STATE OF NEW JERSEY v. AWAN SMITH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1523-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

AWAN SMITH a/k/a

AWAN RONDELL SMITH,

TIMOTHY SMITH,

RONDELL SMITH,

Defendant-Appellant.

_______________________________

December 29, 2011

 

Argued October 25, 2011 - Decided

 

Before Judges Payne, Reisner and Hayden.

 

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 08-10-0852.

 

James S. Friedman argued the cause for appellant.

Tracy E. Boyd, Assistant Prosecutor, argued the cause for respondent (Theodore J. Romankow, Union County Prosecutor, attorney; Ms. Boyd, of counsel and on the brief).

PER CURIAM

Based on the shooting death of Omar Kennedy, defendant Awan Smith was convicted of first-degree murder, N.J.S.A. 2C:11-3a(1); third-degree unlawful possession of a rifle without a firearms purchaser identification card, N.J.S.A. 2C:39-5c; third-degree possession of a sawed-off rifle, N.J.S.A. 2C:39-3b; and fourth-degree possession of a defaced firearm, N.J.S.A. 2C:39-3d.1 After merger, he was sentenced to forty-two years in prison with a thirty-year parole disqualifier and subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, and a concurrent sentence of five years for unlawful possession of a weapon, N.J.S.A. 2C:39-5c. He was acquitted of possessing a rifle for an unlawful purpose, N.J.S.A. 2C:39-4a(1).

On this appeal, defendant raises the following issues:

Point A

The Trial Court's Failure To Allow Defense Counsel To Elicit Testimony Concerning Kennedy's Gang Membership Was Error Because It Undercut Severely Smith's Ability To Support His Sole Defense To The Charges Set Forth In The Indictment.

 

Point B

Smith's Convictions Must Be Vacated Because The Trial Court's Jury Charge Was Fatally Flawed (Not Raised Below).

 

Point C

Smith's Convictions Must Be Vacated Because Of The Cumulative Effect Of The Errors That Occurred During His Trial.

Finding no merit in any of those arguments, we affirm the conviction. We remand only to correct typographical errors in the judgment of conviction.

I

The case arose from a shooting that occurred in Elizabeth on December 9, 2007. Defendant admitted that he shot Omar Kennedy but claimed he acted in self-defense. Before the trial commenced, defense counsel raised the possibility that she would introduce evidence that Kennedy belonged to a street gang. The judge reserved on that issue, stating that he would need to address it after an N.J.R.E. 104 hearing. He also noted that, to show the information was relevant, the defense might need to present expert testimony explaining to the jury the characteristics of the gang to which the deceased allegedly belonged.

At the trial, Kennedy's long-time girlfriend, Latoya Robinson, testified that on Saturday night, December 8, 2007, she, Kennedy, and several friends and relatives were at his mother's house watching a boxing match on television. After they left his mother's house, they briefly stopped at Robinson's house. They then proceeded to Grady's bar (Grady's or the bar), at the corner of First and Court Streets, about three blocks from Robinson's house. Robinson and Kennedy's cousin, Hassan McCloud (known as "Baby Has"), drove there in her car because it was cold out, while Kennedy and his friend Justin Timmons walked. After parking her car near the bar, Robinson saw McCloud, Kennedy and Timmons enter the bar. Robinson stayed in the car.

Within a few minutes she saw Kennedy and Timmons leave Grady's and walk toward the corner of First and Court Streets. She assumed Timmons had been told to leave the bar because he was underage, and that Kennedy had left the bar to keep him company. Moments after seeing the two men leave the bar, Robinson heard three or four gunshots, but did not see who was shooting. Kennedy ran to Robinson's car, told her he was shot, and asked her to drive away. He never told her who shot him and she did not ask.

Some distance from Grady's she flagged down a police car. The police called an ambulance to take Kennedy to the hospital. They then questioned Robinson for several hours. Some time later, she learned that Kennedy had died at the hospital.

Elizabeth Police Officer Dan DeMarco testified that Robinson flagged him down at around 2:00 a.m. on December 9. She was hysterical and told him Kennedy had been shot. According to DeMarco's police report, Kennedy refused to speak with him and his fellow officers about what had happened to him.

