STATE OF NEW JERSEY v. HAROLD ANTHONY TUCKER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1398-12T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

HAROLD ANTHONY TUCKER, a/k/a

HI-WOO,

Defendant-Appellant.

________________________________

October 13, 2015

 

Argued September 21, 2015 Decided

Before Judges Lihotz, Fasciale, and Higbee.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 11-05-0707.

Theresa Yvette Kyles, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Kyles, of counsel and on the brief).

Nancy A. Hulett, Assistant Prosecutor, argued the cause for respondent (Andrew C. Carey, Middlesex County Prosecutor, attorney; Ms. Hulett, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant appeals from his convictions for first-degree murder, N.J.S.A. 2C:11-3a(1)(2); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; and third-degree hindering prosecution, N.J.S.A. 2C:29-3b(1). We affirm.

A judge and jury tried this case for eight days, from May 23, 2012 to June 1, 2012. The State produced testimony from several police officers and investigators, a forensic ballistics expert, a medical examiner, a county computer examiner, a state trooper, and three individuals,1 who knew defendant and had knowledge of the events surrounding the murder and its aftermath. Defendant testified on his own behalf. We discern the following facts from the evidence adduced at the trial.

The victim and his lover checked into a hotel and stayed in a room for several hours. Defendant and his girlfriend checked into the same hotel. Defendant brought a loaded gun with him to the hotel. Defendant was the victim's drug dealer and had known him since the late 1990s. A few days before the murder, defendant confronted someone who shot his cousin. Defendant believed that the person he confronted was friends with the victim.

Defendant left his hotel room to buy food at the vending machine. At the same time, the victim was standing near the vending machine. Defendant's girlfriend then heard gun shots, exited the hotel, hid in some bushes, and called 9-1-1. Meanwhile, the victim's lover left their room in search of her companion. In the hallway, she observed blood on the wall, bullet holes in the glass doors, and noted numerous police officersat the scene.

A police officer located the victim just beyond the hotel lobby on the floor in a pool of blood. The officer detected no signs of life. He continued searching the scene, saw shell casings at the far end of the hallway, and then spotted the victim's lover. She identified the victim and the police then removed her from the hotel. While outside the hotel, the police talked to defendant's girlfriend, who did not mention the shooting of the victim.

Defendant ran to a nearby parking lot after the shooting and called his former girlfriend. She arrived at the lot, picked him up, and then drove him to her house. The former girlfriend discarded defendant's clothing and boots, and then provided clothing for him to wear. She drove him to a friend's house and never saw him again.

The police continued with their investigation at the crime scene and discovered that a hotel surveillance camera recorded defendant chasing the victim down the hallway. Another camera captured defendant's girlfriend running out of the hotel and dropping her purse. In the hallway, the police discovered nine-millimeter cartridge casings, and the day after the murder, they located a gun in the hotel parking lot.

The State's ballistics expert testified that the recovered firearm was a nine-millimeter semi-automatic pistol. The expert tested the gun and casings and opined that five shots were fired from the gun. The medical examiner verified that the victim's wounds were caused by one of the bullets.

The police were unable to immediately apprehend defendant.About two months after the murder, police spotted defendant as a passenger in a vehicle. They arrested defendant and subsequently seized a bag from the driver. When defendant arrived at police headquarters, he identified the bag as his, stated that it contained a large amount of cash, and gave the police permission to search it. A police videotape showed defendant consenting to the search of the bag and the police removing $3600 in cash, as well as clothing and prepaid cell phone cards.

At trial, defendant claimed self-defense, testifying that he feared for his life because he had previously confronted the shooter of his cousin. Defendant believed that the victim and the shooter of defendant's cousin knew each other, and defendant testified that the victim had a reputation for being a killer. On direct examination, defendant also testified about his own convictions and general violence in his neighborhood, including murders relating to drugs and other wrongdoings.

Defendant testified that he saw the victim standing near the vending machine and observed the victim holding the barrel of a gun. Defendant stated that he directed the victim to "chill," and after that, he noticed the victim pull a gun out of his pocket.2 Defendant testified that he heard gun shots, but was "not certain" if the victim was shooting at him. Defendant looked up and saw his girlfriend, who was screaming. Defendant testified that he "got mad," and fired his own gun "like twice" as the victim ran down the hall. Defendant testified that he ran out of the hotel, threw the gun near a parked car, which is where the police found it, and called his former girlfriend.

