STATE OF NEW JERSEY v. JESSE ELWOOD WATKINS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5715-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JESSE ELWOOD WATKINS a/k/a

JESSE WAKINS,

Defendant-Appellant.

__________________________________

November 17, 2011

 

Submitted September 12, 2011 - Decided

Before Judges A.A. Rodr guez and Ashrafi.

On appeal from Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 07-04-0240.

 

William H. Buckman Law Firm, attorneys for appellant (Lilia Londar and Toni Telles, on the brief).

 

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

 

PER CURIAM

Nineteen years after the disappearance of his cousin Craig White, defendant Jesse Watkins was tried before a jury and convicted of murdering him. He appeals, arguing that his trial was unfair because: (1) venue should have been transferred out of Cape May County; (2) the judge improperly influenced the jury's deliberations by summarizing witness testimony in the final jury charge; (3) he was denied the right to cross-examine a witness effectively; and (4) the jury's guilty verdict was against the weight of the evidence. Having fully reviewed the record and considered defendant's arguments, we now affirm the conviction.

Defendant was indicted in 2007 on a single charge of murder in connection with the disappearance in February 1990 of his eighteen-year-old cousin. At defendant's trial in 2009, the State alleged that defendant killed White and disposed of his body because White had a sexual relationship with defendant's girlfriend, Dawn Garrison. White's body was never found, nor was any other physical evidence relating to his disappearance.

Rather, the prosecution presented testimony from family and friends and emphasized that defendant was the last person seen with White before his disappearance and that in later years he confessed the murder to a former girlfriend and his former wife. The prosecution also presented evidence of defendant's motive, his animosity toward White, his inconsistent statements and behavior shortly after the disappearance, his leaving New Jersey within days of White's disappearance, and his staying away for seventeen years until he was arrested and charged with the murder. To refute the State's case, defendant presented testimony that White was seen alive in the days immediately after he reportedly went missing in February 1990. The defense suggested that White fled Cape May County and remained a fugitive because he was facing a pending indictment in New Jersey for robbery and selling drugs.

On appeal of his conviction, defendant raises the following points of error:

POINT I

 

JESSE WATKINS WAS DENIED HIS SIXTH AMENDMENT RIGHT TO A FAIR AND IMPARTIAL JURY.

 

A. THE TRIAL COURT IMPROPERLY

INFLUENCED JURY DELIBERATIONS

BY PROVIDING THE JURY NOTES

GENERATED BY THE JUDGE.

 

B. THE TRIAL COURT IMPROPERLY

DENIED WATKINS' MOTION FOR A

CHANGE OF VENUE.

 

POINT II

 

THE JURY'S VERDICT OF GUILTY MUST BE REVERSED BECAUSE THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.

 

POINT III

 

APPELLANT WAS DENIED HIS RIGHT TO DUE PROCESS BY THE TRIAL COURT'S LIMITATION OF WATKINS' ABILITY TO CROSS EXAMINE A STATE'S WITNESS.

To assess these arguments, we review in detail the evidence presented at the trial.

I.

In the 1980s, defendant was in his late twenties and lived with Dawn Garrison in Whitesboro. He had a good relationship with his cousin Craig White. In July 1989, Garrison began a sexual relationship with White, then eighteen years old. White told several friends and relatives about his relationship with Garrison. Garrison testified at trial and admitted she had a sexual relationship with White in the summer of 1989.

In October 1989, defendant, White, and defendant's brother, George Watkins, traveled to California to sell T-shirts at the World Series. When they returned to New Jersey, White's aunt, Kay White, and his uncle, Vincent White, noticed bruises on his face. White told them he had gotten into a fight with defendant. After the trip to California, Kay White and others observed a strained relationship between defendant and Craig White "like there was some animosity between the two of them."

According to Dawn Garrison, it was in the weeks after the trip to California that defendant first confronted her about having a relationship with White. She initially denied the accusation. In November 1989, however, defendant presented her with an engagement ring and asked her to marry him. At that point, she confessed to defendant about her relationship with White. Defendant cried, and he remained emotionally upset for "about a month or so." He told Garrison that people in the neighborhood were talking about the affair.

On January 19, 1990, defendant and his friend, Peter Stein, went out for drinks to celebrate defendant's birthday. Defendant said to Stein that Garrison had told him White raped her, but defendant had doubts about her story because he continued to see them together. Stein told defendant he thought Garrison was lying and "that they were more likely having an affair."

In February 1990, defendant approached Kay White in the parking lot of the Whitesboro Community Center. Defendant was "very upset" and "ranting and raving" about how "he tr[ied] to be a friend to Craig and help Craig [but Craig] did everything he could to ruin his life." After this incident, Kay White advised Craig White to stay away from defendant because "she felt like [defendant] would do something to him cause he was just so angry."

On another occasion during the winter of 1989-1990, Craig White's mother, Lee White, went to defendant's house looking for her son. According to Lee White, defendant "just started ranting and raving about Craig and -- and Dawn and their affair -- and -- and where they slept together and how many times . . . and he just went on and on and on, you know, about Dawn and Craig." He was "just out of control. Outrageous. Just -- just getting louder and louder as he spoke about Craig and Dawn. He was extremely upset."

