STATE OF NEW JERSEY v. GERALD C. DANIELS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0096-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GERALD C. DANIELS,

Defendant-Appellant.

________________________________

December 17, 2010

 

Submitted: February 24, 2010 Decided:

 

Before Judges Payne, C.L. Miniman and Waugh.

 

On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 06-09-0678.

 

YvonneSmith Segars,Public Defender,attor ney for appellant (William Welaj, Designated Counsel, on the brief).

 

Robert L. Taylor, Cape May County Prosecu tor, attorney for respondent (J. Vincent Molitor, Assistant Prosecutor, of counsel and on the brief).

 

The opinion of the court was delivered by

 

MINIMAN, J.A.D.

Defendant Gerald C. Daniels appeals from his convictions for first-degree knowing or purposeful murder, contrary to N.J.S.A. 2C:11-3a(1) and 2C:11-3a(2); third-degree aggravated assault with a deadly weapon, contrary to N.J.S.A. 2C:12-1b(2); and third-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4d. He also appeals the sentence imposed by the judge, who merged the two third-degree convic tions into the murder conviction and imposed a sentence of life in prison subject to the eighty-five percent parole bar of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, with five years of parole supervision. Thus, his period of parole ineligibility is sixty-three years and nine months. We are satisfied that the judge did not abuse his sentencing discretion and now affirm his convictions and sentence.

I.

The following facts are gleaned from the evidence at trial. At approximately 10:30 a.m. on June 14, 2004, Charles Markham, Jr., discovered the body of eighty-one-year-old Wallace Savitz, the victim of an apparent homicide, lying in the hallway of his sixth-floor apartment in Sandman Towers, a Wildwood residen tial complex, which houses a mixture of low-income elderly and dis abled people. Markham went to check on Savitz because he had not responded to intercom calls to his apartment. Markham did not approach the body.

Markham immediately pulled the emergency cord in the bathroom, which summoned both building management and the police.1 He then left the apartment and waited for the rescue squad. The next to respond to Savitz's apartment were Nicholas Thompson, the assistant director of the Wildwood Housing Authority, and Maria Gar cia, the building's social worker. Thereafter, the Wildwood police and the rescue squad arrived.

Wildwood Officer Nieves arrived first. By the time Wildwood Ser geant Richard Adair responded at 10:49 a.m., emergency medical techni cians were already there. Nieves advised Adair that the occupant was deceased. Adair observed that Savitz was lying on his back and had sustained a large gaping wound to his neck made by more than one slicing motion. There was a large amount of blood around his body.2 Adair requested that Detective Sergeant Kevin McLaughlin respond to the scene.

Adair and McLaughlin noticed that there was a frying pan on the ground near Savitz's body, which had a bloody fingerprint on it, and blood was spattered on the wall. A mop with a bloody handle to which several hairs were stuck was also lying near Savitz's body. Adair determined that there was no sign of forced entry. Later that day, he found a silver box cutter out side the building below the stacked windows of the first- and second-floor apartments of defendant and Savitz's thirty-seven-year-old stepson, James Reilly, Jr. The security camera last showed the victim entering the building on June 12, 2004, at 5:37 p.m. wearing the clothing found on his body two days later.

When McLaughlin came out of the apartment, Reilly approached him and agreed to go to the police station to be interviewed. Notably, Reilly, who was legally blind and suf fered from epilepsy, had owed a small sum of money to Savitz. Hickman and Wildwood Detective Edward Ramsey interviewed Reilly from 3:00 p.m. until 9:00 p.m. Wildwood Detective John Clemens administered a computer voice stress test to Reilly, after which he was released. While Reilly was at the station, Prosecutor's Detective Bill Henfey searched Reilly's apartment. He noticed a stain on the floor, which tested positive for blood, and also seized a sweat shirt with a red stain, a towel, a pair of sweatpants, and several knives.3

The Cape May County Prosecutor's office and the Wildwood police investigated the crime. Prosecutor's Sergeant Michael R. Hickman and Wildwood Detective Shawn Yuhas were assigned to the case. Yuhas interviewed Markham at police headquarters on June 14 in the afternoon. Markham told Yuhas that he was not aware of any complaints by Savitz.

The next morning, the police returned to Sandman Towers to identify potential witnesses. Hickman and Clemens spoke with Garcia, who identified five tenants who might have information about Savitz. Only one of those residents, Larry Meehan, was at home that morning. When interviewed, Meehan mentioned that defendant had been borrowing money or cigarettes from Savitz.

At approximately 1:33 p.m. on June 15, Hickman and Yuhas knocked on defendant's door. When defendant answered the door, the officers advised him that they were investigating Savitz's death; defendant agreed to speak with them and let them in. The officers immediately noticed that the apartment smelled strongly of bleach and the floor was wet. A bucket and mop were on the floor, and one of the apartment walls had been wiped down while another wall and a piece of linen were stained with what appeared to be blood.

The officers conversed with defendant for about three hours, during which time they noticed numerous cuts on his hands. Defendant was cooperative, and for the first thirty min utes he provided biographical information to them. He explained that he was allowed to live at Sandman Tow ers because he suf fered from depression, and he had injured his hands while attempting to earn a few dollars picking up paper down at the boardwalk a few nights ear lier.

Hickman and Yuhas asked defen dant about Reilly and then asked if he knew the victim. Defen dant denied that he knew Savitz, that he had ever attempted to borrow money or cigarettes from him, and that he had ever gone to his apartment. Although the officers showed defendant two photos of Savitz, defendant insisted that they had never met, although he may have seen him around the apartment complex. The officers then asked defendant if he would provide a DNA sample, and he agreed. The officers also questioned defendant about his activities on June 12, 13, and 14, 2004.

Around 3:30 p.m., the officers obtained a buccal swab kit and took a DNA sample from defendant. Shortly after 4:00 p.m., McLaughlin procured a search warrant for defendant's apartment, and he directed Hickman and Yuhas to bring defen dant to the police station. Defendant eventually agreed to go, and he was given his Miranda4 rights. While there, the police reviewed the information defendant had provided and seized his clothes.

During the search of defendant's apartment, the police seized a blue shirt with blood stains on the front and a pair of sneakers with blood on them. Building video sur veillance tapes subsequently revealed that defendant was wearing that shirt on June 12, 2004.

Defendant was allowed to go home later that evening after the search of his apartment was completed. Although the police interviewed at least four other people on June 15 and 16, 2004, none of their apartments was searched.

At some point over this two-day period, some police offi cers discovered a trail of bloody footprints in the stairwell leading from the sixth floor down at least as far as the second floor, where the trail began to fade. Blood was also found on the door handle to the second floor and on a second-floor wall between the stairwell and defendant's apartment.

At 7:15 p.m. on June 16, Prosecutor's Sergeant William Kirkbride learned that the fingerprint on the frying pan had been identified as defendant's. He was arrested at 10:00 p.m. that night for Savitz's murder. Later, police learned that both defendant's blood and Savitz's blood had been found on the fry ing pan and on defendant's blue shirt. Detective Sergeant Jef frey Scozzafava of the New Jersey State Police determined that the shirt stain was the result of airborne blood spatter while Savitz was still alive. Savitz's blood was also found on one of defendant's shoes and in the stairwell.

II.

At trial, various residents and guests of Sandman Towers and the two management representatives testi fied regarding their dealings with defendant. Resident Lorraine Fucini testified that she had loaned defendant both money and cigarettes and that Savitz had warned her not to give defendant any more money because "he'll take you for all you have." She told defendant not to bother Savitz, but three weeks before Savitz's murder, she saw the men arguing and heard Savitz call defendant a "dirty nigger" and yell at him for asking for money, to which defendant responded by calling Savitz an "old man."

Residents Migdalia Reyes, Barbara Ball, and Thomas Daly testified that defendant often knocked on their doors asking for cigarettes and money. Reyes spoke to defendant's mother, Mamie Reed, about this; about three weeks before the murder, Reed told her that Savitz had been complaining to other residents that defendant was knocking on his door at 1:00 a.m. looking for cigarettes. On June 12, 2004, defendant entered Ball's apart ment without knocking; Ball later filed a complaint with building security. Daly also complained to Thompson about defendant shortly before Savitz's murder.

Guest Karl Waterman related that, also on June 12, 2004, he was spending the night at Sandman Towers in the apartment of his girlfriend, Susan Smith. He had showered while Smith was out and, upon emerging, discovered defendant standing in the apart ment asking for cigarettes. Waterman later filed a complaint with building security.

While volunteering as a security officer at Sandman Towers, Meehan received many complaints regarding defendant's panhan dling. He prepared incident reports docu menting the Smith and Ball incidents. On the back of one of the reports he listed eleven other residents who had complained of defendant, includ ing Savitz. He turned these reports over to Garcia, who oversaw the security program at Sandman Towers.

