STATE OF NEW JERSEY v. KESHAWN MCNEIL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0856-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KESHAWN MCNEIL,

Defendant-Appellant.

_________________________________________________

October 21, 2011

 

Submitted September 13, 2011 - Decided

 

Before Judges Payne, Reisner and Simonelli.

 

On appeal from Superior Court of New Jersey,

Law Division, Essex County, Indictment No.

07-10-3548.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Susan Brody, Assistant Deputy Public Defender, on the brief).

 

Carolyn A. Murray, Acting Essex County

Prosecutor, attorney for respondent

(Sara A. Friedman, Special Deputy

Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

 

Appellant filed pro se supplemental briefs.

PER CURIAM

Defendant, Keshawn McNeil, appeals from his convictions on charges of first-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1, first-degree armed robbery, N.J.S.A. 2C:15-1, first-degree felony murder, N.J.S.A. 2C:11-3a(3), first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a, as a lesser included offense of murder, third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b, and second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a. The convictions arose from the robbery and shooting of Fabio Borges, the landlord of defendant's girlfriend, Staci Marshall.

Upon conviction, defendant was sentenced on the conviction for felony murder to life in prison with the thirty-year parole bar required by N.J.S.A. 2C:11-3b and the eighty-five percent parole bar of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The Graves Act was also held applicable to his sentence. See N.J.S.A. 2C:43-6c. Defendant was given a concurrent sentence of five years for unlawful possession of a handgun. The remaining convictions were merged and dismissed. Defendant has appealed his convictions and his sentence.

On appeal defendant raises the following arguments through counsel:

POINT I

 

THE TRIAL WAS IRREPARABLY TAINTED BY THE IMPROPER ADMISSION OF "OTHER BAD ACTS" EVIDENCE PURSUANT TO N.J.R.E. 404(b).

 

POINT II

 

THE COURT ERRED IN ADMITTING MARSHALL'S STATEMENT TO DANIEL LAPORTE THAT SHE AND MCNEIL WERE ON THEIR WAY TO ATLANTIC CITY.

 

POINT III

 

THE PROSECUTOR'S IMPROPER COMMENTS IN SUMMATION, VIEWED IN COMBINATION, WERE SO EGREGIOUS AS TO DEPRIVE DEFENDANT OF HIS RIGHT TO DUE PROCESS AND A FAIR TRIAL.

(Not Raised Below.)

 

POINT IV

 

THE COURT ERRED IN PERMITTING THE STATE TO INTRODUCE A PHOTO OF DEFENDANT THAT WAS IDENTIFIABLE AS A "MUGSHOT."

 

POINT V

 

THE LIFE SENTENCE IMPOSED ON DEFENDANT WAS MANIFESTLY EXCESSIVE UNDER ALL APPLICABLE CIRCUMSTANCES.

 

Defendant raises the following additional arguments in his pro se brief:

POINT I

 

TRIAL COUNSEL FAILED TO ALLOW DEFENDANT TO PARTICIPATE IN VOIR DIRE. BY WAIVING DEFENDANT'S RIGHT TO BE PRESENT DURING VOIR DIRE [COUNSEL] DENIED DEFENDANT'S RIGHT TO DUE PROCESS AND RIGHT TO EFFECTIVE COUNSEL GUARANTEED IN THE 6th AND 14th AMENDMENT[S].

 

POINT II

 

THE TRIAL COURT ERRED WHEN IT RULE[D] AGAINST DEFENSE COUNSEL'S OBJECTION FOR ENTERING TESTIMONY ELICITED FROM STATE'S WITNESS STACI MARSHALL [AND] DENIED DEFENDANT HIS RIGHT TO A FAIR TRIAL GUARANTEED IN THE UNITED STATES CONST. 14 AMEND. AND NEW JERSEY CONST.

