STATE OF NEW JERSEY v. CLIVE HINDS

NOT FOR PUBLICATION WITHOUT THE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.

CLIVE HINDS,

Defendant-Appellant.

__________________________________________________

July 7, 2015

 

Submitted February 24, 2015 Decided

Before Judges Messano, Ostrer and Hayden.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 11-02-0440.

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

John J. Hoffman, Acting Attorney General, attorney for respondent (Deborah Bartolomey, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

A Camden County grand jury returned Indictment No. 11-02-0440, charging defendant Clive Hinds with two counts of first-degree murder in the deaths of Muriah Huff and Michael Hawkins, N.J.S.A. 2C:11-3(a)(1) or (2) (counts one and four); and two counts each of the following crimes: first-degree felony murder, N.J.S.A. 2C:11-3(a)(3) (counts two and five); first-degree kidnapping, N.J.S.A. 2C:13-1(b) (counts three and six); first-degree conspiracy to commit murder and kidnapping, N.J.S.A. 2C:5-2(a)(1) or (2); 2C:11-3(a); and 2C:13-1(b) (counts seven and eight); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (counts thirteen and seventeen); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (counts fourteen and eighteen); third-degree hindering apprehension or prosecution, N.J.S.A. 2C:29-3(a)(3) and 3(b)(1) (counts twenty-one and twenty-two).1 Following trial, the jury found defendant guilty of Huff's murder under count one, as well as the conspiracy charges as to both victims, and the weapons and the hindering charges; it acquitted defendant of the remaining counts.

However, the judge had provided the jury with instructions on the affirmative defense of duress, N.J.S.A. 2C:2-9, and had posed a specific interrogatory in that regard. The jury concluded that as to Huff's murder, the State had not "disproved the defense of [d]uress beyond a reasonable doubt." As a result, the conviction on count one was reduced to second-degree manslaughter, N.J.S.A. 2C:11-4. See N.J.S.A. 2C:2-9(b) ("In a prosecution for murder, the defense is only available to reduce the degree of the crime to manslaughter.").

The judge sentenced defendant to ten years on count one, with an 85% period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2; a consecutive ten-year sentence on count eight, which charged defendant with conspiracy regarding the murder and kidnapping of Hawkins, also subject to NERA; and a consecutive five-year sentence with a period of eighteen months parole ineligibility on count twenty-one, one of the hindering charges. The remaining counts were either subject to merger, or concurrent sentences were imposed on them. As a result, defendant's aggregate sentence was twenty-five years' imprisonment with eighteen-and-a-half years of parole ineligibility.2

Defendant raises the following points for our consideration on appeal

POINT ONE

DEFENDANT'S CONFESSION MUST BE SUPPRESSED BECAUSE THE POLICE FAILED TO SCRUPULOUSLY HONOR HIS RIGHT TO REMAIN SILENT BY RESUMING QUESTIONING WITHOUT RE-ADMINISTERING MIRANDA3 WARNINGS AFTER DEFENDANT INVOKED HIS RIGHT TO REMAIN SILENT.

POINT TWO

THE JURY INSTRUCTION ON DURESS DID NOT PROPERLY EXPLAIN THE BURDEN OF PROOF AND WAS, AT BEST, CONTRADICTORY ON THE STATE'S BURDEN TO PROVE THE ABSENCE OF DURESS BEFORE A CONVICTION COULD BE RETURNED ON ANY COUNT. IN ADDITION, THE VERDICT SHEET COMPOUNDED THE ERROR BECAUSE IT SUGGESTED THAT DURESS WAS ONLY AVAILABLE AS A DEFENSE TO SOME OF THE COUNTS IN THE INDICTMENT. (Not raised below).

POINT THREE

EVIDENCE THAT DEFENDANT HAD BEEN INVOLVED IN DRUG DEALING VIOLATED N.J.R.E. 404(b), AND THE COURT'S WOEFULLY INADEQUATE LIMITING INSTRUCTION EXACERBATED THE PREJUDICE TO DEFENDANT.

POINT FOUR

DEFENDANT'S AGGREGATE SENTENCE OF [TWENTY-FIVE] YEARS WITH [NINETEEN AND ONE-HALF] YEARS OF PAROLE INELIGIBILITY IS MANIFESTLY EXCESSIVE AND REQUIRES A REMAND FOR RESENTENCING.