Family members recalled an incident four years earlier when defendant had reacted violently to information about Garrison's relationships with other men. In September 1985, defendant was playing basketball at the Whitesboro Recreation Center with a group of men, including his cousins Harold and Vincent Watkins and his brother Donald Watkins. Harold Watkins told defendant that he and other men had previously engaged in sexual activity with Garrison. Defendant "took offense" and the incident escalated into a fight, defendant throwing the first punch. Defendant left the area and returned with a gun, threatening to kill Harold Watkins. Donald Watkins, stepped between them and took the gun from defendant. At the urging of family members, Harold Watkins reported the incident to police. The police searched defendant's home and found a nine millimeter handgun and a replica MP-40 machine gun.

After the California trip in 1989, defendant told his cousin Vincent Watkins "he was going to get Craig." Vincent Watkins advised his nephew Craig White to stay away from defendant. He assumed that White knew defendant was angry at him after the California trip.

On an unknown date, while fishing, defendant asked his friend James Easley what he would do if he wanted to get rid of a dead body. Easley told him to give the body "cement shoes" and mentioned a "suck hole" that his dog had fallen into.1

In February 1990, Craig White was living at a home in Whitesboro with his cousin, Anthony White, and other family members. He had a one-year-old son that he regularly took care of while the child's mother, Meretha Green, was at work. Also, Craig White had recently been indicted on charges of conspiracy, robbery, and distribution of a controlled dangerous substance. The charges arose out of an undercover investigation in which White "was one of the street individuals" selling drugs to undercover agents.

On February 23, 1990, defendant stopped in the street next to White and his cousin Ty White. Defendant asked Craig White "to go into the woods with him to cut poles" for a building project. White told Ty White and his other cousin, Anthony White, that he did not want to go with defendant.

At approximately 4:30 p.m. on February 23rd, Anthony White took Craig White to his mother's house to drop off some money for his infant son. Before they left, White told his mother he was going to cut down trees with defendant in the woods that evening. Lee White "thought it was extremely odd" that they were going to cut down trees in the dark.

Anthony and Craig White then returned to their residence and were lifting weights along with Ty White. At approximately 5:00 p.m., defendant arrived in his pickup truck. He spoke briefly to Anthony and Ty White. Craig White went into his bedroom and changed into sweat pants and boots. He told Anthony and Ty White he would be right back, and then he left with defendant. The lights and music in his bedroom were left on, and jewelry and money were left on the dresser. In addition, White did not take any clothes or personal belongings.

Craig White has never been seen or heard from by family members and friends since the time he left his residence that afternoon at about 5:00 p.m.

Peter Stein recalled that defendant told him sometime in the afternoon or early evening of February 23, 1990, that he had just dropped his cousin Craig White off at the Courthouse Mall in Cape May Courthouse.

The next day, February 24, 1990, defendant saw Anthony White and asked if he had seen Craig White. Anthony White had not seen him. Defendant then said he and Craig White "met some girls last night, and I dropped him off in Buena."

Also on February 24, 1990, defendant ran into Guy Bethune, who considered himself Craig White's best friend. Defendant was driving his pickup truck, which was dirty and muddy. Bethune asked defendant if he knew where White was. Defendant said he had seen him at the Wawa store in Burleigh "with two girls going to Buena" at about 7:30 or 8:00 the night before. Bethune questioned that information. Defendant then said to Bethune that "if anyone asks, tell them that [White] was with [Bethune] and he went to Buena with the two girls." Bethune understood defendant to be asking him to lie.

Also on or about February 24, 1990, defendant ran into Lavern Fitzpatrick, another cousin. Defendant told Fitzpatrick he had dropped White off in Buena and asked him to tell White defendant was looking for him. Fitzpatrick, who was also a close friend of White, found it unusual that White would leave the area without telling anyone.

Ty White testified that Craig White would "dress up" when going out with girls, and it would be unusual for him to do so in sweat pants and other work clothes, the clothes in which he was last seen when he left with defendant on the afternoon of February 23rd.

Three days after White's disappearance, on February 26, 1990, defendant was admitted to Jefferson Hospital in Philadelphia to have surgery on his shoulder. He remained in the hospital until March 2nd.

On March 1, 1990, White's aunt, Kay White, reported her nephew missing to the Middle Township Police. She said he was last seen with defendant on the afternoon or evening of February 23rd, and she believed defendant killed him.

Later that same day, Officer David Tomkinson went to defendant's home to interview him about White's disappearance. Dawn Garrison called defendant at the hospital in Philadelphia. On the telephone, defendant told Officer Tomkinson he went to White's residence on February 23rd to look at a puppy he had given to White. Afterwards, he dropped White off on Main Street in Whitesboro. Defendant said he then stopped to speak with Robert Mabry, who lived on the corner of George and Main Streets. According to defendant, White rode by in a dark blue Chevrolet with a couple of girls in the car and he yelled out the window to defendant to tell Guy Bethune that he was going to Buena with the girls.