Savitz had asked Meehan to keep defendant away from him because he kept asking for money and cigarettes. Meehan spoke to defendant, who agreed to stay away from Savitz. How ever, Savitz approached Meehan again "close by" the date he was murdered, again complaining of defen dant. Although Meehan told Savitz to speak directly with Gar cia, Savitz later told him that he decided instead to speak to Reed, who apologized for defendant's behavior. In general, Meehan believed that "[i]t was evident" that Savitz and defen dant were not getting along in June 2004 and that "they both hated each other."

Garcia and Thompson testified that each was aware of the many complaints about defendant and that they spoke to defendant about them. Thompson warned defendant that, if he did not stop panhandling, Thompson would prepare a for mal notice to cease, the first step in having defendant evicted from his apartment. When the complaints against defen dant spiked again the week before Savitz's murder, Thompson finally prepared this notice. He recalled that he attempted to serve this notice on defendant on Friday, June 11, 2004, but was unable to locate him.

Barbara Shuman testified that she had known Savitz from the local VFW to which they had both belonged. She confirmed from sign-in sheets that Savitz had visited the VFW on June 12, 2004. Sometime earlier that June, Savitz had confided in her that he was tired of being hassled for cigarettes and money at Sandman Towers. He told her that he had fallen asleep one night without locking his door and had been awoken by a "nasty . . . nigger" who had entered his apartment and was standing over his bed looking for cigarettes and money.

Reed testified that defendant had been diagnosed as mildly men tally retarded and was permitted to live at Sandman Towers because of this disability. She confirmed that defendant begged from other residents "all the time," many of these resi dents complained to her about defendant's behavior, and she spoke to him and tried to get him to stop. Two to three weeks before Savitz's murder, he informed her that defendant was knocking on his door late at night asking for cigarettes. She apologized to Savitz and said she would speak to defendant, which she did.

Before defendant testified, the judge conducted a Sands5 hear ing regarding the admissibility of defendant's 1991 convic tion for theft. Defense counsel argued that this convic tion should be excluded due to its remoteness since it actually arose out of conduct occurring in 1988, sixteen years before the instant homicide. The prosecutor, however, noted that defendant had not led a law-abiding life since that time, pointing out that he had been arrested and convicted of at least five disor derly persons offenses between 1994 and 1996 for which he was sentenced to two terms of imprisonment in the county jail. As such, and because defendant's theft conviction involved a "bad check type swindle" or fraud deserving of greater weight under Sands, the prosecutor urged the judge to permit him to impeach defendant with the 1991 conviction.

After the parties' arguments, the judge ruled that the prosecutor would be permitted to admit evidence of defendant's 1991 conviction. The judge observed that the conviction involved fraudulent conduct, which made it eligible for admission under Sands. The judge noted, though, that it would not likely have allowed its introduction but for defen dant's "intervening record." The judge recognized that this record consisted of convictions for disorderly persons offenses which were not, themselves, admissible, but emphasized that it nonetheless "con stitute[d] a timeline of continuing involvement by this defen dant with law enforcement on a regular basis," which enhanced the relevance of the 1991 conviction.

At trial, defendant testified that he suffered from diabe tes and "a few" mental health problems and that he moved into Sandman Towers in 1998, where his mother was already a resident. He admitted that, when he was eighteen, he had been arrested for stealing a $1000 check and that he was sentenced to probation.

Defendant admitted that he was smoking two packs of ciga rettes per day in 2004. His mother, who controlled his disabil ity check, was trying to get him to quit smoking so he bor rowed cigarettes and money from various residents in Sandman Towers. He picked up this practice from other residents who used to ask him for money and cigarettes. He acknowledged that Garcia and Thompson asked him to stop bothering other residents. While he might have asked Savitz for a cigarette, he did not really know the man and had never been to his apartment and never entered Savitz's apartment without permission. He denied having an argument with Savitz, as Fucini had claimed.

Defendant walked to the sixth floor at 5:30 p.m. on June 12, 2004, to ask Geraldine Horner for a cigarette. When she did not answer the door, he decided to take the elevator back down because he was tired. While he was waiting for the elevator, he saw Reilly come out of Savitz's apartment. He asked Reilly what he was doing, but Reilly turned around and went back inside the apartment without responding.

Thereafter, just as defendant was about to get into the elevator, he heard someone say "[s]top, leave me alone" from inside Savitz's apartment. Defendant approached the partially open apartment door to see what the problem was. After knocking and receiving no answer, defendant entered the room and spotted a man lying on the floor. He saw Reilly, who was wearing latex gloves and standing by the window, and asked what had happened. Reilly, however, walked into the kitchen rather than answering.

Defendant leaned down to see whether the prone man, whom he eventually learned was Savitz, had a pulse, and performed the Heimlich maneuver on Savitz, getting blood on his arms in the process. Suddenly, Reilly approached him with a frying pan and tried to hit him. Defendant managed to grab the pan from Reilly and strike him on the head. Reilly then pushed defendant onto Savitz's body, causing him to get blood on his shirt and shoes. After defendant got up, Reilly hit him again and said, "if [you] tell, [I'm] going to kill [your] mom and sister." Reilly then left, followed by defendant, who took the stairs back down to his apartment to shower and change his clothes.

Defendant insisted that he did not murder Savitz. He denied throwing a box cutter out his apartment window and claimed that he mopped his floor on June 15 in order to prepare for an inspection, not to get rid of blood. He admitted that he failed to tell the police his version of what happened to Savitz when they were in his apartment for three hours on June 15. He explained that he lied to police to protect his mother.

At the conclusion of the trial, the jury convicted defen dant on all charges. At defendant's sentencing hearing, his presentence report reflected ten prior arrests, six of which involved alleged acts of violence, and six convictions. Defendant had been sentenced to both probation and jail time. The prosecutor further advised the judge that defendant's his tory reflected that: (1) in 1995 or 1996, he had been brought to Beth Israel Hospital by family members after they discovered that he was stalking local women; (2) in 1996, he had threatened to strangle his mother; and (3) in 1998, he had threatened to put a "hit" on someone after that person complained of defendant's panhandling.

The sentencing judge found the following four aggravating factors: (1) the risk that defendant will commit another offense,6 (2) the extent of defendant's prior record and the seri ousness of the offenses of which he had been convicted,7 (3) the need for deterrence,8 and (4) defendant's awareness of the advanced age of the victim.9 In doing so, the sentencing judge found that defendant had an extensive "history of continuing violations of the law and prior acts of violence," and was likely to commit another offense. The judge gave substantial weight to aggravating factor six because of the extremely seri ous and brutal offenses of which defendant was convicted. The judge gave substantial weight to aggravating factors nine and twelve because there was a specific need to deter defendant from his violent behavior, which had culminated in this horrific attack, and because there could be no doubt that defendant was aware of his victim's advanced age.10

The judge found a single mitigating factor that there were substantial grounds tending to excuse defendant's conduct11 given his mental disability and illness.12 The judge determined that defendant's extensive criminal history precluded any finding of mitigating factor seven that defendant had no history of prior criminal activity or had led a law-abiding life for a substan tial period of time.13 The judge concluded that the aggravating factors substantially outweighed the single mitigating factor.

The judge merged the convictions for aggravated assault and possession of a weapon for an unlawful purpose into the murder conviction for sentencing purposes. He sentenced defendant to life in prison, subject to NERA. Thus, defendant would not be eligible for parole for sixty-three years, nine months.

III.

After the denial of his motion for a new trial and sentenc ing, defendant filed this appeal. He raises the following issues for our consideration:

POINT I - THE TRIAL COURT ERRED IN PERMIT TING THE STATE TO ELICIT TESTIMONY AS WELL AS TO COMMENT UPON THE DEFENDANT'S PRE-ARREST SILENCE.

 

POINT II - THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF THE TRIAL COURT'S RULINGS PERMITTING THE STATE TO ELICIT INADMISSABLE HEARSAY FROM VARIOUS WITNESSES ATTRIBUTING STATEMENTS ALLEGEDLY MADE BY THE VICTIM AS CONSTITUTING RES GESTAE EVIDENCE OR AS BEING ADMISSIBLE PUR SUANT TO N.J.R.E. 404(b), N.J.R.E. 803(c)(2) OR N.J.R.E. 803(c)(3).

 

A. FACTUAL INTRODUCTION.

 

B. SINCE THE VICTIM'S STATE OF MIND WAS NOT A RELEVANT CONSIDERA TION IN THE PRESENT CASE, THE TRIAL COURT ERRED IN DEEMING THE VAR IOUS STATEMENTS AND CON DUCT ATTRIBUTED TO THE VICTIM TO BE ADMISSIBLE PURSUANT TO N.J.R.E. 803(c)(3).