Having considered these arguments in light of the record and applicable legal standards, we affirm.

I.

The evidence adduced at trial demonstrated that Huff and her boyfriend, Hawkins, spent the night of February 21 into the morning of February 22, 2010, at a house on Berkley Street in Camden (the Berkley house). Some members of the "Lueders Park Piru Gang," a subset of the Bloods street gang, lived together at the Berkley house. Defendant was a newer member of the gang and lived in his own apartment. The gang's leader was Kuasheim Powell. Powell and Hawkins were lifelong friends, and Hawkins spent much time in the Berkley house.

Some members of the gang resented this friendship and the special treatment they perceived Hawkins received from Powell, and they were also upset about other issues involving Powell's leadership. On the morning of February 22, 2010, while Powell was away from the Berkley house, members of the gang hatched a plan to assault Hawkins. Shatara Carter was to distract Huff on the first floor of the house while Darryl Pierre, Peter Leonce, Dennis Welch and Lance Fulton would carry out the attack on the second floor.

Carter successfully brought Huff to the first floor, where, together with other women in the household, they began dancing to music videos. Meanwhile, upstairs, the men assaulted Hawkins and severely beat him with a baseball bat. They tied Hawkins up, threw him in a closet and took a cellphone photograph of Hawkins, which they sent to Powell.

Powell arrived at the Berkley house shortly thereafter, with defendant, David Hardwick and Keenan Wideman. In a statement he subsequently gave to police, defendant claimed that Powell, fearful gang members would turn on him, called defendant for protection. When they entered the house, defendant and Powell went upstairs and saw Hawkins "tied up in the closet." Welch showed Powell a piece of paper he found in Hawkins's possession that contained the name of a rival gang. Angry because Hawkins claimed he was not a member of that gang, Powell took out a gun and shot Hawkins five or six times. Powell told the others in the room to "finish" Hawkins, and left with defendant to look for Huff.

Powell attempted to shoot Huff when he came upon her downstairs, but the gun was out of ammunition. He struck her in the head with the gun, and then told some of the women to beat Huff, which they did. Defendant told police that he momentarily returned upstairs, took the bat and hit Hawkins twice in his chest.

When defendant came back downstairs, Carter was still beating Huff. After smoking a cigarette with Powell outside the Berkley house, defendant returned upstairs and discovered Hawkins was dead. He took a rope downstairs, gave it to Carter and ordered her to kill Huff. Defendant told police he then "went by the door to keep a look out." However, defendant also acknowledged holding Huff's hands down as Carter strangled her with the rope. In her testimony, Carter claimed defendant actually used the rope to strangle Huff.

We need not describe the police investigation that followed, except to note that the victims' bodies were found several days later buried in the backyard of the Berkley house. After the State rested, defendant called his parents, brother, pastor and former mentor as witnesses, all of whom testified that they believed defendant to be a law-abiding person of good character.

II.

A pre-trial hearing took place regarding the admissibility of defendant's confession. The State's primary witness at the hearing was Patricia Taulane, an investigator with the Camden County Prosecutor's Office Homicide squad. She testified that defendant, Pierre and Hardwick were taken into custody on March 8, 2010, in an apartment leased by defendant's mother in Maple Shade. The interview of defendant was recorded on a video disc that was seen by the judge, a copy of which is part of the appellate record.

Taulane read defendant, who was eighteen at the time, his Miranda rights from a form. After acknowledging he understood his rights, defendant signed the form. Approximately six minutes into the interrogation, defendant told Taulane, "You think I can wait till my mother comes here and talks to you guys[?] [Be]cause I really don't know what to tell you."4 In fact, defendant's parents had been notified of his arrest and were traveling from Hackensack to the prosecutor's office where defendant was being interrogated. Taulane asked, "[Y]ou are saying now you want to talk to your mom first before you make any statement to us? Defendant replied, "That's right." Taulane acknowledged on cross-examination that "the interview stopped so that [defendant] could talk to his parents."