Additional Elizabeth police officers, who were called to the scene of the shooting at First and Court Streets at around 2:15 a.m., found the area deserted. After searching, they discovered three nine millimeter shell casings on the sidewalk "right in front" of Grady's bar. Although several police and sheriff's officers looked for discarded weapons in the vicinity of the bar, they found none. Likewise, a thorough search of Robinson's car, conducted after it was towed to the police garage, revealed no weapons.

According to Justin Timmons, he and Kennedy were lifelong friends who grew up in the same neighborhood. He also knew Robinson, who was "like my family member." Timmons corroborated Robinson's account of watching television at Kennedy's mother's house, then stopping briefly at Robinson's house before going on to Grady's bar. According to Timmons, McCloud drove to the bar with Robinson and arrived slightly before Kennedy and Timmons, who walked there. Timmons saw McCloud enter the bar. Timmons and Kennedy remained outside the bar on the Court Street side. Robinson was sitting in her car, parked across the street. At some point, McCloud came out of the bar and joined Timmons and Kennedy on the sidewalk.

Timmons was acquainted with defendant. According to Timmons, when McCloud came out of the bar, he did not mention that defendant was inside the bar. After McCloud emerged from the bar Timmons heard shots fired, but he did not see who was doing the shooting. Timmons "never seen this defendant come out" of the bar. He did see a "dude" he did not know emerge from the bar before the shooting, but that individual walked "around" him and walked away.

After Timmons heard the shots, he and McCloud took off running down Court Street. When he noticed Kennedy was not running with them, Timmons thought he might have been shot. Asked if he heard "anyone say anything" just prior to hearing the shots fired, Timmons denied hearing any remarks made. Timmons testified that neither he nor his two companions had a gun that night and none of them had "a gun out" just prior to the shooting.

Before the State presented testimony from Dr. Shaikh, the medical examiner, defense counsel raised the issue whether she would be able to elicit testimony that a tattoo on the victim's body was evidence of his gang membership. The judge ruled that she could elicit testimony about the existence of the tattoo, to use as a factual foundation for any expert evidence she might later present about "the propensity towards violence of gangs." However, he ruled that, absent a better foundation than she had presented thus far, he was not convinced that the victim's gang membership was relevant.

At an N.J.R.E. 104 hearing outside the jury's presence, Dr. Shaikh testified that during the autopsy he found a set of three circular marks on the victim's arm, and one of the law enforcement officers present told him to note down that it was a "bear paw" mark. That notation in Dr. Shaikh's report did not come from his personal knowledge about the significance of the marks. He testified it was not his job or part of his training to be able to identify what gang a marking corresponded to. His job was to accurately describe any tattoos or marks that he saw, so that law enforcement officers could reach their own conclusions about the significance of what he described. He testified that he was not a gang expert and could not say whether the marks he saw meant that the victim was a gang member.

After the hearing, the judge ruled that defense counsel could elicit from the doctor his physical description of the victim's tattoos, including the three marks, and a separate tattoo of a smoking gun with the word "ammo." However, he ruled that she could not ask the doctor to characterize the marks' significance because he was not an expert in that area.

Following Shaikh's testimony, the State presented testimony from McCloud. He was the victim's cousin and had known him all his life. McCloud testified that he became particularly close to Kennedy after moving to Elizabeth seven years ago. Kennedy's nickname was "Ammo." McCloud also knew defendant, whose nickname was "Halfis." According to McCloud, neither he nor Kennedy "ever [had] a problem" with defendant.

He told essentially the same version as Robinson and Timmons concerning how their group watched the boxing match, left around 1 a.m., stopped at Robinson's house and then went on to Grady's bar to see if any of their friends were there. When they arrived, McCloud went into Grady's and met two women that he knew standing at the bar. He asked them to buy him a drink, which they declined to do, and he then approached defendant, who was sitting at some distance from the bar. The two men briefly exchanged greetings. McCloud then noticed Kennedy and Timmons trying to enter the bar. When the two men were turned away because Timmons was underage, McCloud decided to leave the bar too, after ascertaining that none of the people they "usually hang out with" were there.

