STATE OF NEW JERSEY v. ROBERT RAYMOND CARMAN, JR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2434-07-T42434-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROBERT RAYMOND CARMAN, JR.,

Defendant-Appellant.

__________________________________________

 

Submitted October 28, 2009 - Decided

Before Judges Graves and Lyons.

On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 03-11-0727.

Yvonne Smith Segars, Public Defender, attorney for appellant (Karen E. Truncale, Assistant Deputy Public Defender, of counsel and on the brief).

Anne Milgram, Attorney General of New Jersey, attorney for respondent (Jeanne Screen, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Robert Raymond Carman, Jr., appeals his judgment of conviction for first-degree murder, contrary to N.J.S.A.

2C:11-3. After a careful review of the record and the briefs submitted by counsel, we affirm. The following factual and procedural history is relevant to our consideration of the issues advanced by defendant on appeal.

A.

The events leading up to the victim's death began on Saturday afternoon, October 11, 2003. The victim, twenty-three year old J.B., resided with her mother and her two adult sisters in Manville. J.B. first left the house that afternoon with her sister. She was wearing "black stretchy flare pants, a maroon button-down blouse, [and] white sneakers." She also carried a grey hooded sweatshirt from the GAP with her.

J.B.'s sister had to stop at a friend's house and agreed to give J.B. a lift up to that point. Upon arrival at the house, J.B.'s sister went inside and J.B. continued on her way on foot. She did not tell her sister where she was going.

At approximately 2:00 p.m., J.B. entered Pourman's Pub in Manville, where she saw Leonard Fortuna, age forty-three, defendant's half-brother. She and Fortuna ate and drank a few beers together and then went to another bar in Bound Brook with a few of Fortuna's friends. At approximately 4:30 p.m., after drinking and shooting pool in Bound Brook, the group decided to buy a six-pack of beer and go down to the local river so they could go "four wheeling" with their trucks. Fortuna and J.B. first went to his apartment so Fortuna could shower. While there, J.B. asked to borrow twenty dollars and Fortuna gave her the money. J.B. said the money was to pay her phone bill.

When they left the apartment, Fortuna went to his bank to withdraw money and then stopped at a liquor store to get the six-pack of beer. Fortuna testified that J.B. did not accompany him but went off to meet her drug dealer, who lived near the liquor store. The record does not indicate whether J.B. acquired any drugs from this meeting. The two met again after running their errands and Fortuna drove them to the river to join his group of friends. Matthew Covert and Robert Schwoerer, witnesses for the defense, both testified that approximately fifteen people were by the river that evening, "hanging out," "drinking," and "smoking a little weed." They both testified that they saw J.B. and Fortuna there and stated that J.B. was smoking crack. Covert observed that she appeared "shaky" and paranoid.

At around midnight, the group by the river had run low on beer, so J.B. and Fortuna, as well as one of Fortuna's friends, decided to return to Pourman's Pub. J.B.'s sister, J.B.'s childhood friend, Heather Erhard, and defendant, who was "Erhard's ex-boyfriend at the time" were also at the bar together. Defendant is six feet and four inches tall and weighed approximately 190 pounds at the time. J.B. went over to join her sister, Erhard and defendant while Fortuna remained at the front of the bar socializing. While sitting together, defendant grabbed J.B. and her sister's breasts in an apparent joking manner. Both women told him to stop and he complied.

After approximately an hour-and-a-half, Erhard "lost track" of J.B. and could not find her. She asked defendant where J.B. had gone. He responded that he gave J.B. $25 to buy him some crack cocaine and she had gone to see Douglas Stevens, a local drug dealer. Erhard remained at the bar until closing time at approximately 1:30 a.m., then left with J.B.'s sister. Erhard decided to walk to Stevens's house in order to find J.B. and asked Fortuna and defendant to meet her there in Fortuna's truck so they could all ride back to the river together. J.B.'s sister walked with Erhard part of the way but wanted to go home, so she did not follow when Erhard "broke off to the left" to go to Stevens's house.

Erhard walked into Stevens's house and proceeded to the second floor, where she found J.B. sitting in a room with Stevens and a few other people she did not know. She noticed $25, which she presumed was defendant's, laying on Stevens's table. Stevens was "cooking" crack, and Erhard asked if the drugs were "ready." J.B. replied that they were not, so Erhard went outside to wait for Fortuna and defendant to arrive. Upon their arrival moments later, Erhard relayed to defendant that he would have to wait for the drugs and then asked him if he simply wanted to get his $25 back and leave. Defendant told her that he did, so Erhard went back upstairs and took the money off the table and began to exit. Stevens became angry when he learned that the drugs were not for J.B. but for people he did not know, so he refused to give J.B. any drugs.

Erhard left the house and gave defendant his money back. J.B. followed her outside, moments later. Both J.B. and defendant were upset that the drug deal had fallen through. Erhard stated that she no longer wanted to go down to the river because she had work the next day, and she asked Fortuna to give her a ride home. She got into Fortuna's car, and they drove away, while J.B. and defendant walked away together.

Stevens testified that at some point later that evening, possibly at around 2:00 a.m., J.B. returned to his house alone, hoping to make a drug purchase. He turned her away again, and she left without an incident.

Eric Hallenbake, a bartender at Pourman's Pub, testified that he closed the bar on the evening of October 12, 2003, and as he was driving home with a co-worker, he saw J.B. and defendant together on the street near a pay phone. It was approximately 2:45 a.m.

J.B.'s sister testified that she knew J.B. returned home at approximately 3:30 a.m. that night because she saw J.B.'s bedroom light was on and heard her in there. J.B. apparently stopped home to change because the maroon blouse and black pants she had worn earlier that day were in the room, but her favorite bright pink pants and the GAP sweatshirt were missing.

Surveillance recordings from a Dunkin' Donuts located on Main Street in Manville from the night of October 12 show J.B. and a man believed to be defendant in the parking lot from 4:11 a.m. to 4:14 a.m. J.B. was wearing the GAP sweatshirt and her pink pants.

Russell Hash, a night manager at the Quick Chek on Main Street in Manville testified that J.B. and a male companion he did not know came to the store at around 3:30 a.m. He stated that he knew J.B. from school and spoke to her outside of the store while the man went inside. J.B. and the unknown individual left together, but Hash testified that J.B. returned by herself at approximately 4:30 a.m. to make a phone call. Paul Huscha, who was also working at the Quick Chek that night, testified that J.B. came into the store at approximately 4:30 a.m. and asked him for change so she could make a phone call. He testified that she was alone.

At around that same time, between 4:00 a.m. and 5:00 a.m., Humberto Grisales, a newspaper deliveryman who knew J.B., saw her at the phone booth. Grisales testified that he had a brief conversation with J.B. and noticed that she was accompanied by a man he had seen before but did not personally know. He stated that this individual was approximately five feet and five inches tall, but he admitted that it was difficult to tell because the man was sitting down at the time. Grisales further stated that he was "not very good" at identifying and remembering people.

Ar-Rasheed Brisko, a drug dealer residing in Plainfield, knew J.B. through Douglas Stevens. He testified that J.B. had called him numerous times that day in an attempt to purchase cocaine. Brisko said that he received his last phone call from J.B. at approximately 4:30 a.m., when he emphatically refused to sell her drugs because he did not want to risk being arrested while he transported cocaine from Plainfield to Manville.

Richard Presser, a resident of Manville, who lived near the river along the train tracks, also testified for the defense. He stated that he could often hear people congregating near the river in the woods to drink alcohol and in the early morning of October 12, 2003, he heard "three sets of voices [arguing] . . . . Two seemed to be female, one was a male." Presser distinctly heard a female voice say "You can't do that." The argument lasted between five and ten minutes. Presser eventually got up to investigate but he did not see anyone when he went down to the railroad tracks.

Just before daybreak on the morning of October 12, 2003, the engineer of a freight train traveling through Manville noticed what he thought was a body on tracks. He applied the full service brakes, but, nonetheless, the train struck the individual who was later identified as J.B. At approximately 6:30 a.m., the Manville Police Department received a call from the railroad's dispatch reporting that a pedestrian had been struck by a train.

Upon investigation, the police found J.B.'s lower torso, which had been severed at the waist. The lower portion of the body was nude except for a blue sock on the right foot. The matching sock was found fifteen to twenty feet away. The police found J.B.'s pink pants, turned inside out, about five feet away from the lower portion of the body. The upper portion of J.B.'s torso was underneath the train. The torso was missing its right forearm, which the police found a few feet away. The middle finger of the right hand was missing.

