STATE OF NEW JERSEY v. MAURICE LEROY TURNER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1227-07T41227-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MAURICE LEROY TURNER,

Defendant-Appellant.

________________________________________________________________

 

Submitted September 21, 2009 - Decided

Before Judges Lisa, Baxter and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 04-02-122.

Law Office of James R. Murphy, attorney for appellant (James R. Murphy and Florence V. Hughes, of counsel and on the brief).

Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following a ten-day jury trial, defendant Maurice Turner was convicted of first-degree murder, N.J.S.A. 2C:11-3a(1), (2) (count one); first-degree felony murder, N.J.S.A. 2C:11-3a(3) (count two); and first-degree robbery, N.J.S.A. 2C:15-1 (count four). After merging count two with count one, Judge Delehey imposed a sentence of life imprisonment on count one, subject to the eighty-five percent parole ineligibility term required by the No Early Release Act (NERA), and imposed a concurrent twenty-year sentence, subject to NERA, on count four.

We reject defendant's claim that: portions of a detective's testimony included inadmissible hearsay; the prosecutor's summation improperly relied on facts not in evidence and usurped the function of the jury; the jury charge on theft incorporated facts not in evidence; the written outline of the elements of the offenses, which was distributed to the jury, arranged the crimes in a sequence that emphasized the most serious charges, thereby increasing the likelihood of conviction; trial counsel provided ineffective assistance by failing to move for a new trial; and the sentence imposed was excessive, especially when compared to the sentence imposed on a co-defendant who was convicted of felony murder and robbery. We affirm.

I.

In the early morning hours of May 24, 2003, a 9-1-1

dispatcher for the City of Trenton received a call describing an assault in progress. Upon arrival, police entered through the unlocked front door and observed a large blood stain on a wall in the front room and leading up the stairway. On the second floor, officers found a woman, later identified as co-defendant Karla Freeman, seated on a bed, crying and upset, covered in blood and holding a telephone. Freeman directed the officers to the rear of the residence, where they observed blood-soaked clothing on the floor and blood on the walls. In the bathroom, they found a male lying face down in a pool of blood. The male, later identified as William Goldware, was clothed only his underwear. The glass in the bedroom window was shattered and shades covered in blood were protruding through the shattered glass.

Detective Timothy Thomas testified that the bedroom was in a state of disarray, showing signs of a considerable struggle. Thomas recovered two cell phones on the floor, one of which was determined to belong to Freeman. The other was registered to one Kandis Queen, defendant's girlfriend, but was used by defendant and bore a sticker reading "Young Reese."

Observing Freeman, Thomas concluded that her depiction of an unknown intruder forcing his way into the residence did not comport with the evidence at the scene because there was no sign of forced entry and Freeman herself was covered in blood even though she claimed not to have been involved in any way in the incident. Police photographed Freeman's hands after observing two broken fingernails, dried blood on her fingers and palms and a bite mark on her back. Police processed the scene for fingerprints and took samples of blood from numerous locations throughout the house.

Three days after the murder, as part of the investigation, police stopped an Infiniti Q45 driven by Queen, who was wanted on an outstanding arrest warrant. Queen lived with defendant. In an informal statement provided to police, Queen stated she was the owner of the car, as well as the silver cell phone, which she had lent to defendant hours before the murder and which was recovered at the scene. She testified that defendant left their shared apartment at 8:00 p.m. on the night before the murder, taking the Infiniti Q45 and the silver cell phone with him, and did not return for five or six hours.

A custodian of records for Sprint-Nextel testified that on the morning of the murder, between approximately 1:30 a.m. and 2:18 a.m., eleven phone calls were exchanged between Goldware and Freeman, and five phone calls were exchanged between Freeman and the cell phone Queen loaned to defendant. The testimony from the Sprint-Nextel representative established that both defendant and Goldware were on the phone with Freeman at the same time on the morning of the murder.

In the early morning hours of May 27, 2003, police executed a search warrant for the apartment Queen and defendant shared, and located a black t-shirt in the back of the closet. Close analysis of the t-shirt showed a blood stain on the back of the shirt near the bottom hem. Later that morning, police arrested defendant and observed lacerations on his arms.

The State produced the testimony of a forensic scientist, who offered expert opinion on the blood stains recovered from defendant's t-shirt, throughout Freeman's home and from the gas pedal of the Infiniti. The expert opined that, to a reasonable degree of scientific certainty, the blood recovered from defendant's t-shirt belonged to Goldware. He also opined that the blood recovered from the gas pedal of the Infiniti driven by defendant likewise belonged to Goldware. Defendant was identified as the source of the blood recovered from the Infiniti steering wheel and dashboard, as well as the blood found on the front door, the top of the stairwell and the bathroom doorknob of the crime scene.