The police followed up on defendant's statements by speaking to both Robert Mabry and Guy Bethune. Mabry said he had not seen White or defendant on February 23rd and he was not a witness to White leaving Whitesboro. In addition, Mabry told the police defendant had called him and asked him to say he saw White leaving town, or that he could not remember because he was drunk or on drugs at the time. Guy Bethune told the police he had not seen White since February 20th and did not have any plans to go to Buena with him. He did not know whether White had gone to Buena.

On March 3, 1990, after his discharge from the hospital but still in Philadelphia, defendant initiated another telephone call, this time with Detective Blake Moore of the Middle Township Police. Defendant repeated the same version of events he had previously given to Officer Tomkinson regarding the last time he saw White. Detective Moore had already spoken to Robert Mabry by that time, and he told defendant Mabry was not supporting his statements. Detective Moore asked defendant to give him a phone number where he could be reached, but defendant would not do so.

The Middle Township Police began an extensive search for White shortly after he was reported missing. They searched gravel pits, wooded areas, bodies of water, houses, and other properties. Their search was aided by bloodhounds, cadaver dogs, and helicopters. Family and friends also searched for White. In canvassing the area for anyone who may have had any information about White's disappearance, the police inquired at area Wawa stores and other business establishments in nearby towns. At the trial, the defense used evidence the police had gathered to contend that White had been seen alive in the days after he was allegedly murdered by defendant.

Jennifer Matalucci had told Officer Scott Webster on March 7, 1990, that she saw White at the Burleigh Wawa store where she worked sometime from February 26th to 28th. She described him as wearing a long, black leather coat, not the work clothes that family members had last seen him wearing. Matalucci identified White's photo as the person she had seen. After interviewing Matalucci, Officer Webster was permitted to examine White's room at his residence, which family members had padlocked after his disappearance. Officer Webster saw that his clothing and belongings were in place, including a long, black leather coat hanging in the closet that White was known to wear. At the time of trial nineteen years later, Matalucci could not recall whether she had seen White in the store after February 23, 1990. She testified: "I can't be specific on the dates. The only thing I can tell you about seeing him in the store is that he was a frequent customer but I can't pinpoint a date for you."

Dwayne Wilson, an employee of the Rio Grande Wawa store and Matalucci's boyfriend at the time, was interviewed together with Matalucci in early March 1990. He told Officer Webster he believed he saw Craig White on March 4th at the Rio Grande Wawa store. He described White as wearing a mid-length cloth coat. At the time of trial, Wilson was deceased.

The police also spoke with Dawn Sneathen, who had attended school with Craig White and had told Dawn Garrison she had seen White. On March 8, 1990, she told Officer Tomkinson she had seen White walking on February 26th or 27th on "Route 9 near the Hillside Motel" in Whitesboro. She said she saw him only briefly as she was driving, and he ran into the woods. According to Officer Tomkinson's testimony at trial, she was not sure it was White she had seen. On cross-examination by the prosecutor at the trial, Sneathen was asked if she might have been wrong about the date and whether she may have seen him on February 23rd. She responded: "Anything is possible at any time and it's all in how you word a question."

The police also attempted to locate White through a national DNA database. They collected a DNA sample from White's mother, Lee White, but there were no matches to any unidentified remains that had been found. White's family and friends had no contact with him after February 23, 1990. No physical evidence relating to his disappearance was ever found. There was no evidence that White had taken any money out of his small bank account or any other belongings at the time he left his residence on February 23, 1990, or at any later time. Family members also testified he was devoted to his one-year-old son and took care of him almost every day. They thought it unlikely that he would flee and stay away without any effort to see his son again. His son, nineteen years old at the time of trial, testified he had never heard from his father.

Within weeks after White's disappearance, Garrison ended her relationship with defendant because she was afraid he might have killed White. Defendant did not return to their residence in Whitesboro but remained in Pennsylvania, initially living with his sister. Over the years until his arrest in 2007, he also lived in North Carolina, Virginia, Connecticut, and Florida. He apparently returned to New Jersey only on two known occasions, but the police were not able to apprehend him.

Sometime in 1991, Lester Coleman, who was related to defendant and Craig White through marriage, saw defendant selling T-shirts at the Penn Relays, a track and field event in Pennsylvania. Defendant told Coleman that White "was with him . . . around the corner selling T-shirts." Coleman walked around the corner but did not see White.

Also in 1991, defendant returned to New Jersey for a funeral. Detective Blake Moore was notified that defendant was present, and he went to the funeral with the intention of serving a subpoena upon defendant to appear before a grand jury. When the detective called out to defendant outside the church, defendant "ducked down" so that Detective Moore could no longer see him in the midst of many cars in the area. Afterwards, Detective Moore went to the burial site, but defendant was not there. He also went to a family gathering after the funeral, but he did not see defendant and was asked to leave.