According to McCloud, the three of them were standing around smoking and talking, on the Court Street side of Grady's. He did not tell his companions that he had seen defendant inside the bar because "we had no problems with him." Likewise he did not tell defendant that he was "there with Omar [Kennedy]." To McCloud's knowledge, neither Kennedy nor Timmons had a gun that night. As the three of them were standing on the corner, McCloud saw defendant emerge from the bar carrying a long gun and head toward McCloud's group. On cross-examination, he admitted he did not hear defendant say anything. However, when McCloud saw defendant coming toward them with the gun, he and Timmons "ran" up Court Street. McCloud explained that he ran because he had been shot once before and did not want to get shot again. According to McCloud, as he started running he said to his companions that a "guy" was coming out of the bar with a gun. At that point, he could see Kennedy, and Kennedy did not have a gun in his hand.

As McCloud and Timmons ran up Court Street, he did not see Kennedy running with them and therefore "knew" he had remained on the corner. A few seconds after he and Timmons began running, McCloud heard shots. He looked back and saw defendant standing on the corner but did not see Kennedy. At that point, he called Robinson on his cell phone to see what happened to Kennedy, and she told him Kennedy had been shot.

A few hours later, McCloud was interviewed by the police. He did not want to talk to them, and did not tell them that defendant was the shooter. Instead, he gave them an accurate physical description of the shooter, without a name, hoping it would lead them to defendant. He did not want to be the person who turned in defendant. However, in a later interview with the police, he picked defendant's picture from a photo array and identified him as the shooter. When he testified, McCloud admitted that he had a criminal record and was incarcerated at the time of the trial. McCloud admitted that before he finally identified defendant as the shooter, the police had visited him in the Union County Jail and offered to "talk" to the prosecutor about his criminal case.

Brian Davis, a very reluctant witness, testified that on December 9, he saw defendant, whom he knew well, at the bar with a "light skinned" man whom he knew as "Henrak." On cross-examination, he admitted that he knew of a prior incident in which Kennedy had cut defendant's face, leaving a scar.

Before the State presented its next witness, Henry Rivera, defense counsel applied for permission to elicit information from Rivera that Kennedy was a member of the Bloods street gang. She argued, without more, that the information was relevant to defendant's "state of mind at the time" of the shooting and his "reasonable and honest belief" that he needed to defend himself. The prosecutor argued that the information was irrelevant and prejudicial. The court denied the application, ruling that "at some point in time you may be able to tie up these gang references but I don't find they are relevant at this point in time." Without objection, the prosecutor also put on the record that she had instructed Rivera to refrain from mentioning that he and defendant had been selling drugs.

Rivera, nicknamed "Henrock," testified that he had known defendant for a month or two at the time of the shooting. Rivera, who was from Newark, knew that defendant sometimes lived in Baltimore, where the mother of defendant's child resided. However, defendant more frequently lived in Elizabeth with his then-current girlfriend. In December 2007, Rivera spent a lot of time with defendant, "hanging out" on the corner of Court Street and Third Street. On December 8, 2007, after hanging out on the corner and running assorted errands, they got a ride to Grady's bar (known locally as "Shaffie's," after the owner, whose name was Shaffie).

As Rivera and defendant were sitting in Grady's bar, the person who had driven them to the bar came over to Rivera and told him something that caused Rivera to go outside to see "how it looked out there."

Rivera exited the bar, saw several men standing outside and began to walk past them. At that point, he heard defendant's voice behind him, speaking to a man Rivera later learned was "Omar" (Kennedy). According to Rivera, defendant said to Kennedy "[p]ussy, you thought you was going to get away with cutting my face." As defendant spoke, he "just started opening fire." Kennedy tried to "avoid the gun" which defendant was "pointing . . . right at him." Rivera saw that Kennedy had nothing in his hands, and specifically not a gun, when defendant shot him.