Defendant admitted that he fled the scene of the murder and went to Pittsburgh, Pennsylvania. From there, he took a bus to Baltimore, Maryland; North Carolina; Texas; and New York before returning to New Jersey. On direct examination, defendant testified that he left New Jersey to avoid the police and because he was afraid for his life.

The jury found defendant guilty of murder, the weapons offenses, and hindering prosecution, and the judge imposed an aggregate sentence of thirty-five years in prison with thirty-years of parole ineligibility.

On appeal, defendant raises the following points

POINT I

THE TRIAL COURT'S FAILURE TO TAKE ANY ACTION TO CURE THE DISCOVERY VIOLATIONS REGARDING [THE DEFENDANT'S GIRLFRIEND'S] SEEING [THE VICTIM] IN [THE VICTIM'S LOVER'S] RED HONDA AND TUCKER'S POSSESSION OF A LARGE AMOUNT OF CASH, DEPRIVED TUCKER OF DUE PROCESS AND A FAIR TRIAL. (Partially Raised Below).

A. [The defendant's girlfriend's] testimony[.]

B. Evidence regarding the money in Tucker's black bag.

POINT II

THE TRIAL COURT ABUSED ITS DISCRETION AND DEPRIVED TUCKER A FAIR TRIAL BY ADMITTING INTO EVIDENCE IRRELEVANT AND HIGHLY PRE-JUDICIAL EVIDENCE THAT TUCKER HAD A LARGE AMOUNT OF CASH AT HIS DISPOSAL ON THE DAY OF HIS ARREST.

POINT III

TUCKER WAS DEPRIVED OF DUE PROCESS AND A FAIR TRIAL BY THE TRIAL COURT'S FAILURE TO FRAME ITS INSTRUCTION ON THE DUTY TO RETREAT BASED ON THE CIRCUMSTANCES THAT EXISTED AT THE MOMENT TUCKER RESORTED TO USING DEADLY FORCE.

POINT IV

THE TRIAL COURT'S RESPONSES TO THE JURY QUESTIONS WERE SO UNHELPFUL AND PREJUDICIAL AS TO REQUIRE THE REVERSAL OF TUCKER'S CONVICTIONS. (Partially Raised Below).

A. The court's failure to permit the jury to review the diagram of the hallways. (Not Raised Below).

B. The court's refusal to permit the jury to view the video of Tucker registering at the hotel on August 21, 2010.

C. The trial court's failure to properly respond to the jury's request to "explain . . . and not read" passion/provocation. (Not Raised Below).

D. The trial court's refusal to clarify what the jury meant in requesting a playback of video "from the time Harold walked in."

. . . .

POINT V

THE CUMULATIVE EFFECT OF THE ERRORS DISCUSSED ABOVE DEPRIVED TUCKER OF A FAIR TRIAL AND WARRANTS REVERSAL OF HIS CONVICTIONS.

POINT VI

BECAUSE THE COURT NEGLECTED TO FIND A MITIGATING FACTOR THAT WAS WELL-SUPPORTED IN THE RECORD, THE SENTENCE IMPOSED FOR MURDER IS EXCESSIVE.

Defendant raises the following additional arguments in a pro se supplemental brief

POINT I

THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY NOT ADEQUATELY RESPONDING TO THE JURY'S NOTES DURING DELIBERATIONS WHICH VIOLATED THE DEFENDANT'S RIGHTS TO DUE PROCESS AS GUARANTEED UNDER THE U.S. CONST., AMENDS. VI, XIV: N.J. CONST. ART. I PARA 1, 10[.] (Not Raised Below).

 
A. The trial court[']s reply to the jury note "was there any gunshot residue on the vict[i]m[']s hands" was misleading and deprive[]d Mr. Tucker to his rights to a fair trial[.] (Not Raised Below).

B. The trial court failed to properly respond to the jury note marked "C5" by not clearing the jury's confusion about the manslaughter unanimity[.] (Not Raised Below).

C. The trial court inadequately responded to the jury's note "Clarification 'explain' and 'not read off the paper exclusively for what constitutes "Passion" "Provocation."'" (Not Raised Below).

. . . .