In 1992 or 1993, defendant dated Margarette Marion for about six months while living in North Carolina. Marion had no relationship to Craig White's or defendant's families or friends in New Jersey. One day while watching a program on television about murder, defendant told Marion he had caught his girlfriend and cousin in bed having sex. Defendant said he hit his cousin with a brick as he left the house. According to defendant, he was with another man at the time, and they were not sure if his cousin was dead. One of them shot his cousin in the head. They then wrapped the body in plastic, weighed it down with bricks, put the gun inside, and threw it in a river.

At one point during their relationship, defendant thought Marion was cheating on him with an ex-boyfriend. He threatened to kill her if he caught her cheating and said that the "last girlfriend that cheated on him, her boyfriend ended up dead."

While living in North Carolina, defendant also dated and later married Karen Fox, who also had no relationship to family and friends in New Jersey or to Margarette Marion. Defendant and Fox first met in 1991, were married in 1996, had two children together, were separated by 1998, and eventually were divorced in 2000. Before their marriage, defendant told Fox about his relationship with Dawn Garrison. He said he was "damaged goods" because of her infidelity. He told Fox that "Craig left town because he was afraid of [him]."

During their marriage, defendant gave different versions about what had happened to White. On one occasion in 1996, Fox and defendant were talking about the guilt she felt from an abortion she had before she met him. During this conversation, while they were both "upset and crying," defendant first confessed he had killed White. Defendant told her "he took him out to a field to get something and he shot him there." He said he then "panicked and called Old Man Hawkins and Old Man Hawkins told him that there was some road work being done or widen[ed] and that he could bring him up there and bury him."

At another time, defendant told Fox that White was pointing a gun at him, forcing him to go somewhere. As White was following defendant through a fence, the gun went off and White accidentally shot himself. Defendant said White "was convulsing and he was in a lot of pain and misery," and so defendant shot him "to put him out of his misery." He said he then called Old Man Hawkins about what to do with the body.

Fox attempted to leave defendant several times during their tumultuous relationship. On one occasion when they had an argument and she was trying to leave with their children, defendant put a shotgun to her head and said "I killed Craig and I'll kill you." Fox testified she always felt guilty about her knowledge of White's murder but was afraid to tell the police. She encouraged defendant to deal with the situation but he said he could not stand the thought of going to prison.

In 2006 and 2007, defendant's brother, Donald Watkins, lived with him in Florida. In March 2007, they had an argument about Donald Watkins's addiction to crack cocaine. In the past, while serving a prison term, Donald Watkins had been approached by the police to see if he would provide information about defendant. After defendant argued with him and ordered him out of his residence, Donald Watkins called the Cape May County prosecutor's office to report that defendant had threatened him. He decided to call at that time because he was otherwise alone in Florida and was afraid of what might happen to him.

Detective William Henfey immediately traveled to Florida and took a tape-recorded statement from Donald Watkins. According to the taped statement, which was admitted in evidence, defendant "threatened to do [Donald Watkins] like he did Craig." In his testimony at the trial, however, Donald Watkins said he did not know what defendant meant by the threat.

While in Florida in 2007, Detective Henfey also asked Donald Watkins to wear a concealed tape recorder and engage defendant in additional conversation about Craig White. Donald Watkins did so, but defendant immediately accused him of being "wired and working for the police," and he made no mention of White and denied any involvement in his disappearance.

Nevertheless, New Jersey authorities charged defendant in 2007 with murdering White on the basis of the evidence they had gathered over the years.

Following up on Karen Fox's statements alleging that defendant had confessed to her, the police determined that a man named Thomas Watkins was known as "Old Man Watkins" and had lived on Langston Street in Whitesboro at the time of White's disappearance. In August 2008, they searched his former property using ground penetrating radar, but they did not find a body or any other evidence.

At trial, the defense emphasized the exculpatory evidence that White had been seen alive in the days after February 23, 1990. In addition, the defense cross-examined prosecution witnesses to develop inconsistencies in their statements. The defense argued to the jury that the confessions defendant allegedly made to Karen Fox and Margarette Marion were suggested to the women by the police or were otherwise not credible. It claimed that if defendant did make the statements attributed to him, including the threat to Donald Watkins, they were exaggerations and not true admissions of guilt.

The jury found defendant guilty of murdering Craig White. The court sentenced him to forty-five years in prison, with a thirty-year period of parole ineligibility.

II.

Defendant asserts prejudicial error in denial of his motion to transfer venue for the trial out of Cape May County. He argues he was deprived of his Sixth Amendment right to a fair and impartial jury because publicity about the case was widespread in Cape May and Atlantic Counties and was likely to influence jurors.

The Supreme Court has emphasized that "the securing and preservation of an impartial jury goes to the very essence of a fair trial." State v. Bey, 112 N.J. 45, 75 (1988) (quoting State v. Williams, 93 N.J. 39, 60 (1983)). "In criminal cases attended by widespread and inflammatory publicity, various trial management techniques can be employed to assure that the defendant's right to an impartial jury is not compromised." State v. Biegenwald, 106 N.J. 13, 32 (1987). Changing the venue is only one such technique. Ibid. Others include "the use of searching voir dire examinations, the impaneling of 'foreign jurors' to augment the pool of eligible jurors in the vicinage, adjournment of the trial date, and restraints on public comments by participants in the trial." Ibid.