After defendant shot him, the victim ran away. According to Rivera, he then saw a man approaching from the same direction, and he thought it was the victim returning. Rivera thought this man had a gun, but when defendant raised his own gun to shoot, the man ran off again. After the shooting, Rivera and defendant walked up Court Street, arguing about what had just occurred. On the way, defendant hid the gun "on the side of a house in an alley" near the home of a girl they both knew. Rivera then called a cab, but the driver was unwilling to take both Rivera and defendant because they were still vociferously arguing. Rivera walked home and let defendant take the cab.

Rivera explained that before they went to the bar, defendant retrieved the rifle from his girlfriend's house, and Rivera saw defendant load it with an ammunition clip. Defendant brought the weapon into the bar and kept it hidden, tucked under his arm inside his coat. According to Rivera, defendant obtained the gun from a man named "Nes" about a week before the shooting. Defendant told Rivera that he needed the gun because he was "beefing" or "having little fights" with "the guys in the area," including "Omar" and his friends. Defendant also told Rivera that he intended to "push" (kill) Omar. According to Rivera, it was defendant's idea to go to Grady's bar the night of the shooting.

Rivera testified that after that night, he stopped speaking to defendant because he was upset over the shooting. A few days later, Rivera spoke with a mutual friend nicknamed Frank, who told Rivera that the murder weapon was now at defendant's girlfriend's house. Rivera visited the girlfriend's house and ascertained that the gun was still there, hidden under a bed. Concerned that he would be implicated in the shooting, Rivera went to the police and told them who committed the shooting and where they could find the gun.

On cross-examination, Rivera admitted that he knew of a recent, prior incident in which Kennedy cut defendant's face, and he admitted telling the police that defendant obtained the gun to protect himself. He also admitted that when he initially walked outside the bar, he had reason to believe that some of the people outside were the ones who had been "beefing" with defendant, and he wanted to see if they were about to "bum-rush" the bar to "get" defendant. Rivera further conceded that when he spoke to the police, he told them that after defendant shot Kennedy, Kennedy had come back with a gun and was trying to sneak up on defendant when defendant turned around and saw him. However, he confirmed that at the time defendant shot Kennedy, the victim did not have a gun in his hand.

The State also presented testimony from Frank Garner, another very reluctant witness. Garner admitted that the day after the shooting, defendant called him and told him that he had nothing to do with the shooting in Elizabeth but also asked Garner to pick up a gun from defendant's girlfriend's house and get rid of it. Garner declined to do so.

According to a police witness, based on information supplied by Rivera, the police went to defendant's girlfriend's house and found defendant's gun and some ammunition under a bed. A ballistics expert testified that the three cartridge casings found at the murder scene were fired from that gun. He also confirmed that the stock of the gun had been shortened, making it a "sawed-off rifle."

Defendant testified that he resided in Baltimore, although he occasionally lived in Elizabeth with relatives or with his girlfriend. Defendant testified that he had two prior altercations with Kennedy. In August 2007, in Elizabeth, Kennedy, Timmons and another man "jumped" defendant and beat him up. After that, defendant went back to Baltimore for several weeks. When he returned to Elizabeth, Kennedy attacked him again. This time, defendant was talking to some friends on Third Street when Kennedy and several accomplices confronted him. According to defendant, without provocation, Kennedy cut his face with a box cutter and another of the men started punching defendant. Fearing for his life, defendant returned to Baltimore and stayed there for several weeks, returning to Elizabeth in September. After Kennedy cut his face, defendant bought a gun for his own protection.

On December 8, 2007, defendant, Rivera and another friend were watching a boxing match at the Blue Moon bar. After the match ended, the friend suggested that they go to Grady's bar. Defendant did not know that Kennedy would be at Grady's and did not intend to encounter him there. After they had some drinks, Rivera left Grady's followed by defendant, who intended to go to his brother's house. However, at the corner of Court and First, defendant encountered McCloud, Timmons, Kennedy and Kennedy's uncle "Big Has." According to defendant, Kennedy pulled a gun and said "What's up now?" Fearing that Kennedy was about to shoot him, defendant "shot him first." Defendant denied having any advance plan to shoot Kennedy and denied ever telling anyone that he had such a plan.