 
POINT [II]

THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY PRESE[]NTING TO THE JURY AN UNBALANCED AND MISLEADING SUMMARY OF THE EVIDENCE AND DEPRIVED THE JURY OF MAKING A[N] ACCURATE ASSESSMENT OF THE FACTS TO REACH A FAIR VERDICT WHICH DENIED THE DEFENDANT HIS DUE PROCESS TO A FAIR TRIAL. U.S. CONST., AMENDS. VI, XIV: N.J. CONST. ART. I PARA 9[.] (Partially Raised Below).

POINT III

DEFENDANT[']S CONSTITUTIONAL RIGHTS OF DUE PROCESS WERE VIOLATED UNDER THE CONFRONTATION CLAUSE OF THE SIXTH AMEND. OF THE U.S. CONST., ART I, PARA 10 OF THE N.J. CONST. (Not Raised Below).

POINT IV

THE PROSECUTOR COMMITTED ENORMOUS AMOUNTS OF MISCONDUCT SO EGREGIOUS THAT IT DENIED THE DEFENDANT HIS RIGHT TO DUE PROCESS AND A FAIR TRIAL. U.S. CONST. AMENDS. V, VI, XIV; N.J. CONST. ART I, PARA 1, 10. (Partially Raised Below).

A. The prosecutor disparaged the defense and accused the defense attorney of trying to mislead the jury and improperly cross[-] examined the defendant. (Partially Raised Below).

B. During summation the prosecutor improperly and repeat[][ed]ly misstated the facts, placed his personal belief on the evidence, placed his credibility in the balance against that of the state[']s witnesses, the expert, and the defendant. (Not Raised Below).

C. The prosecutor misstated the law. (Not Raised Below).

 
D. The prosecutor impermissibly and improperly diverted the jurors attention from the facts of the case by intending to promote a sense of partisanship with the jury, and that their duty is to send a message to the commun[][i]ty as well [as] to the defendant. (Not Raised Below).

. . . .

POINT V

THE STATE'S FORENSIC PATHOLOGIST TESTIFIED TO ISSUES OUTSIDE HIS FIELD OF EXPERTISE. (Partiall[y] Raised Below).

POINT VI

THE CUMULATIVE EFFECT OF THE MULTIPLE TRIAL ERRORS DEPRIVED MR. TUCKER THE RIGHT TO A FAIR TRIAL.

I.

We begin by addressing defendant's contention that the State violated Rule 3:13-3(f) by not producing (1) a statement by the defendant's girlfriend to an investigator in preparation for her trial testimony; and (2) a copy of the videotape showing the police removing cash from defendant's bag.

The State is under a continuing obligation to provide discovery pursuant to Rule 3:13-3(f), which provides in pertinent part that

[t]here shall be a continuing duty to provide discovery pursuant to this rule. If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule . . . , it may order such party to permit the discovery of materials not previously disclosed, grant a continuance or delay during trial, or prohibit the party from introducing in evidence the material not disclosed, or it may enter such other order as it deems appropriate.

We review discovery violations using an abuse of discretion standard. See State v. Marshall, 123 N.J. 1, 134 (1991) ("The choice of sanctions appropriate for discovery-rule violations is left to the broad discretion of the trial court."), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993).

A.

As to the defendant's girlfriend's trial preparation with the investigator, defendant maintains that the State failed to produce a summary of what she told him, which included defendant met the victim before the murder and the victim drove a red car.

On direct examination, the defendant's girlfriend testified without objection that a few months before the murder, she drove defendant to a parking lot where the victim was waiting for him in a red Honda. She concluded that defendant and the victim were friends. On cross-examination, defense counsel learned that the defendant's girlfriend had told the investigator this information, and defense counsel used that information to impeach the defendant's girlfriend's credibility by questioning her as to the color of the Honda.

The judge conducted a Rule 104(a) hearing, N.J.R.E. 104(a), after defense counsel raised an objection at the completion of the defendant's girlfriend's testimony. The judge determined that the investigator met with the defendant's girlfriend a month before the trial. The investigator testified during the trial preparation, he tried to put her mind at ease about the upcoming trial. He explained that his practice was not to make reports of such meetings and he did not make any notes concerning this meeting. The judge permitted defense counsel to call the investigator as a witness, which he did, but defense counsel asked no further questions about defendant's girlfriend's statement concerning the parking lot meeting or absence of a report.