The police also found a cell phone, which they later identified as J.B.'s, on the ground near the tracks. There was a trail of blood from the cell phone's location to J.B.'s body under the train. The police also found a beam of wood, approximately the size of a four-by-four, near the tracks. It was stained with blood. Subsequent analysis revealed that the blood was J.B.'s.

Between 6:00 a.m. and 8:00 a.m., Patrick Williams, a resident of Manville and an acquaintance of defendant, was driving through town when he saw a water main break on a road near the location of J.B.'s body on the railroad tracks. Williams observed that there were several police vehicles parked outside a recreation building down the road. The police had assembled there to investigate J.B.'s death. Williams drove in that direction in order to inform the officers about the water main break. As he approached, one of the officers asked him to stay clear of the area because a body had been found by the railroad tracks. Williams told the officer about the water main break and drove away.

Williams passed defendant, who was walking down the street, and defendant flagged him down. Williams observed that defendant was wearing "jeans and a dark shirt, and . . . some type of work boot." He did not observe any blood on defendant's clothing. Defendant asked Williams what was "going on down on the railroad tracks" and Williams responded that he did not know. Williams thought defendant's inquiry was very "odd" because "there is no way you can see what's going on on the railroad tracks" from where defendant was standing. Williams explained that there were "two blocks, houses, tons of vegetations on both sides of the bridge, and then maybe a thirty-foot incline down to the railroad tracks themselves" from defendant's vantage point. Williams then drove back to the recreation center and told the police what defendant had just asked him.

Later that day, at approximately 8:05 p.m., the police sought a search warrant for defendant's home and person from Judge Rosemarie R. Williams. In the warrant application, the police stated that J.B. was last seen with defendant and also noted that defendant had "pestered" J.B. and her sister at Pourman's Pub by "rubbing their breasts . . . repeatedly notwithstanding their protests." The warrant application stated that defendant was a registered sex offender in Bridgewater Township and had been found guilty of aggravated assault and criminal sexual contact. Judge Williams granted the search warrant and allowed the police to search defendant's person and property for "any visibly bloody clothing . . . as well as any towels or rags upon which blood may be detected." The warrant also allowed the police to photograph defendant for any signs of "recent/fresh injur[ies]" and to take fingernail scrapings.

The police executed the warrant at approximately 9:30 p.m. Police examined and photographed defendant's body and observed that his skin was a bright pink and that he had recent abrasions on his upper back, chest, and stomach. The police also confiscated defendant's work boots, which had blood on the soles. Subsequent testing revealed that the blood was J.B.'s.

An autopsy performed on J.B.'s body on October 13, 2003, revealed that the manner of death was homicide and that the cause of death was multiple blunt traumatic injuries, dismemberment and traumatic amputation. J.B.'s lower jaw was fractured, and there were tears inside her lip and mouth. Her nose and left cheekbone were also broken. There were abrasions, scrapes and lacerations on her face.

The injuries to J.B.'s face and neck were inflicted pre-mortem, while the victim was still alive, and were consistent with being struck and beaten with a wooden board. Some of the injuries, such as a large skull fracture, may have been caused by being struck by the train. There were abrasions and bruising on J.B.'s arms and knuckles, consistent with defensive wounds. There were no definite post-mortem injuries. Toxicology testing revealed cocaine in J.B.'s system.

On October 21, 2003, the police sought and were granted another search warrant "for the premises and person" of the defendant from Judge Edward M. Coleman. This warrant allowed the police to search defendant's home for clothing that defendant and J.B. wore the night of her death. Judge Coleman also executed an arrest warrant for defendant for J.B.'s murder. Defendant was arrested later that day.

On November 19, 2003, a Somerset County Grand Jury returned Indictment No. 03-11-00727-I, charging defendant with murder, contrary to N.J.S.A. 2C:11-3 (count one).

On September 22, 2004, defendant filed a motion seeking the suppression of evidence obtained as a result of two searches conducted on October 12 and 21, 2003, pursuant to search warrants. Defendant argued that the October 12, 2003, warrant was not supported by probable cause and, without the evidence illegally obtained pursuant to that warrant, there was no basis for issuing the October 21, 2003, warrant. Specifically, defendant argued that the police mischaracterized his "groping" of J.B. and her sister at Pourman's Pub. He contended that he was innocently teasing them and that he immediately stopped when asked, whereas the police made it appear that he was harassing the women. Defendant also argued that the warrant was issued based on the fact that he was the last person seen with J.B. before her death, when in fact the defense's witnesses, Hash and Grisales, saw J.B. with a man that did not fit defendant's description between 4:00 a.m. and 5:00 a.m.

Judge Paul W. Armstrong heard and denied defendant's motion on May 5, 2005. He found:

that the affidavit [supporting the application for the warrant] contained information sufficient to indicate that the defendant was in fact implicated in the death of the victim in this case. The affidavit contained information indicating that hours before the victim's death the defendant had groped the victim despite her assertion to stop.

The affidavit contained information that the defendant has a history of sexual assault against women.

The affidavit also contained information that the defendant was seen walking in the direction of the railroad tracks with the victim, and that the defendant was the last person known to be seen with the victim before her death.

There was also information that the victim was assaulted prior to her death, and therefore it was not a suicide.

Defendant was tried by jury over the course of nine days before Judge Robert B. Reed, beginning on June 11, 2007.

At trial, the testimony of Eric Swofford was that in 2006, while defendant was being held in State Prison on unrelated charges, he befriended Swofford, a fellow inmate. Swofford testified that defendant told him he had murdered J.B. by beating her to death with a two-by-four. According to Swofford, defendant felt "his life was going downhill" because he had broken up with his girlfriend and "he snapped and went off on [J.B.]." Swofford stated that defendant "giggled" when he told him that J.B. had begged for her life and called out for her mother. After he had beaten her, defendant dragged her body onto the train tracks and "watched" as the train hit her. Defendant told Swofford he then "got rid of" his clothes but forgot to dispose of his boots. According to Swofford, defendant also confided in him that he had often thought that if he ever killed anyone, he would lay the body on train tracks to make it appear to be a suicide.

Swofford also testified that defendant had attempted to delay his trial by faking a back injury so that witnesses would be unable to remember the events leading up to J.B.'s death. Defendant attempted to rebut this testimony by presenting the testimony of Dr. Anthony Chiuco, who performed a "lumbar laminectomy" on defendant in February 2007 in order to treat defendant's chronic back pain.

On the second day of the trial, during the direct examination of a detective who was at the scene of J.B.'s murder, the prosecutor sought to admit five photographs the detective had taken at the crime scene. These photographs depicted J.B.'s severed body on the railroad tracks and were identified as S-7, S-8, S-9, S-10, and S-11. None of the photographs showed "the open body and all the internal organs."

Defense counsel consented to four of the photographs being admitted, stating "I understand the probative value." However, defense counsel objected to photograph S-11, which appeared to show "hair and massive human body." The court overruled that objection, finding that the photo "assist[ed] in explaining and expanding upon the witness's testimony." The prosecutor then resumed questioning the detective, having him describe what the photographs displayed while they were projected on a video screen.

On June 19, 2007, during the direct examination of the medical examiner, the prosecutor again sought to admit five photographs, this time of the autopsy. These photographs, labeled as S-61, S-62, S-63, S-64 and S-65, depicted J.B.'s head and neck and demonstrated that her injuries were inflicted prior to her death. Defense counsel objected to the admission of the photographs into evidence. He argued that the pictures were "gruesome" and not probative because whether J.B. died before being hit by the train or after was not relevant to the case.

The trial judge questioned the medical examiner during a N.J.R.E. 104 hearing to determine the relevance of the photographs. The medical examiner testified that the injuries indicated J.B. was injured while still alive and further indicated that she had been beaten with an "irregular edged blunt object" such as a board.

Judge Reed determined that the photographs were relevant because they had a "tendency to prove or disprove any fact of consequence to the determination of the action." In other words, the photographs were probative "as to the issue of whether the defendant caused her death or caused serious bodily injury and that bodily injury consequently resulted in a death." With regard to the prejudicial impact the photographs would have on defendant, the judge acknowledged that the pictures were "gruesome." However, the probative value was not outweighed by the prejudice considering the jury's need to determine if defendant meant to kill J.B. The judge, therefore, admitted the photographs with a cautionary instruction to the jury, explaining that the fact J.B. "died in a horrific and gruesome manner does not mean that she did so at the hands of Mr. Carman."