 

C. THE RES GESTAE DOCTRINE WAS INAP PLICABLE TO JUSTIFY THE ADMIS SION OF THE PROFERRED TESTIMONY.

 

D. THE TRIAL COURT ERRED IN RELY ING UPON N.J.R.E. 404(b) TO JUS TIFY ITS ADMISSION OF THE PROFERRED TESTIMONY.

 

E. THE EXCITED UTTERANCE DOCTRINE EMBODIED IN N.J.R.E. 803(c)(2) DID NOT PROVIDE AN ALTERNATIVE JUSTI FI CATION FOR THE TRIAL COURT'S RULING.

 

F. THE JURY HEARD INADMISSIBLE AND HIGHLY PREJUDICIAL OPINION TES TIMONY WITHOUT ANY FACTUAL FOUNDATION TO JUSTIFY ITS ADMISSION.

 

POINT III - THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A MISTRIAL ARISING OUT OF THE PROSECUTOR'S SUMMATION WHICH EXCEEDED THE BOUNDS OF PROPRIETY.

 

POINT IV - THE TRIAL COURT ERRED IN RULING THAT THE DEFENDANT'S ONLY PRIOR CONVICTION OCCURRING OVER 16 YEARS EARLIER WAS ADMISSIBLE TO ATTACK CREDIBLITY.

 

POINT V - THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

The scope of our review of the first and second points on appeal is de novo as they involve purely questions of law and the application of law to the facts of the case. State v. Cleveland, 371 N.J. Super. 286, 295 (App. Div.), certif. denied, 182 N.J. 148 (2004); see also Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) ("A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." (citations omitted)).

The scope of our review of the third and fourth points on appeal is limited to an abuse-of-discretion standard. The deci sion to grant or deny a motion for a mistrial is committed to the sound discretion of the trial judge, and that decision will be reversed on appeal only for a mistaken exercise of discre tion. State v. Winter, 96 N.J. 640, 647 (1984). Similarly, admission of a prior conviction rests within the sound discre tion of the trial judge. State v. Hamilton, 193 N.J. 255, 256-57 (2008); Sands, supra, 76 N.J. at 144.

With respect to the fifth point, in determining the appro priate sentence to be imposed on an individual convicted of a crime, the sentencing court must consider specifically enumer ated aggravating and mitigating circumstances identified at N.J.S.A. 2C:44-1a and b, assign weight to them, balance them, and explain how the sentence was determined so that a reviewing court will have an adequate record to review on appeal. See State v. Kruse, 105 N.J. 354, 358-60 (1987). An appellate court may review these aggravating and mitigating fac tors to see if they are supported by sufficient credible evi dence in the record and may review the sentence to determine if it violates the sen tencing guidelines, but may only modify a sentence if the sen tencing court was "clearly mistaken." State v. Jabbour, 118 N.J. 1, 6 (1990).

IV.

After carefully reviewing the record in the light of the written arguments advanced by the parties, we conclude that some of defendant's arguments "are without sufficient merit to war rant discussion in a written opinion." R. 2:11-3(e)(2). Those arguments are defendant's claim that the judge erred in admit ting evidence of his prior conviction and in sentencing him to a life term. We add the following brief comments.

As to the first issue, "[o]rdinarily evidence of prior con victions should be admitted and the burden of proof to justify exclusion rests on the defendant." Sands, supra, 76 N.J. at 144. We are satisfied that defendant failed to meet his burden of proof and find no mistaken exercise of discretion by the trial judge in admitting defendant's prior conviction, which involved fraudulent conduct followed by continuing involvement with the law, although comprised of only subsequent disorderly persons offenses. See id. at 144-45.

As to the sentencing issue, the life sentence imposed here is not "clearly mistaken" and is within the sentencing guide lines and supported by the evidence in the record. Jabbour, supra, 118 N.J. at 6.

V.

Defendant argues that the judge erred in permitting the prosecutor to elicit testimony regarding defendant's pre-arrest silence and then to comment on that silence during the prosecu tor's summation. The State responds that defendant was not in custody or under arrest while the police questioned him in his apartment beginning at 1:30 p.m. on June 15, 2004. Furthermore, he was not a suspect at that time. Therefore, the State was free to comment on defendant's pre-arrest silence.

The facts relevant to this issue begin with a pretrial Miranda hearing. Clemens testified that Reilly was the main sus pect in the investigation on June 14 and 15. The decision to interview defendant as a "person of interest" was made based upon information supplied to Hickman and Yuhas by Meehan at 10:30 a.m. on the morning of the fifteenth. Specifically, Meehan advised Hickman and Yuhas that defendant had borrowed money and cigarettes from Savitz in the past.

When defendant answered his door at 1:30 p.m., Hickman and Yuhas identified themselves as police officers involved in the Savitz murder investigation, and defendant invited them in. They immediately noticed that defendant had recently washed both his floor and at least one wall with bleach, the floor was still damp, and there was a possible blood stain on another wall. Within the first thirty minutes of the interview, the officers questioned defendant regarding his interactions with Savitz.

According to the officers, defendant denied knowing Savitz or having past interactions with him. He did not recognize a photograph of Savitz. The officers then confronted defendant with Meehan's statement. At approximately 2:30 p.m., after all discussion regarding Savitz had been concluded, the officers requested a mouth swab kit from headquarters so that they could check whether the apparent blood stain on the wall matched defendant s DNA. Defendant consented to the DNA test.

While waiting for the kit to arrive, the officers continued to engage defendant in a general conversation about Wildwood, Sandman Towers, TV shows, and the like. Defendant never asked them to leave or tried himself to leave, and he was never restrained by the officers. At 4:30 p.m., upon learning that a search warrant for defendant s apartment had been secured, the officers advised defendant of same and asked defendant to accom pany them to the police station. Defendant became agitated at this point. Although defendant was not placed under arrest or cuffed, the officers did advise him that he was being placed in investigative detention and that if he did not go willingly, he would be charged with obstruction. Defen dant calmed down at that point. At the station, the officers advised defendant of his Miranda rights and began to question him about the things discovered in his apartment, including blood on the wall, blood behind the microwave, and blood next to his bed. Defendant was ultimately released later that evening and not arrested until 10:00 p.m. the following day.

At the conclusion of the Miranda hearing, the motion judge ruled that it was evident that defendant was only a person of interest, and not a suspect, at the time the police knocked on his door. At that point, his interview was not a priority, he was asked the same questions as other interviewees, and there was no evidence that the officers were aware of his criminal history. The judge noted that the police did not attempt to intimidate defendant, either through their questioning or through a wielding of their weapons. The judge was satisfied that, at least until the point when the officers sent for the swab kit, a reasonable person would have felt free to leave or terminate the interview. Thus, in the judge s view, defendant s custodial status began at 2:30 p.m. when the officers sent for a buccal swab kit, after defendant had already given his state ments to police. As a result, there was no Miranda violation, and the statements made during the first sixty to seventy minutes of questioning were admissible.

Thereafter, during jury selection, defense counsel moved, based upon the record established at the Miranda hearing, to prohibit the prosecutor from impeaching defendant with his fail ure to offer his exculpatory version of Savitz s murder at any point between 1:30 and 4:30 p.m. on June 15. Defense counsel asserted that defendant s silence on this subject qualified as inadmissible pre-arrest silence, based upon the speed with which the police conducted their investigation and secured defendant s arrest. The prosecutor responded that, since defendant was not taken into investigative detention until 4:30 p.m. that day, there was no reason why he could not be questioned regarding his inexplicable silence on this subject.

The trial judge denied defense counsel s motion, concluding that a reasonable person in defendant s position would have immediately shared his exculpatory version of events with police. Notwithstanding his earlier finding that defendant's custodial status began at 2:30 p.m., the judge ruled that there was no government compulsion prior to 4:30 p.m. when defendant was officially taken into custody.

Defendant testified at trial to his exculpatory story, implicating Reilly as the murderer. He testified that Reilly threatened to kill defendant's mother and sister if defendant disclosed what he had seen in Savitz's apartment on June 12, 2004. Defendant denied killing Savitz.

Before the State began cross-examination, the judge charged the jury on prior inconsistent statements, which were to be con sidered only on the issue of defendant's credibility. The prosecutor, in cross-examining defendant, asked him if he told the police on June 15, 2004, how he injured his arm and knuckles, and he said, "Only if he asked. I ain't going to blurt out information." After going over defendant's exculpa tory version of the murder, the prosecutor asked the following questions, and defendant gave the following answers:

During those three hours you spent with those two officers, did you go over what you had done from Saturday the 12th of June, 2004 --

 

A. Mostly. Only when they asked questions.

 

Q. Right. Through Sunday the 13th?

 

A. Yes.

 

Q. Okay. When they were asking you questions about where you had been and what you had done, did you understand the questions they were asking you?

