STATE OF NEW JERSEY v. DAVID TERRELL STARR

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1589-05T41589-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DAVID TERRELL STARR,

Defendant-Appellant.

_______________________________________

 

Submitted September 11, 2007 - Decided

Before Judges Winkelstein, Yannotti and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 03-09-0959.

Yvonne Smith Segars, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, of counsel and on the brief).

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Steven J. Kaflowitz, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant David Terrell Starr was charged under a Union County indictment with murder, N.J.S.A. 2C:11-3a(1) and/or (2) (count one); felony murder, N.J.S.A. 2C:11-3a(3) (count two); robbery, N.J.S.A. 2C:15-1 (count three); unlawful possession a firearm, N.J.S.A. 2C:58-4 (count four); and possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count five). Defendant was tried to a jury which found him guilty on all charges.

Defendant appeals from his judgment of conviction and raises the following contentions for our consideration:

POINT I: THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BY THE PROSECUTOR'S MISUSE OF DR. BAKOWSKA'S EXPERT TESTIMONY (Not raised below).

A. THE PROSECUTOR ELICITED AN IRRELEVANT AND IMPROPER "NET OPINION" FROM DR. BAKOWSKA (Not raised below).

B. EVEN IF RELEVANT THE EVIDENCE SHOULD HAVE BEEN EXCLUDED UNDER N.J.R.E. 403 (Not raised below).

C. THE JURY WAS NOT INSTRUCTED AS TO THE PROHIBITED USE OF THE EVIDENCE (Not raised below).

POINT II: THE TRIAL COURT'S RULING PRELCUDING THE DEFENDANT FROM ADMITTING PROOF OF L.J.'S GANG INVOLVEMENT TO SHOW THIRD-PARTY GUILT CONSTITUTED REVERSIBLE ERROR.

POINT III: TESTIMONY THAT THE DEFENDANT WAS A MEMBER OF THE "BLOODS" GANG CONSTITUTED HARMFUL ERROR.

POINT IV: THE TRIAL COURT'S "GOOD NEWS" COMMENT MADE IMMEDIATELY AFTER DEFENSE COUNSEL RESTED WITHOUT PRODUCING ANY WITNESSES DEPRIVED THE DEFENDANT OF A FAIR TRIAL BECAUSE IT AMOUNTED TO A JUDICIAL ENDORSEMENT OF THE STATE'S CASE (Not raised below).

POINT V: THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BY COMMENTS MADE BY THE PROSECUTOR IN SUMMATION (Not raised below).

A. THE PROSECUTOR IMPROPERLY MALIGNED THE DEFENSE AND DEFENSE COUNSEL (Not raised below).

B. THE PROSECUTOR IMPROPERLY INJECTED THE CONCEPT OF DEFENDANT'S "INNOCENCE" IN HIS SUMMATION (Not raised below).

C. COMMENTS MADE BY THE PROSECUTOR IN SUMMATION CONCERNING THE DEFENDANT'S HANDWRITING WERE IMPROPER BECAUSE THEY REQUIRED EXPERT TESTIMONY TO SUPPORT THEM (Not raised below).

POINT VI: THE AGGREGATE 60 YEAR BASE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE, CONSTITUTED AN ABUSE OF JUDICIAL DISCRETION, AND VIOLATED STATE v. NATALE.

A. THE TRIAL COURT ABUSED ITS DISCRETION IN IMPOSING A BASE SENTENCE ON THE DEFENDANT'S CONVICTION FOR MURDER ON COUNT ONE THAT EXCEEDED THE STATUTORILY AUTHORIZED MINIMUM BASE SENTENCE OF 30 YEARS.

B. THE DEFENDANT'S CONVICTION FOR MURDER ON COUNT ONE AND FELONY MURDER ON COUNT TWO SHOULD HAVE BEEN MERGED.

For the reasons that follow, we affirm defendant's convictions and the sentence imposed for murder. We remand for merger of the counts charging murder and felony murder, and imposition of a sentence for the robbery conviction.

I.

We briefly summarize the key evidence presented at trial. On March 14, 2003, at approximately 7:05 a.m., Officer Sean McGuire (McGuire) of the Plainfield Police Department (PPD) was dispatched to a residence on Evona Avenue based on a report that a man was bleeding from the head. McGuire entered the residence and was directed to the basement, where he observed L.J. laying on a mattress in the rear of the basement. L.J. was alive, but his heart rate was rapid and breathing labored.