After shooting Kennedy, defendant headed left up Court Street. He looked back and saw Kennedy following him. He ducked between two cars, and Kennedy went away toward First Street. At that point, defendant was not sure he had actually hit Kennedy when he shot at him. After the incident, defendant "panicked," took the gun to his girlfriend's house, and left for Baltimore because he was "afraid."

At this point in the testimony, the jury was excused and the judge held an N.J.R.E. 104 hearing on the issue of Kennedy's gang membership. At the hearing, defendant testified that he did not report the prior altercations with Kennedy to the police because he knew that Kennedy, Timmons and McCloud were gang members and he was afraid they would retaliate against his family. He "knew" they were gang members from his long acquaintance with them, their reputations on "the street," and because he had seen their tattoos. He had also heard from other people that the men were in the Bloods gang. He testified that he fled to Baltimore after the shooting for the same reason - he was afraid the Bloods would retaliate against him. In response to the judge's question, defendant testified that he believed Kennedy and his friends would retaliate against him because "I know that's what they do."

Defense counsel argued that the information about gang affiliation was relevant to explain defendant's state of mind in terms of his failure to report the attacks to the police and why he fled after the shooting. She also argued that defendant's knowledge about Kennedy's gang affiliation was relevant to "his reasonable belief that [deadly] force was necessary."

In response, the prosecutor argued that there was no evidence that Kennedy's friends were gang members, and that Kennedy's gang membership was irrelevant to defendant's "state of mind as to why he is shooting the victim." She contended that the defense was seeking to introduce evidence of gang membership to create prejudice against the victim. She further argued that the evidence of Kennedy's actual prior violence against defendant was what was relevant to defendant's state of mind. She also argued that expert testimony would be needed on the gang issue and the defense was not going to present an expert.

The judge considered defendant's argument, that Kennedy's gang affiliation was relevant to defendant's duty to retreat and his reasonable belief that he needed to use deadly force. However, the judge viewed gang membership, without more, to be generalized evidence of criminal propensity which might well lead a jury to draw inaccurate conclusions. He cited as an example, proving that someone was a "Boy Scout" instead of introducing evidence of his community reputation for honesty. The judge also noted that defendant's testimony that he "knew" Kennedy was a Blood was not supported by anything specific other than having seen the tattoo, and there was no expert testimony that the tattoo was a gang tattoo. However, the judge primarily considered that defendant had already presented much more specific and relevant testimony that Kennedy and his friends ("the Kennedy gang") had committed prior attacks on him. He reasoned that to go further and identify them as "Bloods" would be unnecessary to the defense and prejudicial to the State. The judge concluded that the real reason the defense was seeking to identify Kennedy as a "Blood" was to "make the victim look bad in front of the jury."

II

On this appeal, defendant first contends that the trial court erred by precluding him from introducing evidence of Kennedy's gang membership. We cannot agree.

At his trial, defendant raised the defense of self-defense, which required him to present evidence of his reasonable belief that deadly force was necessary to protect him from death or serious bodily injury. N.J.S.A. 2C:3-4(b)(2) ("The use of deadly force is not justifiable under this section unless the actor reasonably believes that such force is necessary to protect himself against death or serious bodily harm.").

N.J.S.A. 2C:3-4(b)(2) justifies the use of deadly force only when the actor reasonably believes that such force is necessary to protect the actor against death or serious bodily injury. Evidence Rule 404(b) permits defendants alleging self-defense to produce prior-acts evidence that speaks to the issue of the reasonableness of the defendant's belief that deadly force was necessary.

 

[State v. Jenewicz, 193 N.J. 440, 462 (2008).]

Additionally, N.J.R.E. 404(a) permits evidence of the victim's violent character where it is pertinent to a claim of self-defense:

(a) Character evidence generally. -- Evidence of a person's character or character trait, . . . is not admissible for the purpose of proving that the person acted in conformity therewith on a particular occasion except:

(2) Character of victim. -- Evidence of a pertinent trait of character of the victim of the crime offered by an accused or by the prosecution to rebut the same, . . .

 

[N.J.R.E. 404(a)(2).]

 

As the Court held in Jenewicz,

 

When, as here, a defendant accused of murder asserts self-defense, he can adduce evidence of the victim's violent character for the purpose of proving that the victim's character for violence tends to show that the victim was the initial aggressor.

