STATE OF NEW JERSEY v. TURI REDDICK

 

FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4073-03T44073-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TURI REDDICK,

Defendant-Appellant.

 

Submitted September 20, 2006 - Decided November 2, 2006

 
Before Judges Cuff, Winkelstein and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Union County, 02-05-0632-I.

Yvonne Smith Segars, Public Defender, attorney for appellant (Stephen A. Caruso, Assistant Deputy Public Defender, of counsel and on the brief).

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

Appellant filed a pro se supplemental brief.

PER CURIAM

Following a jury trial, defendant Turi Reddick was convicted of first-degree reckless manslaughter, N.J.S.A. 2C:11-4b, as a lesser-included offense of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a (count one); second-degree robbery, N.J.S.A. 2C:15-1 (count two); first-degree felony murder, N.J.S.A. 2C:11-3a(3) (count three); second-degree possession of a weapon, a shotgun, for an unlawful purpose, N.J.S.A. 2C:39-4a (count four); and third-degree unlawful possession of a weapon, a shotgun, without a permit, N.J.S.A. 2C:58-3, N.J.S.A. 2C:39-5c(1) (count five). The jury acquitted defendant of another third-degree unlawful possession of a weapon charge (count six).

After denying defendant's motion for a new trial, the trial judge merged counts one, two and four into count three, and on that count imposed a thirty-five-year prison term with a thirty-year period of parole disqualification. On count five, the court imposed a consecutive five-year term.

On appeal, defendant raises the following legal arguments through counsel:

POINT ONE

THE TESTIMONY OF TWO KEY STATE'S WITNESSES, WHEREIN THEY TESTIFIED AS TO STATEMENTS MADE BY THE CO-DEFENDANT, SHANE BURNS, IMPLICATING THE DEFENDANT IN THE WITHIN HOMICIDE AND RELATED CRIMES, VIOLATED THE DEFENDANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO CONFRONTATION, DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMENDS, V, VI AND XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9 AND 10. (Not Raised Below).

POINT TWO

THE COURT ERRED IN DENYING THE MOTION FOR A NEW TRIAL BASED UPON THE GROUNDS THAT WITHOUT THE ADMISSION OF THE DEFENDANT'S CONFESSION, THE STATE PRESENTED INSUFFICIENT EVIDENCE TO SUSTAIN ITS CONSTITUTIONAL BURDEN OF PROOF BEYOND A REASONABLE DOUBT.

POINT THREE

THE PROSECUTOR'S IMPROPER REMARKS DENIED THE DEFENDANT A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947), ART. I, PAR. 10 (Partially Raised Below).

POINT FOUR

THE SENTENCE IMPOSED WAS EXCESSIVE AND NOT IN CONFORMANCE WITH THE CODE OF CRIMINAL JUSTICE.

POINT FIVE

DEENDANT'S SENTENCE OF FIVE YEARS ON COUNT FIVE MUST BE VACATED AND THE MATTER REMANDED FOR RESENTENCING.

In a pro se brief, defendant raises the following point:

POINT I

THE TRIAL COURT COMMITTED ERROR BY FAILING TO GIVE THE MODEL JURY CHARGE ON ATTEMPT IN ACCORD WITH N.J.S.A. 2C:5-1, NEGLECTING TO DEFINE THE ELEMENTS OF CRIMINAL ATTEMPT IN HIS INSTRUCTION ON ROBBERY, DENIED DEFENDANT DUE PROCESS AND A RIGHT TO A FAIR TRIAL UNDER THE FEDERAL AND STATE CONSTITUTION.

We have carefully reviewed the record in light of these contentions and the applicable law. The State concedes that defendant's sentence on count five violates the sentencing standards established by the New Jersey Supreme Court in State v. Natale, 184 N.J. 458 (2005); consequently, we vacate the sentence on count five and remand for resentencing. Otherwise, we affirm defendant's judgment of conviction.

Mary Lou Nolan died from a gunshot wound. The shooting led to the charges against defendant, and his two codefendants, Shakore Collins, also known as Chubbs, and Shane Burns.

