendant and McKinney, that defendant put a lock code on McKinney's television, that he took McKinney's car seat for the baby, about a burn mark she discovered on the baby after she was in defendant's care and of other isolated references to defendant "stealing" from McKinney - not addressed before trial at the Rule 404(b) hearing, that he contends was erroneously admitted under N.J.R.E. 404(b) and 802. None of these incidents, however, constitute prior bad acts, and all were admitted without objection. We find no error.

We also reject defendant's contention that the court erred in admitting testimony that McKinney made appointments at Womanspace in the days before her murder because it was prejudicial evidence "that McKinney intended to get a restraining order" against defendant.

The judge disallowed, as part of the pre-trial motion, the State's efforts to admit testimony from McKinney's friend that McKinney told her that she was trying to get help from Womanspace to get away from defendant, finding no proof that defendant was aware of those efforts. At trial, the State eliminated the hearsay problem by introducing the testimony of the director of Womanspace, who testified as to the general services Womanspace provides, how clients are referred, and records indicating that McKinney had appointments there in June 2009.

Following a Rule 104 hearing, the judge deemed the evidence admissible, reasoning that the testimony did not concern a prior bad act of defendant, thus making the higher standard of N.J.R.E. 404(b) inapplicable, and that the probative value of the evidence outweighed any prejudice to defendant. Specifically, the judge found the evidence of McKinney's appointments at Womanspace could not come from any other witness and was "extremely probative to show the deceased victim's state of mind in June 2009 and show her state of mind as to the nature of her relationship with the defendant."

Although evidence that a defendant has been subject to restraints by a court is inherently and highly prejudicial and must be treated cautiously, see State v. Vallejo, 198 N.J. 122, 133 (2009), the testimony admitted here did not suggest either that McKinney specifically sought a restraining order or, more significantly, that she could have obtained one from a court if she had wanted to. Further, we agree with the trial court that the fact that McKinney took affirmative steps to seek assistance in the month of her murder is highly relevant. The jury could conclude from the testimony that McKinney was more firmly resolved to break with defendant than she had been before and not inclined to reconcile with him as she did in 2008 when he burned her clothes.

There is no support for defendant's argument that this direct testimony could not be admitted without proof of defendant's actual knowledge of the appointments. See Calleia supra, 206 N.J. at 303 (noting that "most of the content of" the hearsay at issue "was also admitted through means other than state-of-mind hearsay"). As neither N.J.R.E. 404(b) nor 803(c)(3) applied to this testimony, it was within the judge's discretion to admit it under Rule 403. We find no error.

Defendant also complains about the admission of testimony by several different witnesses about their dislike of defendant, the neighbor's testimony regarding McKinney's fear of defendant, her mother's testimony that defendant might kill McKinney and the testimony of the recipient of one of the text messages after McKinney's death of his assumption that defendant sent it using McKinney's phone. We find no reversible error in the admission of any of this testimony.

Regarding the testimony about the witnesses' dislike of defendant, the remarks defendant cites were made in passing, admitted without objection, and simply provided background regarding the relationship between the victim, the witnesses and the defendant. The only time the prosecutor asked for elaboration, the judge sustained defense counsel's objection and the witness did not elaborate.

The only testimony in the record that McKinney feared defendant was the comment by McKinney's neighbor who testified that McKinney would smile and speak when he saw her without defendant but that, when defendant was present, she would say nothing and keep her head down. The witness said he did not know why she would put her head down, and when the prosecutor asked, "How did she appear?," he answered, "She acted like she was scared, like he didn't want her talking to anybody else."

Defendant made no objection to the questions. The witness testified as to his own personal observations of McKinney's demeanor both with and without defendant; the prosecutor's question asked for personal observation not opinion testimony; and the witness's testimony was limited to his observations of how she acted.

McKinney's mother testified to telling her daughter, "you got to leave him before he wants to kill you" when she appeared with a black eye in May 2009. A review of the record reveals that the remark was an aside by a witness who was upset and gave somewhat rambling answers in response to simple and unobjectionable questions put to her by the prosecutor. Defense counsel made no objection to the questions and did not seek a curative instruction after the response drifted.