A deputy medical examiner testified that an external examination of Goldware's head and cheek bone showed numerous contusions consistent with a beating, as well as twenty-four stab wounds on his upper extremities, chest, back and armpit. He opined that the stab wounds, particularly to Goldware's lungs and heart, were the cause of his death.

The State did not call Freeman as a witness at trial, and consequently the taped statements she had provided to police implicating defendant were not presented to the jury. During Thomas's testimony, he was asked on cross-examination why he did not believe Goldware had been involved in a struggle in the bathroom of Freeman's home, to which Thomas replied:

[THOMAS:] I believe the struggle, most of the struggle happened in that back part of the bedroom area, because of the blood, the damage to the walls and the cell phone recovery and the ironing board.

[THE DEFENSE:] And that certainly explains why there was blood throughout the entire bathroom, is that correct?

[THOMAS:] That's where he went into. He closed the door and started bleeding, and [defendant] was trying to get in. He kept bleeding. [Defendant] was trying to get in, and that's where he lost most of his blood.

[THE DEFENSE:] That's your theory, huh?

[THOMAS:] That's the information I have, yes.

[(Emphasis added).]

Defendant did not object to the "that's-the-information-I-have"

remark.

The next day, defendant moved for a mistrial, arguing that Thomas's testimony was taken "almost verbatim" from the statements Freeman provided to police. Judge Delehey denied the motion, reasoning that because the defense asked Thomas for "his theory about what happened," defendant had essentially opened the door to the complained-of testimony. The judge also concluded there was no prejudice because the jury was unaware that Thomas's testimony conformed to one of Freeman's statements. Finally, the judge ruled that there was sufficient scientific evidence in the record to support Thomas's theory.

During cross-examination, Thomas was also asked why the drawer in the kitchen, from which the knife was presumably taken, had not been sent to the crime lab for fingerprint analysis. Thomas began his response by stating, "Because [defendant] was a frequent visitor to that house, and --." The defense then objected, cutting off the balance of Thomas's answer. At sidebar, the State withdrew the question. Once the sidebar discussion was concluded, the judge instructed the jury that "[t]he question is withdrawn," after which the State asked a different question. Defendant did not seek a curative instruction.

In summation, among other arguments, the State maintained that defendant's blood was found on the doorknob of the bathroom because defendant was injured in the struggle, and that his blood was on the doorknob because he tried to prevent Goldware from leaving. The prosecutor argued, "[a]n injured [defendant] tries to open the door or he tries to hold the door shut preventing . . . Goldware from leaving. Either way it still explains how his DNA gets on the exterior doorknob. He proceeds to finish off Goldware with Freeman in whatever form."

In the course of his closing, the prosecutor commented that he had "been living with this case for a number of years . . . . [A]nd . . . [had] been looking at these [phone] records for a long time . . . ." The prosecutor continued by explaining that a detective looked at the records, and upon first glance realized that Freeman was on her cell phone with Goldware and her landline with defendant at the same time, 2:10 a.m.

The State's closing also presented an explanation of why the t-shirt with Goldware's blood was still in defendant's closet and had not been discarded. The prosecutor stated, "[t]he reason that shirt was still in there, in [defendant]'s closet, as opposed to all the other bloody clothes that he had on that night, which I'll prove to you, is because it is a black shirt and it's[,] [the blood stain,] in a weird spot." There was no objection to any of these three comments.

Because this was apparently defendant's third trial on these same charges, the parties and the judge agreed to dispense with the charge conference, and the State and defendant consented to the judge providing the same jury instructions that the judge had provided during the second trial. The judge charged the jury on theft from the person of another, N.J.S.A. 2C:20-2b(2)(d), as a lesser-included offense of robbery. In the course of his instructions on the elements of theft, the judge specified that a person is guilty of theft if he unlawfully takes property from another with the intent to permanently deprive him of that property. The judge identified "[a] cell phone and clothing" as "fall[ing] within the definition of property." Soon after, the judge stated that "in order to find . . . defendant guilty, the [State] must prove beyond a reasonable doubt" the first element, "that . . . defendant unlawfully took movable property, a cell phone and/or clothing from . . . Goldware."

In the course of his oral instructions, the judge distributed, without any objection from defendant, an outline of the elements of the offenses in question. Before distributing the outline, however, the judge explained that he was not "highlighting" the elements of the crimes charged, and observed that all of the instructions "are of equal import . . . ." He then explained that the balance of his instructions were "easily understood by lay persons," while the elements of the crimes charged "are not so easily recalled, . . . and it is for that reason, and that reason alone" that the outline was being distributed.