The following facts were developed at trial. On the evening of February 9, 2002, Michael Nolan was asleep upstairs in his home at 220 East Fifth Avenue in Roselle. His wife, Mary Lou Nolan, was downstairs on a couch watching television with the couple's grandsons. Michael Nolan awoke to the sound of breaking glass and his wife's cry that she had been shot. He found her collapsed and bleeding on the stairs. He ran into the kitchen and dialed 911. His grandchildren remained on the couch asleep and unharmed. Michael Nolan's stepson, Michael Dixon, also lived in the house, but he was not home. Prior to the shooting, Dixon had been convicted of selling marijuana.

When members of the Roselle Police Department responded soon after the 911 call, they observed shattered glass from the interior front door lying on the floor in the house's vestibule. Mary Lou Nolan was lying near the vestibule door bleeding profusely from a gunshot wound to her right shoulder. Burn marks and powder residue surrounded the wound. The police recovered shotgun projectiles from inside and around the fireplace and in one of the couch cushions.

Mary Lou Nolan was transported to the hospital where she died. The medical examiner testified that the cause of her death was a shotgun wound to her right anterior chest; she was shot at close range, from an approximate distance of one foot.

Defendant gave a statement to the police that was read at trial by Sergeant Carl Riley of the Union County Prosecutor's Office. Defendant said that on the evening of the shooting, he was with Shakore Collins and Shane Burns. Defendant drove himself and Burns to pick up Collins outside of his home. Prior to picking up Collins, defendant learned of a plan to rob the Nolan residence. According to defendant's statement,

The plan was to go to the house, not to hurt anybody. But they wanted money out of the situation, and they said there was a lot of money there. I don't know if it was anything personal, but [Burns] said there was a lot of money there, over 13 g's easy.

. . . .

. . . [O]nly the son and sometimes the mother be there and they leave the front door wide open. They never lock it.

After picking up Collins, defendant drove to his "little stash spot" to retrieve his shotgun. He unloaded the shotgun, but claims to have lost track of one of the shells. He testified that he "thought the shotgun was a six shell," but that he "only took five out of it." Defendant admits that there might have been one round left in the shotgun chamber. He placed the shells from the gun in the car's center console.

After making a stop, defendant drove Burns and Collins to 5th Avenue. "The plan was to grab the guy up and make sure he couldn't call the police. [Burns] said he knew where the money was and he would get it." They parked in front of the Nolan property and got out of the car. Defendant's role was "to hold the shotgun and scare them." Burns was "[t]o get the money" and Collins was "to keep anyone from getting to the phone."

On the front porch, Collins tried to open the front door, but it was locked. He rang the bell and Mary Lou Nolan cracked the door open. Defendant, holding the gun with both hands, stuck the barrel inside the door to prevent her from closing it. A struggle ensued between Mary Lou Nolan and defendant, with Nolan holding the barrel of shotgun. Defendant's finger was on the trigger and a shot was fired. Then the men ran to the car. Defendant drove the car from the scene and parked it four or five blocks away; all three of them jumped out while the engine was still running. Collins separated from defendant and Burns. Defendant, who was holding the gun as he got out of the car, went behind a bar and "stashed" the gun. He and Burns then went to Tychic Phipps's house.

Phipps testified that after she received a phone call from Burns, she opened her door and saw the two men running alongside of the bar across the street from her house. When they entered her house, Burns sat on the couch with his head in Phipps's hands and said to defendant, "it wasn't supposed to go down like that." Defendant responded, "I'm a little nigga. You know that gun was too big for me to hold." Defendant demonstrated, as if holding an object pointing it toward the ground. He also said, "Chubbs froze up." Both defendant and Burns were wearing black pants with "hoodies." Burns removed his outer clothing. Defendant took off his hooded sweatshirt and asked Phipps for a jacket that "wasn't black." Defendant told Burns that they needed "to go back around there" because "he left the car running" and "they gonna look at his license plate." Burns left his clothing at Phipps's house. Both defendant and Burns left gloves there. Phipps took the articles that they left behind, put them in a bag, and tossed the bag outside.