Defendant also complains of the testimony by a former boyfriend that he "automatically assumed" that the sexually explicit text message he received from McKinney's phone on June 28 came from "her boyfriend." The highly relevant point the prosecutor was attempting to elicit from the witness was that a message had been sent from McKinney's phone in McKinney's apartment on the morning of her murder but that McKinney herself did not send it.

No objection was made or curative instruction sought and, in context, it was clear that the only basis for the witness's assumption as to who sent the text was his conviction that McKinney did not. Accordingly, the jury could not have been misled to believe the witness knew something more about defendant or the facts to support his assumption.

We view all of these comments as the sort of inadmissible hearsay or other evidence the Court has noted "frequently, often unavoidably, comes to the attention of the jury." State v. Winter, 96 N.J. 640, 646 (1984). Because not "every single thing that happens at a trial" can be completely controlled, and defendant has failed to demonstrate harmful error, we reject his argument that reversal is required. Vallejo, supra, 198 N.J. at 132.

Defendant's argument that he "was deprived of the right to confront witnesses and the right to due process of law and a fair trial" because the chief medical examiner who testified regarding the autopsy performed on McKinney was not the doctor who actually performed the procedure is without merit. The chief medical examiner was on duty when McKinney's body was brought to the morgue. Although she did not perform the autopsy, she examined the body and made the pronouncement of death. The opinions the chief medical examiner provided at trial regarding McKinney's time of death and the implement used to strangle her were based entirely on the medical examiner's own examination of the body and not the autopsy performed by her deputy. Because the opinions rendered by the expert were based on her own personal observations and the photographs taken at the autopsy, which were properly authenticated and admitted without objection, no Confrontation Clause issue was presented and the court properly admitted the expert's testimony.

Defendant's argument that it was plain error for the judge, to have failed to specifically instruct the jurors on how they were to assess the "showup" identifications made by witnesses years after McKinney's death is similarly without merit.

The model jury charge defendant complains was not given in this case did not become effective until months after defendant's trial ended. Moreover, defendant's characterization of the witnesses' review of the Housing Authority's video of the bush burning and the neighbor's identification of defendant's photograph as the man he had already described to police by name as "showups" is erroneous. Because defendant was well-known to those witnesses, none of the concerns of suggestive procedures or faulty memory attendant to showup identifications was implicated.

The judge's charge on identification consisted of a detailed explanation of the factors jurors should consider in determining the reliability of witness identifications in accordance with the Court's directive in State v. Henderson, 208 N.J. 208 (2011). We accordingly find no error, much less plain error, in the identification charge the judge provided the jury.

Defendant's main argument as to his sentence is that he is entitled to additional jail credits against his murder conviction. He devotes only one paragraph to the argument that the judge was not "mindful" of the real time consequences of the NERA term imposed. We reject defendant's argument that Hernandez7 entitles him to jail credits against his murder conviction for time he spent in jail on drug-related offenses that occurred in July 2006 (Indictment No. 06-11-01118) and for a weapons offense that occurred in February 2008 (Accusation No. 08-03-0196) for which he was on probation when he murdered McKinney in 2009. Nothing in Hernandez or State v. DiAngelo, 434 N.J. Super. 443, 451-52 (App. Div. 2014), would entitle defendant to jail credits as against his murder conviction for time he spent in jail nearly three years before McKinney was murdered.

Although we reject defendant's argument that he is entitled to additional jail credits as against his murder conviction, our review of the orders for commitment in the record reveals a possible discrepancy in the jail credits defendant was awarded as to one of his sentences for probation violations. Specifically, jail credit for the weapons offense began to accrue on February 6, 2008, and credit was given for each period of incarceration thereafter until defendant's sentencing on July 23, 2012 on the murder conviction.