 

[Jenewicz, supra, 193 N.J. at 459.]

Although the victim's violent character is sometimes admissible under N.J.R.E. 404(a), under N.J.R.E. 405 specific instances of the victim's conduct are not admissible to show the victim's violent character. Jenewicz, supra, 193 N.J. at 459-60. However, as previously discussed, if the victim's specific prior violent acts were known to the defendant, the specific instances are admissible to show the reasonableness of the defendant's belief that the victim was about to kill or seriously harm him. Id. at 459-63.

Defendant contends that evidence of Kennedy's gang membership was relevant to the reasonableness of defendant's belief that he needed to shoot Kennedy in order to prevent Kennedy from killing or seriously injuring him. Because juries may readily infer that members of street gangs have engaged in criminal activity, evidence of gang membership is treated as "other crime" evidence under N.J.R.E. 404(b). State v. Goodman, 415 N.J. Super. 210, 227-28 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011). That section bars the use of "other crimes" evidence to "prove the disposition of a person in order to show that such person acted in conformity therewith." N.J.R.E. 404(b). In other words, evidence of past crimes cannot be used to support inferences that the actor is a bad person who is likely to commit crimes, or that because the actor committed a crime once, he or she is likely to commit the same type of crime again. However "other crimes" evidence may be admitted "for other purposes . . . relevant to a material issue in dispute," such as to prove motive, opportunity, or absence of mistake. Ibid.

We review a trial judge s evidentiary rulings for abuse of discretion. See State v. Marrero, 148 N.J. 469, 483 (1997). Further, so long as the trial judge conducts an appropriate analysis under State v. Cofield, 127 N.J. 328, 338 (1992), we will not disturb the judge's ruling on the admissibility of 404(b) evidence, absent a "'clear error of judgment.'" Goodman, supra, 415 N.J. Super. at 228 (quoting Marrero, supra, 148 N.J. at 483).

A proper analysis under Cofield, requires the court to analyze the following four factors:

1. The evidence of the other crime must be admissible as relevant to a material issue;

 

2. It must be similar in kind and reasonably close in time to the offense charged;

 

3. The evidence of the other crime must be clear and convincing; and

 

4. The probative value of the evidence must not be outweighed by its apparent prejudice.

 

[Cofield, supra, 127 N.J. at 338.]

 

Where the second prong is not pertinent to the underlying issue on which the evidence is offered, the proponent need not satisfy that aspect of the Cofield test. State v. Williams, 190 N.J. 114, 130-31 (2007). Most significantly, however, the proponent must always establish that the evidence is relevant.

Against that legal backdrop, we consider the evidence of Kennedy's gang membership, its possible relevance to the defense, and hence its admissibility under Evidence Rules 404(a) and 404(b). Defendant contends that evidence of Kennedy s gang membership was relevant to defendant s state of mind at the time he shot Kennedy, and particularly to the objective reasonableness of defendant s subjective belief that he had to shoot Kennedy to preserve his own life. He argues that, without knowing that Kennedy was a gang member, the jury would not necessarily understand why Kennedy had previously beaten defendant and cut his face and could not fairly assess "the issue of whether [defendant] subjectively believed that deadly force was necessary in his final encounter with Kennedy, and whether his belief was objectively reasonable at that time." We find those contentions unpersuasive.

First, the prosecution did not contest that Kennedy previously beat defendant and slashed his face. The prosecutor admitted those facts in her summation, arguing that the prior attacks provided a motive for defendant to shoot Kennedy. Defendant did not need to show that Kennedy was a gang member to prove that those events occurred. Further, even if the defense had offered proof (which it did not) that Bloods gang members were generally violent, that evidence would have been cumulative in this case. Defendant had already established that he knew Kennedy was a violent person, by showing that Kennedy engaged in two violent, unprovoked assaults on him.