Courts have distinguished between "presumed prejudice" and "actual prejudice" where pretrial publicity may have potentially influenced the pool of persons called to serve on the jury . . . . See State v. Nelson, 173 N.J. 417, 475 (2002). "'Presumptively prejudicial publicity' means 'a torrent of publicity that creates a carnival-like setting' or 'a barrage of inflammatory reporting that may but need not include all of the following: evidence that would be inadmissible at trial, editorial opinions on guilt or innocence, and media pronouncements on the death-worthiness of a defendant.'" Ibid. (quoting State v. Harris, 156 N.J. 122, 143, 147-48 (1998), cert. denied, 532 U.S. 1057, 121 S. Ct. 2204, 149 L. Ed. 2d 1034 (2001)). Cases involving presumed prejudice "are relatively rare and arise out of the most extreme circumstances." State v. Koedatich, 112 N.J. 225, 269 (1988).

"If prejudice is not presumed, [the] court must evaluate whether under the totality of the circumstances 'the jury process resulted in a fair and impartial jury[.]'" Nelson, supra, 173 N.J. at 476 (quoting Koedatich, supra, 112 N.J. at 274); accord Biegenwald, supra, 106 N.J. at 35-36. "Actual prejudice exists if the jurors demonstrated actual partiality or hostility that cannot be laid aside." Harris, supra, 156 N.J. at 144. On appeal, the "actual prejudice" inquiry "turns largely on the adequacy of the voir dire." Koedatich, supra, 112 N.J. at 274. In this regard, the trial court's determinations regarding juror bias are entitled to "special deference." Ibid.

In this case, the record presented by defendant for our review does not include a transcript of the voir dire of potential jurors conducted by the court or attorneys. We have no basis to conclude that jurors were in fact exposed to negative pretrial publicity about defendant. We have no record of any juror indicating knowledge of the case through publicity or otherwise. Consequently, defendant can prevail on this issue only if the record demonstrates a presumption of prejudice such that careful and searching voir dire could not have been a sufficient measure to address the risk of a biased jury.

The following are among the factors to be considered in determining whether prejudice should be presumed as a result of "a torrent of publicity" or "a barrage of inflammatory reporting," Harris, supra, 156 N.J. at 143, 147-48:

(1) evidence of extreme community hostility against defendant;

 

(2) prominence of either the victim or defendant within the community;

 

(3) the nature and extent of news coverage;

 

(4) the size of the community;

 

(5) the nature and gravity of the offense; and

 

(6) the temporal proximity of the news coverage to the trial.

 

[Nelson, supra, 173 N.J. at 476 (citing Koedatich, supra, 112 N.J. at 282-84).]

Defendant has not presented a record of press reports or other publicity meeting these criteria.

In support of his motion to change venue, defendant presented an affidavit by a proposed expert on the "frequent and negative pretrial publicity" in this case. The expert's affidavit has not been included in our record. Instead, we have only the trial judge's account of its contents. From that limited record, we understand the expert to have noted the population of Cape May County to be 96,000 in 2005. Based on daily circulation figures of area newspapers, the court understood the expert to be suggesting that one in five residents had access to the Press of Atlantic City, that "virtually or near virtually every resident" had access to the Cape May County Herald, and that one in thirteen residents had access to the Gazette Leader. The Press of Atlantic City had published fourteen articles about the case. We cannot tell whether the expert or defense counsel had gathered actual articles from the other newspapers or indicated their frequency or content. We have only counsel's general comments that the press was reporting the nature of pretrial proceedings, in which proposed testimony of witnesses was discussed, and that photographs of defendant in handcuffs were shown with the articles.

The expert did not quantify the number of potential jurors who had actually been exposed to reports about the case. Nor did she identify the contents of articles as fitting within the factors listed above. There is no indication in this record of unusually negative pretrial publicity. The record suggests typical press coverage of a murder case. The expert's affidavit appears to have contained broad figures and generalities but no specific study of the influence of press reports on the jury pool in Cape May County or specific information about the inflammatory contents of press coverage.

Following the prosecutor's suggestion, the trial court referred to an incorrect legal standard in denying defendant's motion to transfer venue, as the State now concedes. The court found that the expert's affidavit did not demonstrate clear and convincing evidence that the jury would be influenced by pretrial publicity. In Williams, supra, 93 N.J. at 67 n.13, the Supreme Court abandoned that prior standard of proof and instead stated: "If . . . the trial court determines in its sound discretion at time of trial that a change of venue is necessary to overcome the realistic likelihood of prejudice from pretrial publicity, a change of venue may be ordered." Thus, defendant has the burden of making a showing of a realistic likelihood of prejudice. Id. at 64. The mistaken standard of proof was nevertheless harmless in the context of defendant's motion because defendant did not have credible evidence that pretrial publicity was so pervasive and hostile that it should be presumed to have influenced jurors.