After being left alone for approximately fifteen minutes, defendant's parents arrived and entered the interrogation room. At the pre-trial hearing, both of defendant's parents testified that Taulane told them their son was involved in a double homicide and that his cooperation would result in leniency. As Mrs. Hinds testified, based upon that conversation, she and her husband "went inside and got real angry and loud at [defendant] and told him to tell what he knows." Defendant's mother and father are seen speaking with him for approximately eighteen minutes during which time there is no sound recording.

After the interrogators reenter, Taulane is seen explaining to defendant's parents that "your son has been advised of his rights and during the course of those statements he asked to talk to his mom and dad." It suffices to say that, during the next six minutes of the video recording, defendant's mother and father are seen questioning defendant about a gun that was found in the search of the apartment and forcefully urging him to tell the truth. Defendant's father is seen leaving the room in frustration before defendant tells Taulane that he wants his mother to leave the room. Taulane does not issue defendant another set of Miranda warnings before beginning to question him.

Following the testimony at the hearing, defendant argued that his statement should be suppressed because Taulane failed to issue him a new set of Miranda warnings after he invoked his right to remain silent. However, the judge reasoned that under the totality of the circumstance, defendant had never invoked his right to remain silent and therefore fresh warnings were unnecessary. In finding the statement admissible, the judge said

The defendant went over the Miranda [f]orm and answered the questions and waived his rights. . . . Even before speaking to his mother it's obvious that speaking to his mother was not a condition precedent to cooperation because he'd already agreed [to cooperate].

There's no reluctance, and, again, he appeared from his voice and his appearance on the videotape to be calm and cooperative.

. . . .

In the video it's clear that . . . Taulane tells the defendant that they know that he was at the location in question. The defendant asks . . . to speak with his mother and immediately is given access. Again, there's not . . . a significant delay . . . .

Noting the continued presence of his parents and the thirty-three minute delay, the judge continued

[T]he re-initation of the questioning was really done by the parents and not by the State. This is certainly not police action. There had never been a demand for an attorney or a request for counsel. There [was] never any reluctance to cooperate with the interrogation or investigation or to stop talking altogether.

In this case every indicia points to a continued willingness on the part of the defendant to cooperate with the police investigation and he never deviated from that course.

The video was played before the jury at trial.

Before us, defendant reiterates the argument made in the Law Division. He contends the statement should have been suppressed "because the police failed to scrupulously honor his right to remain silent by resuming questioning without re-administering Miranda warnings after defendant invoked his right to remain silent." We disagree.

"[O]nce a suspect in custody invokes his right to counsel, the interrogation 'must cease,' and 'the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning.'" State v. Wessells, 209 N.J. 395, 402 (2012) (quoting Miranda, supra, 384 U.S. at 474, 86 S. Ct. at 1627-28, 16 L. Ed. 2d at 723). The Court has held that "a suspect need not be articulate, clear, or explicit in requesting counsel; any indication of a desire for counsel, however ambiguous, will trigger entitlement to counsel." State v. Alston, 204 N.J. 614, 622 (2011) (quoting State v. Reed, 133 N.J. 237, 253 (1993)) (internal quotation marks omitted). In making the threshold determination of whether a suspect has invoked his or her right to counsel, the trial court employs "a totality of the circumstances approach that focuses on the reasonable interpretation of defendant's words and behaviors." State v. Diaz-Bridges, 208 N.J. 544, 564 (2012); Alston, supra, 204 N.J. at 621-22. Our review of whether defendant invoked his right to remain silent applies the same analysis. Diaz-Bridges, supra, 208 N.J. at 569.

Defendant relies in large part upon State v. Hartley, 103 N.J. 252, 256 (1986), where the Court enunciated a "bright line" test, holding "that before an accused's previously-asserted right to remain silent may be deemed to have been 'scrupulously honored,' law-enforcement authorities must, at a minimum, readminister the Miranda warnings." Whether an accused's request to speak to a family member or friend amounts to the invocation of the right to remain silent has yielded different conclusions, given the specific totality of circumstances presented.