On June 20, 2007, Juror Number 6 informed the court that Juror Number 13 was keeping a scrapbook of the newspaper clippings about the case and had discussed that scrapbook with the other jurors. Juror Number 6 stated that Juror Number 13 "always talked about the case," even when others tried to change the subject. Specifically, she informed the court that the previous day, when a group of jurors were talking together, Juror Number 13 divulged information she had learned about the case and that, when questioned, Juror Number 13 admitted that she read the newspapers. According to Juror Number 6, Juror Number 13 then stated that she knew someone on the jury was a lawyer because she learned about it from a newspaper article. Juror Number 6 told the court that she excused herself from the conversation with Juror Number 13 immediately, informing her that she couldn't "listen to anymore of this." Juror Number 6 also informed the court that she had discussed the matter with Juror Number 3 before coming to the judge with this information.

Judge Reed then interviewed the jurors individually, beginning with Juror Number 13. The judge asked Juror Number 13 if she read recent newspaper articles about the trial and if she kept a scrapbook. The juror stated that she had made a joke about keeping a scrapbook because this was her first time on a jury, but she indicated that she only read New York-based papers. She did, however, admit to reading one article about the trial in the Courier News, where she learned that one of the other jurors was a patent attorney. Juror Number 13 further admitted to discussing this article with other jury members. She also informed the judge that everyone on the jury had discussed "little things" about the case, such as the fact that photographs of J.B.'s body were introduced into evidence.

The court examined Juror Number 14 next. Juror Number 14 admitted that she had heard Juror Number 13 comment that there was a brief delay in the trial testimony the previous day because Swofford had to be brought from jail. Juror Number 13 also seemed to know in advance who the prosecution was going to call as a witness, though Juror Number 14 testified that Juror Number 13 had never expressed an opinion as to defendant's guilt or innocence. The juror testified that she remained unbiased despite Juror Number 13's comments.

The court called Juror Number 12 next. That juror informed that court that she had given Juror Number 13 a ride home the previous evening and that Juror Number 13 had mentioned an article concerning the trial in the Courier News, however, the juror stated that Juror Number 13 did not discuss the substance of the article. When asked, Juror Number 12 testified that she could continue to be fair and impartial.

Juror Number 11 was questioned next. She stated that she heard Juror Number 13 say she wanted to make a scrapbook of the newspaper articles concerning the trial, but she interpreted Juror Number 13 to mean after the trial had ended. The juror indicated that she could act in a fair and impartial manner.

When interviewed, Juror Number 3 confirmed that Juror Number 6 initially spoke with her about Juror Number 13 before coming to the trial judge. She advised the court that after having that conversation, she called a friend of hers who is an attorney and asked her if it was necessary that the court be informed about Juror Number 13's behavior. Her friend informed Juror Number 3 that the court should be notified. Juror Number 3 stated that she was still able to carry out her duties in an impartial and unbiased manner.

Juror Numbers 1, 2, 4, 5, 7, 8, and 9 were likewise questioned about Juror Number 13's behavior and were asked whether they had been exposed to outside information concerning the trial. All testified that they were not aware of Juror Number 13's statements and they were still impartial and unbiased.

At the close of the interviews, Judge Reed asked the attorneys what they would "like [him] to do with Juror Number 13." Defense counsel and the prosecutor both asked that she be dismissed, and Judge Reed agreed. Defense counsel did not request that any other juror be dismissed, nor did he move for a mistrial.

On June 22, 2007, the jury found defendant guilty as charged.

On July 27, 2007, after the jury had rendered its verdict but prior to sentencing, defendant sent his attorney a letter and informed him that Judge Reed, who presided over the trial, had represented him at an administrative proceeding before a State Parole Board in February 1999. Defendant stated that his former fiancée remembered the judge's name because she was the one who retained him at the time, and she asked defendant why Judge Reed had not recused himself. He claimed he immediately informed his counsel, who promptly sent a letter to the court and the prosecutor informing them of the situation and promising to give the court additional information as it became available. Judge Reed independently verified with his former law firm that defendant's assertion was correct.

When the parties appeared before Judge Reed for sentencing on August 13, 2007, the judge "made it clear" that he would not consider defendant's counsel's letter to the court as a substantive motion for a mistrial. In response, defendant requested that "sentencing be postponed so [he] could file a motion a) for a mistrial and b) to have Your Honor removed as the sentencing judge." Judge Reed responded that he did not remember representing defendant in his "31 years of private practice" and so "any potential impact such knowledge would have had on Mr. Carman's right to receive a fair trial was non-existent, since without knowing it, without recalling it, it could not have interfered in . . . my presiding at this trial

. . . ." The judge further found that:

for me to recuse myself from sentencing Mr. Carman, after having presided at the trial, getting a feel for the case, having the certitude in my own mind that my brief representation of Mr. Carman . . . almost 10 years ago, does not, has not . . . and for today's proceeding, will not affect or interfere with either my ability or my resolve to give Mr. Carman a fair hearing.

Judge Reed also expressed his suspicion that:

Mr. Carman [knew of the prior representation] and failed to disclose it, permitted the matter to be submitted to a jury for its determination and now, with good cause, being disappointed with the result of the jury's determination, springs this on me as a way to avoid what I would consider to be the entirely predictable and just result.

As such, the judge denied defendant's motion and proceeded with sentencing.

Judge Reed sentenced defendant on August 13, 2007, to an extended term of thirty-five years to life imprisonment subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The trial judge ordered defendant to pay penalties and fines totaling $205, and awarded restitution to the Violent Crimes Compensation Board in the amount of $5000. Defendant was also required to pay the victim's mother $5582.

Defendant thereafter filed a notice of appeal on January 17, 2008.

B.

On appeal, defendant presents the following arguments for our consideration:

POINT I

THE SEARCH WARRANT WAS ISSUED WITHOUT PROBABLE CAUSE AND THE EVIDENCE OF THE DEFENDANT'S BOOTS MUST BE SUPPRESSED. U.S. CONST. AMENDS. IV, XIV; N.J. CONST. (1947) Art. I 7.

POINT II

THE CONVICTION IS NULL AND VOID BECAUSE THE TRIAL JUDGE, WHEN IN PRIVATE PRACTICE, REPRESENTED THE DEFENDANT AT A PAROLE REVOCATION HEARING.

POINT III

THE TRIAL JUDGE COMMITTED REVERSIBLE ERROR IN FAILING TO CHARGE THE JURORS THAT THEY MUST DISREGARD DEFENDANT'S OUT-OF-COURT STATEMENTS IF THEY FIND THE STATEMENTS NOT CREDIBLE AND IN FAILING TO GIVE A CAUTIONARY INSTRUCTION CONCERNING ORAL STATEMENTS. (Not Raised Below).

POINT IV

THE COURT ERRED IN FAILING TO CHARGE THE LESSER-INCLUDED OFFENSES OF AGGRAVATED AND RECKLESS MANSLAUGHTER. (Not Raised Below).

POINT V

A MISTRIAL SHOULD HAVE BEEN DECLARED WHEN IT WAS DISCOVERED THAT JUROR NO. 13 WAS READING AND COMMENTING ON NEWS ARTICLES ABOUT THE CASE TO FELLOW JURORS. (Not Raised Below).

POINT VI

THE ADMISSION OF GRUESOME CRIME SCENE AND AUTOPSY PHOTOGRAPHS DEPRIVED THE DEFENDANT OF THE RIGHT TO A FAIR TRIAL. U.S. CONST. AMEND. VI, XIV; N.J. CONST. (1947), ART. I, 9, 10. (Partially Raised Below).

POINT VII

THE TRIAL WAS SO INFECTED WITH ERROR THAT EVEN IF EACH INDIVIDUAL ERROR DOES NOT REQUIRE REVERSAL, THE AGGREGATE OF THE ERRORS DENIED THE DEFENDANT A FAIR TRIAL.

C.

We turn first to defendant's arguments that the search warrant was issued without probable cause and that the evidence of defendant's boots must be suppressed.

In nearly identical language, the Fourth Amendment to the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution safeguard the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures" and assure that "no warrants shall issue, but upon probable cause supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." A search occurs when a legitimate expectation of privacy is infringed. Illinois v. Andreas, 463 U.S. 765, 771, 103 S. Ct. 3319, 3324, 77 L. Ed. 2d 1003, 1010 (1993).