Burns returned to Phipps's house in the early morning hours of February 10. He asked Phipps what she had done with the "stuff" he had left the night before. She told him that she had put it in a bag and thrown it over the porch. Burns "got mad" and went outside to retrieve the bag. Later that morning, he left with defendant who had arrived to pick him up.

After picking up Burns at Phipps's house, defendant told him they needed to move the gun. They retrieved the gun from the "stash box," put it in the trunk of defendant's car, and drove to Newark where they "stashed" it. Defendant looked for the shells that he had previously put in the center console of his car, but they were not there. Later that night, defendant returned to Newark to retrieve the gun; he then "threw it . . . by the railroad tracks." When asked whether the shotgun was loaded when he dumped it by the railroad tracks, defendant explained, "In Newark I unloaded the shotgun cause that's when I realized it was loaded with everything that I had taken out. That's when I found out it was only five shots."

On February 13, defendant was arrested at his home. He was read his Miranda rights. According to Sergeant Riley, defendant initially denied any involvement in the shooting. After being told that his codefendants had been arrested and had given statements, defendant became "visibly upset and worried and started to cry." Defendant then gave his statement of the events that occurred on February 9.

In light of these facts, we turn first to the issue raised in point one of defendant's brief, that the testimony of two of the State witnesses, Tychic Phipps and Sergeant Carl Riley, violated defendant's federal and state constitutional rights of confrontation. Because no objection to the challenged testimony was made at trial, we review defendant's arguments on this point under the plain error standard; that is, we will not reverse unless the error claimed is "capable of producing an unjust result." R. 2:10-2.

We begin with Phipps's testimony. In response to the prosecutor's question as to what occurred when defendant and Burns arrived at her premises immediately after the robbery, she testified that Burns put his head in her hands and said "it wasn't supposed to go down like that." Defendant responded that the gun was too big for him to hold. Defendant claims this testimony was inadmissible hearsay. We disagree. The testimony falls within the coconspirator exception to the hearsay rule. N.J.R.E. 803(b)(5).

"A statement, made other than by the witness while testifying, offered to prove the truth of the content of the statement is hearsay evidence and is inadmissible unless it falls within one of the hearsay exceptions." State v. Phelps, 96 N.J. 500, 508 (1984); see also N.J.R.E. 801(c); N.J.R.E. 802. A trial court's evidentiary rulings are accorded substantial deference on appeal, State v. Morton, 155 N.J. 383, 453 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001), and may be reversed only if the trial judge committed a clear error of judgment. State v. Harvey, 151 N.J. 117, 184 (1997), cert. denied, 528 U.S. 1085, 120 S. Ct. 811, 145 L. Ed. 2d 683 (2000).

To be admissible under N.J.R.E. 803(b)(5), the statement must have been made in furtherance of the conspiracy; during the course of the conspiracy; and "there must be evidence, independent of the hearsay, of the existence of the conspiracy and defendant's relationship to it." Phelps, supra, 96 N.J. at 509-10; see also State v. Savage, 172 N.J. 374, 402 (2002). Courts use the preponderance of the evidence standard to determine whether to admit a coconspirator's hearsay declarations. Phelps, supra, 96 N.J. at 519.

Generally, while a statement made after the conspiratorial objective is complete is not admissible under this exception, State v. Sparano, 249 N.J. Super. 411, 420-21 (App. Div. 1991), a conspiracy may continue beyond the actual commission of any crimes to include enlistment of false alibi witnesses, concealment of weapons, or flight to avoid apprehension. Savage, supra, 172 N.J. at 403; see e.g., State v. Baluch, 341 N.J. Super. 141, 183-84 (App. Div) (statements about disposal of body made in furtherance of conspiracy because they were made as part of an attempt to avoid apprehension), certif. denied, 170 N.J. 89 (2001); State v. Soto, 340 N.J. Super. 47, 63, 65 (App. Div.) (statements about past events may be admissible as in furtherance of conspiracy if made as part of attempt to avoid apprehension), certif. denied, 170 N.J. 209 (2001), overruled in part on other grounds by State v. Dalziel, 182 N.J. 494, 504 (2005); State v. Cherry, 289 N.J. Super. 503, 522-24 (App. Div. 1995)(attempt to establish alibi is in furtherance of conspiracy). Statements relating to past events that "serve some current purpose, such as to promote cohesiveness, provide reassurance to a co-conspirator, or prompt one not a member of the conspiracy to respond in a way that furthers the goals of the conspiracy" may be deemed in furtherance of a conspiracy. State v. Taccetta, 301 N.J. Super. 227, 253 (App. Div.), certif. denied, 152 N.J. 187 (1997).