The judge also explained that the charges were not arranged in the outline in numerical order, and the outline began with robbery (count four) to provide "an easier explanation of the instructions." After first-degree robbery, the outline proceeded to second-degree robbery and theft from the person as lesser-included offenses; felony murder (count two); and finished with murder (count one). The judge's charge to the jury proceeded in an order that mirrored the above sequence.

On appeal, defendant raises the following claims:

I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT OVERRULED DEFENSE OBJECTION TO HEARSAY TESTIMONY WHICH WAS TAKEN FROM STATEMENTS GIVEN BY APPELLANT'S CO-DEFENDANT AND NOT IN EVIDENCE, AND THE PROSECUTOR COMMITTED MISCONDUCT IN SUMMATION BY USING THIS SAME EVIDENCE TO CONNECT APPELLANT TO THE CRIME.

II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN OVERRULING DEFENSE OBJECTIONS TO LAW ENFORCEMENT INTERJECTING OPINION TESTIMONY BASED ON INADMISSIBLE HEARSAY AND THE PROSECUTOR COMMITTED MISCONDUCT BY USING THIS TESTIMONY AS EVIDENCE, BOTH USURPING THE FUNCTION OF THE JURY.

III. THE TRIAL COURT ERRED WHEN GIVING THE CHARGE TO THE JURY CAUSING CONFUSION WITH AN OUTLINE AND EMPHASIZING MATTERS NOT CONNECTED TO THE APPELLANT BY THE EVIDENCE.

IV. THE OMISSION BY DEFENSE COUNSEL OF A MOTION FOR A NEW TRIAL RESULTED IN INEFFECTIVE ASSISTANCE OF COUNSEL AND THIS COURT SHOULD EXERCISE ORIGINAL JURISDICTION TO DETERMINE THE ISSUE OF THE JURY VERDICT BEING AGAINST THE WEIGHT OF THE EVIDENCE.

V. THE SENTENCING OF APPELLANT WAS EXCESSIVE AND RESULTED IN "GRIEVOUS INEQUITIES" AND EXCESSIVE DISPARITY BETWEEN THE CODEFENDANTS WITH NO ACCEPTABLE JUSTIFICATION IN THE RECORD.

VI. DEFENDANT WAS DENIED A FAIR TRIAL UNDER THE STATE AND FEDERAL CONSTITUTIONS AS A RESULT OF THE CUMULATIVE EFFECT OF ALL THE ERRORS.

II.

In Point I, defendant asserts that portions of Thomas's testimony incorporated inculpatory portions of Freeman's statements, thereby presenting hearsay evidence to the jury and violating his Sixth Amendment right of confrontation. In particular, defendant maintains that Thomas's theory of the case was taken "almost verbatim from the statement of Freeman" and that the answer "that's the information I have" suggested to the jury that Thomas was relying on a statement provided by Freeman implicating defendant in the murder of Goldware. As support for his contention that Freeman's testimony caused the jury to infer that Thomas had access to additional information due to his having taken Freeman's statements, defendant points to a jury note that requested Freeman's statement, a request the jury withdrew before the judge or the parties could address it.

Hearsay is "a statement, other than one made by the declarant while testifying . . ., offered in evidence to prove the truth of the matter asserted." N.J.R.E. 801(c). Furthermore, "'[w]hen 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.'" State v. Branch, 182 N.J. 338, 349 (2005) (quoting State v. Bankston, 63 N.J. 263, 271 (1973)).

Here, neither defendant nor Thomas specified that Thomas's testimony was derived from Freeman's statements given to police. Rather, the entire exchange shows that the defense asked Thomas why he did not believe there was a struggle in the bathroom, then allowed Thomas to explain his reasoning. Thomas did so first by referring to his personal observations and then by giving his "theory of the case," as solicited by the defense, as to what happened in the bathroom, without ever referring to the statement of Freeman. The logical implication to be drawn from Thomas's testimony was that "the information" he had was based on his own physical observations of the scene. Thus, it did not run afoul of the rule announced in Branch, supra, 182 N.J. at 349, because the statement did not qualify as hearsay, and therefore did not violate defendant's Sixth Amendment right of confrontation.

While we are aware of the jury's note that referred to Freeman's statement, it would be sheer speculation to conclude that the jury asked for Freeman's statement because it believed Thomas's comment, "that's the information I have," was a reference to information he had gleaned from Freeman. Therefore, defendant's claim -- that the jury's request for Freeman's statement establishes the jury believed Thomas's testimony was based upon Freeman's hearsay statement -- is meritless.