The United States and New Jersey Constitutions do not prohibit all searches and seizures, only those that are deemed unreasonable. Cady v. Dombrowski, 413 U.S. 433, 439, 93 S. Ct. 2523, 2527, 37 L. Ed. 2d 706, 713 (1973); State v. Bruzzese, 94 N.J. 210, 217 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984). The "constitutional test of reasonableness is satisfied where the police obtain, upon a showing of probable cause, a search warrant from a neutral magistrate." Bruzzese, supra, 94 N.J. at 218. "A search based upon a warrant is presumed to be valid once the State establishes that the search warrant was issued in accordance with the procedures prescribed by the rules governing search warrants." State v. Valencia, 93 N.J. 126, 133 (1983). The burden of demonstrating the invalidity of such a search is placed upon the defendant. Ibid. The defendant must establish that there was no probable cause supporting the issuance of the warrant or that the search was otherwise unreasonable. Ibid.

Our Supreme Court has explained that probable cause requires nothing more than a "practical, common-sense decision whether, given all the circumstances . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place." State v. Johnson, 171 N.J. 192, 214-15 (2002) (quoting State v. Demeter, 124 N.J. 374, 380-81 (1991)).

A defendant may challenge a warrant's supporting affidavit and will be successful if he or she can prove by a preponderance of the evidence that the affiant intentionally or with reckless disregard for the truth, included material untrue information or made material omissions. Franks v. Delaware, 438 U.S. 154, 171, 98 S. Ct. 2674, 2684, 57 L. Ed. 2d 667, 682 (1978); State v. Stelzner, 257 N.J. Super. 219, 235 (App. Div.), certif. denied, 130 N.J. 396 (1992). "[A]s a deterrent to egregious police conduct, the defendant cannot rely on allegations of unintentional falsification in a warrant affidavit. He must allege deliberate falsehood or reckless disregard for the truth, pointing out with specificity the portions of the warrant that are claimed to be untrue." State v. Howery, 80 N.J. 563, 567 (1979) (internal quotation omitted). Also, the misstatements must be material to the extent that "when they are excised from the affidavit, that document no longer contains facts sufficient to establish probable cause." Ibid.

An appellate court reviewing a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are "supported by sufficient credible evidence in the record." State v. Locurto, 157 N.J. 463, 474 (1999). An appellate court "should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Johnson, 42 N.J. 146, 161 (1964). Also, "[a]n appellate court should not disturb the trial court's findings merely because 'it might have reached a different conclusion were it the trial tribunal' or because 'the trial court decided all evidence or inference conflicts in favor of one side' in a close case." State v. Elders, 192 N.J. 224, 243-44 (2007) (quoting Johnson, supra, 42 N.J. at 162). A trial court's findings should be disturbed only if they are so clearly mistaken "that the interests of justice demand intervention and correction." Id. at 244 (quoting Johnson, supra, 42 N.J. at 162). In those circumstances solely should an appellate court "appraise the record as if it were deciding the matter at inception and make its own findings and conclusions." Ibid. (quoting Johnson, supra, 42 N.J. at 162). Importantly, an appellate court may only "consider whether the motion to suppress was properly decided based on the evidence presented at that time." State v. Gibson, 318 N.J. Super. 1, 9 (App. Div. 1999) (citation omitted).

In this case, defendant's argument in favor of suppression rests heavily on facts that were brought to light during trial. Defendant argues that the police mischaracterized his groping of J.B. and her sister, but at the time, the police were only aware that defendant had touched the women inappropriately and had to be asked to stop. While the warrant application did mistakenly state that defendant continued the behavior over the women's protests, the officers were not aware of the specifics of the encounter at that time. However, the affidavit in support of the warrant also characterized the groping as "pestering," which does not denote that J.B. or her sister felt particularly disturbed by defendant's behavior.

This behavior, standing alone, does not satisfy the probable cause requirement for a search warrant, however, the police were also aware that defendant was a registered sex offender, a fact that defendant does not contest. This, coupled with defendant's behavior in the bar, could reasonably be construed as significant to the issuing judge.

Perhaps the most important feature of the warrant application is the fact that it informed Judge Williams that defendant was the last person seen with J.B. before her death. Defendant argues that this assertion was incorrect because he presented witnesses at trial who testified that J.B. was seen with another man between 4:00 a.m. an 5:00 a.m. Again, defendant incorrectly relies on evidence that was not known to the police at the time and was therefore not presented to the issuing judge. Gibson, supra, 318 N.J. Super. at 9. The police were only aware of the surveillance footage from the Dunkin' Donuts on Main Street in Manville that showed defendant with J.B. shortly after 4:00 a.m.

Judge Williams had the following information to consider in granting the search warrant: (1) defendant had groped J.B. and her sister earlier in the evening; (2) defendant had been convicted of aggravated assault and criminal sexual contact and was a registered sex offender in Bridgewater; and (3) the police believed he was the last person seen with J.B. These considerations are amply sufficient to create a "practical, common-sense" determination that, "given all the circumstances . . . there [was] a fair probability that contraband or evidence of a crime" would be found in defendant's home and on his person. Johnson, supra, 171 N.J. at 214-15 (citation omitted). Moreover, defendant has not presented any evidence to suggest that the police officers alleged "deliberate falsehood[s] or reckless[ly] disregard[ed] . . . the truth," in making the warrant application. Howery, supra, 80 N.J. at 567. They simply presented the evidence they had at that point in their investigation. We affirm, therefore, the denial of the motion to suppress.

D.

On appeal, defendant argues that "the trial judge's refusal to adjourn the matter to permit the briefing of a formal motion, or to declare a mistrial, or at the very least, to recuse himself from sentencing, violated the defendant's due process rights to a fair trial."

Our Court Rules provide that "[a]ny party, on motion made to the judge before trial . . . and stating the reasons therefor, may seek that judge's disqualification." R. 1:12-2; Chandok v. Chandok, 406 N.J. Super. 595, 603 (App. Div.), certif. denied, 200 N.J. 207 (2009). A judge "shall be disqualified on the court's own motion and shall not sit in any matter" if the judge "(c) has been attorney of record or counsel in the action; or . . . (f) when there is any other reason which might preclude a fair and unbiased hearing and judgment, or which might reasonably lead counsel or the parties to believe so." R. 1:12-1(c) and (f).

The Legislature has also addressed the issue of judicial recusal in N.J.S.A. 2A:15-49, which states, in pertinent part:

No judge of any court shall sit on the trial of or argument of any matter in controversy in a cause pending in his court, when he:

. . .

 
b. Has been attorney of record or counsel for a party to such action.

Challenges to a judge for any of the statutory causes "shall be made before the trial or argument." N.J.S.A. 2A:15-50. In regard to N.J.S.A. 2A:15-49, we have stated that "[w]hen a judge has appeared as counsel in an earlier stage of the same adversarial proceeding, there is no question that the judge has advocated the client's cause, and recusal is automatic because of the danger of an appearance of partiality." Rivers v. Cox-Rivers, 346 N.J. Super. 418, 422 (App. Div. 2002) (quoting Sharp v. Howard County, 607 A.2d 545, 551 (Md. 1992)). That result is required by the need "to maintain public confidence in the integrity of the judicial process, which in turn depends on a belief [by litigants and the general public alike] in the impartiality of judicial decisionmaking." State v. Kettles, 345 N.J. Super. 466, 469-70 (App. Div. 2001), certif. denied, 171 N.J. 443 (2002) (quoting United States v. Nobel, 696 F.2d 231, 235 (3d Cir. 1982), cert. denied, 462 U.S. 1118, 103 S. Ct. 3086, 77 L. Ed. 2d 1348 (1983) (alteration in original)).

Defendant asserts that while Rule 1:12-1(c) does not apply to this case because Judge Reed did not represent defendant in the current action, N.J.S.A. 2A: 15-49(b) forbade the judge from presiding because he was the attorney of record for defendant in a prior matter. Importantly, defendant did not comply with N.J.S.A. 2A:15-50 because he failed to file a motion calling for recusal before the start of trial.

We addressed a similar issue in State v. Horton, 199 N.J. Super. 368, 375-76 (App. Div. 1985), a case defendant cites in support of his argument. In that case, the defendant informed the trial judge during oral argument at his sentencing hearing that he was his former attorney. Id. at 375. The judge did not address the defendant's comments and simply proceeded with the sentencing, without stating whether he recalled ever representing the defendant. Ibid. On appeal, the defendant argued that the judge should have recused himself.