A prosecutor is obligated to produce "transcripts of all electronically recorded . . . witness statements . . . ." R. 3:13-3(b)(1)(G). Further, police may not destroy investigative notes. State v. Dabas, 215 N.J. 114, 137 (2013). Here, there was no such document. Even if we assume that there was a discovery violation, the judge did not abuse his discretion and there was no prejudice. The judge gave defense counsel an opportunity to cross-examine the investigator more than a day after the Rule 104(a) hearing. Defendant admitted at trial that he had known the victim for years and had sold the victim heroin in the past. The color of the Honda was never a critical issue in the trial, and neither was identification. Therefore admission of defendant's girlfriend's testimony relating the parking lot encounter with the victim was not prejudicial, and any error was harmless.

B.

As for the videotape, the State produced to defense counsel a transcript of defendant's consent to search the bag and, as the State contends, provided to defense counsel the videotape of the officer removing the items from the bag. Defendant argues that he did not receive the tape until immediately prior to trial in violation of the thirty day requirement in Rule 3:13-3(b). However, defense counsel admits that he viewed the videotape at trial and asked the judge to play the entire videotape for the jury.3

II.

Defendant contends that the judge erred by admitting into evidence testimony about the cash the police found in the bag.

We review evidentiary rulings of the trial court for abuse of discretion. State v. Marrero, 148 N.J. 469, 483-84 (1997). Unless there has been "a clear error of judgment[,]" we will not upset those rulings. State v. Koedatich, 112 N.J. 225, 313 (1988), cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989).

The State introduced evidence that the police removed $3600 in cash from defendant's bag as evidence of consciousness of guilt. It is well-established that certain conduct after the commission of a crime may indicate a defendant's consciousness of guilt. State v. Phillips, 166 N.J. Super. 153, 159 (App. Div. 1979), certif. denied, 85 N.J. 93 (1980). The most common example of conduct that can give rise to an inference of consciousness of guilt is flight. Flight from the scene of a crime is generally admissible to draw an inference of guilt, State v. Mann, 132 N.J. 410, 418-19 (1993), if done with the purpose of avoiding apprehension, prosecution, or arrest. State v. Ingram, 196 N.J. 23, 46 (2008). "Mere departure" is not enough. State v. Long, 119 N.J. 439, 499 (1990). "For departure to take on the legal significance of flight, there must be circumstances present and unexplained which, in conjunction with the leaving, reasonably justify an inference that it was done with a consciousness of guilt and pursuant to an effort to avoid an accusation based on that guilt." Ingram, supra, 196 N.J. at 46 (internal quotations omitted).

Here, defendant fled from the hotel; called his former girlfriend, who discarded his clothing and boots and gave him different clothes to use; traveled to five states before returning to New Jersey; admitted at trial that part of the reason for leaving was to avoid the police; used cellular phones that could not be traced; and admitted that the bag and money were his. The judge properly charged the jury on how to interpret the consciousness of guilt evidence, including burden of proof and defendant's explanation that he left the scene because he was fearful for his life. Thus, we conclude the judge properly exercised his discretionary authority and his decision to admit the evidence did not amount to "a clear error of judgment."

III.

We reject defendant's argument that the judge erroneously charged the jury on self-defense. Defendant maintains that the judge erred in declining his request to charge the jury that "there is no obligation to retreat unless retreat can be effected 'with complete safety,' and . . . with knowledge that retreat can be so effected." It is undisputed that "[a]ppropriate and proper charges to a jury are essential for a fair trial." State v. Green, 86 N.J. 281, 287 (1981). The trial judge must guarantee that jurors receive accurate instructions on the law as it pertains to the facts and issues of each case. Id. at 287-88. The charge must be "read as a whole" to determine "whether there was any error." State v. Adams, 194 N.J. 186, 207 (2008). Our Supreme Court has previously stated "[w]here counsel requests a charge on a defense, it will be given if there is a rational basis in the evidence to do so." State v. R.T., 205 N.J. 493, 509 (2011). However, "a trial court is not bound to instruct a jury in the language requested by a party." State v. Thompson, 59 N.J. 396, 411 (1971).

Here, the judge charged the jury in accordance with the model charge, and correctly outlined the limitations on use of deadly force, stating

[e]ven if you find that the use of deadly force was reasonable there are limitations on the use of deadly force . . . .