We turn next to defendant's claim that Thomas's partial characterization of defendant as "a frequent visitor" to the crime scene was prejudicial and not supported by the evidence. Any prejudice that might have resulted from that testimony was cured when the judge told the jury the question was withdrawn. Implicitly, when the judge told the jury the question was withdrawn, he was also implicitly instructing them to disregard Thomas's partial answer. We note that in his charge to the jury, the judge instructed them that objections made by counsel had, in some instances, resulted in the exclusion of certain evidence. He reminded them that "[a]s jurors, [they] [we]re bound by the Court's rulings, and any evidence excluded by the court must not be considered by [them] in [their] deliberations." We presume that the jury followed the judge's instruction to disregard any testimony that had been stricken. State v. Burns, 192 N.J. 312, 335 (2007) (holding that "[o]ne of the foundations of our jury system is that the jury is presumed to follow the trial court's instructions"). Thus, we presume, especially in the absence of any evidence to the contrary, that the jury disregarded Thomas's "frequent visitor" remark.

The final argument defendant presents in Point I concerns the three portions of the prosecutor's summation that we have already described. Defendant asserts that those arguments exacerbated the harmful effect of Thomas's testimony, and constituted prosecutorial misconduct. As we have observed, defendant did not object to any of the three comments in the prosecutor's summation. We therefore evaluate them under the plain error standard, and will disregard any such error unless it was "clearly capable of producing an unjust result." R. 2:10-2.

"[A] prosecutor is afforded considerable leeway to make forceful arguments in summation." Prosecutors may "'strike hard blows . . . [but not] foul ones.'" State v. Echols, 199 N.J. 344, 359 (2009) (quoting State v. Wakefield, 190 N.J. 397, 436 (2007)). However, the Court has cautioned that "'the primary duty of a prosecutor is not to obtain convictions, but to see that justice is done.'" State v. Frost, 158 N.J. 76, 83 (1999) (quoting State v. Ramseur, 106 N.J. 123, 320 (1987)). It is as much a prosecutor's duty to avoid using improper methods to produce a wrongful conviction as it is to use legitimate methods to bring about a just one. Ibid. Therefore, a prosecutor should "'confine [his or her] comments to evidence revealed during the trial and reasonable inferences to be drawn from that evidence.'" State v. Bradshaw, 195 N.J. 493, 510 (2008) (quoting State v. Smith, 167 N.J. 158, 178 (2001)). "[P]rosecutorial misconduct can be a ground for reversal where the prosecutor's misconduct was so egregious that it deprived the defendant of a fair trial." Frost, supra, 158 N.J. at 83.

We now turn to the three portions of the State's summation defendant claims are instances of prosecutorial misconduct that require reversal of his conviction. We view the first portion, in which the prosecutor argued that defendant's DNA was found on the outside knob of the bathroom door because he was trying to open it to injure Goldware or attempting to hold it shut to prevent Goldware from leaving, as an entirely proper inference reasonably drawn from the State's DNA evidence.

Likewise, the second portion of the prosecutor's summation, in which the prosecutor commented that he had not drawn conclusions about Freeman's use of her cell phone and landline by himself, but had instead availed himself of a detective's expertise, was a benign argument fully supported by the cell phone record testimony that the State introduced at trial.

As to the prosecutor's comment about the blood stain on the back of defendant's t-shirt, the prosecutor's argument that the blood stain was in a "weird spot" was nothing more than a reasonable explanation of why the black t-shirt was the only item of defendant's clothing stained with Goldware's blood that police were able to find.

None of these remarks, either individually or in the aggregate, come remotely close to satisfying the Frost standard of comments "so egregious" as to "deprive[] the defendant of a fair trial" Frost, supra, 158 N.J. at 83. We thus reject all of the arguments defendant advances in Point I.

III.

In Point II, defendant asserts that Thomas "consistently interjected [opinion] comments during the course of his testimony deliberately linking [defendant] to the crime." Defendant maintains that these opinion comments qualified as inadmissible hearsay, were highly prejudicial and usurped the function of the jury. Defendant also asserts that the State's utilization of such testimony in its summation further prejudiced defendant.

Defendant points to eight such comments made by Thomas; however, defendant objected to only one. We commence our analysis there. At trial, defendant objected to Thomas's testimony on re-direct examination that although the victim's fingernail clippings were not originally tested for DNA, Thomas later submitted those clippings for evaluation upon the request of the forensic scientist at the State Police crime lab. The judge overruled defendant's hearsay objection, reasoning that Thomas's statement was not hearsay because it was not offered for its truth; rather, it was offered to explain the process in which the fingernails were submitted to the laboratory -- a process that was called into question by the defense.

The judge correctly instructed the jury to disregard any testimony as to what the scientist may have said because the scientist's statements were not "proof of any fact in the case that goes to the guilt or non[-]guilt of defendant," and the question was "only asked so that [the jury] can consider why [Thomas] acted as he did . . . ." The judge concluded that Thomas's testimony explaining the submission of evidence was not hearsay because it was not offered for truth is correct. N.J.R.E. 801(c). The judge's limiting instruction ensured that the jury did not view the scientist's purported statement in that fashion. We thus perceive no error in the judge's handling of defendant's objection.