We first addressed that the defendant failed to comply with N.J.S.A. 2A:15-50, and so "the issue of the statutory violation might be said to be improperly raised at this time." Id. at 376 (emphasis in original). However, because the issue raised was one of constitutional importance, i.e. defendant's right to a fair, unbiased trial, the court analyzed the "interplay between the statute and rule." Ibid.

We explained that because Rule 1:12-1 and N.J.S.A. 2A:15-49 are so similar, and given that a single standard for recusal should be understood, the provisions of the rule should apply when considering when recusal is necessary. Id. at 377. See State v. Deutsch, 34 N.J. 190, 206 (1961) (holding that N.J.S.A. 2A:15-49 is "not exclusive and that the important disqualification issue before [the Court] will be dealt with best by the discharge of [its] constitutional responsibility for the application of sound general principles of judicial administration"). Having determined that the "less restrictive court rule would apply directly" to the case, we then considered whether there was an appearance of bias, contrary to Rule 1:12-1(f). Horton, supra, 199 N.J. Super. at 377.

We noted there that because the trial judge did not address defendant's assertion that he had once represented him:

[t]he public ha[d] no way of knowing (a) what confidences, if any, defendant imparted to the trial judge when represented by him . . .; (b) whether the judge was a public defender or, if not, whether there was a fee problem; or (c) whether there were other offenses that defendant admitted to during conferences with his then attorney.

[Id. at 375.]

We reversed that conviction and remanded the case to the trial court to "give both the State and defendant an opportunity to make a record concerning potential disqualification." Ibid. The court noted that "the very least that the trial judge should have done was to place this information on the record at the commencement of the proceeding." Ibid.

Horton established that because defendant did not properly file a motion pursuant to N.J.S.A. 2A:15-50 for recusal, the court rule, and not N.J.S.A. 2A:15-49(b), applies. As such, defendant's argument is limited to whether there was an appearance of bias on the part of Judge Reed.

Here, unlike in Horton, Judge Reed carefully established a record to explain his prior professional relationship with defendant. Judge Reed only represented defendant once at an administrative hearing before the Parole Board. He was not even initially retained by defendant, but by defendant's former fiancée on defendant's behalf. The judge acted as his lawyer nearly ten years prior to defendant's trial and Judge Reed had no recollection of defendant whatsoever. Based on these clearly explained considerations, the appearance of bias on the judge's part is minimal at best.

We further addressed when recusal is necessary in the case of Rivers, supra, 346 N.J. Super., in which we stated that a "bright-line" rule must be applied when a judge has formerly represented a party to a litigation. In Rivers, the parties appeared before the trial judge in a post-divorce judgment matter. After the judge had held a plenary hearing and entered an order, the defendant-wife moved for a rehearing and recusal because the judge had previously represented the plaintiff-husband in the parties' legal separation. The trial judge denied the motion, noting that he represented the plaintiff-husband fourteen years earlier and had no recollection of the case. Id. at 420-21. The judge also noted that he believed the defendant-wife withheld this information as a "trump card" in case she did not prevail on her motion. Id. at 420.

We reversed and set forth the following rule:

[e]xcept when required by the rule of necessity, where a judge has previously represented one of the parties in a matter before him against the other, any judicial action taken is a nullity, whether the conflict comes to light during the proceedings before an order enters or reasonably soon following the conclusion of the matter after an order has been entered.

[Id. at 421.]

Defendant argues that this holding directly applies here, where Judge Reed was once defendant's attorney. However, the court in Rivers mandated recusal only when the judge represented one of the parties against the other. Here, while defendant's parole board hearing was technically against the State, neither J.B. nor her family were involved. Central to our decision in Rivers was the fact that "not only are the parties identical but the underlying subject matter is the same, i.e., the marriage and the parties' rights stemming therefrom." Id. at 422. Here, there is no such uniformity in the facts or the people involved. As such, defendant's reliance on Rivers for the proposition that Judge Reed was required to recuse himself regardless of the nature of his former representation of defendant is without merit.

Defendant also cites State v. McCann, 391 N.J. Super. 542 (App. Div. 2007), in support of his proposition that Judge Reed's prior representation of defendant rendered him unable to preside at trial. McCann, however, is distinguishable from the facts at bar. In that case, the defendant moved to suppress evidence seized by a warrant issued by a municipal judge whom he described as his "family attorney." Id. at 545. The defendant had known the municipal court judge "for twenty or thirty years, had consulted with him on various legal matters, and had been represented by him in one litigated case about ten years earlier." Id. at 544-45. Moreover, the municipal judge had represented the defendant's two sisters and his mother and had been to his house on at least twelve occasions. Id. at 545. The Law Division judge who presided over the suppression hearing noted that the defendant was "so comfortable with [the municipal judge] that he was able to approach him three weeks before the issuance of this search warrant and request an OR bail for a friend." Ibid.

We held that, while the municipal judge should have recused himself, suppression of the evidence from the warrant was not the proper remedy, because there did not appear to be any actual bias on the judge's part. Id. at 554-55. The court made a prospective ruling, holding that "if a defendant makes a particularized and credible assertion of facts that objectively suggest an appearance of partiality on the part of the judge issuing a search warrant, based on a prior relationship or otherwise, a 'bright-line rule' invalidating the search warrant will be applicable." Id. at 555.

In this case, defendant has presented a mere sliver of the evidence set forth in McCann to suggest the appearance of impartiality. In McCann, the municipal judge was undoubtedly aware of his longstanding relationship with the defendant. It was clear from the record that they had a familiar professional relationship. Here, Judge Reed stated that he did not remember ever representing defendant. He even had to ask his former law firm to check its records in order to confirm defendant's assertion. The potential bias carried by the judge in McCann was palpable, whereas here, it was non-existent.

Unlike the cases cited by defendant, Judge Reed did not remember ever representing defendant and he clearly established his lack of bias on the record. As such, the judge did not violate Rule 1:12-1(f) by refusing to recuse himself and declare a mistrial.

E.

Defendant contends that the trial judge should have charged the jury in accordance with State v. Hampton, 61 N.J. 250 (1972), and State v. Kociolek, 23 N.J. 400 (1957), regarding the credibility of out-of-court inculpatory oral statements made by defendant, as told by Eric Swofford. Swofford testified that defendant confided in him that he beat J.B. with a two-by-four and then dragged her body onto the railroad tracks, where she was run over by a freight train. Notably, defendant did not request Hampton and Kociolek charges and did not object to the judge's jury instructions.

Because defendant did not object to the instructions at trial, we consider the issue under the plain error rule. R. 2:10-2; State v. Adams, 194 N.J. 186, 206 (2008). Generally, a defendant waives the right to contest an instruction on appeal if he does not object to the instructions as required by Rule 1:7-2. Nevertheless, an appellate court may reverse on the basis of unchallenged error if the court finds that the error was "clearly capable of producing an unjust result." R. 2:10-2.

Generally plain error in the context of a jury charge is "[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." State v. Jordan, 147 N.J. 409, 422 (1997) (citations omitted); State v. Burns, 192 N.J. 312, 341 (2007). The charge to the jury must be read as a whole in determining whether there was any error. Jordan, supra, 147 N.J. at 422; Adams, supra, 194 N.J. at 207. Also, "[a]lthough arguments of counsel can by no means serve as a substitute for instructions by the court, the prejudicial effect of an omitted instruction must be evaluated in light of the totality of the circumstances - including all the instructions to the jury, [and] the arguments of counsel." State v. Marshall, 123 N.J. 1, 145 (1991) (citations and internal quotations omitted), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993). Nevertheless, because clear and correct jury instructions are fundamental to a fair trial, erroneous instructions in a criminal case are "poor candidates for rehabilitation under the plain error theory." Jordan, supra, 147 N.J. at 422 (citations and internal quotations omitted); Adams, supra, 194 N.J. at 207.

When determining whether a jury charge is proper, we need not consider whether the jury was charged in the very words requested by defendant. Jordan, supra, 147 N.J. at 422. All that is necessary is that the charge as a whole be accurate. Ibid. So long as the jury is given a "legally correct and adequate definition" that conveys the applicable legal principals, no error will be found. State v. Ball, 268 N.J. Super. 72, 113 (App. Div. 1993), aff'd, 141 N.J. 142 (1995), cert. denied sub nom. Mocco v. New Jersey, 516 U.S. 1075, 116 S. Ct. 779, 133 L. Ed. 2d 731 (1996).

