STATE OF NEW JERSEY v. JOHN THOMAS PRITCHETT

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1823-05T41823-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHN THOMAS PRITCHETT,

Defendant-Appellant.

________________________________________________________________

 

Submitted May 1, 2007 - Decided May 24, 2007

Before Judges Skillman, Lisa and Grall.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, 4374-12-03.

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

Joshua M. Ottenberg, Acting Camden County Prosecutor, attorney for respondent (Robin A. Hamett, Special Deputy Attorney General, Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

The jury found defendant guilty of all nine counts in the indictment against him, namely: (1) first-degree knowing or purposeful murder of Roy Avant, N.J.S.A. 2C:11-3a(1) or (2); (2) first-degree felony murder, N.J.S.A. 2C:11-3a(3); (3) first-degree attempted murder of Arthur W. Lewis, Jr., N.J.S.A. 2C:5-1 and 2C:11-3; (4) first-degree robbery, N.J.S.A. 2C:15-1; (5) second-degree aggravated assault, N.J.S.A. 2C:12-1b(1); (6) third-degree aggravated assault, N.J.S.A. 2C:12-1b(2); (7) second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; (8) third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b; and (9) second-degree certain persons not to possess weapons, N.J.S.A. 2C:39-7b.

The judge merged counts two and seven with count one (murder), on which he sentenced defendant to forty-five years imprisonment subject to an 85% parole disqualifier under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The judge merged counts five, six and seven with count three (attempted murder), on which he sentenced defendant to eighteen years imprisonment, subject to an 85% NERA parole disqualifier. The judge ordered that the sentences on counts one and three be served consecutively to each other and to a Federal sentence defendant was then serving, as well as the sentence on unrelated State crimes under three indictments to which defendant pled guilty and was sentenced that day. The judge further merged count seven with count four (robbery), on which he sentenced defendant to eighteen years imprisonment, subject to an 85% NERA parole disqualifier, to be served concurrently with the sentences under counts one, three and nine. Finally, the judge merged count eight with count nine (certain person not to possess weapons), and sentenced defendant to ten years imprisonment, subject to a five-year parole disqualifier, to be served concurrently with counts one, three and four. Thus, defendant's aggregate sentence is sixty-three years imprisonment, of which 85% must be served without parole eligibility.

Defendant raises the following arguments on appeal:

POINT I

THE TRIAL COURT ERRED IN PERMITTING THE STATE TO ELICIT INADMISSIBLE AND HIGHLY PREJUDICIAL TESTIMONY PURSUANT TO N.J.R.E. 404(b).

A. FACTUAL INTRODUCTION

B. THE PREVAILING LEGAL PRINCIPLES REGARDING THE ADMISSIBILITY OF OTHER CRIME TESTIMONY PURSUANT TO N.J.R.E. 404(b) AND THE RES GESTAE DOCTRINE.

C. THE TESTIMONY IN QUESTION SHOULD HAVE BEEN EXCLUDED SINCE IT DID NOT CONSTITUTE RES GESTAE TESTIMONY NOR DID IT SATISFY THE REQUISITE CRITERIA OF N.J.R.E. 404(b).

POINT II

THE TRIAL COURT ERRED BY PERMITTING THE STATE TO ELICIT TESTIMONY REGARDING A STATEMENT MADE BY THE VICTIM IDENTIFYING THE DEFENDANT AS THE PERPETRATOR EITHER AS AN EXCITED UTTERANCE OR AS A DYING DECLARATION.

POINT III

THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF HEARSAY TESTIMONY ELICITED BY THE PROSECUTOR FROM THE STATE'S PRIMARY WITNESS ASSOCIATING THE DEFENDANT WITH OTHER CRIMINAL CONDUCT AS WELL AS THE PROPENSITY TO COMMIT VIOLENCE. (PARTIALLY RAISED BELOW).

POINT IV

THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY. [NOT RAISED BELOW].

POINT V

THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

We reject these arguments and affirm.

On February 24, 2003, Arthur W. Lewis, Jr., along with his friends, Wayne Lester, Jr. and Dante Council, set out to run errands. They embarked from Woodbury, with Lewis driving. They first went to Glassboro, where Council picked up his paycheck. They then drove to North Camden, where Lester purchased heroin and Lewis purchased a bus pass for his elderly aunt. The men then arrived in the area of Seventh and Chestnut Streets in Camden, where Lewis had previously lived, to visit friends and acquaintances in that neighborhood. Lewis had on his person $800 in cash, with which he said he was going to purchase a $777 money order to pay his mortgage.