McGuire immediately called for the rescue squad, which responded to the scene and attempted to perform medical treatment upon the victim. L.J. was pronounced dead at 7:43 a.m. He was fifteen years old at the time. McGuire testified that, while in the basement of the Evona Avenue residence, he observed a plastic bag containing suspected crack cocaine on an "entertainment center" that held a television.

Dr. Leonard Zaretski (Zaretski) performed an autopsy on L.J.'s body the following day. Zaretski testified that L.J. died as a result of two gunshot wounds to the head. Detective Michael Sandford of the Union County Police Department testified that the bullets removed from L.J.'s body were .32 caliber projectiles, and were fired from the same weapon. Officer Glenn Trescott (Trescott) of the PPD testified that he found .32 caliber ammunition behind an air duct in the basement of the residence. He also found a .45 caliber handgun, a 9 millimeter handgun, suspected cocaine, and twenty three bags of marijuana.

T.J. is L.J.'s mother. T.J. testified that in March 2003, she was living in the residence on Evona Avenue with L.J., her daughters S.T.J., S.I.J., and S.A.J., and another son, K.J. T.J. testified that L.J. slept in the finished basement of the house.

T.J. stated that on the morning of March 14, 2003, she asked S.I.J. to go and wake L.J. S.I.J. returned with a paper towel full of blood and said that L.J. would not wake up. T.J. went to the basement. She shook L.J. and lifted his arms. He gasped for air but did not verbally respond. T.J. called the police.

T.J. stated that defendant was L.J.'s cousin. Defendant slept in her home during the evening of March 13, 2003. K.C., to whom T.J. referred as her "godbrother," also stayed in the house that night. K.C. slept in the living room on the first floor.

T.J. said that the stairway from the first floor was the only way to gain access to the basement. There was a window in the basement but the window was screwed shut. T.J. also said that there were two entrances on the first floor of the house. The front door had two locks, one of which was a dead bolt lock. The back door had similar locks. In addition, T.J. had a dog that was free to roam around the house. According to T.J., the dog did not take "kindly" to strangers.

T.J. testified that on the night before L.J. was killed, she heard defendant ask L.J. if he could wear one of his outfits. L.J. refused. T.J. said that L.J. owned a brown sweat suit. L.J. also owned diamond earrings. In addition, he had a long chain and medallion with diamonds. T.J. additionally testified that on the morning of March 14, 2003, she heard gunshots at around 6:30 a.m. T.J. said that she was awake at the time, sitting on her bed, watching the news on television.

L.J.'s sister S.I.J. testified that on March 13, 2003, defendant was staying in L.J.'s room in the basement of the house. Sometime during the day, S.I.J. went down to the basement. L.J. had gone out and defendant was there with S.I.J.'s other brother, K.J. S.I.J. saw K.J. reach under a pillow on a couch and pull out a gun. She also observed defendant walk over to L.J.'s cabinet, pull out a "little gun" and point it at K.J. S.I.J. went upstairs to the second floor and, at some point, went to sleep.

S.I.J. testified that the following morning, she awoke around 6:00 a.m. and heard sounds "like a firecracker." S.I.R. heard two sounds, minutes apart. She said that the sounds were coming from beneath her. S.I.J. observed defendant coming up the stairs. Defendant gave S.I.J. a "high-five" and he went into the bathroom. About ten minutes later, S.I.J. went down to wake L.J.

On the first floor, S.I.J. noticed that the front door was unlocked. K.C. was asleep. S.I.J. went down to the basement. She saw L.J. lying on a mattress on the floor. He had a cover over his face. S.I.J. pulled the cover back and told L.J. to wake up. L.J. did not awaken and S.I.J. started to shake him. She then observed blood.

K.C. testified that he was staying at the T.J.'s residence on the night of March 13, 2003. K.C. said that he arrived at the house between 8:00 and 8:30 p.m. and defendant answered the door. K.C. never met defendant before. K.C. entered the house and T.J. arrived about fifteen minutes later.

K.C. stated that L.J. was in the house. K.C. was present when defendant asked L.J. if he could wear his sweat suit and boots and L.J. refused. K.C. said that defendant seemed "a little bit aggravated." L.J. and defendant left the house together but later, defendant returned without L.J.