Phipps's testimony satisfies the requirements that the statements be made during the course of and in furtherance of the conspiracy. Defendant and Burns immediately went to her house following the shooting; on the way, they "stashed" the gun behind a bar across the street. Burns made the challenged statements as he and defendant were in the process of fleeing from the crime scene; in fact, defendant had left the car engine running. While at Phipps's, defendant expressed concern that his license plate would be detected. He asked her for a jacket that "wasn't black" and removed his clothing. Burns left clothing worn during the shooting at Phipps's house; both defendant and Burns left their gloves there. Accordingly, during their time spent in Phipps's presence, defendant and Burns were in the midst of avoiding detection. It was not until the following evening that defendant disposed of the shotgun. After the shooting, defendant spoke with both codefendants regarding what to say if questioned by the police. Thus, Phipps's testimony was properly placed before the jury.

The record also provides ample evidence of the existence of the conspiracy independent of the statements of Burns as recounted by Phipps at trial. In his statement, defendant outlined the existence of the conspiracy. He described his participation as well as the participation of his codefendants. He detailed his agreement with codefendants to rob the Nolan house with a shotgun. Phipps's unchallenged testimony also supported the existence of the conspiracy.

That takes us to Sergeant Riley's direct examination. The testimony complained of was as follows:

Prosecutor: And what happened initially?

Riley: Initially [defendant] denied having any involvement, you know, in the incident. Then also he indicated that he knew Shane Burns and he was out with him earlier that day, but he did not see him during the time of the incident.

Prosecutor: After hearing that version of events did you say anything to defendant concerning your knowledge of the case?

Riley: At that time he was confronted and we advised him that Shane and Sha[k]ore Collins had been arrested and charged in this matter and they did give statements telling the truth --

Court: What a minute. Don't start telling us what anybody said. Okay? Can I see counsel over here.

At a side bar, the judge explained why he interrupted:

Court: The whole purpose of doing separate trials is the jury doesn't know there are statements from co-defendants.

State: Well, he didn't say anything about implicating [defendant].

Court: Well, he's getting very close to starting by saying they told us the truth.

The court later added the following to the record:

When we went to side bar an issue had come up concerning [Sergeant] Riley talking about statements. Two co-defendants were under arrest and he started to talk about the statement, and he said as a result of the question of the prosecutor they gave a truthful statement and I told him to stop basically in mid sentence at that point because I was afraid what was gonna come out of his mouth next. And, you know, what did they tell you or whatever he was gonna say. I don't know where he was going with it.

Now we discussed this in chambers and I did not give a limiting instruction and I'll say why I didn't for the record. I didn't because you don't know what the statements are. You don't know if they inculpated, exculpated. This jury heard nothing. And quite honestly if I started to put some emphasis upon it I was more concerned that I would alert the jury as to a potential problem. And I never said to them to disregard. I just left it alone, and I did that on purpose.

If you want me to address that issue, [defense counsel], with the jury I will. I mean I can treat -- I treated it as I thought it should have been treated at the time. You didn't ask me to do anything.

Defense counsel replied: "No, Judge. I think that it was handled properly by the court."

Defendant argues that Riley's statement was a violation of State v. Bankston, 63 N.J. 263, 271 (1973), where the Court held that, "When the logical implication to be drawn from the testimony leads the jury to believe that a non-testifying witness has given the police evidence of the accused's guilt, the testimony should be disallowed as hearsay."