Roy Avant, a friend of Lewis, approached Lewis and asked for a favor. Avant said he needed to return parts to an auto parts store but needed a valid driver's license to make the exchange. He asked Lewis whether he had a valid driver's license. Lewis had his driver's license in his pocket, mixed in with the $800. He pulled the license and money out of his pocket at the same time, thus exposing the money to the view of those in the area. Lewis and Council followed Avant in a separate vehicle to the auto parts store where the exchange was made, and the men all then returned to Seventh and Chestnut Streets. Lewis and Avant made a purchase at the local liquor store, and when they came outside they went to Lewis' car, where he opened the trunk to remove a t-shirt he was going to give Avant.

At this time, defendant was standing between the gates to the courtyard at the Chestnut Court Apartments. A friend of defendant's, Kenneth Carstarphen, was socializing with other individuals on the street. Defendant called out to Carstarphen and directed him to walk across the street to the apartments. Defendant further directed Carstarphen to wait at that particular location and told him he would be back momentarily. Carstarphen testified that he followed defendant's instructions and waited at that location, believing defendant would return with a package of cocaine for him to sell that day. While Carstarphen waited at that spot, defendant walked into the courtyard and out of Carstarphen's view. Within minutes, Carstarphen heard multiple gunshots fired from the direction where defendant had gone.

Lewis testified that while he was showing Avant the t-shirts, defendant approached and asked him to come over to him. Lewis knew defendant and his family from the neighborhood, and as far as he knew, he was on good terms with defendant. When the two men were face to face, defendant raised his arm and said, "Motherfucker, give me that money you got." Defendant fired a handgun, grazing Lewis' neck. Lewis pushed defendant, and a second shot was fired, striking Lewis in the abdomen. Lewis began to run, and defendant shot him a third time, striking his leg. Lewis experienced substantial blood loss, became weak, and laid down. He heard more gunshots. He was soon taken to the hospital by ambulance, where he remained confined for his wounds for six days.

Hospital personnel took custody of Lewis' personal belongings, which were returned to him upon his discharge. Those belongings included $321 in currency. Lewis testified he had no recollection of defendant rifling through his pockets during his interaction with him and could give no other explanation for the absence of the remaining money he had at the time of the interaction.

After hearing the gunshots, Carstarphen proceeded to the area from which the sound of the shots emanated. He saw Avant, a good friend of his, lying on his back next to Lewis' car. He went to Avant, who said to him, "I've been shot. . . . [P]lease don't let me die." Carstarphen asked Avant who shot him, to which Avant replied, "John shot me." Carstarphen said the only person in the area named John was defendant. At the time of this brief discussion, Avant was suffering from a single bullet wound to his torso. The bullet had entered in his chest area, severed his aorta, and lodged in his spine. The conversation between Avant and Carstarphen occurred within minutes of the shooting. Within minutes after the conversation, police and emergency personal arrived, and Avant was transported to a local hospital. During the course of the transport, he lost consciousness, and when he arrived at the hospital his vital signs were weak. He died on the operating table within one hour of when he was shot.

At the time of Carstarphen's conversation with Avant, Carstarphen saw defendant walk from the back of Lewis' car towards an alley. Defendant gave Carstarphen a stare, which Carstarphen interpreted as "don't say anything. I didn't see anything." Defendant later called Carstarphen over to him, asking if he saw anything. Carstarphen responded, "No."

When the police arrived at the scene, many people were milling about. By the estimate of the first responding officer, about seventy to eighty people were present. The police secured the area, and the two wounded individuals were promptly removed by ambulance. Defendant remained in the area during this time. One of the law enforcement personnel present, New Jersey State Trooper Christopher Leone, came into contact with defendant and spoke with him. Defendant told Leone he needed to move a car that was parked outside the scene. The car to which defendant referred had its driver's side door open and its engine was running. Based upon information received, Leone arrested defendant. Leone later learned the car belonged to an associate of defendant. A search of defendant revealed no weapons or money on his person.

Lawrence Gaines was a witness for the State. Gaines is a repeat sex offender. He was being housed in the Camden County Jail awaiting transport to State Prison at the time defendant was lodged in the Camden County Jail on these charges. Gaines said he overheard a conversation between defendant and other inmates in which defendant described the shooting. According to Gaines, defendant demonstrated to those inmates how he rolled across the hood of the car and said, "I shot one and he went down." Gaines said that about twenty minutes later, he overheard defendant talking on the pay telephone in the jail. He said he heard defendant say:

Do you have that? If you don't have it, I need to know. I can get it elsewhere. . . . Okay, I need to [bail] this guy out. Let him handle this business for me. If he handles this business for me, I do not have to worry about facing no homicide charges.