If you find that the defendant knew that he could avoid the necessity of using deadly force by retreating, provided that the defendant knew he could do so with complete safety, then the defense is not available to him.

[Model Jury Charge (Criminal), "Justification Self-Defense in Self Protection" (2011).]

Applying the governing standards, and looking at the charge as a whole, we conclude there was no error.

IV.

Defendant contends that the judge's response to several jury questions during deliberations prejudiced his right to a fair trial.

The jury asked if they could see a diagram of the hotel hallways, which had not been introduced into evidence. The assistant prosecutor and defense counsel agreed, however, that the jury should not see it. The judge then responded "no" to the question without objection. Relying on the doctrine of invited error, defendant is precluded from now arguing prejudice. State v. Sykes, 93 N.J. Super. 90, 95 (App. Div. 1966). But even if we considered his contention on the merits, we see no error, let alone plain error.

The jury asked whether there "[were] any documents in evidence besides witness testimony confirming [defendant]'s stay [in the hotel a night before the murder]." Defendant argues that such evidence was relevant to his claim of self-defense. Defendant speculated that the hard drive of the hotel videotape might prove that he had stayed in the hotel the night before the murder. The judge correctly answered the jury's question in the negative because the State did not introduce into evidence any document showing defendant in the hotel the night before the murder.

Defendant argues for the first time that the judge should have reopened the case to explore whether there was videotape footage of the hotel the night before the murder, and if so, whether it showed defendant checking into the hotel at that time. We decline to consider such a belated argument. It is well-settled that "appellate courts will decline to consider questions or issues not properly presented to the trial court when an oppor tunity for such presentation is available unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest." Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (internal quotation marks omitted). This is particularly so when the opportunity to pre sent the question or issue to the trial court was readily avail able. Monek v. Borough of S. River, 354 N.J. Super. 442, 456 (App. Div. 2002). Regardless, we have considered defendant's contention on the merits and conclude it is "without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2). We add the following brief comments.

The hard drive containing video surveillance of the hotel was available to defendant prior to trial. The State used the hard drive at trial solely to establish chain of custody for the admission into evidence the surveillance footage of various portions of the hotel only on the night of the murder. It would be improper to reopen the case during deliberations to show the jury surveillance footage of the hotel that was not seen by defense counsel and not shown to the jury during the trial, especially because defense counsel admitted he had not confirmed whether there was any footage of the hotel the night before the murder. To his credit, he conceded that he was speculating that it might show defendant checking into the hotel. Nevertheless, the assertion remained conjecture. Under these circumstances, no basis to reopen the trial is presented.

A second note from the jury requested the judge to give them an example of passion provocation. The State and defense counsel agreed the judge should not provide such an example. The judge then re-charged the jury, without objection, on the elements of purposeful or knowing murder and of passion/provocation manslaughter. The judge also stated to the jury, without objection, that whether provocation is adequate or inadequate "essentially amounts to whether loss of self-control is a reasonable reaction under the circumstances," explaining

In order for the State to carry its burden it must prove to you beyond a reasonable doubt that the provocation was not sufficient to arouse the passions of an ordinary person beyond the power of control. For example, words alone do not constitute adequate provocation. On the other hand, a threat with a gun or knife or a significant physical confrontation might be considered adequate provocation.

We conclude there was no error, let alone plain error, with the way in which the judge handled the jury's question.

Finally, defendant contends for the first time that the judge failed to follow-up on the jury's request to replay the footage captured on the hotel surveillance. The jury originally asked to see a "real time" video without any lobby coverage. The hotel surveillance cameras showed different parts of the hotel that night: the lobby; defendant chasing the victim; the police arriving at the hotel; defendant exiting with his girlfriend; and the victim's lover going down the hallway. The judge conferenced with counsel, decided which part of the surveillance video to show the jury, replayed the tape, and no further inquiry arose. If the jury wanted to see more than what was shown in response to its question, then they could have made an additional request. We conclude there was no error.

V.

Defendant contends that the judge imposed an excessive sentence because the judge failed to find mitigating factor number four, N.J.S.A. 2C:44-1b(4), that defendant acted under provocation or excuse. We disagree.