Though Sergeant Riley's testimony, if permitted to continue, may have constituted a Bankston violation, the prompt intervention by the trial judge prevented that from occurring. As soon as Sergeant Riley began to testify concerning the statements of Burns and Collins, the court interrupted, and prevented the witness from relating to the jury any testimony about the codefendants implicating defendant in the incident. As a result of the court's prompt action, the jury was unable to discern what Burns and/or Collins had said to Riley. As the trial judge said, the jury heard "nothing" as to the substance of those statements, and accordingly, no harm occurred. It is also notable that defense counsel not only failed to object to the testimony, but also agreed that no curative instruction was necessary that "it was handled properly by the court." See State v. Loftin, 146 N.J. 295, 365 (1996) (where defendant was prevented from arguing on appeal that the court should have issued a more immediate curative instruction when defense counsel had previously insisted that the trial court not highlight a prejudicial outburst with such an instruction). Given the trial judge's immediate attention to the potentially prejudicial testimony, and that the parties agreed that no limiting instruction was required at the time, we do not find Sergeant Riley's testimony to constitute reversible error.

Next, we address defendant's claim that the trial judge erred by denying him a new trial. That argument, too, is without merit.

A trial court is not permitted to "set aside the verdict of the jury as against the weight of the evidence unless . . . it clearly and convincingly appears that there was a manifest denial of justice under the law." See State v. Sims, 65 N.J. 359, 373-74 (1974); R. 3:20-1. We apply the same standard that controls the trial court's decision, giving deference to the trial court's ability to observe witnesses' demeanor and judge credibility. Sims, supra, 65 N.J. at 373; Dolson v. Anastasia, 55 N.J. 2, 7 (1969). The trial court's ruling on the motion will not be reversed "unless it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1.

Defense counsel argued that the State's case was only supported by defendant's confession - that it was not adequately supported by additional corroborative evidence. We disagree.

In denying defendant's motion for a new trial, the trial judge said, in part,

I find it cannot be said that the jury's verdict is against the weight of the evidence. Defense counsel argues . . . that the jury should not believe his statement because it may have been coerced and involuntarily given. . . . And this jury heard all of that testimony, had the benefit of the corroborating evidence, including Ms. Phipps' testimony, the defendant's statement.

. . . .

So clearly, I cannot accept defense counsel's argument about the statement. The jury heard it.

. . . [B]y the way, that pertains to each [count] including the robbery, felony murder, and weapons offenses. The jury heard the confession, heard Ms. Phipps' testimony, and obviously decided to [find] that the confession inculpating defendant was credible, and Ms. Phipps' testimony credible as well, and that's their function, not the Court's.

"[A]n uncorroborated extra-judicial confession cannot provide the evidential basis to sustain a conviction for crime." State v. Lucas, 30 N.J. 37, 51 (1959). The State "must introduce independent proof of facts and circumstances which strengthen or bolster the confession and tend to generate a belief in its trustworthiness, plus independent proof of loss or injury" to corroborate a confession. Id. at 56. Here, defendant's confession was corroborated by the testimony of Phipps and Sergeant Riley. And, defendant concedes in his brief on appeal that the State introduced extrinsic proof of the facts concerning the offense.

Phipps's testimony corroborated several aspects of defendant's confession. Her testimony as to the sequence of events following the commission of the crime was factually similar to those events described by defendant in his confession. For example, both defendant and Phipps recounted that defendant and Burns ran into her home from the direction of the bar across the street. Both indicated that defendant and Burns were dressed in black clothing and defendant removed his clothing. Phipps testified that defendant said "Chubbs froze up," coinciding with defendant's statement that Chubbs "just stood there." Consistent with defendant's admission that he held the gun, Phipps testified that defendant said that the gun was too big for him. As recounted by both defendant and Phipps, defendant picked Burns up from Phipps's house the following day.

Sergeant Riley described defendant's demeanor prior to providing police with his sworn statement. Though defendant initially denied involvement in the crime, when told that his codefendants were in custody and had given statements, he "became visibly upset and worried and started to cry." Thereafter, he confessed.

Defendant said that the glass in the door shattered. At the scene of the crime, the police found that the door had shattered and that glass was strewn on the floor. The victim was found slumped on the stairs not far from the vestibule where defendant said the victim was standing at the time of the shooting. Confirming defendant's statement that a shotgun was used, police found shotgun pellets at the scene and the autopsy confirmed that the victim had suffered a shotgun wound. Defendant described the struggle with the victim during which she grabbed the barrel of the shotgun. The close position of the victim to defendant at the time of the shooting was corroborated by the autopsy results indicating that the gunshot wound was inflicted at close range.