K.C. testified that afterwards, L.J. returned home. K.C. was in the living room on the first floor. L.J. showed K.C. "a big handful of money" and went downstairs to the basement. K.C. remained upstairs and slept on the couch. Sometime between 2:30 and 3:30 a.m., a man came to the door. K.C. said that the man identified himself as C.J., T.J. "or something to that effect." The man asked to come in and said that he needed to speak to L.J.

K.C. went to the basement, woke L.J. and asked if he knew the person at the door. L.J. said that he did. K.C. went upstairs, let the man into the house, and took him downstairs. L.J. and the man spoke briefly. According to K.C., defendant was asleep in the basement and did not wake up. The man left and K.C. locked the door.

K.C. stated that while he was in the basement, he did not see anyone shoot L.J. He also said that, to the best of his knowledge, no one came into the house at any time after that. Carroll woke the following morning when S.I.J. came downstairs, opened the front door, and went into the basement to wake L.J.

L.J.'s sister S.T.J. testified that defendant was at T.J.'s residence on the evening of March 13, 2003. That evening, S.T.J. saw defendant standing at the top of the stairway on the second floor with a black handgun in his waistband. Defendant said something about leaving and going to Virginia. S.T.J. went to sleep about 11:00 p.m. and woke around 6:30 a.m. the following day.

S.T.J. recalled hearing two "loud bangs." She heard the first sound shortly after she woke up, when she was on her way upstairs to the third floor. S.T.J. was on her way down from the third floor when she heard the second sound. S.T.J. thought the sounds came from downstairs. After she heard the two "bangs," S.T.J. saw her sister, S.I.J. She was wearing plastic gloves and was holding bloody paper towels. S.I.J. told her that L.J. was downstairs and he was lying in "two piles of blood."

S.C. lived next door to the T.J.'s home. She knew L.J. for about four years and said he was her "best friend." S.C. met defendant for the first time in the morning on March 13, 2003. Later that day, S.C. was in the basement of T.J.'s home with L.J. and defendant. She said that L.J. was counting money and he was "about to chop some drugs up."

She testified that she counted a total of $7,800. She put about $4,000 in a vent, $1,300 in a coat, and L.J. took the remainder. L.J. put some of the drugs in a plastic bag and placed the bag on top of the vent. Drugs also were placed behind the sofa. S.C. said that there was a shotgun behind the sofa and two guns were underneath the entertainment system. Another gun was broken but defendant fixed it and he handed it to S.C.. She placed the gun on top of the vent.

In the morning of March 14, 2003, S.C. saw the ambulance and police at L.J.'s house. She tried calling L.J. on his cell phone but he did not answer. Later that day, S.C. saw defendant at the police precinct. He was wearing a brown outfit that belonged to L.J. S.C. said that L.J. had two diamond earrings, a pinky ring, and a chain with a pendant with two praying hands. S.C. said that L.J. never loaned his clothes or jewelry to anyone.

S.C. testified that after L.J. was killed, she returned to his room with the police to show them where the drugs, money and guns were. Some of the money was missing. The police found some of the drugs that were placed on top of the vent. They also found the guns under the entertainment center but did not find the shotgun behind the couch or the gun on top of the vent.

Tammy Green (Ms. Green) is T.J.'s cousin. Defendant is also her cousin and he would occasionally stay at her house. Defendant came to Ms. Green's home at about 7:45 a.m. or 8:00 a.m. on March 14, 2003. Defendant was wearing L.J.'s brown velour sweat suit. Defendant also was wearing L.J.'s gold chain. Ms. Green said that defendant took off the chain and placed it on the dining room table.

Ms. Green said that defendant went to the door because his sister Vanessa was outside screaming. Ms. Green let Vanessa into the house. According to Ms. Green, Vanessa was "hysterical, [and] freaked out." Vanessa said that L.J. was dead. Defendant was standing next to Vanessa. Ms. Green said that defendant displayed "no type of feeling, or anything at all."

Ms. Green traveled to Plainfield in a car with defendant and others. They stopped at a convenience store because defendant said that he "needed to get" a Pepsi. Defendant went into the store and came out with a bottle of Pepsi. Ms. Green said defendant "kind of like washed his hands with it." Later, Ms. Green told defendant that she heard people saying that he killed L.J. Defendant replied that this was "bull shit." Referring to L.J., defendant stated that "when he left, that mother fucker was alive."