The offenses occurring earliest in time, however, were the drug-related offenses, with jail credit beginning to accrue on July 31, 2006. A nineteen-day period of incarceration occurring from February 6 to February 25, 2008, although included in the jail credit calculation for the drug-related offenses, is not listed in the weapons offense order. Accordingly, it appears that defendant may be entitled to an additional nineteen days of jail credit as to his sentence on Indictment No. 06-11-01118. We remand this matter for further review and correction of the orders if necessary to resolve this apparent discrepancy.

It is axiomatic that a trial court possesses considerable discretion in sentencing, State v. Dalziel, 182 N.J. 494, 500 (2005), and that "[a]ppellate review of the length of a sentence is limited," State v. Miller, 205 N.J. 109, 127 (2011).

We are to affirm a sentence, even if we would have imposed a different one, so long as the sentencing judge's findings and balancing of the aggravating and mitigating factors are supported by adequate evidence in the record, and the sentence imposed is neither inconsistent with the sentencing provisions of the Code of Criminal Justice nor shocking to the judicial conscience. See State v. Fuentes, 217 N.J. 57, 70-71 (2014). The Court has recently reiterated that "our trial judges 'need fear no second-guessing' when they exercise their discretion in accordance with the statutory mandates and the principles we have established." State v. Blackmon, 202 N.J. 283, 297 (2010) (quoting State v. Roth, 95 N.J. 334, 365 (1984)).

Here, there is nothing in the record of this sentencing which would appear to require our setting it aside. The judge appears to have conformed to all sentencing guidelines and followed proper sentencing procedures. His findings and balancing of the aggravating and (non-existing) mitigating factors are amply supported by the record, State v. O'Donnell, 117 N.J. 210, 216 (1989), and he thoroughly explained his reasons for the sentence imposed, State v. Dunbar, 108 N.J. 80, 97 (1987), overruled in part, State v. Pierce, 188 N.J. 155 (2006).

Were it not for our review of the judge's statements in an unrelated proceeding that he "always give[s] defendants convicted by a jury a minimum of 60 years NERA," we would readily affirm this sentence. We cannot, however, ignore the judge's own statement in open court, which suggests strongly that he may not undertake the "individualized consideration during sentencing" to which each defendant is entitled under the Code. State v. Jaffe, 220 N.J. 114, 122 (2014) (quoting State v. Randolph, 210 N.J. 330, 349 (2012)). Because that statement has deprived us of the confidence we would otherwise possess that the judge sentenced defendant in accordance with the Code and the Supreme Court's directives, we remand this matter to the trial court for resentencing, which should include a detailed explanation of his comments in the transcript to which we have been referred.

Defendant's conviction is affirmed. We remand for resentencing in accordance with this opinion. We do not retain jurisdiction.

1 Defendant also objects to other evidence offered at trial, not all of which he objected to when the evidence was presented.

2

State v. Cofield, 127 N.J. 328 (1992).

3

Defendant also does not dispute the adequacy of the limiting instructions given by the judge on all evidence the court admitted pursuant to N.J.R.E. 404(b).

4 We therefore limit our discussion of the evidence to Cofield's first prong.

5 We review a trial court's evidentiary rulings for abuse of discretion. Brenman v. Demello, 191 N.J. 18, 31 (2007). If, however, the "party appealing did not make its objection to admission known to the trial court, the reviewing court will review for plain error, only reversing if the error is "clearly capable of producing an unjust result." State v. Rose, 206 N.J. 141, 157 (2011) (quoting R. 2:10-2).

6 It is difficult to pinpoint the testimony defendant contends was erroneously admitted because he does not identify it with any precision in his legal argument. Instead he relies on his statement of facts and "urges that in each and every instance with respect to these witnesses, the judge was wrong to admit this evidence." He also combines under a single point heading testimony that (1) was part of the Rule 404(b) motion, (2) was not part of any pre-trial motion, (3) was admitted over objection, (4) came into evidence without any objection or request for a limiting or curative instruction, (5) was hearsay, and (6) was based on personal knowledge. Defendant's approach has unnecessarily complicated our consideration of the issues presented.

7 State v. Hernandez, 208 N.J. 24 (2011).