The record contains sufficient evidence from which a rational jury could find, beyond a reasonable doubt, that defendant committed the crimes charged. The jury's verdict does not constitute a manifest denial of justice under the law.

We next turn to defendant's claim that the prosecutor's remarks denied him a fair trial. We again disagree.

Prosecutorial misconduct can be a ground for reversal if the prosecutor's comments were sufficiently egregious to deprive defendant of a fair trial. State v. Frost, 158 N.J. 76, 83 (1999). In its review to determine whether the misconduct was sufficiently egregious, an appellate court must consider both the "tenor of the trial" and the "responsiveness of counsel and the court" to the comments when they occurred. 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).

Here, defendant contends that during summation the prosecutor "mischaracterized the evidence and denigrated the role of defense counsel." The prosecutor said:

I'll just jump to Tychic and [defense counsel's] comments about Tychic. She started out by saying I think you shouldn't believe her because it's easy. People can say anything. I want you, ladies and gentlemen, to think about that. You're right. I can say anything. [Defense counsel] can say anything.

. . . .

Sergeant Riley. [Defense counsel] says. She suggests to you [Sergeant] Riley was not straight up in how he testified or presented this to the defendant. The biggest point she makes with him is that the reason I guess you should know that this case or this interrogation somehow went differently than how he says was because he denies everything she says.

What are we talking about? Do you recall there was a question asked by [defense counsel]: So [Sergeant] Riley, if I told you that you put your gun on the table while you were doing this interrogation you would deny that. Right? Ma'am, my gun wasn't in the room. So you would deny it. Right? Yeah. If I told you that you put a picture, a picture of Mary Lou Nolan on the table in front of the defendant you would deny that. Right? Yeah.

Not for nothing ladies and gentleman, where in the evidence in this case did you hear anything about any of those kinds of things happening? You have a job and it has to be based on the evidence. Where did any of that come from? She asks a question like that and because he says no it doesn't happen, all of a sudden it must have happened that way and he's a liar?

[Sergeant] Riley, isn't it true you were born in 1930. No. So you deny that. Yeah. Does that mean he must have been born in 1930? I mean it doesn't make any sense. Why not just have said [Sergeant] Riley do you deny taking your gun and sticking it in his mouth as he signed every one of these 24 pages in his statement.

Defense counsel objected. The judge sustained the objection. He said:

Sustained. Improper comment. That was not said and you're exaggerating it. Let's go. Jury to disregard that last analogy and comment. Can I see counsel at side bar.

At side bar, the court stated, in part,

It is proper comment to . . . respond to what happened. Counsel said two things I want to bring up to make sure you're not gonna say. You never brought up a [State v. C]lawans, [ 38 N.J. 162 (1962)] issue that you want to comment on the failure to produce a witness. You can't do it because it was not disclosed prior to summation. That's number one.

Number two. Stop characterizing. Get yourself under control. In plain simple English.

On the motion for a new trial, the trial judge addressed defendant's arguments. As to the prosecutor's remarks regarding defense counsel's cross-examination of Sergeant Riley, the court found:

The transcript was provided to me. I gave the jury a cautionary instruction. Counsel objected. [The prosecutor] was brought to sidebar. I chastised him in terms of getting his emotions under control and he did correct the situation if one did exist, but it was not, as I find, egregious.

The trial judge continued:

[The prosecutor], in this case . . . pointed to a lack of evidence in a record that supported [defense counsel's] questions or failed to support her questions and arguments in summation. This is entirely permissible.

The one comment that he did make may have been somewhat problematic about placing the defendant -- the gun in the defendant's (sic) mouth. This was objected to, as I said, by defense counsel, and the Court did give instructions that the comment was improper and exaggerated and they should disregard the comment and the analogy.