Second, the defense did not proffer any evidence to show how Kennedy s gang membership was relevant to his prior attacks on defendant or to any possible future attack he might have been planning on defendant. There was no evidence that defendant belonged to a rival gang, had trespassed on Bloods territory, or had otherwise done something to incur Kennedy s wrath as a gang member, as opposed to incurring his hostility on a personal level. Cf. Goodman, supra, 415 N.J. Super. at 230-31. Therefore, defendant did not show how or why his knowledge of Kennedy s gang membership was relevant to his subjective belief that he needed to use deadly force.

Third, and most significant, this case was not about whether defendant overreacted and shot Kennedy, based on a subjective but reasonable belief that he needed to use deadly force to defend himself. The issue was much simpler and more straightforward: Did Kennedy have a gun in his hand when defendant shot him? That was defendant s sole explanation for why he shot Kennedy, and on this record, that defense did not require the jury to parse the nuances of defendant s reasonable or unreasonable belief in the need to shoot Kennedy in response.

The State admitted that Kennedy had previously attacked defendant. The State did not argue that, even if Kennedy had pulled a gun on him, defendant did not need to shoot him. The State s argument was that Kennedy was unarmed at the time of the shooting. Defendant did not offer any expert testimony to prove that all Bloods members usually carry guns, or to establish that because of his gang affiliation Kennedy was more likely to have been the armed aggressor in this confrontation.

In summary, we agree with the trial judge that defendant did not establish that Kennedy s alleged gang membership was relevant to his claim of self-defense. We also find no basis to second guess the judge s reasonable conclusion that the information was more prejudicial than probative. N.J.R.E. 403(a). We find no abuse of the judge s discretion in excluding this evidence. See N.J.R.E. 404(a)(1); N.J.R.E. 404(b); Goodman, supra, 415 N.J. Super. at 228.

 

III

Addressing defendant s next point, he is correct that the judge failed to tailor the self-defense charge by explaining the factual basis for the defense. See State v. Gartland, 149 N.J. 456, 475-76 (1997). However, the defense did not object to the charge, and on this record, the error was harmless. R. 1:7-2; R. 2:10-2. See State v. Morton, 155 N.J. 383, 421 (1998).

Given the trial evidence and the attorneys summations, the jury could not have failed to understand that, to decide if defendant was guilty of murder or was not guilty by reason of self-defense, they needed to resolve one factual issue: When defendant shot the victim, did Kennedy have a gun in his hand, as defendant claimed, or did Kennedy not have a gun in his hand, as Rivera, McCloud, and Timmons testified? See State v. Robinson, 165 N.J. 32, 47 (2000) (the charge must be considered in the context of the trial evidence and the attorneys summations); Morton, supra, 155 N.J. at 422 ("the facts were not so complex or confusing as to require an intricate discussion in the charge").

The jury apparently believed defendant's claims that Kennedy previously attacked him and he was carrying the gun for the purpose of protecting himself, because they acquitted him of possessing the gun for an unlawful purpose. However, they plainly did not believe that Kennedy pulled a gun on defendant before defendant shot him. Beyond a reasonable doubt, the deficiency in the charge to which the defense did not object did not have the clear capacity to produce an unjust result. See R. 2:10-2; State v. Macon, 57 N.J. 325, 337-38 (1971).

Having rejected defendant s first two points, we also find no merit in his argument that "cumulative error" warrants reversal. No further discussion is required on that point. R. 2:11-3(e)(2).

Finally, although we affirm defendant s conviction, we remand for the limited purpose of correcting the following errors in the judgment of conviction (JOC): the JOC should reflect the correct statutory citation and offense on count three, N.J.S.A. 2C:39-5c (possession of a rifle without a firearms purchaser identification card), rather than the incorrect notation of N.J.S.A. 2C:39-5b (possession of a firearm for an unlawful purpose); the JOC should reflect the correct statutory citation and offense for count five, N.J.S.A. 2C:39-3d (possession of a defaced firearm), rather than N.J.S.A. 2C:39-3b (possession of a sawed-off shotgun); and counts three, four and five should reflect that defendant possessed a rifle, not a shotgun or handgun.

Affirmed in part, remanded in part.

1 Without objection, the indictment was amended just before the trial commenced to correct the indictment's original reference to a sawed-off "shotgun." The weapon in question was a sawed-off rifle. However, the verdict sheet referred to a "sawed-off shotgun."