In Hampton, our Supreme Court held that:

[a]dmissibility of evidence is for the court and in the ordinary course of trial it is admitted when a proper predicate is laid for it. If the predicate is disputed but the court is satisfied the evidence should be received, it is accepted for jury consideration, with an instruction that if they find it credible, then it is admissible for consideration in making up their verdict.

[Hampton, supra, 61 N.J. at 271.]

The "Hampton rule" was later codified in N.J.R.E. 104(c), which provides that the trial court is required to instruct the jury to disregard defendant's statements if they find, after considering the evidence, the statements to be untrue. State v. Morton, 155 N.J. 383, 428 (1998); see also N.J.R.E. 104(c) (codifying the Hampton rule). However, Hampton dealt with a defendant's statements to police in a custodial setting. Hampton, supra, 61 N.J. at 272. That case, therefore, does not apply precisely because the statements here were volunteered to a non-police witness. State v. Wilson, 335 N.J. Super. 359, 367 (App. Div. 1999), aff'd, 165 N.J. 657 (2000).

Unlike Hampton, a Kociolek charge involves the general reliability of a defendant's statements. In Kociolek, supra, 23 N.J. at 421, the Supreme Court held that when a defendant's oral statements have been introduced against him, the trial court must instruct the jury that it should consider such evidence with caution "in view of the generally recognized risk of inaccuracy and error in communication and recollection of verbal utterances and misconstruction by the hearer." However, in State v. Baldwin, 296 N.J. Super. 391, 401 (App. Div.), certif. denied, 149 N.J. 143 (1997), we further explained that "[i]f an alleged inculpatory statement was oral and there is a genuine issue regarding its precise contents, the court should caution the jury in accordance with Kociolek with respect to the risk that the hearer misunderstood or inaccurately recalled the statement." We emphasized that where:

an alleged oral inculpatory statement was not made in response to police questioning, and there is no genuine issue regarding its contents, there is no need for the court to give such special cautionary instructions because the only question the jury must determine is whether the defendant actually made the alleged inculpatory statement.

[Id. at 401-02. ]

In Jordan, supra, 147 N.J. at 428, our Supreme Court held that, where appropriate, "the Kociolek charge should be given whether requested or not." However, the Court also emphasized that the failure to give the charge is not necessarily reversible error:

There may be a rare case where failure to give a Kociolek charge alone is sufficient to constitute reversible error, or there may be a case where the omission of a Kociolek charge in combination with other errors . . . may be reversible as plain error. Ultimately, whether the failure to give a Kociolek charge is capable of producing an unjust result will depend on the facts of each case.

[Ibid.]

Defendant contends that Kociolek applies in this case to the testimony of Swofford regarding inculpatory statements made by defendant, and failure to instruct the jury as such resulted in plain error. Specifically, defendant argues that the incriminating statements he made to Swofford were at the heart of the State's case, especially because the State's contention that defendant was the last person seen with J.B. was refuted by two defense witnesses. Therefore, defendant argues, the jury's lack of instruction as to the weight it was permitted to give Swofford's testimony was an error that was "clearly capable of producing an unjust result." R. 2:10-2.

Because the Supreme Court has stated that a Kociolek charge must be given when a defendant's oral statements have been introduced against him, Kociolek, supra, 23 N.J. at 421, a Kociolek charge should have been given in this case. Swofford was clearly testifying against defendant about defendant's oral statements. However, this does not necessarily warrant reversal. As discussed above, we must determine whether the omission of such an instruction constituted plain error clearly capable of producing an unjust result. State v. Feaster, 156 N.J. 1, 72-73 (1998).

Despite defendant's contention to the contrary, there was substantial additional evidence of defendant's guilt apart from defendant's statement, thereby making Swofford's testimony less critical. As such, the absence of the Kociolek charge is less likely to produce an unjust result. While the defense did present two witnesses at trial who testified they had seen J.B. with a man, between 4:00 a.m. and 5:00 a.m., who did not meet defendant's description, neither witness recognized the man, and Humberto Grisales freely admitted that he had difficulty in giving a description of the man he saw. In contrast, the State presented a video recording showing J.B. with defendant shortly after 4:00 a.m. Moreover, it was uncontroverted that defendant had spent most of the evening with J.B. and the two had spent the night attempting to acquire drugs. Most significantly, the police found J.B.'s blood on defendant's boots. While Swofford's testimony undoubtedly added strength to the State's case, it was not "central" to establishing defendant's guilt.

Moreover, defense counsel explored at length Swofford's criminal record and his attempts to curry favor with the Parole Board by reporting what he knew about the murder. Thus, Swofford's motivation to lie was carefully explored. Defense counsel again brought Swofford's credibility into question during his summation. Counsel stated, "I could go through his litany of offenses. You have to judge his credibility based on who and what he was." He then went on to point out that everything Swofford testified to was public record so his statements could have easily been fabricated. The defense also noted that Swofford had much to gain by cooperating in a murder investigation when his parole hearing was pending.

Additionally, Judge Reed provided the jury with a detailed credibility charge, instructing the jury to consider, among other things, the witnesses' interest in the outcome of the case, his or her means of obtaining knowledge of the facts, and the reasonableness of the testimony. The judge further informed the jury that they should consider the testimony of each witness and "accept all or it, a portion of it, or none of it."

We also note that Swofford's testimony was clear and unambiguous. Therefore, there is no genuine issue regarding the contents of his testimony and there was "no need for the court to give such special cautionary instructions because the only question the jury must determine is whether the defendant actually made the alleged inculpatory statement." Baldwin, supra, 296 N.J. Super. at 401-02.

Through the testimony, arguments and instructions, the critical issue of the reliability of defendant's incriminating statements was thoroughly and sufficiently placed before the jury. Feaster, supra, 156 N.J. at 73. Therefore, we find no plain error in the omission of the Hampton and Kociolek charges.

F.

At the preliminary charge conference held on June 20, 2007, defendant's counsel advised the court that defendant did not want any lesser-included offenses to be charged to the jury. The court reiterated defendant's position, stating, "[s]o it's either guilty of murder or not guilty of murder, period." Defendant's counsel responded, "[y]es. Period." Judge Reed then stated, "I have an independent obligation to consider whether sua sponte a lesser[-]included offense charge should be given." He then explained that:

there is no common factual nucleus shared by murder, reckless manslaughter, and/or aggravated manslaughter in the factual evidence in this matter. To find otherwise would constitute sheer speculation and, therefore, in this circumstance where neither the defendant nor the State requested a charge on an included offense, and in the absence of the defendant's request, particularly in light of the defendant's request not to give an included offense instruction, I am advised to scour the statutes to determine if there are some uncharged offenses of which defendant may be guilty. State v. Brent, 137 N.J. 107, 118 (1994). And in this case, I find there is no rational basis in the evidence upon which a reasonable jury could acquit on murder and somehow convict on aggravated manslaughter or reckless manslaughter.

Defendant now argues that "despite the acquiescence of the defense, the trial court's refusal to charge aggravated and reckless manslaughter constituted reversible error." Specifically, defendant argues that the evidence presented at trial suggests that he lost all self control and beat J.B. to death in a fit of rage. As such, he asserts that the court had a responsibility to inform the jury that it "had to decide the defendant's mental state at the time of administering a beating to determine the type of homicide committed."

Generally, when a defendant asks the court to use his proffered approach and the court does so, relief will not be forthcoming on a claim of error by that defendant. State v. Jenkins, 178 N.J. 347, 358 (2004). In this case, defendant requested that the jury only be charged with purposeful and knowing murder, and thereby "invited" the alleged error. However, the trial court has "an independent obligation to instruct on lesser-included charges when the facts adduced at trial clearly indicate that a jury could convict on the lesser while acquitting on the greater offense." State v. Thomas, 187 N.J. 119, 132 (2006) (quoting Jenkins, supra, 178 N.J. at 361). Judge Reed acknowledged this obligation in his oral decision and noted that he had made the independent determination that charging lesser-included offenses would not be appropriate. Because the trial court came to this conclusion independent of any encouragement by defendant, the "invited error" doctrine does not apply and this court must review the court's jury charges under the plain error standard. Jenkins, supra, 178 N.J. at 360. As explained above, under the plain error standard, the trial court will only be reversed if alleged error is "clearly capable of producing an unjust result." R. 2:10-2.