[The prosecutor] was not arguing that this, in fact, did occur, but what he was saying, and it's quite clear from the transcript, well, what else could she say? In other words, by way of a hypothetical because the defense attorney had raised issues concerning involuntariness of the defendant's statement based on putting a gun on the table, which was exactly opposite from what Riley testified, and what this jury heard, because Riley testified that the guns were put in a property locker before he brought the defendant into the room. So when [the prosecutor] was doing his commenting on the argument of the defense counsel that, in fact, this was a coerced confession because there was no proof to support it.

And he was using the analogy of well, what's the next argument going to be. He didn't say that, in fact, that happened or if counsel alleged it had happened. I was concerned at this point that he was going too far. I stopped him. I brought him to sidebar and dealt with the issue before he said something which I felt would affect the fairness of this trial. And he did, in fact, offer that argument after I chastised him at sidebar.

There was no commentary by the Assistant Prosecutor that was not commentary on evidence or inferences that could have been drawn therefrom as raised by the defense. Thus, the prosecutor's comments in summation were permissible. It was the defense counsel who raised an issue before the jury as to whether force or threats or intimidation were used against the defendant.

The prosecutor had every right to address that issue in summation. He did not characterize the defendant inappropriately. He did not characterize the defense counsel inappropriately, but rather exaggerated the scenario to show the lack of merit as to defense counsel's argument.

The record supports the trial judge's findings on these issues. When viewed in the context of the entire summation, the prosecutor was commenting on the tactics used by defense counsel during cross-examination. Defense counsel posed questions to Sergeant Riley based on facts not in evidence. During summation, the prosecutor emphasized that the particular line of questioning by defense counsel had the potential to confuse the jury. The thrust of the prosecutor's remarks was that the jury should only consider the facts in evidence. Notably, the prosecutor's line of reasoning was responsive to defense counsel's summation, in which she stated:

I suggest to you that [Sergeant] Riley was not straight up about what he did in his questioning of the defendant.

The questions that I asked him, sure he denied almost everything that I asked him. He said no, no, no -- and no.

Nor did the prosecutor's mention of defendant having "put the gun in the victim's face" rise to a level of conduct so egregious as to warrant reversal. In fact, the evidence at trial showed that defendant and the victim were in close proximity at the time of the shooting, that the victim held onto the barrel of the gun, and that the victim was fatally shot at close range in the right shoulder. Even the trial court characterized the evidence in the way that it was framed by the prosecutor. In deciding the motion for a new trial, the judge said:

[Defendant] sticks the barrel of the shotgun in her face.

She got shot in the chest, the upper chest. If that's not in her face, maybe it wasn't at her nose or at her mouth, or at her eyes, I would characterize that as putting a shotgun in somebody's face that high up. And that's exactly what he did. He threatened her.

Accordingly, the record supports a conclusion that the prosecutor's comments during summation do not warrant reversal of defendant's conviction.

In defendant's pro se brief he claims that the trial court committed error by failing to give the model jury charge on attempt. We have carefully reviewed this issue in light of the record. We find it to be without sufficient merit to warrant discussion in a written opinion. See R. 2:11-3(e)(2).

Finally, we turn to defendant's sentence. The State concedes that the five-year sentence on count five must be vacated and remanded for resentencing pursuant to Natale, supra, 184 N.J. 458. We otherwise conclude that the sentence imposed by the trial court was not an abuse of discretion or clearly mistaken. See State v. Roth, 95 N.J. 334, 363-64 (1984); see also State v. Gabbour, 118 N.J. 1, 5-6 (1990). Thus, subject to the remand for resentencing under count five, we affirm defendant's sentence as a proper exercise of the court's discretion.

 
We vacate the sentence on count five and remand for resentencing. Otherwise, we affirm defendant's judgment of conviction.

Defendant and his codefendants were each tried and convicted in separate trials in 2003; defendant in June, Burns in July, and Collins in September. The same judge presided at each trial. Each of their appeals is addressed in a separate opinion. See State v. Collins, No. A-4677-03 (App. Div. Nov. 2, 2006); State v. Burns, No. A-4696-03 (App. Div. Nov. 2, 2006).

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

(continued)

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A-4073-03T4

November 2, 2006