 

A. Most of them - - most of them did n't understand me when I was talking to them. So I just told them something.

 

Q. But you understood them?

 

A. I understood them.

 

Q. When they asked you during that three hours about whether you had ever been to [Savitz's apartment], you told them no, right?

 

A. I said I was protecting my mother. I was afraid what Reilly might do.

 

Q. Okay. But you knew that was a lie, right?

 

A. Didn't trust them. I - - I know my mother's life was at stake. And I was pro tecting my mother at the time. That's all I was thinking about.

 

Q. So you decided to lie to them?

 

A. I said, you can't trust cops. Most cops, you can't trust.

 

Q. When they asked you whether you had been borrowing money and cigarettes from Wally Savitz, you told them no?

 

A. That's - - I told them the truth. That part was the truth. I never borrowed nothing from - - from him.

 

Q. And when they asked you, and they showed you two photographs of Wallace Savitz, the man that you just saw dead a couple of days before - -

 

A. I didn't see what - - it was like seeing in the dark. Didn't know what he looked like.

 

Q. Well, didn't you say that he was laying on his back, face up?

 

A. Face up. But I didn't see his face. It was too dark in there to see any thing. He could look like the gentleman right there. Or the gentleman behind that blonde woman right there.

 

Q. Did you lie to the police because you knew, once they found out about you being in the room, about being involved with Wallace Savitz previously, having arguments with him, did you decide to lie to them because you didn't want them looking at you for this homicide?

 

A. Like I said, my mother's life was at stake. I don't risk nothing.

 

Q. Did you lie to them because you knew that shirt was in your closet?

 

A. No.

 

Q. Did you know it was there?

 

A. Yeah.

 

Q. Did you think they might want to look at it?

 

A. If they look at it, they look it. I didn't have nothing to hide. I was only living in the apartment.

 

Q. You never told the police on June 15 about James Reilly, Jr., did you?

 

A. No, I never told them that.

 

In his summation, the prosecutor asserted that, in order to acquit defendant, the jury would have to believe his testimony. He stated:

[Defendant and Savitz] lived together, they knew each other. They weren't getting along; they were arguing. They had heated arguments on some occasions. . . . [Defen dant] knew [Savitz] because he was dealing with the consequences of the com plaints, either through his mother talking to him, Maria Garcia or Nick Thompson, he was deal ing with it, and they were face to face arguing on a recent occasion before the homicide.

 
But what does [defendant] have to tell you? He has to tell you he doesn't really know [Savitz] because there's another prob lem. You see, when the police came, long before they realized that [defendant] was a guy who might have some involvement in this, they ask him a couple of basic simple ques tions. Do you know the guy in [that sixth-floor apartment] . . . and [h]e says no.

This is a guy that we now know [defen dant] had all these problems with. He had just seen [Savitz] dead. [Defendant] had just been in [his apartment], where he allegedly witnesses a[] horrific scene. He says, No. . . . [D]on't know [Savitz]. I can't help you. Were you ever in [that apartment]? No. [N]ever been [there]. Ever borrow money and ciga rettes from . . . Savitz? No, can't say that I have . . . .

We . . . know that was all a lie, but why did he have to tell you he didn't know . . . Savitz? Because he has to sell you on that because he has to deal with that prob lem that on June 15th, he was lying to law enforcement. He was lying to law enforce ment not because he was scared, not because he was protecting anybody. . . . [W]hat he was scared of was getting arrested. He was n't scared for his mother's safety, he was n't scared for his own safety. He had a bloody shirt in his closet and he had just killed somebody. He lied because he wanted to throw the police off.

Later, the prosecutor made the following additional remark:

And at 1:33 p.m. on the 15th is when there's a knock on [defendant's] door, and outside his door is . . . Hickman and . . . Yuhas.

. . . .

The interview becomes extremely impor tant, I suggest to you, when you look at the evidence[,] because it goes a long way in determining whether or not [defendant] is telling you the truth. . . . Two officers, they . . . testified, it was a very pleas ant, cordial conversation. [Defendant] is not upset, not nervous, he doesn't display any issues with them being there. They talked for hours, three hours, in that room. They talked about cuts on his hands, they talk about TV shows, they talk about a variety of things. And he lies to them.

He never tells them about being in [Savitz's apartment] witnessing a homicide. I suggest to you that [defendant] would have. Anybody would have. Look at that scenario, think about it, and apply your own common sense to that scenario. The police are canvassing the building. They're now coming to you and asking you, . . . were you in [Savitz's apartment]. And you say no. You lied to them, and then, you don't tell them about what happened [there].

The prosecutor also stated as follows:

When you judge his credibility, you have to now recognize and concede that at the very least, he lied to the police. He made a decision on the 15th of June to lie to them, why wouldn't he lie to you? Why not? He's willing to do it then.

And he lied about big stuff, not little stuff. He lied about being in a room of a homicide. He lied about knowing . . . Savitz. He lied about borrowing money and cigarettes. All the things that were sig nificant. Significant to the investigation of this case, significant to determining who possibly killed the victim, and he took that opportunity to cover up his crime.[14]

 

The trial judge instructed the jury as follows regarding defendant's pre-arrest silence:

[Y]ou will recall that in his testimony, the defendant acknowledged on cross-examination by the State that at all times prior to his arrest at approximately 4:30 p.m. on June 15, 2004, he failed to disclose to anyone or even comment upon his exculpatory testimony given at trial, that James Reilly, Jr. was, in fact, the person who caused the death of Wallace Savitz, that the defendant con fronted Reilly in [Savitz's apartment] shortly after 5:30 p.m. on June 12, 2004; that Savitz was, by that time, dead; and that Reilly threatened to kill the mother and sister of [defendant] if [defendant] told anyone.

It is for you, the jury, to consider as you deem appropriate, based upon objective circumstances in the record inferred, whether a reasonable person situated as the defendant, then would naturally have come forward and mentioned his involvement to investigat[ing] officers or others at either the scene or his apartment when interviewed by . . . Hickman and Yuhas on June 15, 2006[,] prior to his arrest.

Should you so conclude and thereby view the pre-arrest silence of the defendant pro bative, then you are permitted to infer his consciousness of guilt that bears on the credibility of the defendant when measured against his apparent exculpatory testimony. Importantly, however, evidence of a defen dant's pre-arrest conduct or silence is admitted only for the limited purpose of impeaching the defendant's credibility. It cannot be used or considered by you as evi dence of the defendant's guilt on these charges.

The narrow question before us is whether defendant's excul patory trial testimony could be impeached both with his failure to provide that explanation to the police when they first spoke with him and with the statements that he did make during that three-hour conversation. Defendant has not appealed the judge's ruling that the officers were not required to administer a Miranda warning prior to the time defendant was taken into investigative detention.15 Defendant was not arrested until the next evening. Nonetheless, he asserts that his pre-arrest silence occurred "at or near" the time of his arrest, is thus protected by his state-law privilege to remain silent, and could not be used to impeach his testimony at trial.

Defendant unquestionably has a federal con stitu tional right to remain silent. U.S. Const. amend. V; State v. Brown, 190 N.J. 144, 153 (2007). A state may not "impeach a defendant's exculpatory story, told for the first time at trial, by cross-examining [him] about his failure to have told the story after receiving [Miranda] warnings at the time of his arrest." Doyle v. Ohio, 426 U.S. 610, 611, 96 S. Ct. 2240, 2241, 49 L. Ed. 2d 91, 94 (1976) (footnote omitted). This is so because "every post-arrest silence is insolubly ambiguous." Id. at 617, 96 S. Ct. at 2244, 49 L. Ed. 2d at 97 (footnote omitted).

On the other hand, federal courts generally permit the use of pre-arrest silence to impeach a defendant. Jenkins v. Ander son, 447 U.S. 231, 238-39, 100 S. Ct. 2124, 2129, 65 L. Ed. 2d 86, 94-95 (1980). However, the Jenkins Court invited state courts to formulate their own "evidentiary rules defining the situations in which silence is viewed as more probative than prejudicial." Id. at 240, 100 S. Ct. at 2130, 65 L. Ed. 2d at 96. Generally speaking, "our state-law privilege against self-incrimination is, if anything, more protective than the [F]ifth [A]mendment." State v. Strong, 110 N.J. 583, 595 (1988) (citations omitted).

New Jersey does not have a state constitutional equivalent to the Fifth Amendment. Rather, our "privilege against self-incrimina tion . . . is deeply rooted in this State's common law and codified in both statute and an evidence rule." State v. Muhammad, 182 N.J. 551, 567 (2005). N.J.S.A. 2A:84A-19 and N.J.R.E. 503 both provide that "every natural person has a right to refuse to disclose in an action or to a police officer or other official any matter that will incriminate him or expose him to a penalty or a forfeiture of his estate."