The trial court also said that the parties would be granted liberal opportunity to question potential jurors at the time of jury selection regarding any partiality or preconceptions about the case. Before the jury was selected, the court engaged in a lengthy discussion on the record to prepare its proposed voir dire of the jury. The court addressed in detail and to defense counsel's satisfaction all the defense requests for voir dire questions. The court indicated it would question jurors in detail at sidebar if they expressed any previous knowledge of the case. Without the record of jury selection, we have no reason to conclude the judge deviated from these protective measures during the selection process.

The record presented on appeal does not support defendant's claim of a "realistic likelihood of prejudice from pretrial publicity." See id. at 63. We conclude the trial court did not abuse its discretion in denying defendant's motion to change venue.

III.

Defendant argues his conviction must be reversed because the trial court improperly influenced jury deliberations, depriving him of his Fourteenth Amendment due process rights and his Sixth Amendment right to a fair and impartial jury. More specifically, he asserts it was error for the trial judge to include in the final jury charge his own recollection of testimony. He also contends the judge provided to the jury spreadsheet pages containing his own notes of testimony he attributed to each witness.

In his appendix for this appeal, defendant has included spreadsheet pages listing witnesses and the topics of their testimony in categories of potential legal instruction to the jury. We have found nothing in the record of the trial, however, to support defendant's contention that the spreadsheet or any notes made by the judge were given to the jury. At the time the jury retired to deliberate, counsel reviewed the exhibits that were being submitted to the jury. There was no reference to the judge's notes or a spreadsheet.

The record reveals that during the charge conference, the judge made use of notes to recount his intended instructions summarizing witness testimony. Apparently, the judge provided to counsel copies of the spreadsheet he had prepared to facilitate discussion at the charge conference. The record does not support defendant's argument that the judge erred by allowing his own notes to be used by the jury.

Defendant also argues that the trial judge prejudicially influenced the jury's deliberations by recounting his own recollections of the testimony.

Although at the charge conference the judge discussed at length his intention to summarize witness testimony, defense counsel did not raise an objection. Citing our recent decision in State v. Adim, 410 N.J. Super. 410 (App. Div. 2009), defendant argues for the first time on appeal that it was error for the judge to summarize witness testimony in the final jury charge. Not only is defendant's argument subject to the plain error standard of review, R. 2:10-2, but we view defendant's reading of Adim as overly broad and contrary to controlling authority.

Defendant quotes the following statement from our decision in Adim to support his argument that it is error for a trial judge to summarize the evidence: "We fail to see how a judge's summary of the evidence is not inherently and inevitably likely to burden deliberations with an extraneous consideration, i.e., speculation about the judge's view of the evidence." 410 N.J. Super. at 428. Taken in isolation and out of context, this statement may seem to disapprove any reference to witness testimony by the trial judge. Such a reading of Adim, however, ignores binding and long-standing authority that requires a trial judge to mold the jury charge to the facts and evidence before the jury.

Adim presented different circumstances from those in our record and a host of cases that have discussed the judge's obligation to reference testimony and other evidence in the final jury charge when appropriate for a clear understanding of the issues and the law. In Adim, the trial judge summarized the evidence only after the jury twice reported it was deadlocked, and he further implied that the issues were simple enough so that the jury should be able to reach a verdict. Id. at 420-22. We reversed the defendant's conviction because of the "coercive and intrusive components of [the] supplemental instruction." Id. at 430. We stated the "judge's act of outlining the evidence was not only subtly coercive but also intruded upon the deliberative process." Id. at 427. In contrast, the summarizing of evidence in this case did not suggest to the jury that the case was simple or exert a coercive influence upon the jury to reach a verdict against defendant.

Long ago, our Supreme Court held that, when providing the jury instructions, a judge "has the right, and oftentimes the duty, to review the testimony and comment upon it, so long as he clearly leaves to the jury . . . the ultimate determination of the facts and the rendering of a just and true verdict on the facts as it finds them." State v. Mayberry, 52 N.J. 413, 439 (1958), cert denied, 393 U.S. 1043, 89 S. Ct. 673, 21 L. Ed. 2d 593 (1969); accord State v. Laws, 50 N.J. 159, 177 (1967), cert. denied, 393 U.S. 971, 89 S. Ct. 408, 21 L. Ed. 2d 384 (1968). In State v. Parker, 33 N.J. 79, 94 (1960), the Court explicitly stated: "We approve, especially in a protracted trial, like the one under review, with its voluminous and conflicting testimony, of a trial court's undertaking to point out to the jury the significant evidence in the case." Accord State v. Concepcion, 111 N.J. 373, 380 (1988).

On several occasions, the Supreme Court has found reversible error when a trial court has failed to tailor the jury instruction to the facts of the case. See, e.g., State v. Sexton, 160 N.J. 93, 106 (1999) (requiring tailored instruction on recklessness); State v. Gartland, 149 N.J. 456, 475-77 (1997) (requiring tailored instruction on self-defense and duty to retreat); State v. Olivio, 123 N.J. 550, 567-68 (1991) (requiring tailored instruction on mental states); State v. Martin, 119 N.J. 2, 18-22 (1990) (requiring tailored instruction on mental states and causation). In general, jury instructions "molded" or "tailored" to the relevant evidence in the case have been required where "the statement of relevant law, when divorced from the facts, was potentially confusing or misleading to the jury." State v. Robinson, 165 N.J. 32, 42 (2000).