For example, in State v. Harvey, 121 N.J. 407, 415-16 (1990), cert. denied, 499 U.S. 931, 111 S. Ct. 1336, 113 L. Ed. 2d 268 (1991), the defendant had been in custody for three days during which time he was given his Miranda warnings. Police reissued the defendant his warnings and began to interrogate him again when defendant said he would tell them of his involvement in a suspected murder, "'but . . . first wanted to speak to his father.'" Id. at 417. More than three hours later, the defendant spoke to his father and the interrogation continued, but without reissuance of Miranda warnings. Ibid. The Court suppressed the defendant's confession, noting "there was a significant break in the interrogation," but more importantly, the defendant's request was not "for a brief respite to satisfy physical needs," but rather, "after three days in custody, for the chance to consult with a close family member." Id. at 418-19.

In State v. Martini, 131 N.J. 176, 198 (1993), which the judge in this case cited, the defendant was Mirandized five times, repeatedly signed a waiver form and said he would "'lay out his entire involvement in the case'" if he could speak with his girlfriend. The defendant told police he would cooperate and wished to advise his girlfriend, who was also implicated in the investigation, that she too should assist the police. Id. at 198-99. After the defendant was allowed to speak to his girlfriend, police conducted a five-and-one-half hour interview with the defendant without giving any further Miranda warnings. Id. at 199. In contrast to Harvey, the Court concluded the failure to re-administer Miranda warnings should not result in suppression of the statement because the defendant "did not show a continued reluctance to talk to police"; given her potential involvement as a co-conspirator, the defendant's purpose in seeking out his girlfriend was not to "seek advice from someone outside of the relevant criminal activity." Id. at 232.

In State v. Timmendequas, 161 N.J. 515, 608-10 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001), after being given his rights and during the course of interrogation following a polygraph examination, the defendant was asked if he wished to speak with a friend, to which defendant responded, "'Sure, bring him in.'" In the presence of police and the friend, defendant made his first admission to having committed the murder under investigation. Id. at 610. The Court concluded the case was "different" from Harvey, in that the defendant "had been given an opportunity to invoke his rights several times prior to seeing [his friend] . . . [and] never once invoked them." Id. at 616. The Court found "no evidence that [the] defendant had any intention of invoking his constitutional right to silence or to terminate interrogation by agreeing to speak with [his friend]." Ibid.

In Diaz-Bridges, supra, the defendant, a murder suspect, was advised of his Miranda rights and interrogated for more than three hours by police, without making any admissions, before he began weeping and asked, "'Can I just call my mom first?'" 208 N.J. at 553. Detectives did not honor the request, instead continuing the interrogation despite the defendant's repeated requests to call his mother. Ibid. After six hours and forty-five minutes, the police permitted the defendant to call his mother. Id. at 555.

The Court held, by itself, an adult's request to speak with a parent "does not equate to an invocation of the right to remain silent." Id. at 567. The Court did "not discern in any of defendant's requests to speak with his mother an invocation of the right to silence," reasoning further that because the defendant "never once asked that the interrogators stop or even that they leave him alone," his repeated requests to speak to his mother were of no "constitutional significance." Id. at 570.

We have also addressed the issue in a case that bears similarity to the facts presented here, and which was cited by the hearing judge. In State v. Brooks, 309 N.J. Super. 43, 50, 56 (App. Div.), certif. denied, 156 N.J. 386 (1998), the defendant was accused of murder and denied his involvement after twice being issued his Miranda rights. The following day, police again sought to interview the defendant and re-administered his rights. Id. at 51. The defendant again waived his rights and told detectives "if he could have a phone call to his mother, he would then tell . . . the truth." Id. at 52 (internal quotation marks omitted). The detectives permitted the call and then interviewed the defendant without re-administering Miranda warnings. The defendant confessed to the murder. Ibid.

We specifically held that the failure to re-adminster Miranda warnings after defendant called his mother did not require suppression. We noted there "was no significant break in the interrogation," the defendant "never expressed an unwillingness to talk with the police," he had signed a waiver form, he indicated a "continued willingness" to provide a statement after he spoke to his mother and he never indicated "he wanted his mother's advice." Id. at 56-57; see also State v. Roman, 382 N.J. Super. 44, 65-66 (App. Div. 2005) (holding that suppression was not warranted based upon failure to re-administer Miranda warnings after defendant asked to speak to his parents), certif. granted, 188 N.J. 219 (2006), case dismissed as improvidently granted, 189 N.J. 420-21 (2007).