Initially, the Supreme Court described this privilege expansively. "[W]hen a defendant expressly refuses to answer, no inference can be drawn against him under the doctrine of acquiescence by silence or any other concept." State v. Ripa, 45 N.J. 199, 204 (1965) (per curiam) (citations omitted). Fur ther, no comment on his silence may be made to the jury. State v. Lanzo, 44 N.J. 560, 563 (1965).

This being so, it should certainly follow that a defendant is under no obligation to volunteer to the authorities at the first opportunity the exculpatory story he later tells at his trial and cannot be penalized directly or indirectly if he does not. While the situation in Ripa was that of the State offering evidence of a refusal to answer as substantive proof of guilt[] on its own case, we think the result should be no different when it is presented by way of attempted impeachment of a defendant's exculpatory testimony through cross-examina tion, and we so hold as a matter of state law. The privilege of silence is substan tially eroded and reliance upon it unjustifiably penalized in either situation.

 

[State v. Deatore, 70 N.J. 100, 115-16 (1976) (emphasis added).]

The issue in Deatore was whether,

if a defendant . . . testifies exculpato rily at trial and had not told that story, but remained silent, at or near the time of his arrest, his silence and failure to vol unteer then, whether or not he was ques tioned, may properly be brought to the attention of the jury on cross-examination in order to permit the inference that the exculpatory testimony is therefore untrue.

 

[Id. at 108 (emphasis added).]

 

The Court determined "that such cross-examination of a defendant is improper." Id. at 109. It rejected the federal dis tinction between silence before and silence after Miranda warn ings as meaningless because "[t]he right to remain silent existed long before Miranda; that decision, for present pur poses, required only that a defendant be reminded of it so that he could make an appropriate choice before any interrogation." Id. at 117 n.10.

Fourteen years after Deatore, the Court took a more narrow view of the right to remain silent. When the Supreme Court was presented with a case where defendant was silent for two days, State v. Brown, 118 N.J. 595, 609 (1990), the Court confined Deatore to its facts silence "at or near" the time of arrest:

It is by no means clear that . . . [defen dant's] pre-arrest silence was so lacking in probative worth that it would not have been admissible. In [Deatore, supra, 70 N.J. at 108-09], we held that New Jersey common law provides a defendant with the right to remain silent when in police cus tody or under interrogation, ruling that defendant's silence "at or near" the time of arrest may not be introduced to impeach his credibil ity. Deatore, however, did not deal spe cifically with "silence" that significantly precedes an arrest.

 

[Id. at 610 (emphasis added).]

 

The Brown Court noted Jenkins, supra, 447 U.S. at 240, 100 S. Ct. at 2130, 65 L. Ed. 2d at 96, and concluded:

[U]nder our own law a defendant has no right not to speak prior to arrest. We are also of the view, however, that a defendant has no duty to speak prior to arrest. Simply, there is no legal con straint one way or the other either to speak or not to speak prior to an arrest. Consequently, evidence of pre-arrest silence, particularly in the absence of official interrogation, does not violate any right of the defendant involving self-incrimination. Thus, in effect, the proba tive worth of such pre-arrest silence should be considered objectively and neu trally, without added coloration attributable to any legal right in such silence.

 

We now hold that pre-arrest silence may be admitted for impeachment purposes pro vided no governmental compulsion is involved. In determining admissibility, the probative worth of pre-arrest silence as bearing on credibility must be assessed in light of all the surrounding circumstances. If it can be inferred by the fact-finder that a reasonable person situated as the defendant, prior to arrest, would naturally have come forward and mentioned his or her involvement in the criminal episode, par ticularly when this is assessed against the defendant's apparent exculpatory testimony, then the failure to have done so has suffi cient probative worth bearing on defendant's credibility for purposes of impeachment.

 

. . . .

 

We conclude, therefore, that evidence regarding pre-arrest silence is admissible if, when viewed objectively and neutrally in light of all circumstances, it generates an inference of consciousness of guilt that bears on the credibility of the defendant when measured against the defendant's appar ent exculpatory testimony.

 

[Id. at 613-15 (citations omitted).]

 

We considered Brown, supra, 118 N.J. 595, in State v. Mess ino, 378 N.J. Super. 559, 585 (App. Div.), certif. denied, 185 N.J. 297 (2005), where the defendant argued that the prosecu tor's comments about his pre-arrest silence regarding the manner in which a child was injured violated his right to remain silent. We disagreed because "[e]vidence of pre-arrest silence, in the absence of official interrogation, does not implicate the defendant's right against self-incrimina tion." Ibid. (emphasis added) (citing Brown, supra, 118 N.J. at 613).

In Muhammad, supra, 182 N.J. at 558, the Court reaffirmed "that a suspect's silence while in custody, under interrogation, or 'at or near' the time of his arrest cannot be used against him in a criminal trial." There, after raping the victim, the defendant police officer took her to the police sta tion and accused her of harassing his brother and sister-in-law. Id. at 559-60. The victim insisted that defendant raped her and pro duced the condom he used as evidence of the rape. Ibid. The defendant was taken into custody and made no more statements. Id. at 562.

The defendant did not testify at trial, but counsel offered an exculpatory version of the events surrounding the crime in question. Ibid. In respect to the prosecutor's arguments to the jury, the Court drew a sharp distinction between the prosecutor, on the one hand, pointing out the sig nificant inconsistency between the officers' testimony respect ing the defendant's statements at police headquarters and the purported exculpatory version of the events and, on the other hand, asking "the jury to reject the consent defense because defendant remained silent when he had the opportunity to present it to the police." Id. at 566 (footnote omitted).

"[T]he right of . . . a suspect to remain silent when in police custody or under interrogation has always been a funda mental aspect of the privilege in this state." Deatore, supra, 70 N.J. at 114. When in custody, a suspect "is privileged to say nothing" at all to the police and "is under no duty to give a statement. . . ." [Ripa, supra, 45 N.J. at 204]. The reason for a suspect's silence in a police domi nated setting cannot easily be discerned. Because we cannot know whether a suspect is acquiescing to the truth of an accusation or merely asserting his privilege, such silence is "equivocal." Id. at 203. We have recog nized that a "likely explanation" for a sus pect's silence while under official interro gation or in custody may be that he is exer cising his right "to remain silent." [Ibid.] Therefore, we do not permit a jury to infer guilt from that silence. Id. at 203-04.

 

[Id. at 567 (emphasis added).]

 

The Muhammad Court noted that federal courts permit the use of silence prior to Miranda warnings, id. at 568, but reasoned that under New Jersey law, "[b]arring the use of silence 'at or near' the time of arrest avoids the often murky inquiry into pinpoint ing the precise moment a suspect is placed in custody or under arrest." Id. at 569. The Court then turned its attention to the holdings in Deatore, Lyle, and Brown. Id. at 567-72.16

The Court found that the facts before it "f[ell] squarely within the ambit of Deatore, supra, and Lyle, supra." Id. at 572. The defendant made a statement to the police when he first arrived at the police station but then fell silent when he was taken into custody pending an investigation. Id. at 572-73. In Lyle, "before invoking silence at the scene, defendant gave to the police a different account from the one he relied on at trial." Id. at 573. The prosecutor in Muhammad "repeatedly elicited testimony and made comments on [the] defendant's silence both 'at or near' the time of his arrest and when he was in police custody." Ibid.

Those references in which the prosecu tor drew inferences of guilt from defen dant's silence were patent violations of Deatore, supra, and Lyle, supra. Defendant was not obliged to give the police the exculpatory story his attorney presented at trial, and the State was not permitted to use his silence to convict him. See Dea tore, supra, 70 N.J. at 114; see also Ripa, supra, 45 N.J. at 204. Because we conclude that the prosecutor's violation of defen dant's state law privilege against self-incrimination was "clearly capable of pro ducing an unjust result," R. 2:10-2; see also State v. Macon, 57 N.J. 325, 337 (1971), we are constrained to reverse defendant's conviction.

 

[Id. at 573-74 (footnote omitted).]

 

In a concurring opinion, Justice Rivera-Soto agreed that the principles of Deatore, Lyle, and Brown "have been consis tently reaffirmed." Id. at 582 (Rivera-Soto, J., concurring) (citations omitted). Nonetheless, he urged:

The majority, however, ignores a dis tinction underscored in Deatore, Lyle and Brown: the prohibition against comment con cerning a defendant's silence at or near the time of his arrest is limited to comments on the defendant's silence, and simply is not applicable when the defendant in fact has made a statement. Indeed, not only does [Deatore] expressly exempt a defen dant's statements from its reach, [Deatore] tells us that "cross-examination or rebuttal tes timony with respect to prior statements inconsistent with the exculpatory story told at trial" are proper.