In this case, some thirty-five witnesses testified covering a period from 1985 through 2007. Much of the testimony was overlapping but segmented, witnesses testifying about brief encounters with defendant or White or moments in the chain of events before and after White's disappearance. The judge believed it would be helpful to the jury to link certain testimony with issues the jury was asked to consider.

A trial judge has "broad discretion when commenting on the evidence during jury instruction." State v. Brims, 168 N.J. 297, 307 (2001) (citing Robinson, supra, 165 N.J. at 45). His primary purpose must be to aid the jury in understanding how the law might be applied in the factual circumstances shown by the evidence. See Concepcion, supra, 111 N.J. at 379-80.

The United States Supreme Court has also granted broad discretion to federal trial judges to comment on or summarize the evidence when instructing the jury on the law. Quercia v. United States, 289 U.S. 466, 469, 53 S. Ct. 698, 699, 77 L. Ed. 1321, 1325 (1933). At the same time, the Court has stated that a judge may not add to or distort the evidence and must comment upon the evidence with great care. Id. at 470, 53 S. Ct. at 699, 77 L. Ed. at 1325. In applying the holding of Quercia, federal courts have emphasized the duty of the judge to give a balanced and fair presentation of the evidence. See, e.g., United States v. Tello, 707 F.2d 85, 88 (4th Cir. 1983); United States v. Dunmore, 446 F.2d 1214, 1218 (8th Cir. 1971); United States v. Grunberger, 431 F.2d 1068, 1069 (2d Cir. 1970).2

Trial judges have a duty to provide jurors with "an accurate instruction on the relevant law and, when necessary, a balanced assessment of the facts to allow them to apply that law." State v. Reddish, 181 N.J. 553, 615 (2004); accord State v. Morton, 155 N.J. 383, 428 (1998). The judge must avoid commenting upon strengths or weaknesses of either side's evidence, that task being the function of counsel, not the court. Robinson, supra, 165 N.J. at 45.

Summarizing of evidence may become prejudicial if the judge's presentation is not balanced. In Reddish, the Court held that once the judge "commented on the strengths of the State's evidence and inferences to be drawn therefrom, the court was obliged to point to evidence and arguments that favored defendant. In failing to do so, the [judge] improperly focused the jury's attention on the weaknesses in defendant's case." 181 N.J. at 614-15.

In addition to providing balanced comment on the evidence, the judge must clearly inform jurors that it is their recollection of the evidence and the weight they attribute to it that must control their deliberations and not the judge's summary or recollection of the evidence. See Robinson, supra, 165 N.J. at 46; State v. Ramseur, 106 N.J. 123, 280-81 (1987). Minor inaccuracies in the judge's review of testimony are cured by such a cautionary instruction. Robinson, supra, 165 N.J. at 46; Laws, supra, 50 N.J. at 177. If the charge as a whole accurately recites the applicable law and sets forth the jury's task in evaluating conflicting evidence, the conviction will not be reversed on grounds of plain error. See Robinson, supra, 165 N.J. at 47; State v. Delibero, 149 N.J. 90, 106-07 (1997).

In this case, the judge said during the charge conference that he intended to remind the jury of the witnesses whose testimony was relevant to specific topics covered in the final jury charge. Witness by witness, and with the aid of his spreadsheet, the judge discussed on the record his intended charge. Neither attorney voiced any objection to the judge's proposed witness summaries.

In the final charge to the jury, the judge tailored his summary of witness testimony to specific issues that the jury was required to determine, together with the law applicable to those issues. He referred to the witnesses who provided relevant testimony on the issue of whether the State had territorial jurisdiction to charge defendant with murdering Craig White. He summarized the testimony of five witnesses who testified relevant to the timeline of White's activities on the date he was last seen by family and friends, February 23, 1990.

Later in the charge, he listed and briefly made reference to testimony by seventeen witnesses who had been challenged by one attorney or the other with prior statements that were allegedly inconsistent with their trial testimony. The summaries were given in conjunction with the model instruction on the jury's evaluation of inconsistent statements by a witness. See Model Jury Charge (Criminal), Prior Contradictory Statements of Witnesses (Not Defendant) (1994).

The judge then instructed the jury about its evaluation of statements allegedly made by defendant over the years. He listed and briefly summarized the testimony of some twenty-three witnesses that the judge deemed relevant to defendant's alleged statements. Later in the jury charge, the court also made reference to witness testimony relevant to defendant's alleged confessions to Karen Fox and Margarette Marion. In addition, the judge discussed witness testimony that was relevant to alleged prior bad acts of defendant in conjunction with instructions pertinent to N.J.R.E. 404(b).