Defendant's arguments concerning the remaining seven portions of Thomas's testimony must be evaluated under the plain error standard of Rule 2:10-2 because defendant failed to interpose an objection. There are three statements that defendant characterizes as impermissible hearsay, including Thomas's testimony that: 1) in sending evidence obtained from the scene to the State Police, "what [he and the prosecutor] were trying to do was link [defendant] to the crime scene"; 2) he had shown photographs to Queen, including one of "her boyfriend, [defendant]"; and 3) defendant had a "deep laceration" on his arm, even though Thomas's police report contained no such reference.

None of these statements qualify as hearsay because Thomas made no reference to any out-of-court statement. Instead, in each of these three sections of his testimony, he merely described events of which he had personal knowledge. As to the absence of any reference to the "deep laceration" in Thomas's police report, such absence does not convert Thomas's observation of that laceration into hearsay. This was simply a matter for defendant to develop during cross-examination. Consequently, the judge had no obligation to sua sponte exclude these three portions of Thomas's testimony.

Finally, defendant complains that the portions of Thomas's testimony, in which he reported on the State Police forensic analysis of blood stains, incorporated impermissible hearsay. He points to Thomas's testimony that defendant's t-shirt seized from his residence "came back positive with the victim's blood"; that police recovered from defendant's car "evidence connecting him to the crime"; that the gas pedal in the Infiniti "eventually was resubmitted to the lab and tested positive for the victim's blood"; and that of twenty-two items submitted for examination, "five of them directly linked defendant." We agree that each of these statements qualifies as hearsay, because each was offered for the truth of the out-of-court statements of the forensic scientist; however, the admission of such testimony was not "clearly capable of producing an unjust result," see R. 2:10-2, because the jury heard the testimony of the forensic scientist himself, who explained in considerable detail the basis for his conclusions about whose blood was found at each of the locations.

Moreover, defendant was afforded ample opportunity to cross-examine the expert about those conclusions. Under the circumstances, any hearsay testimony from Thomas in which he briefly related the scientist's conclusions had no capacity to cause an unjust result. We thus reject the arguments defendant advances concerning Thomas's brief description of the source of the blood stains.

Defendant's remaining arguments in Point II, that the prosecutor engaged in prosecutorial misconduct when he incorporated such testimony from Thomas in his closing, referred to it as evidence, and thereby usurped the function of the jury, warrants no discussion. R. 2:11-3(e)(2). Suffice it to say, the prosecutor's arguments were confined to the evidence that was fairly presented to the jury, and there was consequently no basis for the judge to have sua sponte directed the jury to disregard those portions of the prosecutor's summation.

IV.

Defendant asserts in Point III that the judge's

charge to the jury on theft from the person, as a lesser-included offense of robbery, created reversible error because the judge emphasized Goldware's missing cell phone and pants, even though no evidence connected defendant to these items. Defendant also maintains that the outline of the elements of the charged offenses that the judge provided to the jury was confusing, suggestive and caused an unjust result by focusing the jury's attention on the most serious offenses, which were charged last. Defendant does not point to any error pertaining to the elements of the offenses charged, nor does he point to any error in the content of the outline.

Instead, he maintains that: 1) the timing of the outline's distribution caused the "jury's attention" to be "focused on it and more than likely the outline took on more importance than it should have"; 2) the outline's sequential order of the offenses "was confusing at best, all but suggesting to the jury that they should begin with the robbery count and then proceed to the other counts from there"; and 3) the order in which the charges were read, which mirrored the presentation of the offenses in the outline, left the "jury with the most serious of the offenses in their mind."

As we have already observed, before distributing the outline, the judge explained that he was not "highlighting" the elements of the crimes charged, noting that all of the instructions "are of equal import . . . ." He also explained that the outline presented the offenses in a different sequence than they were set forth in the indictment, "because it makes for an easier explanation of the instructions."

"Appropriate and proper charges to a jury are essential for a fair trial." State v. Green, 86 N.J. 281, 287 (1981). "The trial court must give a clear explanation of the applicable law to provide the jury with an adequate understanding of the relevant legal principles." State v. Hackett, 166 N.J. 66, 85 (2001). Model jury charges are often helpful to trial judges in performing the important function of charging a jury. State v. Concepcion, 111 N.J. 373, 379 (1988).