Gaines said that about ten days later he was in his cell with another inmate, Jamal Bailey, when defendant came in and described the shooting incident. Bailey was a close friend of defendant's. According to Gaines, defendant told him and Bailey that he "gotta body and a half unc," meaning "[o]ne dead and one going to be dead." Gaines said defendant told him and Bailey that he shot at the individuals because "somebody passed him off some bad money while he was clocking," meaning selling drugs. When Gaines asked defendant why he remained at the scene after the shooting, defendant said, "Who could think of a better alibi? I just killed two motherfuckers and I was standing there. I passed my gun off to my partner and I was standing there."

Gaines acknowledged that he hoped to get time off of his sentence in exchange for his testimony, although no promises had been made to him. Bailey was called as the only defense witness. He denied the conversation with defendant allegedly in his and Gaines' presence, and said he would never talk to Gaines or associate with him because of his status as a rapist. Defendant did not testify at trial.

We first address defendant's argument that Carstarphen should not have been permitted to testify that he expected defendant to provide him with drugs to sell. One of the State's theories for defendant's motive in killing Lewis was that Lewis had paid a drug debt with counterfeit money. The State possessed evidence showing defendant conducted a drug distribution operation in the area of Seventh and Chestnut Streets and that Carstarphen was one of his dealers. In a pretrial motion, the State sought leave to present testimony about the drug relationship between defendant and Carstarphen.

Over defendant's objection, the judge ruled that such evidence would be admitted, but limited to the events that occurred at the time of the shooting. No evidence of prior drug activity by defendant or Carstarphen would be allowed. The judge viewed such limited evidence to be within the res gestae of the crime for which defendant was on trial and deemed it important to enable the jury to "understand the scene, to understand the locations of people, to understand what observations were being made or not being made, [and] why they were or were not being made." The evidence would also be important in relation to Gaines' testimony. That testimony was clearly admissible because it consisted of admissions made by defendant. Thus, with this limited testimony by Carstarphen, the State would be able to pursue this theory of the case with competent evidence. And, this aspect of Carstarphen's testimony and his activities at the time of the shooting could not be effectively sanitized.

Defendant argues that this testimony was not relevant because the shooting was part of a robbery, and had nothing to do with a drug transaction gone bad. Defendant points out that the State's theory that the shooting was the result of defendant receiving counterfeit money during a drug transaction was not supported by the victim himself, Lewis. According to defendant, the only evidence supporting this theory was the testimony of Gaines, an unreliable "jailhouse snitch." Defendant argues that because of the lack of relevance, the evidence was improperly admitted as evidence of other crimes or bad acts under N.J.R.E. 404(b), as a result of which the first prong of the test for admissibility under that rule, as required by State v. Cofield, 127 N.J. 328, 338 (1992), was not met. Defendant further argues that the evidence was not part of the res gestae of the crime, which pertained to a robbery and the shooting of the two victims, not drug activity. Finally, defendant argues that even if there was some minimal relevance and if this evidence was admissible under some theory, its probative value was significantly outweighed by the inherently prejudicial nature of the evidence.

Trial courts are afforded considerable latitude regarding the admission of evidence, and we will find error only if the trial court abused its discretion. State v. Nelson, 173 N.J. 417, 470 (2002). We will not find reversible error unless "the trial court's ruling 'was so wide of the mark that a manifest denial of justice resulted.'" State v. Marrero, 148 N.J. 469, 484 (1997) (quoting State v. Kelly, 97 N.J. 178, 216 (1984)).

Judge Millenky admitted this evidence as res gestae evidence. Although as the trial progressed he revisited the issue and expressed an alternate rationale that the evidence would also be admissible under N.J.R.E. 404(b), his primary basis for admitting the evidence was that it was part of the total criminal conduct that occurred during the incident that forms the subject matter of the charged crimes.

"Evidence of events that take place during the same time frame as the crime charged in the indictment will not be excluded if the evidence establishes the context of the criminal event, explains the nature of, or presents the full picture of the crime to the jury." State v. Cherry, 289 N.J. Super. 503, 522 (App. Div. 1995). Juries cannot be expected to evaluate evidence and make their decision in a void, without knowledge of the time, place and circumstances of the acts which form the basis of the charge. Ibid.