Most recently, in State v. Faucette, 439 N.J. Super. 241, 261 (App. Div.), certif. denied, No. 075490 (May 12, 2015), we considered the issue when police, after administering Miranda warnings, continued to interrogate the defendant despite his inquiries as to the whereabouts of his mother, who was at the police station, and his request that she be in the room while he was being questioned. We concluded that the "defendant's statements suggest a desire for support and cannot be construed as an assertion of his right to remain silent." Id. at 262 (citing Diaz-Bridges, supra, 208 N.J. at 556).

Here, after waiving his rights, defendant interrupted the interrogation by asking if detectives could wait until his mother arrived "[to] talk to you guys." The detectives sought clarification by stating "you are saying now you want to talk to your mom first before you make any statements to us?" Defendant responded, "That's right." The entire exchange was not an invocation by defendant of his right to remain silent, but rather an indication that defendant would continue to speak to law enforcement after he spoke to his mother. Within minutes, police granted defendant's wishes and gave him an opportunity to speak to his parents.

Although detectives did not formally re-administer Miranda warnings to defendant, minutes later they entered the room and advised defendant's parents, in defendant's presence, that their "son has been advised of his rights and during the course of [his] statements he asked to talk" to them. Defendant's parents spontaneously initiated questioning of defendant, and defendant answered, albeit reluctantly. Ultimately, defendant wanted his parents to leave before he provided a detailed statement that implicated him in the crimes against Huff and Hawkins.

Under the totality of these circumstances, we cannot conclude that defendant invoked his right to remain silent, and therefore, there was no requirement that the investigators re-administer his Miranda warnings before proceeding with the statement. The motion judge properly ruled the statement was admissible.

III.

The judge instructed the jury on the affirmative defense of duress in accordance with Model Jury Charge (Criminal), "Duress" (1982). In relevant part, the charge provided

[I]n defense of the charges in the indictment the defendant . . . contends he is not guilty because at the time of the offenses he acted under duress. In other words he was coerced to commit the offenses due to the use of or a threat to use unlawful force against him. Our law provides in pertinent part that it is an affirmative defense that an actor engaged in the conduct charged to constitute an offense because he was coerced to do so by the use of or a threat to use unlawful force against his person which a person of reasonable firmness in his situation would have been unable to resist.

Before conduct which would otherwise be criminal can be excused on the ground that such conduct was a direct result of force or threats of force upon the defendant or another, the evidence must indicate that the following conditions existed at the time:
 

Number one, that there was use of or threatened use of unlawful force against the person of the defendants;

And two, the force or threatened force would be of such a type that a person of reasonable firmness in a similar situation would have been unable to resist.

. . . .

The [S]tate has the burden to prove beyond a reasonable doubt each element of the offense charged. The [S]tate also has the burden to disprove beyond a reasonable doubt the defense of duress. If you find that the [S]tate has proven beyond a reasonable doubt each element of the offenses charged and that the [S]tate has disproved beyond a reasonable doubt the defense of duress you must find the defendant guilty.

If, however, you determine that the [S]tate has failed to prove beyond a reasonable doubt one or more of the elements of the offense charged or has failed to disprove the defense of duress, you must find the defendant not guilty.

Please note that in regard to the charges of murder and felony murder, the defense of duress reduces the charge to manslaughter.

Defendant never objected to the instructions at trial.5 During its deliberations, the jury asked for, and was provided with, the same instructions three additional times, and a written copy was also given to the jurors.

It is axiomatic that "clear and correct jury instructions are fundamental to a fair trial." State v. Adams, 194 N.J. 186, 207 (2008). At the same time, "[a] claim of deficiency in a jury charge to which no objection is interposed will not be considered unless it qualifies as plain error." State v. R.B., 183 N.J. 308, 321 (2005) (quoting State v. Hock, 54 N.J. 526, 538 (1969)). In this context, "plain error requires demonstration of '[l]egal impropriety . . . prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.'" State v. Burns, 192 N.J. 312, 341 (2007) (alteration in original) (emphasis added) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)).