Markell Green (Mr. Green) testified that, at the time of L.J.'s death, he was living with his sister, Tammy. Mr. Green said that defendant came to the house on the morning of March 14, 2004. He was wearing a rust-colored sweat suit and a chain with diamonds. Defendant's sister arrived and she was screaming. Defendant placed the chain on the table. Calls about L.J. started coming in. Mr. Green asked defendant where he got the chain, and defendant said that he and L.J. "went shooting in the Projects early in the morning" and some persons "started dropping things."

Mr. Green went with his sister, defendant and others to Plainfield. Mr. Green recounted that they stopped at a store where defendant purchased a Pepsi. Defendant did not drink any of the soda but used it to wipe off his skin from the arms down. According to Mr. Green, defendant said that he was rubbing the Pepsi on his hands because he had been "shooting in the Projects earlier that morning." According to Mr. Green, when they arrived at T.J.'s residence, defendant asserted that "C.J. did it."

Peter Martin (Martin) was incarcerated in the Union County jail in March and April of 2003. Martin met defendant in the special housing unit of the jail. Defendant told Martin that he shot L.J. twice in the back of the head while L.J. was sleeping. Defendant said that he used L.J.'s .32 caliber weapon. Defendant told Martin that after the shooting, he removed his clothes, changed into L.J.'s sweat suit, took a gold chain and money, boarded a bus to Newark and later took a taxi to Ms. Green's house in East Orange. Defendant said that he needed the money and had to go to Virginia because his girlfriend was going to have his baby the following month. Defendant told Martin that "he washed his hands off with Pepsi to get the gunpowder off." Defendant also told Martin that he had taken L.J.'s necklace.

Defendant did not testify and called no witnesses to testify on his behalf.

II.

Defendant argues that he was denied his right to a fair trial by the admission of testimony by Dr. Elzbieta Bakowska (Bakowska). We disagree.

Bakowska was qualified to testify as an expert in the field of elemental analysis and gunshot residue. Bakowska testified that the presence of antimony, barium, lead and copper is consistent with gunshot residue. Bakowska stated that she analyzed certain samples taken from defendant. She found no antimony, barium, lead or copper in the swabs of defendant's left palm and the back of the left hand, but she found low levels of lead and copper in the swabs of the right palm and the back of the right hand.

Bakowska explained that the best time to collect gunshot residue is "[a]s soon as possible." Gunshot residue consists of microscopic particles that can be removed over time. She said that it is "very rare to find any of the elements characteristic for gunshot residue [past] four hours of the time of shooting." Bakowska commented that any washing of the hands will remove the particles, and Pepsi and other soft drinks contain phosphoric acid that "help[s] dissolve gunshot residue particles." Bakowska was asked whether the lead and copper found on defendant's hand could have come from gunshot residue. She replied, "It could."

Defendant argues that Bakowska's testimony was not relevant. He further contends that, if the testimony was relevant, it should have been excluded under N.J.R.E. 403 because its probative value was outweighed by the risk of undue prejudice. Defendant additionally argues that the judge erred by failing to instruct the jurors that they could not infer from Bakowska's testimony that gunshot residue was, in fact, found on defendant's hand. These contentions were not raised at trial. Therefore, we consider whether the admission of this testimony was erroneous and, if so, whether it constitutes plain error. R. 2:10-2.

We reject defendant's contention that Dr. Bakowska's testimony was irrelevant. "Relevant evidence" is evidence "having a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401. Evidence is relevant when it "renders the desired inference more probable than it would be without the evidence." Verdiccio v. Ricca, 179 N.J. 1, 33 (2004) (quoting State v. Davis, 96 N.J. 611, 619 (1984)). Evidence is considered to be relevant when it supports the existence of a specific fact, "even obliquely." Id. at 34.

Bakowska's testimony established that low levels of lead and copper were found in the samples taken from defendant's hand. Bakowska testified that lead and copper are elements found in gunshot residue. She explained that gunshot residue may dissipate in time, and Pepsi could be used to remove such residue. In our view, Bakowska's testimony on these issues was relevant. Her testimony made it more probable than not that defendant shot L.J. Moreover, we are not convinced that Barkowska's testimony on these isssues should have been excluded pursuant to N.J.R.E. 403. Bakowska's testimony was probative and its probative value was not outweighed by any undue prejudice that might result from its admission.