 

POINT III

 

THE TRIAL JUDGE ERRED WHEN IT ALLOWED BALLISTIC EXPERT TO TESTIFY TO MATTERS THAT W[ERE] SOLELY BASED ON OPINION AND THIS ACT AND CUMULATIVE ACTS OF THIS EXPERT W[ERE] PREJUDICIAL AND THUS DEPRIVED DEFENDANT [OF] THE RIGHT TO A FAIR TRIAL.

 

In a pro se reply brief, defendant argues:

POINT I

 

DEFENDANT WAS DEPRIVED OF HIS RIGHT TO BE PRESENT AT CRITICAL STAGES OF HIS TRIAL WHICH DENIED DEFENDANT THE RIGHT TO DUE PROCESS AND RIGHT TO EFFECTIVE COUNSEL GUARANTEED IN BOTH THE 6th AND 14th AMENDMENTS.

 

We affirm.

I.

The evidence introduced at trial was sufficient for the jury to conclude that, on February 24, 2007, defendant's girlfriend, Marshall, was living with her twelve-year-old daughter in Newark in property owned by Fabio Borges and Liciane Nunes. On February 23, 2007, Marshall received an eviction notice for nonpayment of rent, addressed to another person. When Marshall called her landlords, she learned that eviction proceedings had been instituted against her, as well. She agreed to pay the overdue rent.

On the following day, while driving defendant, an aspiring rap musician, to a video shoot at a studio in East Orange, Marshall mentioned the rent payment to him, and she said that she would be low on money after the rent was paid. Defendant told her not to worry and that he would "get the money back." A plan was made that defendant would rob Borges after Marshall had paid her rent, and then she and defendant would go to Atlantic City.

After rent in the amount of $1250 had been paid, Marshall contacted defendant, who robbed Borges and, during the robbery, shot him, causing his death from a single gunshot wound to the chest. Following the robbery and shooting, Marshall drove to East Orange to meet defendant. She testified that, when she entered her car, the window was open, whereas it had been closed when she parked it across from her residence earlier in the day. She surmised that the car had been driven by someone else. Additionally, she testified that defendant had a key to her car.

While in East Orange in Marshall's company, defendant disposed of Borges's wallet in a trash can and his credit cards in a sewer. Marshall and defendant also stopped at the studio where they had been on the previous day to talk to the studio engineer. The two then took the 10:30 p.m. bus to Atlantic City, where defendant gave Marshall $400 as gambling money. While in Atlantic City, either on that night or on a prior occasion (the evidence is in conflict on timing), Marshall took a picture of defendant on the beach holding a silver handgun that Marshall had seen in his possession on two prior occasions.

Initially, while in Atlantic City following the crimes, Marshall was aware that Borges had been robbed; she did not know that he had been shot. However, in the early morning hours, defendant informed her that he had shot Borges "in the area where he knew he would be okay" because he "felt like shooting [his] gun." Although upset by this information and fearful of a police investigation, Marshall returned with defendant to a casino, where they continued to gamble. They returned to Marshall's residence in Newark by the first morning bus.

Following a police interrogation, and despite threats of harm from defendant, Marshall implicated defendant in the robbery and shooting, and eventually pled guilty to robbery and conspiracy in return for a proposed sentence of fifteen years, subject to NERA. In furtherance of the police's investigation of the crime, Marshall showed the police the location of Borges's wallet and credit cards, which were recovered. Prior to her sentencing, Marshall testified against defendant at trial.

A security camera at a school near Borges's home showed the approach of Marshall's car, with its lights out, backing down Borges's street, and it showed a person entering the passenger side of the car, but a search of the car disclosed no evidence. Additionally, the gun used in the murder was not found. However, ballistics evidence indicated that Borges had been shot by a .38 caliber bullet that could have been fired from either a revolver or an automatic weapon.

Kendra Brown, a resident in the building where defendant worked as a security guard, testified that on February 26, defendant had placed a call using her phone, and at that time had muttered to himself that the recipient of the call should pick up the phone, because he needed an alibi.