Our review of sentencing determinations is limited. State v. Roth, 95 N.J. 334, 364-65 (1984). We will not ordinarily disturb a sentence imposed which is not manifestly excessive or unduly punitive, does not constitute an abuse of discretion, and does not shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16, 220 (1989). In sentencing, the trial court"first must identify any relevant aggravating and mitigating factors set forth in N.J.S.A. 2C:44-1(a) and (b) that apply to the case." State v. Case, 220 N.J. 49, 64 (2014). The court must then "determine which factors are supported by a preponderance of [the] evidence, balance the relevant factors, and explain how it arrives at the appropriate sentence." O'Donnell, supra, 117 N.J. at 215.

We are "bound to affirm a sentence, even if [we] would have arrived at a different result, as long as the trial court properly identifie[d] and balance[d] aggravating and mitigating factors that [were] supported by competent credible evidence in the record." Ibid.

Mitigating factor number four is inapplicable. Defendant fired his gun at the victim, and the surveillance video shows defendant chasing the victim down the hall. There is no reason to second-guess the trial court's application of the sentencing factors, nor any reason to conclude that the thirty-five year prison sentence "shocks the judicial conscience." Roth, supra, 95 N.J. at 364; see also State v. Bieniek, 200 N.J. 601, 612 (2010) (reiterating that appellate courts must accord deference to trial judges in sentencing decisions).

VI.

After carefully considering the record and the briefs, we conclude that defendant's remaining arguments are "without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2). We add the following brief comments.

Defendant argues that the assistant prosecutor improperly referenced in summation "what we all stand for is to have a society that's free from shootings . . . . [Y]our verdict when you find [defendant] guilty of murder will make that clear." Defense counsel did not object to this fleeting comment. Thus, we apply the plain error doctrine.

"Prosecutors are afforded considerable leeway in closing arguments as long as their comments are reasonably related to the scope of the evidence presented." State v. Frost, 158 N.J. 76, 82 (1999). For prosecutorial comments "[t]o justify reversal, the prosecutor's conduct must have been clearly and unmistakably improper," and "so egregious that it deprived the defendant of a fair trial." State v. Wakefield, 190 N.J. 397, 438 (2007) (alteration in original) (citations and internal quotation marks omitted), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008). "The failure to object [at trial] suggests that defense counsel did not believe the remarks were prejudicial at the time they were made." Frost, supra, 158 N.J. at 84.

It is well-established that prosecutors are allowed to make a "'vigorous and forceful presentation of the State's case[.]'" State v. Ramseur, 106 N.J. 123, 320 (1987) (quoting State v. Bucanis, 26 N.J. 45, 56, cert. denied, 357 U.S. 910, 78 S. Ct. 1157, 2 L. Ed. 2d 1160 (1958)). In this instance, the assistant prosecutor did not urge the jury to "send a message," or otherwise utter comments which would rise to the level of prosecutorial misconduct.

We further emphasize that failing to object during summation not only "'deprive[d] the court of an opportunity to take curative action[,]'" but shows that defense counsel did not find the comments to be prejudicial. State v. R.B., 183 N.J. 308, 333 (2005) (quoting Frost, supra, 158 N.J. at 84). Here, the comments were not, as defendant suggests, "so egregious that it deprived the defendant of a fair trial."

And finally, we reject defendant's contention raised for the first time, that the assistant prosecutor purportedly implied during cross-examination that defendant was a violent person and lived in a violent community. On direct examination, defendant testified that someone shot his cousin a few weeks before the murder; defendant carried a loaded gun because he was afraid people from his neighborhood were out to get him; the victim was a killer; the victim participated in more than one shooting in the community; and defendant lived in a violent community, giving violent details about other shootings, beatings, and murders. On cross-examination, the assistant prosecutor attempted to undermine defendant's self-defense defense by properly questioning defendant about his testimony on direct examination. In other words, the assistant prosecutor did not raise the subject of an unsafe community, defendant did so purportedly to support his claim of self-defense.

Affirmed.

1 The victim's lover, defendant's girlfriend, and defendant's former girlfriend.

2 The victim's alleged gun was not found at the crime scene.

3 We note that at trial, defense counsel reconsidered his request to play the videotape and asked that only the transcript of the videotape, including defendant's statements contained therein, be read to the jury. The State objected to defendant's self-serving statements being read to the jury as hearsay. Defendant's statements contained in the videotape are not considered an admission because they were offered by a party proponent, not opponent. See N.J.R.E. 803(b)(1). Thus, defendant's statements constituted hearsay and were properly excluded.