We agree that Bakowska should not have been permitted to testify that the low level of lead and copper found on defendant's hand "could" be gunshot residue. An expert's opinion must be "framed in terms of probability," not "mere possibility." Scully v. Fitzgerald, 179 N.J. 114, 128 (2004). See also Grzanka v. Pfeifer, 301 N.J. Super. 563, 580 (App. Div. 1997), certif. denied, 154 N.J. 607 (1998) (noting that expert testimony cannot be based on "unfounded speculation and unquantified possibilities"). However, the admission of Bakowska's opinion does not warrant reversal of defendant's conviction. There was overwhelming evidence from which a jury could reasonably find beyond a reasonable doubt that defendant shot and killed L.J. Viewing the record as a whole, the admission of Bakowska's opinion was erroneous but it was not clearly capable of producing an unjust result. R. 2:10-2.

III.

We turn to defendant's assertion that the trial judge erred by precluding defendant from eliciting testimony from T.J., S.T.J., and S.C. concerning L.J.'s "gang involvement." Defendant proffered this testimony in order to show possible third-party guilt. After conducting hearings respecting this testimony pursuant to N.J.R.E. 104, the judge ruled that defendant had not established the requisite factual basis to show potential third-party guilt, and precluded defendant from eliciting this testimony.

"The constitutional right to present a defense confers on the defendant the right to argue that someone else committed the crime." State v. Fortin, 178 N.J. 540, 590 (2004) (citing State v. Jimenez, 175 N.J. 475, 486 (2003), State v. Koedatich, 112 N.J. 225, 297 (1988), cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989)). A defendant has a "right to introduce evidence of third-party guilt 'if the proof offered has a rational tendency to engender a reasonable doubt with respect to an essential feature of the State's case.'" State v. Cotto, 182 N.J. 316, 332 (2005) (quoting Fortin, supra, 178 N.J. at 591).

"However, a defendant cannot simply seek to introduce evidence of 'some hostile event and leave its connection with the case to mere conjecture.'" Id. at 333 (quoting State v. Sturdivant, 31 N.J. 165, 179 (1959), cert. denied, 362 U.S. 956, 80 S. Ct. 873, 4 L. Ed. 2d 873 (1960)). Consequently, a defendant must establish "some link between the third-party and the victim or the crime." Ibid. (quoting Koedatich, supra, 112 N.J. at 301). The trial judge had "broad discretion to admit or preclude evidence of third-party guilt." Ibid. (citing Fortin, supra, 178 N.J. at 591; Koedatich, supra, 112 N.J. at 300). We consider defendant's claim of error under an abuse of discretion standard. Ibid. (citing Fortin, supra, 178 N.J. at 591).

Here, L.J.'s mother testified at the N.J.R.E. 104 hearing that L.J. was involved with a street gang called the "Clinton Avenue Posse." T.J. recounted that L.J. had a fight with someone about three months before he was killed. However, she stated that L.J. had never expressed any concern for his safety and never indicated that he needed protection. T.J. additionally testified that she did not know whether L.J. had any enemies and, to her knowledge, he had never been threatened by anyone. In our view, the judge correctly found that T.J.'s testimony failed to establish the requisite factual connection between L.J.'s "gang-involvement" and his murder.

We reach the same conclusion with regard to the proffered testimony of L.J.'s sister, S.T.J. She testified at the N.J.R.E. 104 hearing that L.J. had some involvement or association with the "Clinton Avenue Posse." S.T.J. said that L.J. had "problems" with a member of the "Sixth Street Gang." S.T.J. asserted that the members of these two groups "didn't like each other." S.T.J. testified that in October 2002, a member of the "Sixth Street Gang" had a fight with L.J. and beat him in the face with a flashlight. S.T.J. stated that she told the police that this individual had gone "around town saying" he did not like L.J. However, S.T.J. testified that she did not know of any specific threats to L.J. from anyone. The record supports the judge's finding that the proffered testimony failed to establish the required factual link between L.J.'s gang involvement and his murder.

The same conclusion applies to the proffered testimony from S.C. She testified at the N.J.R.E. 104 hearing that L.J. was "affiliated" with the "Clinton Avenue Posse." She described this group as a "bunch of kids [who] stayed on the same street." S.C. did not consider the "Clinton Avenue Posse" a street gang; however, she said that members of this group had disputes with certain persons that "hung out" in the "Projects."