 

A distillation of Ripa, Deatore, Lyle and Brown produces a straightforward and logical matrix: (1) a defendant may be impeached with his statements, be they either pre- or post-arrest; (2) a defendant may be impeached by his pre-arrest silence if there is no governmental compulsion involved; (3) a defendant may not be impeached with his silence "at or near" the time of his arrest whether or not governmen tal compulsion is involved; and (4) a defen dant may never be impeached with his post-arrest silence.

[Id. at 582-83 (Rivera-Soto, J., concurring) (citations omitted).]

 

In a trilogy of cases decided in 2007, our Supreme Court again considered the parameters of New Jersey's right to remain silent. In Brown, supra, 190 N.J. at 148, the Court considered whether a defendant, who testified at his trial and gave an exculpatory version of the crime, could be cross-exam ined respecting "his pre-arrest conduct in order to challenge defen dant's self-defense testimony." The defendant had been arrested about ten months after the crime. Ibid. The Court framed the issue as "whether [the] reasoning [in Muhammad] per tains to pre-arrest silence that does not involve government compulsion at or near the time of arrest, and in cases in which the defendant testifies at trial." Id. at 154. Applying prin ciples of stare decisis, the Court "adhere[d] to the view that when a defendant testifies, 'pre-arrest silence may be admitted for impeachment purposes provided no governmental compulsion is involved.'" Id. at 158 (emphasis added) (quoting Brown, supra, 118 N.J. at 613).

In State v. Elkwisni, 190 N.J. 169, 172 (2007), the Court considered whether a prosecutor could "cross-examine a defendant concerning inconsistencies between his or her post-Miranda statement to the police and testimony presented at trial." The Court noted a defendant's right to remain silent "'at or near' the time of arrest, during official interrogation, or while in police custody." Id. at 177 (emphasis added) (quoting Muhammad, supra, 182 N.J. at 569). The defendant at trial asserted that he had been coerced into committing the armed robbery. Id. at 174. The State impeached this testimony with the defen dant's conduct at the time of the arrest and with his post-Miranda statements. Id. at 175.

The Court held, "once defendant testified con cerning state ments he made to the police after his arrest . . . the State may fairly cross-examine defendant con cerning those statements" and offer rebuttal testimony. Id. at 179. However, it was improper for the State to comment on his silence at the time he was placed under arrest. Id. at 181. Nonethe less, the Court found that the limited questioning was "harmless and could not have affected the outcome of the case." Id. at 181. The Court then held that "the trial court should, at a minimum, instruct the jury that such evidence should be limited to assessing defen dant's credibility and that it may not be used in determining whether defendant is guilty or not guilty." Id. at 182.

Last, in State v. Tucker, 190 N.J. 183, 188 (2007), the State urged "that when a suspect waives his privilege to remain silent and speaks to the police, disclosing new information in several statements, the gaps in those statements are not pro tected silence." The Court determined that it agreed with the reasoning in Anderson v. Charles, 447 U.S. 404, 408-09, 100 S. Ct. 2180, 2182, 65 L. Ed. 2d 222, 226-27 (1980). Id. at 189.

A defendant's right to remain silent is not violated when the State cross-examines a defendant on the differences between a post-Miranda statement and testimony at trial. When a defendant agrees to give a statement, he or she has not remained silent, but has spoken. Thus, we conclude that it is not an infringement of a defendant's right to remain silent for the State to point out differences in the defendant's testimony at trial and his or her statements that were freely given.

 

[Ibid. (citations omitted).].

 

The Court found that the prosecutor's comments on the conflict ing statements made by the defendant were not impermissible com ments on defendant's silence because he had not remained silent after his arrest, "but freely related different stories to the police." Id. at 190. The State's comments on the "inconsisten cies in defendant's statements and other evidence at trial did not constitute an unconstitutional comment on silence." Ibid.

We hold that whether the asserted incon sistencies by a defendant are between two or more statements or between a state ment and testimony at trial, the State may seek to impeach the validity of those state ments. In both instances, the defendant has not remained silent and therefore, any inconsistency may be challenged.

 

[Ibid.]

Although defendant argues that his silence between 1:30 and 4:30 p.m. on June 15, 2004, was silence "at or near" his arrest, see Muhammad, supra, 182 N.J. at 569, Deatore, supra, 70 N.J. at 108, his actual arrest did not occur until the next evening. However, it is clear that defendant was "under inter rogation," Brown, supra, 118 N.J. at 610, during that three-hour period of time on June 15, 2004. Upon entering defendant's apartment, the officers noticed the smell of bleach, an apparent blood stain on one wall, and a recently washed wall and floor. During the first hour of questioning, the police learned that defendant claimed not to know the victim and denied having been in his apartment at any time, contrary to the information supplied by other resi dents in the apartment building. Also during the first hour, the officers requested a buccal swab kit to deter mine whether it was defendant's blood on the wall. Fur thermore, the police had enough information within that first hour to establish probable cause for a search warrant for defendant's apartment. This was not a mere witness interview.

These facts establish that the police were exercising gov ernmental compulsion, see Brown, supra, 190 N.J. at 158, and that defendant was under interrogation dur ing that three-hour period. See Muhammad, supra, 182 N.J. at 567; Brown, supra, 118 N.J. at 610; Messino, supra, 378 N.J. Super. at 585. Fur ther, defendant's apartment quickly became "a police dominated setting." Muham mad, supra, 182 N.J. at 567. Thus, defendant's silence could not be used to impeach him. However, defendant could be impeached with his pre-arrest statements. See Elkwisni, supra, 190 N.J. at 179; Tucker, supra, 190 N.J. at 189.

There was only one question posed to defendant respecting his silence when the prosecutor asked, "You never told the police on June 15th about James Reilly, Jr., did you?" Defendant responded, "No, I never told them that." There was no objection to this question and answer, although it was not a permissible question. The prosecutor thereafter commented upon defendant's silence during his summa tion, suggesting that it was incredible that defendant would not have told the police about witnessing a homicide. No objection was made to these comments either, although an objection should have been sustained. The judge did not sua sponte strike the question or the comments, but did carefully instruct the jury that defendant's silence respecting his ver sion of the events surrounding Savitz's death was "admitted only for the limited purpose of impeaching the defendant's credibility. It cannot be used or considered by you as evidence of the defendant's guilt on these charges."

We are satisfied that the failure to strike both the question and the prosecutor's comment on defendant's silence was plainly erroneous; however, the error was harmless. See R. 2:10-2. Defendant's credi bility was significantly impaired, if not totally destroyed, by the wealth of evidence impeaching the statements he made at trial and on June 15, 2004. Furthermore, his exculpatory story was incredible. The evidence of guilt was so strong that any error in this respect is harmless beyond a reasonable doubt. State v. Castagna, 187 N.J. 293, 312 (2006) ("[B]efore a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt." (quoting Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828, 17 L. Ed. 2d 705, 710-11 (1967))). Defendant is not entitled to a new trial on this ground.

VI.

Defendant next argues that the trial judge erred in admit ting hearsay testimony from Fucini, Reed, Shuman, and Meehan about various statements by Savitz that were either made directly to or overheard by the witness. Defendant also argues that the trial judge improperly admitted Reyes's testimony regarding her conversation with Reed and the exchange she overheard between Reed and defendant.

The judge conducted a pretrial hearing regarding the admis sibility of testimony from various residents of Sandman Towers, as well as Garcia and Thompson, about their personal knowledge of defendant's panhandling activities. He ruled that this tes timony was admissible as habit evidence under N.J.R.E. 406(b) and as evi dence of motive and intent under N.J.R.E. 404(b). Defendant does not challenge this determination.

The prosecutor also argued that Meehan, Reed, Fucini, and Reyes should be permitted to testify about certain statements made by Savitz regarding defendant or directly to defendant in accordance with N.J.R.E. 803(c)(3). The prosecutor asserted that Meehan, Reed, and Fucini would testify to Savitz's state of mind regarding an on-going dispute with defendant, while the testimony of Reyes would show defendant's state of mind regarding his awareness of Savitz's complaints about him.

Defense counsel conceded that she had no problem with Reed and Meehan testifying that they had spoken to defendant in response to Savitz's complaints to them. She also did not object to Fucini testifying that she had witnessed an argument between defendant and Savitz. She maintained, however, that the particulars of Savitz's complaints to Reed and Meehan, as well as the precise statements made by Savitz during his argument with defendant, were inadmissible because Savitz's state of mind was not at issue.