We find no abuse of discretion in permitting Carstarphen's testimony. It provided important insight into the circumstances and context of the events that took place. Carstarphen's and Gaines' testimony regarding defendant's involvement with drugs was necessary to "present the full picture of the crime to the jury" and was relevant in terms of Gaines' credibility. Nor do we find any error in the judge's determination that this evidence was not subject to exclusion because its probative value was outweighed by the risk of undue prejudice. See N.J.R.E. 403. The jury would hear from Gaines that defendant admitted he was involved in drug activity that day. This evidence had significant probative value in the State's effort to advance the reliability of that information and to explain why Carstarphen would, at defendant's direction, leave the friends with whom he was socializing and stand at a particular location waiting for defendant to return, all of which would be unexplained and perhaps unbelievable in the absence of this evidence. And, of course, it was highly probative of the State's asserted motive for the shooting. Any prejudicial effect paled in significance to that probative value. Finally, in the clear limiting instructions given on this subject, the judge directed the jury to avoid considering this evidence for the purpose of establishing that defendant had a propensity to commit the crimes for which he was on trial.

Because we have determined that the evidence was properly admissible under the res gestae doctrine, we will not address defendant's arguments pertaining to N.J.R.E. 404(b).

We next address defendant's argument that the judge erred by allowing Carstarphen to testify that Avant told him "John shot me." At the time of trial, defendant's objection was that the prejudicial effect of the evidence substantially outweighed the risk of undue prejudice, and the evidence should be excluded under N.J.R.E. 403. On appeal, defendant now argues that Avant's statement did not qualify as either a dying declaration, N.J.R.E. 804(b)(2), or an excited utterance, N.J.R.E. 803(c)(2). We disagree. In our view, it qualified under both exceptions to the hearsay rule.

"In a criminal proceeding, a statement made by a victim unavailable as a witness is admissible if it was made voluntarily and in good faith and while the declarant believed in the imminence of declarant's impending death." N.J.R.E. 804(b)(2). To ensure reliability, "the statement must have been made while the declarant believed his death was imminent." Biunno, Current N.J. Rules of Evidence, comment on N.J.R.E. 804(b)(2) (2007). Factors to be considered include: "(1) the nature of the decedent's injury and physical condition at the time the statement was made; (2) any notice which may have been given by a physician to the declarant that death was imminent; and (3) the time that transpired between the declaration and death." Ibid. A statement is clearly inadmissible, however, if it was the product of undue pressure. Ibid.

Applying these standards, we find no error in the determination that Avant's statement was properly admitted as a dying declaration. He had just suffered a gunshot wound to his torso and was lying on the ground in a severely debilitated condition. His spontaneous statement to his friend, "please don't let me die," was an expression of his awareness of the seriousness of his condition. Although not informed by medical personnel that death was imminent, the circumstances of his physical condition and the state of his mental thought process made it quite clear that he knew his condition was grave. As the medical examiner testified, such gunshot wounds will cause the victim to become "stunned and dazed," "just like being hit over the head with a hammer." Indeed, within minutes after the statement, defendant lapsed into unconsciousness, from which he never recovered.

We find little significance in the fact that his statement, "John shot me," was in response to a question. The question was posed by a friend, not the police. The question was posed in reply to Avant's initial statement that he had been shot and did not want to die. There is nothing to suggest that Avant's response, identifying defendant, was not made in good faith or voluntarily.

The statement was also admissible as an excited utterance. It was a statement "relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition and without opportunity to deliberate or fabricate." N.J.R.E. 803(c)(2). Avant had been shot within one or two minutes before making the statement. His statement identifying defendant related to the startling event, was made while he was under the stress of excitement caused by the event, and was made without opportunity to deliberate or fabricate. State v. Branch, 182 N.J. 338, 365 (2005). We are satisfied that this was a spontaneous statement, and not the product of reflection or fabrication, and not influenced by self-interest. See State v. Long, 173 N.J. 138, 158 (2002). Thus, the statement was reliable. Ibid.

Of course, under either exception, the statement is still potentially subject to exclusion under N.J.R.E. 403. We find no abuse of discretion in Judge Millenky's determination that the probative value of this statement was not outweighed by the risk of undue prejudice. The State's case with respect to the murder of Avant was largely circumstantial. Lewis did not see defendant shoot Avant. He heard additional shots, and Carstarphen heard multiple shots. The State could suggest no motive for defendant's murder of Avant other than that he wanted to eliminate Avant as a witness because he had shot Lewis. Of course, the State had Gaines' testimony, but Gaines' credibility was questionable. Thus, Avant's statement identifying his assailant was extremely probative, and was not outweighed by the risk of undue prejudice.