S.C. additionally testified that L.J. sold drugs and carried a knife most of the time. L.J. also carried a gun on occasion. S.C. knew that L.J. possessed several guns. S.C. said that she was concerned about someone wanting to hurt L.J. because a "guy" in her class at school said that "they" would "bump him," meaning "kill him." S.C. did not interpret this as a threat because the person who made this remark did not know L.J. personally and only made the comment because he knew of L.J.'s "reputation on the street."

S.C. agreed that it was known "on the street" that L.J. had money because he dressed in "fancy clothes" and had jewelry. However, S.C. admitted that she never heard anyone threaten L.J. She said that she knew that an individual with the "Sixth Street" group had a fight with L.J. But, L.J. never told S.C. that this person had threatened him. S.C. said that, to her knowledge, no one from the "Sixth Street" group had ever threatened L.J. She also said that she did not know of any threats by anyone in other groups, such as the group in the "Projects." We are satisfied that the trial judge correctly found that S.C. proffered testimony did not establish the requisite factual link between possible third-party guilt and L.J.'s murder.

In sum, we are convinced that the trial judge did not abuse his discretion by denying defendant's application to admit the proffered testimony of L.J.'s "gang-involvement" to establish possible third-party guilt.

IV.

We next consider defendant's contention that his conviction should be reversed because he was prejudiced by Martin's testimony that defendant was a member of a gang called the "Bloods." Defendant made a motion for a mistrial, arguing that it was well-known that the "Bloods" is an organization responsible for murders, drug-trafficking, and other notorious offenses. The judge denied the motion but sustained counsel's objection to Martin's comment, ordered that it be stricken, and instructed the jury to disregard the statement. When charging the jury, the judge reiterated his direction that the jury not consider Martin's comment in its deliberations. Defendant contends that a mistrial was required because the measures taken by the judge were not sufficient to cure the prejudice resulting from Martin's comment.

In considering this argument, we are guided by what the Court said in State v. Winter, 96 N.J. 640 (1984):

The decision on whether inadmissible evidence is of such a nature as to be susceptible of being cured by a cautionary or limiting instruction, or instead requires the more severe response of a mistrial, is one that is peculiarly within the competence of the trial judge, who has the feel of the case and is best equipped to gauge the effect of a prejudicial comment on the jury in the overall setting.

Likewise, when weighing the effectiveness of curative instructions, a reviewing court should give equal deference to the determination of the trial court. The adequacy of a curative instruction necessarily focuses on the capacity of the offending evidence to lead to a verdict that could not otherwise be justly reached.

[Id. at 646.]

We are satisfied from our review of the entire record that the judge did not abuse his discretion by denying a mistrial in this matter. As we have pointed out, the judge twice instructed the jury to disregard Martin's remark. We must assume that the jurors followed the judge's instructions. State v. Pleasant, 313 N.J. Super. 325, 335 (App. Div. 1998), aff'd, 158 N.J. 149 (1999). We are convinced that the instructions cured any potential for prejudice arising from Martin's comment. We conclude that, in light of the judge's curative instructions and the overwhelming evidence of defendant's guilt, the remark was not capable of "lead[ing] to a verdict that could not otherwise be justly reached." Winter, supra, 96 N.J. at 646.

V.

We turn to defendant's assertion that he was prejudiced by the judge comments to the jury after defendant rested. The judge addressed the following remarks to the jury:

Defense rests. We're done. That's the good news. What could possibly be the great news.

They have the opportunity, and we have, by the way, we have worked straight through [until] now on the other issues related to this case to have everything put together, to say here's the good news. The great news is, you get to go home now.

Defendant contends that the judge erred by making these comments. According to defendant, the judge's comments deprived him of a fair trial because the comments "amounted to a judicial endorsement of the State's case."

We note that trial counsel apparently did not view the judge's comments as prejudicial at the time they were made because counsel raised no objection to the comments at trial. We reject defendant's contention that the judge's remarks constitute plain error under R. 2:10-2. Contrary to defendant's assertion, the judge was not endorsing the State's case. The judge was merely informing the jurors of the progress of the trial. The judge's comments were not in any sense prejudicial to the defense.

VI.