Defendant did not testify on his own behalf. His counsel argued in summation that no forensic evidence linked defendant to the crime, that Marshall had lied regarding his involvement to obtain the benefit of a favorable plea agreement, and that the crime had been planned and committed by Marshall and some other man, likely, her former boyfriend. The jury nonetheless convicted defendant of all charges except purposeful murder. This appeal followed.

II.

On appeal, defendant's counsel first argues that the judge erred in admitting evidence pursuant to N.J.R.E. 404(b), through Marshall, that she had seen defendant with a weapon on two prior occasions, and in failing, immediately thereafter, to instruct the jury as to the purposes for which it could consider that testimony. We decline to find the error that defendant claims to exist.

Prior to Marshall's testimony before the jury, the trial judge conducted a N.J.R.E. 104 hearing to determine the admissibility of Marshall's testimony that she had seen defendant with a gun both before and after the shooting of Borges. At the hearing, Marshall testified that, in the early morning hours of February 25, 2007, she photographed defendant while he was standing on the beach holding a silver revolver. Two weeks prior to that date, she had seen the same gun in defendant's hand in his lap as she drove defendant to a location to purchase bullets. Additionally, she had observed defendant holding the same gun while in her kitchen. The State also elicited testimony from Marshall that, after confessing to Marshall that he had shot Borges, defendant admitted that he had used the silver revolver for that purpose. She never saw the gun again.

On cross-examination, counsel elicited testimony that on the first occasion, they had stopped at an apartment building on Grove Terrace in Irvington, defendant had gone into the building's basement, and he had returned with a box of bullets. After getting back into the car, defendant took a single copper-colored bullet from the box and loaded it into the gun. During the following week, Marshall again saw the gun in defendant's hand while the two were in the kitchen. After seeing it, she told him to put the gun in the safe in her closet or a drawer,

so as to protect her daughter from possible harm.

At the conclusion of the hearing, defense counsel argued that Marshall's testimony was not credible and that the State had not demonstrated the admissibility of the evidence presented through her by clear and convincing evidence. However, counsel conceded that if the judge found the State's burden of proof to have been met, then the evidence was admissible under N.J.R.E. 404(b). After a preliminary discussion of the charge that he would give, the judge ruled that the testimony was admissible under the four-pronged standard established by State v. Cofield, 127 N.J. 328, 338 (1992). In doing so, the judge found Marshall's testimony and photographic evidence relevant as identifying defendant as an individual who possessed the handgun that allegedly was used to shoot Borges. He found the instances in which Marshall had seen the gun to have been reasonably close to the time that the crime was committed; he found Marshall's uncontroverted evidence to have been clear and convincing; and he found the probative value of the evidence not to be outweighed by its prejudicial impact.

Additionally, in connection with the N.J.R.E. 104 hearing, the judge on several occasions discussed the charge that he intended to give following introduction of the N.J.R.E. 404(b) evidence, and an agreement was reached on its substance. However, the judge did not give the agreed-upon charge either immediately after the N.J.R.E. 404(b) evidence had been introduced through Marshall's testimony or at the conclusion of that testimony. Rather, the testimony of Michael DeMaio, a lieutenant serving with the Homicide Squad of the Essex County Prosecutor's office was commenced. At the end of the day's proceeding, and after the jury had been excused, the judge stated to counsel:

I'm now going to apologize to you. We have spent a tremendous amount of time, the three of us, on a 404b charge to be given at the end of Miss Marshall's testimony. Obviously, Miss Marshall's finished testifying a few minutes ago

 

. . . .

 

With your permission, I'd like to give that charge to the jury as soon as they come back tomorrow morning.

 

[DEFENSE COUNSEL]: You know, Judge, I actually thought of it as we were all moving kind of quick there and as I saw the detective begin his testimony[.] I might not have any problem with that, Judge, and if that's the way you want to proceed, do that in the morning. Or else, I'll just think about it overnight and maybe now that we've started his testimony, maybe it would be more appropriate just to wait till the end of the case with the charge.

 

. . . .

 

I don't really have a strong opinion one-way or another, but I'll think about it overnight.