N.J.S.A. 2C:1-8(e) states that "[t]he court shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense." See Jenkins, supra, 178 N.J. at 361-64. Whether an offense is an included offense of another charge requires a comparison of the statutory elements of each charge. Thomas, supra, 187 N.J. at 129. Thus, an offense will be considered a lesser-included offense in two circumstances: (1) "where the proof required to establish a greater offense is also sufficient to establish every element of a lesser offense"; and (2) "where two offenses are the same but a lesser degree of culpability is required to establish the lesser offense." State v. Muniz, 228 N.J. Super. 492, 496 (App. Div. 1988), rev'd on other grounds, 118 N.J. 319 (1990). On the other hand, whether offenses are related is not merely a function of a comparison of statutory elements. Thomas, supra, 187 N.J. at 130. Instead, the focus is whether the offense charged and the related offense "share a common factual nucleus." Ibid.

N.J.S.A. 2C:11-3(a) states that criminal homicide constitutes murder when: "(1) The actor purposely causes death or serious bodily injury resulting in death; or (2) [t]he actor knowingly causes death or serious bodily injury resulting in death." When the defendant argues that he merely intended to inflict injury but had no intention of causing death, the State must prove that "the death is likely enough to be 'the same kind of injury' as that actually contemplated and to be not remote, accidental or dependent on another's volitional act." Cannel, New Jersey Criminal Code Annotated, comment 2 on N.J.S.A. 2C:11-3 (2009). Thus, the standard is whether the defendant "knowingly or purposely inflicted serious bodily injury with actual knowledge that the injury [made] death . . . 'highly probable' . . . ." Jenkins, supra, 178 N.J. at 363.

A defendant commits aggravated manslaughter when he "recklessly causes death under circumstances manifesting extreme indifference to human life." N.J.S.A. 2C:11-4(a). We have explained that aggravated manslaughter requires indifference as to whether or not the victim lives or dies. State v. Curtis, 195 N.J. Super. 354, 366-67 (App. Div.), certif. denied, 99 N.J. 212 (1984). There must be a conscious disregard of the probability of causing death. State v. Gaines, 377 N.J. Super. 612, 621 (App. Div.), certif. denied, 185 N.J. 264 (2005). Therefore, when an actor knows he is practically certain to cause serious bodily injury resulting in death, or to cause death, he is guilty of knowing murder, not manslaughter. State v. Clausell, 121 N.J. 298, 332 (1990).

Reckless manslaughter occurs when the criminal homicide "is committed recklessly." There must be a substantial risk of death, however, the risk need not create a high probability of death. State v. O'Carroll, 385 N.J. Super. 211, 229 (App. Div.), certif. denied, 188 N.J. 489 (2006). Our Supreme Court has explained that if the risk of death is a probability, the crime is aggravated manslaughter; if the risk is a possibility the crime is manslaughter. Jenkins, supra, 178 N.J. at 363-64.

Defendant argues that because Swofford testified that defendant "lost it" when he beat J.B. with the board, the jury could have found that he acted with reckless disregard for human life, N.J.S.A. 2C:11-4(a) and (b), rather than with a purposeful and knowing state of mind. N.J.S.A. 2C:11-3. The State contends that defendant's conduct could not have been anything other that purposeful and knowing because after he beat J.B., he laid her in front of an incoming freight train. Because such an act did not create a "probability of death" but a certainty, the lesser-included offenses defendant now requests would have been improper.

Defendant cites Jenkins, supra, 178 N.J., in support of his proposition that the jury should have been charged with aggravated and reckless manslaughter. In that case, the defendant intentionally struck the victim in the back of the head with a brick, causing him to fall down a set of concrete steps. Id. at 354. The medical evidence indicated that the cause of death was a fracture to the front of the skull, sustained during the fall. Though the defendant did not request that the jury be charged with lesser-included offenses, the trial court independently determined that because there was no doubt that the defendant struck the victim either knowingly, purposefully, or intentionally, the facts did not support a charge on aggravated or reckless manslaughter. Id. at 356. The jury found the defendant guilty and he appealed. Id. at 357.

We reversed and the Supreme Court affirmed. The Court found that:

the facts indicate that the jurors also could have rationally concluded that defendant struck the victim not knowing that serious bodily injury would result in the victim's death, or not knowing that the injury created a substantial risk of death and that the it was highly probable that death would result.

[Id. at 363-64.]

As such, "[t]he pivotal question . . . [was] whether the jury could have concluded that defendant hit the victim without conscious knowledge that death was a high probability but, instead, with reckless disregard of the possibility or probability that death would occur." Id. at 363. The Court determined that the defendant could have struck the victim without "intending or knowing" he would fall down the stairs, and, therefore, the aggravated and reckless manslaughter charges should have been given. Id. at 364.

The facts at bar are distinguishable. In this case, defendant not only struck J.B. in the head numerous times with a two-by-four, but he also dragged her in front of a train and left her there to be run over. He did not simply hit her, causing her to fall and sustain possible further injury. This is not a case where the victim fell on the railroad tracks because she had been hit, and defendant merely failed to move her. Defendant beat her and then dragged her to where he knew she would be struck by the train. Defendant knowingly and purposefully caused her death. N.J.S.A. 2C:11-3(a)(1) and (2). Because there was no question that death would result, the issue of whether there was a "probability" versus a "possibility" of death was inapplicable and rendered a jury charge of aggravated or reckless manslaughter inappropriate.

It is not possible under the facts presented here for a rational person to find a lack of "actual knowledge" that the injuries inflicted on J.B. would result in her death. Therefore, no other jury charge except that of knowing and purposeful murder would have been appropriate. Jenkins, supra, 178 N.J. at 363. There is no "common factual nucleus," Thomas, supra, 187 N.J. at 130, that could support the charges of aggravated or reckless manslaughter. Therefore, the judge's decision to omit those charges does not constitute plain error.

G.

For the first time on appeal, defendant now argues that:

[b]ecause a substantial portion of the jury had been exposed to the extraneous publicity through the comments of Juror No. 13, the only appropriate remedy was a mistrial. R. 3:20-1. The court's failure to declare a mistrial based upon jury taint deprived the defendant of this right to a fair trial.

Because defendant did not call for a mistrial at trial, this court should apply plain error review on appeal. R. 2:10-2. This means that the judge's failure to declare a mistrial sua sponte will only constitute reversible error if it was clearly capable of producing an unjust result. R. 2:10-2.

The Sixth Amendment of the United States Constitution and Article I, Paragraph 10 of the New Jersey Constitution guarantee criminal defendants "the right to . . . trial by an impartial jury." See Sheppard v. Maxwell, 384 U.S. 333, 362-63, 86 S. Ct. 1507, 1522, 16 L. Ed. 2d 600, 620 (1966) (stating that due process requires accused receive trial by impartial jury free from outside influence); State v. Williams, 93 N.J. 39, 60 (1983). That constitutional privilege includes the right to have the jury decide the case based solely on the evidence presented at trial, free from the taint of outside influences and extraneous matters. State v. Bey, 112 N.J. 45, 75 (1988). "[S]ecuring and preserv[ing] . . . an impartial jury goes to the very essence of a fair trial." Bey, supra, 112 N.J. at 74 (quoting Williams, supra, 93 N.J. at 60). The Court has consistently required trial courts to protect both the jurors and their deliberations from illegitimate influences that threaten to taint the verdict. State v. R.D., 169 N.J. 551, 557 (2001).

If during the course of the trial it becomes apparent that a juror may have been exposed to extraneous information, the trial court must act swiftly to overcome any potential bias and to expose factors impinging on the juror's impartiality. Bey, supra, 112 N.J. at 83-84. The trial court must use appropriate discretion to determine whether the individual juror, or jurors, "are capable of fulfilling their duty to judge the facts in an impartial and unbiased manner, based strictly on the evidence presented in court." Id. at 87. In order to accomplish this, the trial court is obliged to interview the juror in the presence of counsel to determine if there is a taint. Pressler, Current N.J. Court Rules, comment 2.1 on R. 1:16-1 (2009). If there is, the court must then interview the other jurors to determine if they or any of them have been "infected." See generally State v. Loftin, 191 N.J. 172, 187-95 (2007). The trial court must then determine whether the trial may proceed after excusing the tainted juror or jurors, or whether a mistrial must be declared. State v. Bisaccia, 319 N.J. Super. 1, 13 (App. Div. 1999).