N.J.S.A. 2C:2-9 provides in relevant part

a. Subject to subsection b. . . . , it is an affirmative defense that the actor engaged in the conduct charged to constitute an offense because he was coerced to do so by the use of, or a threat to use, unlawful force against his person . . . , which a person of reasonable firmness in his situation would have been unable to resist.

b. The defense provided by this section is unavailable if the actor recklessly placed himself in a situation in which it was probable that he would be subjected to duress. The defense is also unavailable if he was criminally negligent in placing himself in such a situation, whenever criminal negligence suffices to establish culpability for the offense charged. In a prosecution for murder, the defense is only available to reduce the degree of the crime to manslaughter.

[N.J.S.A. 2C:2-9 (a)-(b).]

Although a defendant initially must produce some evidence tending to establish the defense, the State must disprove the defense beyond a reasonable doubt. State v. B.H., 183 N.J. 171, 187-88 (2005); State v. Romano, 355 N.J. Super. 21, 35-36 (App. Div. 2002).

Defendant now contends that those portions of the model charge underlined above include the preliminary legal decision reserved for the judge as to whether there is sufficient evidence to support the defense at all. He argues that, as a result, the model charge "badly mangles" the requisite burden of proof by "interweaving the judge's [preliminary] duty to determine if the evidence is sufficient to warrant the giving of the instruction with the jury's duty to determine if the State has disproved the defense." Defendant argues that the duress charge should mirror Model Jury Charge (Criminal), "Murder, Passion/Provocation and Aggravated/Reckless Manslaughter" (2014), which defines the elements of the defense in conjunction with the State's obligation to disprove at least one of them beyond a reasonable doubt.

Defendant also argues that the judge did not make clear that the defense applied to all counts of the indictment, and the verdict sheet, which only posed a special interrogatory on duress after the two murder and two felony-murder interrogatories, compounded the problem. We are unpersuaded by either argument.

The model charge on duress informs the jury of those factors that make the defense available in the first instance, as well as those factors that make the defense unavailable. The charge does not imply that a defendant has any burden of proof and clearly tells the jury that the State bears the burden of disproving the elements of the defense. We see no reason to adapt the model charge on duress to the format used in the model charge on passion/provocation manslaughter, which ultimately asks the jury to consider the factual underpinnings of that defense, albeit later in the charge. As the Court has said,

insofar as consistent with and modified to meet the facts adduced at trial, model jury charges should be followed and read in their entirety to the jury. The process by which model jury charges are adopted in this State is comprehensive and thorough; our model jury charges are reviewed and refined by experienced jurists and lawyers.

[State v. R.B., 183 N.J. 308, 325 (2005).]

Defendant's other claim, that the charge and verdict sheet did not make clear to the jurors they were to consider duress as to all counts of the indictment, lacks sufficient merit to warrant extensive discussion. R.2:11-3(e)(2). The judge clearly told the jury that the affirmative defense applied to "the charges in the indictment," and he provided the instructions after having defined the elements of all the crimes charged. At the very conclusion of his instructions and at behest of defense counsel, the judge told the jurors, "even though the verdict sheet only asks you for a specific finding about duress as to the murder charges, duress applies to all the charges in the verdict sheet."

IV.

At trial, co-defendant Darryl Pierre testified for the State. Expressing problems with Powell's leadership of the gang, Pierre claimed that monies from drug deals "kept coming up short. Something was always going wrong when it came to the money or drugs."6 On cross-examination, defense counsel asked Pierre which members of the gang sold drugs. Pierre listed himself and several other gang members, including defendant. Defense counsel continued to question Pierre about the timeframe for the gang's dealing of drugs, and he responded at one point that it may have been December or January, a month or two before the February killings, when defendant and another gang member "got a connect for dope and we started selling it."

After re-direct, defense counsel moved for a mistrial "based on the [N.J.R.E.] 404(b) testimony that was elicited . . . about [defendant] being involved in drug dealing." The judge denied the motion, in part because defendant elicited the testimony, but he agreed to give a comprehensive limiting instruction, the wording of which, in part, was urged by defense counsel.