Defendant argues he was denied a fair trial because of two aspects of testimony given by Lewis. Lewis described the events of the shooting. He also explained that he had no ill feelings or disagreements with defendant and he and members of his family had known defendant and members of defendant's family for a long time. In the course of his testimony, Lewis commented that his daughter may have had some relationship with defendant. He then clarified that "she actually said he used to try to talk to her, and he was over her house one time and according to her he had a gun." The judge immediately instructed the jury to disregard that statement as hearsay, and repeated that instruction the following day and again in his final charge.

At another point in his testimony, Lewis talked about his sister and mother, and commented that, although he would have liked for them to have been present at trial, he told them to stay away because of his fear for their safety. Although there was no objection to this testimony, it implied some wrongdoing or potential wrongdoing by defendant to place them in jeopardy or that defendant was a dangerous person. The judge sua sponte instructed the jurors to disregard that testimony.

"[I]nadmissible evidence frequently, often unavoidably, comes to the attention of the jury, and the record cannot be purged of all extraneous influence." State v. Winter, 96 N.J. 640, 646 (1984). Therefore, not all inadmissible evidence can be considered reversible error. Ibid. Whether the evidence is "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." Id. at 646-47. "Likewise, when weighing the effectiveness of curative instructions, a reviewing court should give equal deference to the determination of the trial court." Id. at 647. The adequacy of an instruction focuses on whether the evidence has the potential "to lead to a verdict that could not otherwise be justly reached." Ibid.

Immediately after Lewis' testimony regarding defendant's involvement with his daughter and the daughter's comment that he had a gun, defense counsel objected and the judge immediately gave a strong curative instruction as follows:

All right, ladies and gentlemen, you're to disregard the testimony that you've just heard. Amongst other things this was hearsay testimony. Hearsay testimony is testimony not given by someone who's in front of you, whose credibility you can evaluate. Rather it's testimony that is given by somebody else to another person. You have no way of judging whether that testimony is valid or invalid, should be believed or not believed in this particular situation. So, therefore, I'm going to instruct you to disregard any testimony that bears on the issue of what Mr. Lewis' daughter may have said to him as he has just begun testifying on that subject. You are to put it out of your mind. You are not to consider it in any way. You are not to even in a subtle way allow it to enter into your thinking in this case.

On a subsequent trial day, the judge again covered the subject, along with a curative instruction regarding Lewis' comment that he feared for the safety of his mother and sister:

And the limiting instruction that I previously gave you had to do with some testimony that Mr. Lewis gave concerning what his daughter had said to him. I told you at that time that those statements could not be considered by you. I told you that they were hearsay, . . . that is Mr. Lewis's daughter, did not testify, there would be no way to assess her credibility.

And as you've just learned from the progress of this trial, one of the critical ways in which we test credibility is through cross examination, and of course, that's not going to happen. So it is absolutely critical that you disregard Mr. Lewis's testimony as to what his daughter said. That instruction that I gave to you must be strictly followed.

And let me indicate to you also, . . . [y]ou cannot, you must not, you may not conclude that because you heard some testimony about what Mr. Lewis said that his daughter said that there was some propensity on the part of the Defendant to commit a bad act and that hence there was some propensity to commit the offense with which he is now charged. That too is not permitted. Our law does not permit such reasoning on your part, and of course, you should never even reach the point of even thinking that that is a possibility because you can't consider that testimony.

But even if it were to inadvertently somehow enter your mind, you must put it aside, and you can't even begin to think about that testimony for the purpose of concluding that there was some propensity to commit a bad act.

Finally, let me just review one other issue with you that had to do with Mr. Lewis's testimony. He testified about the absence of his mother and his sister from the courtroom, and he gave reasons for their absence. Mr. Lewis is entitled to have the thoughts that he has. But you have a special function as jurors, and that's to deliberate about the facts that have a tendency to either prove or disprove something occurred.

What Mr. Lewis thought in terms of whether some members of his family should be here or should not be here has no tendency to prove any of the facts in this case. And so I am going to direct that you disregard that testimony.