 

Two days later, the prosecutor again brought up the subject of the charge, and the following exchange occurred:

[PROSECUTOR]: Judge, did you ever read the 404b charge?

 

THE COURT: Did I read no, 'cause

[defense counsel]

 

[DEFENSE COUNSEL]: We figured we'd save it for the final charge

 

THE COURT: It has to go, as you know, into final charges for the jurors.

 

[PROSECUTOR]: I know, but I thought it also had to be read around or near the time of the testimony, that's what the case law wanted

 

THE COURT: That's correct

 

[DEFENSE COUNSEL]: We forgot to do it and then we started DeMaio and we broke

 

THE COURT: I was going to do it first thing the next morning

 

[DEFENSE COUNSEL]: We had broke and I didn't address it. I had thought about it, I thought it was out of place at that point, and I'm not claiming any type of error based on it not being read at the time, 'cause I think it's gonna be fine at the end of the case.

 

At the conclusion of the trial, the judge properly instructed the jury, after describing the handgun evidence:

In this case, the State introduced the evidence for the limited purpose of identifying Mr. McNeil as an individual who noticed [sic] a handgun. Whether this evidence does, in fact, demonstrate the identity of Mr. McNeil as someone who possessed a handgun is for you to decide. You may decide that the evidence does not demonstrate this identity and is not helpful to you at all. In that case, you must disregard the evidence.

 

On the other hand, you may decide that the evidence does demonstrate the identity and use it for that specific purpose. However, you may not use this evidence to decide that the defendant has a tendency to commit crimes or that he is a bad person. That is, you may not decide that just because the defendant has committed other such acts, he must be guilty of the present crime. I've admitted the evidence only to help you decide the specific question of identity. You may not consider it for any other purpose and may not find the defendant guilty now simply because the State has offered evidence that he committed such acts.

 

On appeal, defense counsel argues for the first time that evidence that defendant possessed a gun two weeks before the shooting and that he had also displayed a gun while in Marshall's kitchen was cumulative, in light of the introduction into evidence of the photograph of defendant, while on the beach in Atlantic City, holding a gun. Counsel argues that the judge erred in admitting that additional evidence. Counsel also claims for the first time error in the judge's failure to sanitize the evidence to remove references to the purchase of bullets and to the fact that defendant displayed the gun when a child was in the home.

We find no abuse of discretion in the admission of the challenged evidence. State v. Kemp, 195 N.J. 136, 149 (2008). Further, we do not find sanitization to have been required. Compare State v. Barden 195 N.J. 375, 390 (2008). In this regard, we note that no evidence was introduced that defendant displayed his gun in the presence of Marshall's daughter. Rather, there was only evidence that Marshall directed defendant to safeguard the gun as the result of her daughter's presence in the household. Further, we find Marshall's testimony that defendant purchased bullets from what appeared to be a private source to have been directly relevant to the State's case, given the existence of testimony that a hollow-point bullet was extracted from Borges's body on autopsy and testimony by the State's ballistics expert that the sale of hollow-point bullets is illegal in New Jersey. A description by Marshall of how defendant loaded the gun was of direct relevance to the kind of weapon, revolver or automatic, that defendant possessed.

Defendant also finds error in the judge's failure to give a N.J.R.E. 404(b) charge at the time of Marshall's testimony. However, the Supreme Court has only held such to be "the better practice." State v. Blakney, 189 N.J. 88, 93 (2006) (citing State v. Angoy, 329 N.J. Super. 79, 89-90 (App. Div.) (stating, as noted by the Blakney Court, ibid., that "'in addition to its inclusion in the final jury charge,' limiting instructions preferably should be given contemporaneous with admission of other-crimes evidence, 'unless there is some compelling reason to do otherwise'"), certif. denied, 165 N.J. 138 (2000)). Moreover, as the extracts from the trial record that we have quoted demonstrate, defense counsel waived any objection to the absence of a contemporaneous instruction, determining that it would be "fine" for the judge to reserve the instruction until he gave the final jury charge. Thus, the error, if any, was invited. Kemp, supra, 195 N.J. at 155 (citing State v. Lykes, 192 N.J. 519, 539 n.7 (2007) and State v. Jenkins, 178 N.J. 347, 358 (2004)).