The Court has reminded us that "a trial is not a perfectly scripted and choreographed theatrical presentation; rather, it is an extemporaneous production whose course is often unpredictable given the vagaries of the human condition." State v. Yough, 208 N.J. 385, 397 (2011). "Whether testimony . . . is prejudicial and whether a prejudicial remark can be neutralized through a curative instruction or undermines the fairness of a trial are matters 'peculiarly within the competence of the trial judge.'" Ibid. (quoting State v. Winter, 96 N.J. 640, 646-47 (1984)). "For that reason, an appellate court should not reverse a trial court's denial of a mistrial motion absent a 'clear showing' that 'the defendant suffered actual harm' or that the court otherwise 'abused its discretion.'" Ibid. (quoting State v. LaBrutto, 114 N.J. 187, 207 (1989)).

We disagree with the State's contention that evidence of defendant's drug dealing was intrinsic to the crimes charged. The "intrinsic label" for other-crimes evidence is reserved for evidence that "directly proves the charged offense" or for "uncharged acts performed contemporaneously with the charged crime . . . [that] facilitate [its] commission". State v. Rose, 206 N.J. 141, 189 (2011) (quoting United States v. Green, 617 F.3d 233, 248-49 (3d Cir. 2010)). Evidence that defendant dealt drugs fits neither of these criteria.

We need not consider whether the evidence would or should have been admitted had the court conducted a full N.J.R.E. 404(b) analysis as required by State v. Cofield, 127 N.J. 328, 338 (1992). It was defense counsel who first elicited a direct connection between defendant and the gang's drug-dealing activities, and if the probative value of that evidence was substantially outweighed by its prejudicial effect, see N.J.R.E. 403, the judge's charge adequately addressed the problem.

V.

At sentencing, the judge found aggravating factors one, three and nine applied. See N.J.S.A. 2C:44-1(a)(1) ("The nature and circumstances of the offense, and the role of the actor therein, including whether or not it was committed in an especially heinous, cruel, or depraved manner."); (3) ("The risk that . . . defendant will commit another offense."); and (9) ("The need for deterring . . . defendant and others from violating the law."). As to factor one, the judge said, "if this case is not a number one involving the beatings and the strangulations to death of these two victims who were overpowered and had no . . . way of defending themselves then there isn't a number one case." The judge based his finding as to factor three upon defendant's admitted membership in a violent street gang.

The judge's finding as to factor nine was premised not upon the need to specifically deter defendant, who had no prior criminal record. Rather, the judge stated, "[i]t's a question of general deterrence," and expressed hope that "somebody that may have gone into one direction will go . . . [in a] different direction so that they can have a normal life, rather than spending a very, very long time with a prison sentence." In fashioning the sentence imposed, the judge stated, factor "nine . . . is a very, very, large aggravating factor here."

The judge rejected defendant's arguments that mitigating factors three, eight and nine applied. See N.J.S.A. 2C:44-1(b)(3) ("[D]efendant acted under a strong provocation."); (8) ("[D]efendant's conduct was the result of circumstances unlikely to recur."); and (9) ("The character and attitude of . . . defendant indicate that he is unlikely to commit another offense."). The judge accepted defense counsel's argument that mitigating factor thirteen applied. N.J.S.A. 2C:44-1(b)(13) ("The conduct of a youthful defendant was substantially influenced by another person more mature than . . . defendant."). The judge implicitly found that the aggravating factors substantially outweighed the mitigating factor and imposed the sentence we referenced above.

Before us, defendant argues "the judge incorrectly assessed and weighed the aggravating factors and ignored mitigating circumstances" thereby imposing a sentence that "was grossly excessive." We disagree.

We apply a deferential standard of review to a trial court's sentence and do not "substitute [our] judgment" for that of the judge. State v. Case, 220 N.J. 49, 65 (2014). The sentencing court "must 'state reasons for imposing such sentence including . . . the factual basis supporting a finding of particular aggravating or mitigating factors affecting sentence.'" State v. Fuentes, 217 N.J. 57, 73 (2014) (omission in original) (quoting R. 3:21-4(g)). "When the aggravating and mitigating factors are identified, supported by competent, credible evidence in the record, and properly balanced, [the Court] must affirm the sentence and not second-guess the sentencing court." Case, supra, 220 N.J. at 65. But, if the trial court fails to identify relevant aggravating and mitigating factors, or merely enumerates them, or forgoes a qualitative analysis, or provides little 'insight into the sentencing decision,' then the deferential standard will not apply." Ibid. (quoting State v. Kruse, 105 N.J. 354, 363 (1987)).