These extensive curative instructions were adequate to eliminate any damage caused by Lewis' improper testimony. Defendant did not move for a mistrial based upon that testimony. Considering the absence of a mistrial motion, which is indicative that defense counsel did not deem the evidence particularly egregious or damaging, and giving deference to the trial judge's feel of the case and his ability to assess the impact of the evidence on the jury in the overall setting of the trial, we do not find reversible error.

Although no objection was made to summation comments by the prosecutor, defendant now argues that the prosecutor made improper comments which deprived him of a fair trial. The asserted impropriety can be divided into two categories. First, defendant argues that at the beginning of his summation, the prosecutor made an emotional plea to the jurors to do justice for the two victims:

And today I'm here to talk to you about something close to justice. A verdict. A verdict for Roy Avant who couldn't be here to tell you want happened to him. Close to justice. He'll never reach justice.

A verdict for Arthur Lewis who is here today. Probably the luckiest man in the courthouse. Not today but was here to testify to you about what happened. Close to justice. Will never reach complete justice.

And I'm also here to ask you for a verdict, a responsibility and accountability. Now, I'm going to point at this (indicating) man. I'm going to point at him. Accountability, responsibility. That's what we're here for. And near justice. As close as we can get in our system.

Then, at the conclusion of his summation, the prosecutor returned to this theme:

And I'm confident that when you go back to deliberate, you're going to be comfortable. You're going to be firmly convinced on all counts of a verdict of near justice, a verdict of guilty, responsibility and accountability of this man.

Defendant argues that these comments appealed to the emotions of the jurors, deflected their attention from the evidence as a basis for their decision, and were inflammatory.

The second category consisted of several rhetorical questions the prosecutor posed. For example, in commenting upon defendant's conduct in not leaving the scene and checking on the condition of both victims, he asked the jury: "Was he concerned or just curious? Did he want to finish the job?" Defendant argues that questions of this type called the jury's attention to the fact that defendant did not testify and impermissibly infringed upon defendant's exercise of his Fifth Amendment right not to testify.

Because defendant did not object in the trial court, we review the argument under the plain error standard. R. 2:10-2. We will disregard an error "unless it is of such a nature as to have been clearly capable of producing an unjust result." State v. Macon, 57 N.J. 325, 337 (1971). Not any possibility of an unjust result will suffice, but the possibility must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." Id. at 336.

In assessing whether a prosecutor's remarks in summation require reversal, we evaluate whether the conduct "was so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999). "To justify reversal, the prosecutor's conduct must have been 'clearly and unmistakably improper,' and must have substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his defense." 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). Factors to be considered include whether defense counsel made a timely objection, whether the remark was withdrawn promptly, whether the trial judge ordered the remarks stricken, and whether the judge instructed the jury to disregard them. State v. Ramseur, 106 N.J. 123, 322-23 (1987). And, a prosecutor's remarks may be harmless if they are only a response to remarks by opposing counsel. State v. DiPaglia, 64 N.J. 288, 297 (1974).

The prosecutor's remarks about doing justice for the victims and providing accountability for the defendant hewed close to the line of impropriety. However, they were, in large part, a response to similar emotional pleas made by defense counsel in his summation. There was no objection from defense counsel, thus indicating that in the context of the entire summation and the entire trial the remarks were not deemed particularly egregious or damaging. Considering these circumstances and the overall tenor of the entire lengthy trial, we do not find reversible error in these comments.

As to the second category, we find no impropriety. The complained-of comments did not direct the jurors attention to defendant's election not to testify and did not infringe upon the exercise of his right not to testify.

Finally, we address defendant's sentencing argument. Defendant has an extensive juvenile and adult criminal history. He was eligible for extended term sentencing as a persistent offender, and the prosecutor moved for such sentencing. The judge denied the motion because it was his intention to impose consecutive sentences relating to the two victims in this crime and to impose those sentences consecutive to other sentences the defendant was serving or was still to serve.

We are satisfied that the judge's findings regarding aggravating and mitigating factors are amply supported by the record, that the sentence imposed was in accordance with guidelines enunciated in the Code of Criminal Justice, that the imposition of consecutive sentences pertaining to the two separate victims was appropriate and adequately explained by the judge, and that the overall sentence is not manifestly excessive or unduly punitive and does not constitute an abuse of discretion. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Ghertler, 114 N.J. 383, 393 (1989); State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986); State v. Roth, 95 N.J. 334, 363-66 (1984). Although the sentence is lengthy, our judicial conscience is not shocked.

 
Affirmed.

(continued)

(continued)

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A-1823-05T4

May 24, 2007