III.

 

Defendant next claims error in the admission of testimony by studio engineer, Daniel LaPorte, that on the evening of the shooting Marshall and defendant came to the studio and Marshall stated, in defendant's presence, that they were going to Atlantic City testimony that undercut the defense's position that Marshall had schemed with someone other than defendant to rob Borges, that defendant's boardwalk confession to the shooting had not occurred, and that the photograph of defendant on the beach holding a handgun was not taken on the night of the shooting, but at some earlier time. However, we reject defendant's argument in this regard and affirm the admissibility of the testimony, substantially for the reasons expressed by the trial judge in his written opinion dated May 19, 2009.

In doing so, we reject defendant's position that the introduction of such evidence has been declared to be error in State v. McLaughlin, 205 N.J. 185 (2011). In McLaughlin, evidence suggested that Thong Ming Hyunh had been murdered by Edouardo McLaughlin and Miguel Serrano in order to rob him of the $17,000 in check-cashing proceeds that he was then carrying. Id. at 189-90. At trial, the judge had admitted as a statement by a co-conspirator, over objection, testimony by Serrano's girlfriend that Serrano had told her that he was planning the robbery of "an oriental young man" with McLaughlin. Id. at 193. On appeal, we affirmed, determining that the statement was admissible pursuant to N.J.R.E. 803(c)(3) as relevant to Serrano's then-existing state of mind. Id. at 194-95. The Supreme Court reversed, holding that, at a trial of McLaughlin only, it was improper to admit Serrano's hearsay statement to demonstrate defendant McLaughlin's state of mind with respect to the commission of a criminal act. Id. at 210-11.

However, in reaching its decision, the Court noted that "'"[i]t may be regarded as long since settled in this State that a person's own statements of a present existing state of mind, when made in a natural manner and under circumstances dispelling suspicion and involving no suggestion of sinister or improper motives, reflect his mental state and are competent to prove the condition of his mind that is, his plan or design."'" Id. at 203 (quoting State v. Long, 173 N.J. 138, 154-55 (2002) (quoting State v. Thornton, 38 N.J. 380, 390 (1962), cert. denied, 374 U.S. 816, 83 S. Ct. 1710, 10 L. Ed. 2d 1039 (1963))). Thus, Marshall's hearsay statement was clearly admissible to demonstrate her own intention to travel to Atlantic City that Saturday evening an act with no criminal implications.

Notably, the McLaughlin Court identified, but did not determine whether it would follow, precedent that would permit admission of a statement of intent "as proof of the subsequent conduct of the declarant, and of the non-declarant if independent evidence exists to corroborate the hearsay statement as to the non-declarant." McLaughlin, 205 N.J. at 204 (citing United States v. Best, 219 F.3d 192, 198 (2d Cir. 2000), cert. denied, 532 U.S. 1007, 121 S. Ct. 1733, 149 L. Ed. 2d 658 (2001); United States v. Delvecchio, 816 F.2d 859, 862-63 (2d Cir. 1987)).

Nonetheless, in the circumstances presented, we see no principled reason for declining to follow this precedent as well as the cases involving cooperative action upon which the trial judge relied. The evidence reveals that defendant was standing next to Marshall when she made the statement to studio manager LaPorte that she and defendant intended to travel to Atlantic City that night, and that defendant did not say anything to the contrary with respect to his intent. Additionally, corroborative evidence was presented that the two were dressed up, and further evidence, consisting of the photograph of defendant on the beach, suggested that defendant had, in fact, accompanied Marshall on the night in question. We thus find no error in the admission of the statement.

IV.

We, likewise, reject defendant's claim of prosecutorial misconduct in closing argument, finding that the prosecutor did not exceed the wide latitude afforded to her in advocating on the State's behalf. State v. DiFrisco, 137 N.J. 434, 474 (1994).