The decision to grant a new trial based on jury taint resides in the discretion of the trial court. State v. Loyal, 164 N.J. 418, 436 (2000). However, declaring a mistrial is a "severe response" and should be avoided if the error can be effectively cured by a curative instruction. State v. Winter, 96 N.J. 640, 646-647 (1984). Where a trial court does declare a mistrial because of a substantial concern that the trial's result may be tainted, "the trial judge's determination is entitled to special respect." Loyal, supra, 164 N.J. at 436 (citation omitted). The test to determine when the declaration of a mistrial was proper is whether a "manifest necessity" exists or whether "the ends of public justice" would otherwise be defeated. Ibid.; see United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L. Ed. 165, 165 (1824).

"'Manifest necessity' and 'the ends of public justice' are concepts whose definitive outlines depend upon the singular facts and circumstances of each case." State v. Rechtschaffer, 70 N.J. 395, 405 (1976) (quoting State v. Farmer, 48 N.J. 145, 177 (1966), cert. denied, 386 U.S. 991, 87 S. Ct. 1305, 18 L. Ed. 2d 335 (1967)). Existence of these two criteria depends upon balancing two prime factors: "Public interest in seeing that there is a fair trial designed to end in a just and equitable judgment, and the constitutional protection to which the defendant is entitled that he shall not be harassed by subjection to two trials and two punishments for essentially the same offense." Ibid.

A new trial is not necessary in every instance where it appears an individual juror has been exposed to outside influence. See Smith v. Phillips, 455 U.S. 209, 217, 102 S. Ct. 940, 946, 71 L. Ed. 2d 78, 86 (1982); R.D., supra, 169 N.J. at 559. Ultimately, the trial court is in the best position to determine whether the jury has been tainted. Ibid. That determination requires the trial court to consider the gravity of the extraneous information in relation to the case, the demeanor and credibility of the jurors who were exposed to the extraneous information, and the overall impact of the matter on the fairness of the proceedings. Ibid. The inquiry about whether extraneous information had the capacity to influence the result of the jury requires an examination of whether there was at least an opportunity for the extraneous information to reach the remaining jurors when that extraneous information is knowledge unique to one juror who is excused mid-trial. Ibid. (citing State v. Wormley, 305 N.J. Super. 57, 70 (App. Div. 1997), certif. denied, 154 N.J. 607 (1998) (finding that even though excused juror stated she did not discuss extraneous matter with anyone, there was a "strong likelihood that, even indirectly or unintentionally, she may well have," given that there was at least one break during which jurors commingled informally)).

In this case, Judge Reed properly examined Juror Number 13 in the presence of counsel and then interviewed the other jurors to determine if they were tainted by Juror Number 13's statements. Each individual juror who had heard Juror Number 13's comments concerning outside information about the case testified that he or she was not affected by that information and could remain unbiased. Seven jurors were unaware of Juror Number 13's statements. Upon the request of counsel, Judge Reed dismissed Juror Number 13 and then, finding that the rest of the jury remained unbiased and impartial, continued with trial.

Judge Reed's finding that the jurors, excluding Juror Number 13, were not tainted is supported by the record. Juror Number 13 did not reveal extraneous information that had a significant impact of the jury. She made known that one of her fellow jurors was a patent attorney, and she made comments that she had seen newspaper articles concerning the trial. There was no evidence that she discussed these articles in detail with the other jurors. More than half of the jurors were not even aware of Juror Number 13's statements at all. In addition, when questioned by Judge Reed, the remaining jurors assured him that they were unaffected by whatever statements they heard. Judge Reed found them to be credible, and that determination must be afforded deference because the judge had the opportunity to observe their demeanor while testifying. R.D., supra, 169 N.J. at 559. Moreover, defendant has not produced any evidence to suggest that jury was, in fact, tainted. Based on the individual jury members' responses to Juror Number 13's inappropriate statements, it appears that the "overall impact of the matter on the fairness of the proceedings" was minimal. Ibid.

Declaring a mistrial is a "severe response" to possible prejudice to a defendant. Winter, supra, 96 N.J. at 646-647. Judge Reed found that there was no "manifest necessity" to do so in this case, and the record supports that determination. Loyal, supra, 164 N.J. at 436. Defendant cannot point to anything in the record to suggest that the jury was not impartial. As such, the trial judge's decision to proceed with the trial is entitled to deference.

H.

Defendant now argues that both the crime scene and autopsy photographs were "grisly, repulsive and inflammatory" and "alternative evidence without such an emotional impact was available." As such, the photos should not have been admitted into evidence.

The decision to admit or exclude crime-scene photographs rests with the sound discretion of the trial judge. State v. Johnson, 120 N.J. 263, 297 (1990). Most likely, any photograph of a murder victim will "cause some emotional stirring," but such photographs are admissible unless "their probative value is so significantly outweighed by their inherently inflammatory potential as to have a probable capacity to divert the minds of the jurors from a reasonable and fair evaluation of the basic issue of guilt or innocence." Ibid. (quoting State v. Thompson, 59 N.J. 396, 421 (1971)). The photographs must be relevant to an issue in the case. Ibid.

On appeal, defendant argues that the crime scene photographs were inadmissible because they had a prejudicial effect and no probative value since there was no dispute that the victim had been killed by being beaten with a board and then run over by a train. Defendant consented to the admission of all the photographs except one, S-11. Therefore, "[t]he predicament, if such it be, in which defen[dant] . . . f[inds himself] was one of [his] own making." State v. Ramseur, 106 N.J. 123, 262 (1987).

That being said, even had defendant objected to all the crime scene photographs on the grounds that they were not probative because the cause of J.B.'s death was not at issue, the photographs were offered to support the accuracy of the detective's testimony with respect to the circumstances of the crime, rather than to prove the method of the victim's death. Moreover, the prosecution did not seek to admit any photographs which showed the cross-section of the victim's torso, with the internal organs in view. Rather, the photographs depicted the location of the victim after being struck by the train. They were, therefore, probative. We agree, therefore, with Judge Reed's determination that the photographs were not unduly prejudicial, especially considering that the prosecution did not display the most graphic images.

As with crime scene photographs, the Supreme Court has stated that "[t]he presence of blood and gruesome details [in autopsy photographs] are not ipso facto grounds for exclusion." Morton, supra, 155 N.J. at 455-456 (citation omitted). It is in the trial court's discretion to admit such evidence, so long as the probative value outweighs the prejudicial effect on the defendant. See State v. McDougald, 120 N.J. 523, 583 (1990).

Here, while the photographs depicted images of J.B.'s head and neck with bruises and lacerations, the relevance of these photographs was not outweighed by their potential to prejudice the jury. See N.J.R.E. 403. The fact that J.B. had been struck numerous times in the head with a board supported the inference that defendant committed the murder purposefully or knowingly. See McDougald, supra, 120 N.J. at 583 (upholding the admission of eight autopsy photographs offered to prove that the defendant purposefully or knowingly killed the victim). Because the autopsy photographs were probative as to the nature of the victim's injuries and the killer's intent to cause fatal injury, they were clearly relevant. We agree, therefore, with Judge Reed's determination that the photos were not unduly prejudicial, especially considering that they were limited to J.B.'s head and neck and introduced solely to show that she had been beaten with a board while still alive.

I.

Lastly, defendant argues that even if this court does not find that any of his argument discussed warrant reversal "in the aggregate these errors denied Carman a fair trial under the State and Federal Constitutions."

In State v. Orecchio, 16 N.J. 125, 129 (1954), our Supreme Court explained that when comparatively minor legal errors, "in their aggregate have rendered the trial unfair, our fundamental constitutional concepts dictate the granting of a new trial before an impartial jury." In other words, where "any one of several errors assigned would not in itself be sufficient to warrant a reversal, yet if all of them taken together justify the conclusion that defendant was not accorded a fair trial, it becomes the duty of this court to reverse." Id. at 134 (citation omitted). Thus, where there is sufficient doubt about the fairness of the proceedings, the reviewing court "cannot simply close [its] eyes and let the guilty verdict stand on the assumption that the defendant is probably guilty." Pellicer v. St. Barnabas Hosp., 200 N.J. 22, 52 (2009).

Defendant's argument lacks merit because, as explained thoroughly above, the trial judge did not commit reversible error in the proceedings below. Defendant's points of contention predominantly laid within Judge Reed's discretion and that discretion was not abused. While a Kociolek charge should have been given, the failure to do so did not constitute plain error. Defendant was accorded a fair trial.

Based upon our analysis of the legal points raised, we therefore affirm.

 
Affirmed.

S-65 depicted the victim's dissected tongue. The prosecution withdrew its request to admit this photograph into evidence.

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A-2434-07T4

December 10, 2009