However, courts have the "independent duty" of ensuring that "jurors receive accurate instructions on the law as it pertains to the facts and issues of each case, irrespective of the particular language suggested by either party." State v. Reddish, 181 N.J. 553, 613 (2004). Furthermore, the charge should be examined in its entirety to determine the overall effect of the charge. State v. Delibero, 149 N.J. 90, 106-07 (1997). "[I]f on reading the charge as a whole, 'prejudicial error does not appear, then the verdict must stand.'" Ramseur, supra, 106 N.J. at 280 (quoting State v. Council, 49 N.J. 341, 342 (1967)).

When a defendant fails to object to the charge, there is a presumption that the charge was not error and was unlikely to prejudice his case. State v. Macon, 57 N.J. 325, 333-34 (1971). Accordingly, as defendant failed to object to the charge or the outline, the plain error standard applies and we will disregard any error unless it is clearly capable of producing an unjust result. R. 2:10-2.

We turn to defendant's claim that the reference to Goldware's pants and cell phone, in the jury charge on theft from the person, injected prejudicial material that was not grounded in the proofs at trial and thereby denied him a fair trial. As the State correctly observes, the judge's itemization of the property that was stolen is consistent with the model charge in effect at the time of trial, Model Jury Charge (Criminal), "Theft of Movable Property (N.J.S.A. 2C:20-3a)," at 2 (2003), which directs the judge to specify the property alleged in the indictment to have been taken. In this case, theft was not charged in the indictment; however, because theft from the person of another was presented as a lesser-included offense of robbery, the judge did not err by including a description of the items that were allegedly stolen. Because Goldware's cell phone and pants were never recovered, it was not unreasonable for the judge to specify those items as the property that had been stolen. Such a reference, however, had no capacity to interfere with the jury's evaluation of the quantum and worth of the State's proofs. Therefore, the judge did not err in identifying those items.

Defendant's second assertion is also meritless. The judge's explanation of the outline belies defendant's claim that the outline created confusion or placed undue emphasis on the charge of murder. The outline itself was straightforward, clear and accurate, and the jury is presumed to have understood it. State v. Davis, 390 N.J. Super. 573, 598 (App. Div.), certif. denied, 192 N.J. 599 (2007). Moreover, defendant has presented no authority to support the proposition that a judge is obliged to start with the most serious offense, rather than the least serious. Stated differently, defendant has presented nothing to support the proposition that ending the jury charge with an instruction on murder caused the jury to be more likely to return a verdict of guilty.

A judge's sole obligation is to deliver "accurate instructions on the law as it pertains to the facts and issues" of the case at hand. Reddish, supra, 181 N.J. at 613. That responsibility does not obligate a judge to use the precise words, or here, the precise sequence, demanded by one party or the other. Ibid. We thus reject as meritless each of the claims defendant advances in Point III.

V.

Relying on "the improper admission of the hearsay and opinion testimony of the [S]tate's witness" and the prosecutor's comments in summation, defendant argues in Point IV that trial counsel provided ineffective assistance of counsel when he failed to move for a new trial. Because such omission amounted to what defendant characterizes as a miscarriage of justice, defendant asks us to disregard Rule 2:10-1 and exercise original jurisdiction to resolve this matter. Pursuant to Rule 2:10-1, "the issue of whether a jury verdict was against the weight of the evidence shall not be cognizable on appeal unless a motion for a new trial on that ground was made in the trial court." As no such motion was made by trial counsel, defendant is procedurally barred from arguing on appeal that the verdict was against the weight of the evidence.

Rather than defer defendant's ineffective assistance of counsel claim to the post-conviction relief process, see State v. Preciose, 129 N.J. 451 (1992), we exercise our discretion to consider this claim now. To demonstrate ineffective assistance of counsel, defendant must show that counsel's performance was deficient and that this deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984).

Defendant cannot meet this burden because he has not satisfied either of the Strickland prongs. In light of the presumption that counsel acted reasonably and the strength of the State's evidence, defendant has not shown that counsel's performance was in any way deficient, or, even if deficient, that such deficiency prejudiced him. In particular, the State's proofs established that: defendant's blood was found at the scene, and defendant had fresh injuries and scratches that would explain the presence of his blood; a cell phone used by defendant was recovered at the scene; telephone records matched calls from that cell phone to Freeman shortly before Goldware was murdered; and Goldware's blood was found not only on defendant's t-shirt but also on the gas pedal of the car defendant was driving. We agree with the trial judge's conclusion that there was "overwhelming evidence" of defendant's participation in the crime.

Moreover, as we have discussed, the portions of the trial to which defendant points as reversible error were not error, much less reversible error. Consequently, when the overwhelming proof of defendant's guilt is considered in light of this record, we conclude that there would have been no legitimate basis upon which trial counsel could have sought a new trial. Thus, his failure to do so does not constitute ineffective assistance. There can be no more telling resolution of this issue than the trial judge's comment at sentencing that had such motion been filed, "the court would deny that motion." We thus reject the ineffective assistance of counsel claim defendant has advanced in Point IV.