"[T]he test for determining whether prosecutorial misconduct constitutes reversible error is whether the misconduct 'was so egregious that it deprived defendant of a fair trial.'" [State v.] Pennington, 119 N.J. [547,] 565 [(1990)] (quoting [State v.] Ramseur, 106 N.J. [123,] 322 [(1987))]. The goal that rule seeks to foster is that "juries [will] . . . reach a verdict and impose a penalty without inordinate exposure to unduly prejudicial, inflammatory commentary." [State v.] Williams, 113 N.J. [393,] 453 [(1988)]. Although we impose a greater burden on prosecuting attorneys than defense attorneys on that issue, see State v. Biegenwald, 106 N.J. 13, 40 (1987) (stating that "prosecutors in capital cases have a special obligation to seek justice and to not simply convict, and . . . we will scrupulously review conduct that falls short of this high standard"), "[i]t is well-established that prosecuting attorneys, within reasonable limitations, are afforded considerable leeway in making opening statements and summations." Williams, supra, 113 N.J. at 447.

 

[DiFrisco, supra, 137 N.J.at 474.].

On appeal, defendant claims that the prosecutor improperly commented on the fact that defendant manipulated or attempted to manipulate women, that he had been successful in placing Marshall within his thrall, and that when testifying she had expressed considerable remorse for her role in planning the robbery. However, the State was entitled to attempt to demonstrate Marshall's credibility and the truth of her testimony that she planned the robbery with defendant, who then unexpectedly shot Borges, that she did not conspire with her previous boyfriend, and that after being lured into criminal conduct by defendant, Marshall recognized the wrongfulness of what she had done and expressed substantial remorse for her acts. Only in that fashion could the State counter defense counsel's forceful arguments that Marshall could not be believed. The arguments made by the prosecutor were relevant to the issue of defendant's culpability and were solidly based on evidence presented to the jury.

In that regard, there was testimony that suggested that defendant unrealistically, it would seem expected Kendra Brown, the person who had heard him muttering on the phone that he needed an alibi, would provide him with an alibi if requested by defendant's attorney, and there was evidence that defendant believed he could improperly use another woman, Serita Sapp, as an alibi witness. Ample testimony supported the position that, despite a relatively short acquaintance, defendant had succeeded in making Marshall strongly attracted to him and, at the time of the crime, she considered him her sole boyfriend, performing countless acts on his behalf in furtherance of his career and representing herself as his manager.

We reject the argument that the prosecutor "assumed Marshall's persona" in reading her testimony with respect to her remorse. Marshall's statements in this regard were directly relevant to the credibility of her testimony incriminating herself and defendant and were properly brought to the jury's attention in closing for this purpose.

We also find no reversible error in the admission of statements by the prosecutor regarding defendant's possession of a gun. Because no gun had been found in this case, the State was required to prove defendant's possession of a weapon by other evidence, which it did by introducing the testimony of Marshall and the photograph that she had taken of defendant holding a silver revolver while on the beach in Atlantic City, together with Marshall's testimony that defendant had confessed to her that he had utilized the weapon in shooting Borges.

Nor do we find error in any comments by the prosecutor that alluded to defendant's post-arrest silence. The prosecutor did mention the fact that, prior to police contact, defendant had told Marshall that he would take the weight of any charges, but had threatened her not to implicate him. However, evidence revealed that Marshall was the first to be taken into custody by the police, and that while in custody, she implicated both herself and defendant. There was no improper reference to the fact that defendant had not likewise given a statement.

As a final matter, we find no bad faith in the prosecutor's elicitation of testimony from the State's expert on ballistics, Luke Laterza. Prior to his testimony, defense counsel sought to limit Laterza's testimony to the weight of the bullet, that it was thirty-eight class, that the barrel twist was five right and that it was a hollow-point bullet. Counsel sought to prevent Laterza from testifying whether the bullet was fired from a revolver or an automatic handgun, whereas the prosecutor stated that she wished to elicit testimony as to the type of gun utilized. A N.J.R.E. 104 hearing was held, and the judge ruled that Laterza would be permitted to testify as to the bullet's class, and that it could have come from either a revolver or an automatic weapon.