The trial judge ruled that the statements were admissible under N.J.R.E. 803(c)(3) because

they tend to explain both [Savitz's] conduct and the conduct of -- of others, including the defendant and they certainly afford a reasonable basis for finding a continuity to the . . . defendant's state of mind. To the extent of any intervening [interval], it's relatively short. The victim here had no sinister reason to fabricate statements. The statements by the victim are relevant to the defendant's motive to affect the victim in some sense. And certainly these comments by the victim to others present a full pic ture [or] . . . mosaic and are relevant to [a] possible motive for the homicide.

 

The next day, the prosecutor moved to add Shuman as a wit ness, and a supplemental hearing was held regarding the admissi bility of her testimony. The prosecutor argued that Shuman's testimony about Savitz's complaints to her were admissible as habit evidence under N.J.R.E. 406(b), state-of-mind evidence under N.J.R.E. 803(c)(3), res gestae evidence, and as evidence of motive and intent under N.J.R.E. 404(b). The judge agreed and ruled that the testimony was admissible.

During trial, the judge instructed the jury each time one of these witnesses took the stand that the jury was about to hear evidence of defendant's prior bad acts and/or habitual behavior. The judge cautioned the jury that evidence of defen dant's panhandling had been admitted for the limited purpose of establishing

motive, opportunity, intent, preparation, plan, knowledge or absence of mistake or accident on the part of [defendant]. . . .

 

Such prior wrongs or bad acts may also be relevant, if they occurred, to the prepa ration for and/or plan by which[,] claims the [S]tate[,] the defendant may have com mitted the charged offenses. Those prior wrongs or bad acts may also bear relevance to the circum stances, asserts the State, by which the defendant may have gained access to the interior of the victim's apartment possibly establishing the absence of mistake or accident.

 

The judge informed the jury that evidence of habit was being admitted to "prove conduct on a given occasion in confor mity with that habit." The judge emphasized that none of this evidence could be used to draw the conclusion that defendant had a tendency to commit crimes or that he was a bad person.17

In his new trial motion, defendant argued that the trial judge had erred in admitting the above-referenced testimony from Meehan, Reyes, Reed, Fucini, and Shuman. The judge rejected this argument, ruling as follows:

First as relates to the [c]ourt's determina tion that statements made by the decedent in [the] days and weeks prior to the time of his death . . . were admissible, the [c]ourt determined []at the conclusion of several days of [N.J.R.E.] 104 testimony, that those statements were admissible and would be per mitted to be described by witnesses who com petently heard such statements by the defen dant. That['s] pursuant to [N.J.R.E. 803(c)]. . . . Each of the witnesses attrib uting to the decedent[] specific statements testi fied[,] they were cross-examined and the [c]ourt addressed each such statement specifically.

 

. . . Those statements were determined by the [c]ourt to be excited utterances as defined in [N.J.R.E. 803(c)(2)]. That is the argument made by the [S]tate in its responsive brief, and I do concur with the arguments raised by the [S]tate that the facts in [State v. Long, 173 N.J. 138 (2002)], and [State v. Branch, 182 N.J. 338 (2005)], are notably similar.

 

The statements attributed by others to the defendant did relate to defense [sic] that were characterized fairly as startling. Comments made under the stress of excite ment. So, in that regard the defense motion is denied.

 

Pursuant to N.J.R.E. 803(c)(3), the hearsay rule does not exclude "[a] statement made in good faith of the declarant's then existing state of mind, emotion, sensation or physical con dition (such as . . . mental feeling, pain, or bodily health)," although it does not permit "a statement of memory or belief to prove the fact remembered or believed." The trial judge is to determine whether the proffered statement was made in good faith in a "natural manner and under circumstances dis pelling suspicion." State v. Thornton, 38 N.J. 380, 390 (1962) (cita tions omitted), cert. denied, 374 U.S. 816, 83 S. Ct. 1710, 10 L. Ed. 2d 1039 (1963).

The general basis for admitting declarations made by a vic tim or a defendant prior to a criminal event is that "the behav ior of both the victim and the defendant are part of the mosaic of the criminal event." State v. Baldwin, 47 N.J. 379, 394, cert. denied, 385 U.S. 980, 87 S. Ct. 527, 17 L. Ed. 2d 442 (1966). Where the declarations of a victim or a defendant "bear upon either the quality of their acts or a relevant state of mind, they must be accepted as part and parcel of the critical scene." Ibid.

Statements of the type admissible under N.J.R.E. 803(c)(3) have long been considered admissible res gestae evidence. Long, supra, 173 N.J. at 154-55. Res gestae evidence is "[e]vidence of events that take place during the same time frame as the crime charged in the indictment . . . [that] establishes the context of the criminal event, explains the nature of, or presents the full picture of the crime to the jury." State v. Cherry, 289 N.J. Super. 503, 522 (App. Div. 1995) (citation omitted). A limiting instruction is generally not required in conjunction with res gestae evidence unless the evidence is admissible as both res gestae evidence and for a purpose permissible under N.J.R.E. 404(b). State v. Jenkins, 356 N.J. Super. 413, 431 (App. Div. 2003), aff'd, 178 N.J. 347 (2004).

Defendant disregards the fact that he consistently main tained, throughout the pendency of this case, that he did not know Savitz, that he had no particular dealings with him, and that there was no conflict between the two. As such, the exis tence and nature of any relationship between defendant and Savitz was at issue in this case, and Savitz's state of mind vis- -vis defendant was highly relevant to the issue of motive.

We find our decision in State v. Dreher, 251 N.J. Super. 300 (App. Div. 1991), certif. denied, 127 N.J. 564 (1992), instructive. We found statements made by the decedent that "generally describe[d] the foundering state of [her] marriage" to the defendant were admissible because they served as "back ground to establish the nature of the relationship between the victim and the defendant." Id. at 318. The prose cutor was entitled to forestall any attempt by the defen dant "to argue that the State had failed to show that relations between husband and wife were not so harmonious as to be incon sistent with the commission of a homicide by one upon the other." Ibid.

The statements at issue in the present matter were not too remote in time to be relevant. In State v. Downey, 237 N.J. Super. 4, 13-14 (App. Div. 1989), certif. denied, 121 N.J. 627 (1990), we admitted state-of-mind declarations made one year before the homicide in question. Defen dant also contends that the statements he reportedly made during the argument observed by Fucini should have been excluded as irrelevant. We disagree. The argument revealed the escalating tensions between the two and was, thus, properly part of the overall "mosaic of the criminal event." Baldwin, supra, 47 N.J. at 394.

After carefully reviewing the record in the light of the written arguments advanced by the parties, we conclude that defendant's remaining arguments regarding the testimony of these witnesses "are without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2).

VII.

Last, defendant contends that he was denied his right to a fair trial as a result of remarks made by the prosecutor during his summation. The prosecutor, after commenting on the general sufficiency of the investigation, stated:

With regard to James Reilly, Jr., what I say to you is this. Mr. Reilly was inves tigated as hard and aggressively as anybody, maybe even more so than [defendant]. On June 14th, the day before they even know that there's a [defendant] that exists, they're working on the crime scene, they are interviewing Mr. Reilly for hours. He passes every single test that they give him and he is --

 

Defense counsel immediately objected, and at the conclusion of an inaudible sidebar, the judge instructed the jury to "dis regard the comment relating to the passing of a test." The prosecutor continued his remarks by stating that Reilly was "released after taking the test." The prosecutor reminded the jury that Reilly was also fingerprinted, his clothing was seized, his room was searched and more items seized, and he was required to provide a DNA sample.

During summation, the prosecutor discussed Dr. Terry Mel ton's testimony. He noted that Melton had not tested the hairs found on Savitz's mop and shirt to see if they belonged to Reilly. He stated: "And even more importantly on that, do they submit the [victim's] shirt for DNA testing? No. You have not seen any challenge to the State's DNA testing with regard to any of the items we're going to be talking about." Although defense counsel objected and an inaudible sidebar ensued, the objection was apparently overruled because the prosecutor was permitted to continue his remarks with no instruction to the jury.

Thereafter, the prosecutor noted that defendant had attempted to clean his room with bleach because "bleach has the ability to destroy the presence of blood." He then stated without objection from defendant:

This knife here, outside the window, [defendant] wiped it clean with bleach, as well. And I told you I couldn't say for sure this is the knife because I didn't have any forensic evidence upon it, but cer tainly, an unlucky circumstance. Add it to the list here, right? To have this outside your window, a few feet away from your win dow, outside, with a blade consistent with the size and type of blade that's used to cause the injuries to your adversary, Wallace Savitz. Unlucky coincidence.

The prosecutor suggested that the witnesses had testified truthfully regarding defendant's interactions with Savitz and that defendant had lied when he insisted that he did not know him. He then stated:

You remember back to his testimony, . . . [defendant] had answered his questions on direct examination, and when on cross-examination, he didn't like a question or, perhaps, it didn't fit with the story, the story that was being given, he'd look over to counsel for her to tell him whether he should answer it or not.