Here, the judge's findings as to the aggravating sentencing factors were supported by the record. "[A] sentencing court may justify the application of aggravating factor one, without double-counting, by reference to the extraordinary brutality involved in an offense." Fuentes, supra, 217 N.J. at 75. That is precisely what the judge did. Aggravating factor three was supported by defendant's admitted participation in a violent street gang.

As to aggravating factor nine, "demands for deterrence are strengthened in direct proportion to the gravity and harmfulness of the offense." Id. at 79 (alteration omitted) (quoting In re C.A.H., 89 N.J. 326, 337 (1982)) (internal quotation marks omitted). At the same time, "[i]n the absence of a finding of a need for specific deterrence, general deterrence 'has relatively insignificant penal value.'" Ibid. (quoting State v. Jarbath, 114 N.J. 394, 405 (1989)).

In State v. L.V., 410 N.J. Super. 90, 111 (App. Div. 2009), certif. denied, 201 N.J. 156 (2010), we were compelled to remand for re-sentencing when only general deterrence was applicable, and the trial judge applied great weight to the factor, as did the judge in this case. In Case, supra, 220 N.J. at 68, the Court's remand was based, in part, upon the trial judge's failure to explain why, in the absence of a need to specifically deter the defendant, factor nine deserved "'particular emphasis.'"

However, in this case, the judge did explain in adequate detail the reasons for the significant emphasis he placed upon the sentence's general deterrent purpose. Moreover, in this case, unlike in Case, the judge's findings as to the other aggravating factors were sound, as was his assessment of the totality of aggravating sentencing factors.

The judge properly rejected mitigating factor three as double counting, since defendant had reaped the benefits of his duress defense in mitigation. In State v. Teat, 233 N.J. Super. 368, 372-73 (App. Div. 1989), we rejected the defendant's argument that mitigating factor three applied after the jury had convicted him of passion/provocation manslaughter, noting "[d]ouble counting mitigating factors distorts the sentencing guidelines as much as double counting aggravating factors." Any arguments regarding the other mitigating factors advanced but rejected at sentencing lack sufficient merit to warrant discussion. R. 2:11-3(e)(2).

In sum, having found that the judge followed the sentencing guidelines, and his findings of aggravating and mitigating factors were supported by the record, we would only reverse defendant's sentence if it "shock[ed] the judicial conscience" in light of the particular facts of the case. State v. Roth, 95 N.J. 334, 364 (1984); accord State v. Cassady, 198 N.J. 165, 183-84 (2009). Here, the sentence imposed upon defendant was entirely appropriate.

Affirmed. Remanded to the Law Division for correction of the JOC.

1 Several other individuals whose names we disclose below were also indicted with defendant in various counts of the same indictment. Defendant was tried alone.

2 We must remand the matter to the trial judge to correct two errors in the judgment of conviction (JOC). First, the JOC indicates that the aggregate parole disqualifier is nineteen and one-half years instead of eighteen and one-half years (i.e., eight and one-half years, times two, plus an additional eighteen months). Additionally, the JOC indicates all the periods of parole ineligibility are pursuant to NERA, but NERA does not apply to the hindering count.

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

4 The judge did not make a specific finding as to what defendant actually said. Our viewing of the video reveals that defendant said, "is there any way I could wait till my mother comes here to talk to you guys."

5 The State never objected to instructions on duress during the charge conference, nor does the record reflect any prior objection by the prosecutor. After the charge was read to the jury, the prosecutor argued that "there was no evidence whatsoever that anyone directly" threatened defendant, implying the duress charge was inappropriate. The judge, however, countered by noting that defendant's statement to police, which was before the jury, provided grounds for the defense. In his statement, when asked by detectives what would have happened in the Berkley house if he chose not participate in the assaults, defendant said, "It was either them or me. . . . I would have been that third body." Because the issue is not before us, we do not decide whether the evidence actually justified the charge in the first instance.

6 Contrary to defendant's assertion in his brief, there was no objection lodged by defense counsel to this initial testimony, other than a hearsay objection when Pierre began to reference a specific conversation between him and Powell.