In testimony before the jury, Laterza described, as permitted, the bullet's class and its five right twist, but then stated:

It's indicative, basically, of three different types of weapons, which I don't know for sure which weapon but I'm just going by what it's indicative of

 

Defense counsel again objected, and following some additional testimony, a further N.J.R.E. 104 hearing was held, at which time Laterza identified three revolver manufacturers and testified that he was "very certain that [the bullet] could have been fired from one of those three." Clarifying that statement, however, he admitted that he could not state with expert certainty that the bullet he examined had come from a revolver. In accordance with Laterza's admission, when the jury returned, the following exchange occurred:

PROSECUTOR: . . . I think we left off, we were discussing your analysis of the bullet. Correct?

 

A Correct.

 

Q And umm, you cannot conclude with any certainty the type of firearm that that bullet came from?

 

A That is correct.

 

Q So it would either be an automatic or a revolver?

 

A That is also correct.

 

A fair reading of the foregoing testimony and other testimony in the record establishes that the prosecutor believed that she could obtain testimony that, because of the bullet's markings, it was likely fired from a revolver manufactured by one of three companies, and that it was most likely manufactured by Smith & Wesson. However, during the course of the N.J.R.E. 104 hearings, it was revealed that Laterza's opinion in that regard was rendered as an aid to the detectives in their investigation, and that he could not express his opinion with scientific certainty. In the circumstances presented, we find no bad faith on the prosecutor's part, and the allegations of bad faith by defendant to be wholly speculative. Moreover, even if bad faith existed, defendant was not deprived of a fair trial, since the jury was never apprised of Laterza's opinion as to the type or manufacturer of the weapon allegedly utilized in the shooting.

V.

At trial, a cropped, black-and-white photograph of defendant with no identifiers on it was shown to studio engineer LaPorte. He identified the photograph as depicting defendant, and he testified that defendant and Marshall had been in his studio at 8:30 or 9:00 o'clock on the Saturday night when the shooting had occurred. Defense counsel objected to the admission of the photograph into evidence stating that he did not contest the fact that defendant had gone to the studio, but instead contested the day of his visit, contending that it was not on the Saturday evening after the shooting took place, but rather, on the preceding day. In those circumstances, when identity was not in issue, counsel regarded as improper the introduction into evidence of a photograph that appeared to be a mug shot. However, counsel stated emphatically that he did not wish the jury to be given the usual instruction regarding the origin of such photographs. The judge overruled counsel's objection and admitted the photograph.

We find no abuse of discretion in the admission of the photograph, which was relevant to the State's proofs and, while clearly an identification photograph, bore no indication that it was taken as the result of criminal activity on defendant's part. State v. Taplin, 230 N.J. Super. 95, 99 (App. Div. 1988) (holding that when identification is at issue, a mug shot may be admitted, so long as it is presented in "as neutral a form as possible."). Here, the identification of the male that accompanied Marshall to the recording studio on the Saturday evening at issue was contested, and the photograph was presented in a neutral form. Thus, no reversible error occurred.

VI.

Defendant's final argument in his counseled brief is that his sentence was excessive. We disagree.

As the trial judge recognized, defendant, who was thirty-one years of age at time of sentencing, had four prior juvenile adjudications that included crimes of violence and weapons offenses. As an adult, defendant pled guilty on the same day to separate indictments charging third-degree aggravated arson and second-degree conspiracy to commit murder. He was sentenced to a total of ten years in custody, and was released in 2006, having served his maximum sentence following a violation of parole.

With respect to the present matter, the judge found aggravating factors 3 (the risk of another offense), 6 (the length and serious nature of his criminal record) and 9 (the need for deterrence). N.J.S.A. 2C:44-1a(3), (6) and (9). He found no mitigating factors. Determining that the aggravating factors outweighed the non-existent mitigating factors, the judge sentenced defendant, as previously stated, to life in custody with a thirty-year period of parole ineligibility, and subject as well to the parole ineligibility provisions of NERA and the Graves Act.