VI.

We turn next to the most nettlesome claim defendant has asserted, namely that his sentence is unacceptably and impermissibly disproportionate to that imposed on Freeman, who, like defendant, was found guilty by a jury of the slaying of Goldware. We begin our analysis by observing that Freeman's judgment of conviction shows that the judge sentenced Freeman on the charge of felony murder to a thirty-year term of imprisonment subject to a thirty-year period of parole disqualification. The judge merged her robbery conviction with the sentence for felony murder. Because the record does not also include a copy of the pre-sentence investigation prepared for Freeman's sentencing, see R. 3:21-2(a), our recitation of Freeman's prior record is drawn only from the parties' briefs and the judge's description.

At defendant's sentencing, Judge Delehey, who also presided over Freeman's trial and sentenced her, described Freeman's aggravating factors as "considerably different" from defendant's, noting that Freeman had "one juvenile arrest," whereas defendant had "five juvenile adjudications." The judge also commented that Freeman had "about three adult arrests," whereas defendant had "twenty-two." According to the judge, Freeman had "one municipal-court conviction; this defendant, four." After observing that both defendants participated in the commission of the crime and both were "equally guilty," the judge concluded nonetheless that "there is a difference between them, and for that reason the court has imposed the term of life imprisonment [on defendant]." We note, in this regard, that defendant was convicted of knowing or purposeful murder, indicating a higher level of culpability than Freeman, who was convicted of only felony murder. See N.J.S.A. 2C:11-3a(1), (2), and N.J.S.A. 2C:11-3a(3).

Although the judge did not say so expressly, we infer from his reference to Freeman's lone municipal court conviction that she had never been convicted on any indictable charges. The State, however, observes that Freeman had three adult arrests, which resulted in "two municipal convictions and one upper court conviction for theft." Thus, we are left with an unresolved discrepancy between the judge's apparent statement that Freeman had no indictable convictions and the State's contention that she had one, for theft. Because the State is the party opposing defendant's disparate sentencing argument, we are prepared to accept the State's claim that Freeman did have one indictable conviction. Such an analysis of Freeman's record actually favors defendant, because it narrows the difference between Freeman's prior record and his.

That being so, defendant had one indictable conviction for distribution of a controlled dangerous substance within a school zone, N.J.S.A. 2C:35-7, compared to Freeman's indictable conviction for third-degree theft, which is clearly a markedly less serious offense. Freeman had no juvenile adjudications of delinquency, whereas defendant was adjudicated delinquent for criminal sexual contact in May 1996, failure to make required disposition of property received in April 1998, and distribution of a controlled dangerous substance (CDS) on two different occasions in August 1999.

At the municipal court level, defendant has three convictions, two of which are for "obstruction of streets and sidewalks," which we interpret as a municipal ordinance violation because there is no citation to the Criminal Code, but instead merely the numbers 3-10. Defendant has one municipal court conviction for failure to turn over CDS to police, N.J.S.A. 2C:35-10c. Thus, in the absence of any detail concerning the content of Freeman's municipal court record, we are inclined to conclude that Freeman's and defendant's municipal court record are virtually identical.

The judge also relied on defendant's record of twenty-two adult arrests, compared to only three for Freeman. Although only five of defendant's adult arrests have resulted in convictions, we do not ignore, nor was the judge required to ignore, the remaining seventeen. A sentencing judge is entitled to consider a defendant's record of adult arrests that did not result in conviction. State v. Green, 62 N.J. 547, 571 (1973). Although such an arrest may not be considered the equivalent of a finding of guilt, ibid., an arrest may be considered if it bears some relevance to the character of the sentence. As the Court observed in Green:

[A]n arrest could be relevant for several reasons. One is that it may lead to factual material which the defendant does not contest and which may bear upon the character of the sentence. For example, the arrest may relate to an offense the defendant does not dispute, which offense was disposed of without further action as part of a plea bargain involving other offenses. Again, the sentencing judge might find it significant that a defendant who experienced an unwarranted arrest was not deterred by the fact from committing a crime thereafter. There may be still other reasons depending upon the total circumstances which could warrant at least consideration of the fact of an arrest. We need not try to anticipate all situations. The important limitation of course is that the sentencing judge shall not infer guilt as to any underlying charge with respect to

which the defendant does not admit his guilt.

[Ibid.]

In light of Green, we have no quarrel with Judge Delehey's reliance on defendant's record of twenty-two arrests as a basis for differentiating defendant's overall character from that of Freeman.