 

Defense counsel immediately objected and, following an inaudible sidebar, the judge instructed the jury to disregard any reference to defendant "possibly having looked to his counsel while testifying yesterday."

At the conclusion of the prosecutor's summation, defendant sought a mistrial based upon the cumulative effect of the above remarks. In particular, defense counsel pointed out that Blanchard never testified to the probable size of the knife used to kill Savitz. Counsel made no specific argument regarding the second or fourth above-quoted excerpts from the prosecutor's summation. The judge denied this motion, noting that it had instructed the jury to disregard the "passing of any tests" remark, and that it would instruct the jury that counsel's comments in closing were not evidential.18

A motion for a mistrial should be granted only to avoid manifest injustice. State v. DiRienzo, 53 N.J. 360, 383 (1969). The decision to deny a motion for a mistrial is within the sound discretion of the trial judge and will only be reversed on appeal for abuse of discretion. Winter, supra, 96 N.J. at 647.

We may only disturb a conviction based on prosecuto rial misconduct where the misconduct is so egregious in the con text of the trial as a whole as to deprive the defendant of a fair trial. State v. Wakefield, 190 N.J. 397, 435-38 (2007), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008). Although a single instance of prosecutorial misconduct may not be reversible, the cumulative effect of several such instances may be. See State v. Rodriguez, 365 N.J. Super. 38, 49 (App. Div. 2003), certif. denied, 180 N.J. 150 (2004).

When the alleged misconduct involves a particular remark, we must determine whether (1) defense counsel objected in a timely and proper fashion to the remark; (2) "the remark was withdrawn promptly"; and (3) "the court gave the jury a curative instruction." State v. Zola, 112 N.J. 384, 426 (1988) (citation omitted), cert. denied, 489 U.S. 1022, 109 S. Ct. 1146, 103 L. Ed. 2d 205 (1989); see also State v. Setzer, 268 N.J. Super. 553, 566 (App. Div. 1993), certif. denied, 135 N.J. 468 (1994).

On the other hand, a prosecutor may make remarks that con stitute legitimate inferences from the facts, if he or she does not go beyond the facts before the jury. See State v. Mayberry, 52 N.J. 413, 437 (1968), cert. denied, 393 U.S. 1043, 89 S. Ct. 673, 21 L. Ed. 2d 593 (1969). A prosecutor may also respond to arguments raised by defense counsel during his or her own summa tion. State v. Munoz, 340 N.J. Super. 204, 216 (App. Div.), certif. denied, 169 N.J. 610 (2001). However, a prosecutor may not, through his or her remarks, shift the burden of proof to the defense. See State v. Loftin, 146 N.J. 295, 389 (1996); Munoz, supra, 340 N.J. Super. at 216.

Defendant specifically contends that he was prejudiced by the prosecutor's false representation to the jury that Reilly had passed the voice stress test. In defendant's view, this statement fatally undermined his effort to "create a reasonable doubt by offering Reilly as a viable suspect to the jury."

We are not persuaded by this argument. Defense counsel made a timely objection, and the judge immediately issued a cura tive instruction. Although defendant argues that the effect of this instruction was negated by the prosecutor's subsequent com ment that Reilly was released following the test, this was an accurate statement based upon the record. Additionally, defense counsel had previously inferred to the jury that Reilly had failed the test when she emphasized that "[t]he results of that test d[i]d nothing to stop the investigation" into Reilly. The prosecutor was entitled to respond to this argument. See Munoz, supra, 340 N.J. Super. at 216.

Defendant also contends that the prosecutor improperly shifted the burden of proof when he noted that the defense had not challenged the State's DNA testing of Savitz's shirt. This remark was fair comment on the evidence because the defense had done its own DNA testing on certain items found at the scene. Additionally, defense counsel emphasized in her summation that the State had done only limited DNA testing with respect to the items seized from Reilly's room and had also failed to test both the hairs found on Savitz's mop and the hair stuck in the blood on Savitz's shirt. She intimated that the State had not both ered to perform a thorough investigation. The prosecutor's remarks were a proper response to these arguments by defense counsel. See ibid. Additionally, the trial judge properly instructed the jury that defendant had no obligation to offer any proof. As a result, we find no merit to this argument.

Next, defendant asserts that the prosecutor did not confine himself to the record and improperly conveyed his own personal opinion to the jury when he suggested that the box cutter was the murder weapon. However, the record reflects that the box cutter could have been the murder weapon because of its size and the depths of the wounds sustained by Savitz. Also, it was dis covered below defendant's apartment window. The prosecutor was free to suggest to the jury that it had been so used and then subsequently wiped clean with the bleach found in defendant's room. The prosecutor clearly stated that this was only an inference drawn from the record when he acknowledged that the absence of any forensics precluded him from saying "for sure" that this was the murder weapon. Here, the judge properly charged the jury that closing arguments did not constitute evi dence in the case and that their recollection of the evidence was controlling. The prosecutor's comments were not improper.

Finally, defendant argues that the prosecutor cast asper sions on the defense and improperly commented upon defendant's behavior at trial when he asserted that defendant repeatedly looked to his attorney for assistance while he was being cross-examined. While defendant is correct that it is improper for a prosecutor to cast unjustified aspersions on defense counsel or the defense, State v. Frost, 158 N.J. 76, 85 (1999), the remark here was simply a misguided attempt to attack defendant's credi bility. The prosecutor made this remark immediately after numerous other remarks regarding defendant's lack of credibil ity. Defendant's reliance upon State v. Rivera, 253 N.J. Super. 598, 601-02 (App. Div.), certif. denied, 130 N.J. 12 (1992), abrogated on other grounds by State v. R.B., 183 N.J. 308 (2005), is misplaced since the question in that case was whether the non-testifying defendant had engaged in testimonial behavior directed at the jury that could properly be the subject of fair comment. In any event, the trial judge's immediate instruction directing the jury to disregard the prosecutor's comment rendered any error harmless.

A

ffirmed.

1 Police ultimately learned that Savitz had also failed to check in on June 13, 2004, but no one had gone to his apartment that day to find out how he was.

2 Assistant Medical Examiner Chase Blanchard later confirmed that the five-foot three-inch, 145-pound victim had died from a large wound to the front of his neck measuring six inches across, two inches wide, and approximately two inches deep, which had severed both his carotid artery and jugular vein. According to Blanchard, Savitz sustained a total of 157 wounds, including fifty-five defensive wounds to his hands, all of which had been inflicted by a sharp knife.

3 Ultimately, Savitz's blood was not found on any of these items.

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

5 State v. Sands, 76 N.J. 127 (1978).

6 N.J.S.A. 2C:44-1a(3).

7 N.J.S.A. 2C:44-1a(6).

8 N.J.S.A. 2C:44-1a(9).

9 N.J.S.A. 2C:44-1a(12).

10 Notably, the sentencing judge made clear that, had he not felt constrained by our Supreme Court's decision in State v. Natale, 184 N.J. 458 (2005), he would have also found aggravating factors one, the nature and circumstances of the offense, N.J.S.A. 2C:44-1a(1), and two, the gravity and seriousness of harm inflicted on the victim, N.J.S.A. 2C:44-1a(2), in view of the excessive violence perpetrated on the small, elderly victim.

11 N.J.S.A. 2C:44-1b(4).

12 Although not brought out at trial, it was confirmed at the sentencing hearing that defendant was diagnosed with schizophrenia in 1996.

13 N.J.S.A. 2C:44-1b(7).

14 The prosecutor made one additional fleeting reference to defendant s silence: [T]he 15th, he spends three hours with the police asking him questions. Doesn t tell them.

15 That ruling has become the law of this case. Feldman v. Lederle Labs., 125 N.J. 117, 132 (1991) ("The law-of-the-case doctrine is a guide for judicial economy based on the sound policy that 'when an issue is once litigated and decided during the course of a . . . case, that decision should be the end of the matter.'" (quoting State v. Hale, 127 N.J. Super. 407, 410 (App. Div. 1974))).

16 In a footnote, the Court recognized that there might be "tension between the language" in Deatore, supra, 70 N.J. at 113 ("'a suspect is under no duty to give a statement; on the contrary he is privileged to say nothing'"), and Brown, supra, 118 N.J. at 613 ("'defendant has no right not to speak prior to arrest' in the absence of official compulsion"), but had no occasion on the facts before it to resolve any such tension. Id. at 572 n.7.

17 The trial judge also administered a very detailed version of this instruction as part of his final charge to the jury.

18 Although defendant renewed these arguments in his motion for a new trial, they were rejected by the trial judge for the reasons previously stated.