Defendant also contends that the prosecutor made improper remarks during his summation. Defendant argues that the prosecutor maligned the defense and defense counsel by suggesting that defense counsel was trying to deceive the jury because he "left out" certain facts in his summation. Defendant further argues that the prosecutor improperly injected the concept of defendant's "innocence" in his summation. In addition, defendant contends that the prosecutor improperly compared defendant's handwriting with the writing on a note that he "purportedly" wrote to Martin. Defendant contends that expert testimony was required to support the prosecutor's comments.

Improper comments by a prosecutor will not warrant reversal of a conviction unless the remarks were "so egregious as to deprive defendant of a fair trial." State v. Timmendequas, 161 N.J. 515, 575 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001).

In determining whether a prosecutor's comments were sufficiently egregious to deny defendant a fair trial, we consider the tenor of the trial and the responsiveness of counsel and the court to the improprieties when they occurred.

Generally, if no objection was made to the improper remarks, the remarks will not be deemed prejudicial. Failure to make a timely objection indicates that defense counsel did not believe the remarks were prejudicial at the time they were made. Failure to object also deprives the court of the opportunity to take curative action.

[Id. at 575-76.]

Here, defense counsel did not object to the prosecutor's remarks at the time they were made. This is understandable because there was nothing objectionable about the comments.

The prosecutor did not malign the defense or defense counsel merely by pointing out that defense counsel had not commented on certain evidence in his summation. In addition, the prosecutor asked rhetorically why defendant did not tell Martin that he was "innocent" instead of admitting he had killed L.J. This was fair comment on the evidence, not a statement implying that the jury's decision must be based on whether defendant was innocent, rather than upon whether the State proved the charges beyond a reasonable doubt.

Furthermore, there was nothing improper about the prosecutor's comparison of the handwritings. Again, this was fair comment on the evidence, and expert testimony was not required to support the prosecutor's remarks. See State v. Carroll, 256 N.J. Super. 575, 593-98 (App. Div.), certif. denied, 130 N.J. 18 (1992) (holding that it was not error to allow jury to make a comparison of handwriting samples without expert testimony).

VII.

Defendant raises several issues with respect to his sentences. The judge found aggravating factors under N.J.S.A. 2C:44-1a(1) (nature and circumstances of the offense, including whether it was especially heinous or cruel); N.J.S.A. 2C:44-1a(2) (gravity and seriousness of harm inflicted on the victim); N.J.S.A. 2C:44-1a(3) (risk that defendant will commit another offense); N.J.S.A. 2C:44-1a(6) (extent of defendant's prior record and the seriousness of the offenses of which he had been convicted); and N.J.S.A. 2C:44-1(9) (need to deter defendant and others from violating the law). The judge found no mitigating factors.

On count one (murder), the judge imposed a sixty-year term of incarceration, with a period of parole ineligibility as prescribed by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The same sentence was imposed on count two (felony murder), to run concurrent to the sentence imposed on count one. The judge merged counts three (robbery) and five (possession of a firearm for an unlawful purpose) with count four (unlawful possession of a weapon) and imposed a flat, four-year sentence, concurrent to the sentences imposed on counts one and two.

Defendant contends that the sixty-year sentence for murder is manifestly excessive, constitutes an abuse of discretion and violates State v. Natale, 184 N.J. 458 (2005). We disagree. The sentence imposed on count one is not unduly punitive or an abuse of the judge's sentencing discretion, and the sentence does not shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).

Defendant additionally argues that the sixty-year sentence on count one violates Natale. The contention is entirely without merit. The principles set forth in Natale do not apply to sentences for murder because there is no presumptive term for that offense. See State v. Abdullah, 184 N.J. 497, 507 (2005).

Defendant further contends that the judge erred by failing to merge count one (murder) and count two (felony murder). The State concedes that counts one and two should have been merged. We agree and remand for the entry of a corrected judgment merging counts one and two.

The State additionally notes that the judge erred by merging count three (robbery) with counts four (unlawful possession of a weapon) and five (possession of a weapon for an unlawful purpose). Although merger of counts three and five was appropriate, the judge erred by merging count three with count four. Therefore, we remand to the trial court for entry of a corrected judgment and for imposition of a sentence on count three.

We have considered all of the other contentions raised by defendant and are convinced that they are not of sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).

We therefore affirm defendant's convictions and the sentences imposed on counts one and four. We remand to the trial court for entry of a corrected judgment and further proceedings in conformity with this opinion. We do not retain jurisdiction.

 

(continued)

(continued)

27

A-1589-05T4

October 9, 2007