In sentencing defendant, the judge found two aggravating factors: the risk that defendant would commit future offenses, N.J.S.A. 2C:44-1a(3), and the need to deter defendant from violating the law, N.J.S.A. 2C:44-1a(9). The judge found no mitigating factors. Analyzing the nature of the crime and defendant's record from a qualitative perspective, the judge concluded that "the aggravating factors clearly and substantially outweigh the [non-existent] mitigating factors," and also determined that defendant "exhibits all of the characteristics of a sociopath."

It is well-settled that the sentence of one defendant, which is not otherwise excessive, is not erroneous merely because a co-defendant received a more lenient sentence. State v. Roach, 146 N.J. 208, 232-33 (1996). Roach establishes that the dispositive issue is whether the disparity is justifiable or unjustifiable. The judge must determine whether a co-defendant is "identical or substantially similar to the defendant regarding all relevant sentencing criteria"; if so, then the co-defendant's sentence deserves "substantive weight" in order to avoid excessive disparity. Id. at 233. Furthermore, the judge must also "inquire into the basis of the sentences imposed on the other defendant," and should further consider "the length, terms, and conditions of the sentence imposed on the co-defendant." Ibid.

Although resolution of the disparate-sentencing issue is indeed a close call, on balance, we conclude that there is no basis for disturbing the sentence Judge Delehey imposed upon defendant. The record supports his conclusion that defendant deserved a longer sentence than Freeman did, not only because his one adult indictable conviction was for a far more serious crime than Freeman's conviction for theft, but also because defendant's juvenile record is substantial, where Freeman's was non-existent, and defendant had a total of twenty-two adult arrests, compared to Freeman's three.

In keeping with the requirement the Court imposed in Green, supra, 62 N.J. at 571, Judge Delehey explained why defendant's record of arrests that did not result in convictions was nonetheless relevant for sentencing purposes. Judge Delehey observed that, for example, charges of failing to register as a sex offender "are regularly dismissed when somebody then registers." The judge also reasoned that defendant's extensive arrest record demonstrates that he "has no regard whatsoever for the law." These factors, which are manifestly evident in defendant's record, are entirely absent from Freeman's.

When defendant's lengthy arrest record is combined with his substantial juvenile record and his adult conviction on the N.J.S.A. 2C:35-7 charge, the disparate treatment of defendant and Freeman is justifiable. The two defendants are not the same and thus defendant was not entitled to the same sentence that was imposed on Freeman. Roach, supra, 146 N.J. at 232-33.

In reaching that conclusion, we remain mindful that the "real time" difference in the two sentences is substantial: defendant will be required to serve more than sixty-three years before becoming eligible for parole as compared to thirty years for Freeman. However, on balance, we are unable to conclude that the disparate treatment of the two defendants represents a misapplication of the judge's broad sentencing discretion afforded to trial judges by State v. Roth, 95 N.J. 334, 365 (1984).

That conclusion is strengthened by our understanding of the very limited scope of our review of the sentence imposed by a trial judge. "[N]otwithstanding any perceived harshness in the sentence imposed," State v. Cassady, 198 N.J. 165, 181 (2009), so long as the judge's findings on the existence of the aggravating and mitigating factors is supported by the record, we must affirm the sentence unless it "'shocks the judicial conscience.'" Ibid. (quoting Roth, supra, 95 N.J. at 365). "[W]hen reviewing a trial court's sentencing decision, an appellate court may not substitute its judgment for that of the trial court." Id. at 180 (quoting State v. Evers, 175 N.J. 355, 386 (2003)). We decline to do so.

 
Affirmed.

Prior to jury deliberations, three counts were dismissed: first-degree robbery, count three; third-degree possession of a weapon for an unlawful purpose, count five; and fourth-degree unlawful possession of a weapon, count six.

N.J.S.A. 2C:43-7.2.

Although there is no record support for this statement, defendant includes in his brief an observation that his first two trials ended in mistrials, the first because of a Bruton problem, Bruton v. U.S., 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968), when a witness testified to Freeman's statement implicating him, and the second as a result of a deadlocked jury.

See Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694.

We do not foreclose defendant's right to advance other ineffective assistance of counsel claims in any future post-conviction relief proceeding.

This contention comports with the statement of reasons included in Freeman's judgment of conviction, which is in the record before us.

Among those seventeen dismissals were indictable charges of distribution of CDS within a school zone in June 1999, failure to register as a sex offender and drug distribution within 500 feet of a public housing facility in July 1999, distribution of CDS in November 1999, receiving stolen property in November 2000, distribution of CDS within 500 feet of a public housing facility in July 2001, possession of a handgun for an unlawful purpose in March 2001, receiving stolen property and joyriding in June 2002, failure to register as a sex offender in October 2002 and failure to register as a sex offender in June 2003.

(continued)

(continued)

35

A-1227-07T4

October 13, 2009