On appeal, defendant argues that, because the jury found that he had committed aggravated manslaughter, not purposeful murder, his sentence should have been reduced to a term below life in prison. However, we find that sentence to have been within the judge's sentencing discretion and to have been well supported, in light of defendant's prior criminal history and his senseless excuse for the shooting of Borges. State v. Bieniek, 200 N.J. 601, 607-08 (2010); State v. Ghertler, 114 N.J. 383, 384 (1989); State v. Roth, 95 N.J. 334, 365 (1984).

VII.

We now turn to the arguments raised in defendant's pro se brief. In it, defendant first argues that trial counsel was ineffective because he waived defendant's right to be present during voir dire of a juror who was absent without explanation on a Monday when the jury was deliberating.1 Defendant claimed that counsel's waiver deprived him of his constitutional rights. Because resolution of this claim requires consideration of facts that lie outside of the trial record, we decline to consider it at this time, finding defendant's arguments more appropriate for consideration in connection with a petition for post-conviction relief. State v. Preciose, 129 N.J. 451, 462 (1992).

At trial, Marshall described, in response to the prosecutor's questions, discussions between her and defendant regarding the robbery that occurred after the two had returned to Newark from their night in Atlantic City. During the course of her testimony, Marshall stated that she asked defendant what they were going to do if the police came. According to Marshall, defendant responded:

if something happens and, you know, we go to jail, I'll you know, I'll take responsibility for it. And then he said to me if I turn on him, he will come for me.

 

At the end of the day, the judge noted the threat that Marshall testified defendant had uttered, and he stated that it would normally be N.J.R.E. 404(b) evidence or it would demonstrate defendant's consciousness of guilt. The judge then offered to give a N.J.R.E. 404(b) charge with respect to the statement if either attorney wished it, and suggested that they think about it overnight. The record does not contain any further reference to the statement. On appeal, defendant argues that the judge erred in failing to give a limiting instruction regarding the statement.

We find no error to have occurred. Defendant's threat was properly admissible pursuant to N.J.R.E. 803(b)(1) as a statement by a party and N.J.R.E. 803(c)(25) as a statement by a party indicating a consciousness of guilt. State v. Covell, 157 N.J. 554, 572 (1999).2 We note in this regard that the judge properly instructed the jury on its consideration of oral statements allegedly made by defendant, explaining as part of his instruction that it was the jury's "function to determine whether or not those statements were actually made by the defendant and, if made, whether the statements, or any portion of them, are credible."

As a final matter, defendant claims that ballistics expert Laterza was permitted to testify beyond the four corners of his report. We discussed the expert's testimony in detail earlier in this opinion, and found no error in its admission in the limited form that the judge ultimately ruled was proper. Defendant also claims that there was no proof that the methods employed by Laterza in his ballistics examination were generally accepted by experts in the field, as required by Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). However, such proofs were not required, because a challenge to the admissibility of Laterza's testimony pursuant to Frye was not mounted at trial. Further, we note that defendant offers nothing on appeal that would suggest that the Frye standard was not met by Laterza in his ballistics testing and examination. Additionally, defendant claims that he was denied his right of confrontation in connection with the testimony of Laterza. We find that argument to have insufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

1 Because of the absence of the juror, the jury was excused for the day. The juror appeared on the next scheduled court day and explained that he had confused the date on which deliberations were to resume. He was thereafter permitted to rejoin the panel, and jury deliberations continued.

2 We recognize that N.J.R.E. 803(b)(1) ordinarily requires a N.J.R.E. 104(c) hearing to determine the admissibility of a party's statement. However, in this case, defendant's threat was not a part of a written document, and there is nothing to suggest that the prosecutor anticipated eliciting it when she asked the question. In these circumstances, we do not regard the absence of a hearing to have been a critical omission.