The judge did not comment on the strengths and weaknesses of either side's positions but merely referenced testimony that he believed was relevant to particular issues and his instructions on the law. While it might have been more appropriate in the context of territorial jurisdiction to reference the testimony of defense witnesses pertaining to alleged sighting of Craig White after the date of his disappearance, defense counsel raised no objection and made no such request. The defense witnesses were referenced in other parts of the charge. Furthermore, the prosecution did not contend that the murder might have occurred at any time other than on February 23, 1990. No evidence was presented to suggest that defendant might have had further contact with White after the evening of February 23rd or killed him in any location other than Cape May County. The jury certainly understood that defendant could not be found guilty of murdering White if White in fact was seen alive after February 23rd.

When viewed as a whole, the judge's instructions made it clear that it was the function of the jurors to determine credibility and the weight of evidence, and that they could not convict defendant of murder if they did not credit beyond a reasonable doubt the prosecution's evidence and theory of when the murder was committed. Cf. Brims, supra, 168 N.J. at 307 (the jury understood that it must acquit defendant if it believed his version of the events).

We conclude the trial court complied with applicable case law and did not commit plain error in summarizing witness testimony in its final charge to the jury.

IV.

Next defendant contends the trial court infringed upon his Sixth Amendment right to confront witnesses by limiting his cross-examination of Harold Watkins regarding the 1985 incident on the basketball court and defendant's alleged threat with a gun. Defendant sought to include in his cross-examination statements defendant had made to law enforcement authorities accusing Harold Watkins of sexual assault and lewdness. He argued the accusation showed that "the altercation between Harold and [defendant] was not because of Harold's relationship with Dawn Garrison, as the State intended to show, but rather about Harold's lewd conduct before [defendant's] daughter."

The trial court ruled before trial that defendant would be prohibited from:

cross-examining Harold Watkins with hearsay statements of the defendant or use of police reports containing hearsay statements of the defendant. The defendant through counsel can cross-examine Harold Watkins on the issue of existence and on-going dispute between the parties. Although reference to the defendant's hearsay accusation of drug dealing, burglary or acts of lewdness not permitted [sic].

 

This ruling did not prohibit cross-examination of Harold Watkins on the issue of whether the dispute with defendant was caused by reasons other than his alleged remarks about sexual activity with Dawn Garrison. Rather, defendant was prohibited from presenting to the jury his own out-of-court statements, which would be hearsay, as part of that cross-examination. We find no abuse of discretion or violation of defendant's constitutional rights in that ruling.

V.

Having previously recited at length the evidence presented at trial, we reject without lengthy repetition defendant's final contention that the guilty verdict was against the weight of the evidence.

As an initial matter, defendant's argument in that regard is procedurally barred because he did not move for a new trial on the ground that the verdict was against the weight of the evidence. See Rule 2:10-1 ("the issue of whether a jury verdict was against the weight of the evidence shall not be cognizable on appeal unless a motion for a new trial on that ground was made in the trial court"); State v. Herrera, 385 N.J. Super. 486, 492 (App. Div. 2006); State v. Saunders, 302 N.J. Super. 509, 524 (App. Div.), certif. denied, 151 N.J. 470 (1997).

Moreover, we find no merit in the argument. In considering whether a guilty verdict was against the weight of evidence produced at trial, "our task is to decide whether 'it clearly appears that there was a miscarriage of justice under the law.'" State v. Smith, 262 N.J. Super. 487, 512 (App. Div.) (quoting Rule 2:10-1), certif. denied, 134 N.J. 476 (1993). "We must sift through the evidence 'to determine whether any trier of fact could rationally have found beyond a reasonable doubt that the essential elements of the crime were present.'" Ibid. (quoting State v. Carter, 91 N.J. 86, 96 (1982)).

Our objective "is not to second-guess the jury but to correct [an] injustice that would result from an obvious jury error." Saunders, supra, 302 N.J. Super. at 524. We do not evaluate the evidence and determine anew how we might have decided the issues, particularly when "the jury's verdict was grounded on its assessment of witness credibility." Smith, supra, 262 N.J. Super. at 512 (quoting State v. Haines, 20 N.J. 438, 446-47 (1956)). "[T]he question of a witness'[s] credibility has routinely been regarded as a decision reserved exclusively for the jury." State v. Frisby, 174 N.J. 583, 594 (2002) (internal quotation marks omitted).

Here, the jury was required to determine the credibility of testimony by defendant's ex-wife and a former girlfriend that he had confessed to them he killed Craig White. The State corroborated the confessions with detailed evidence from family members and other members of the community. The corroborating proofs included defendant's motive to take revenge against White, his animosity and emotional state, his prior retaliatory reaction some years earlier in the face of knowledge of Dawn Garrison's sexual conduct with others, his opportunity to harm White on the night that White disappeared, his changing statements to family and friends around the time of White's disappearance concerning their parting on the night of February 23rd, his efforts to have others lie for him, and his alleged flight from New Jersey and staying away for seventeen years. The State also presented testimony that it was highly unlikely that White would abandon his home and his son without any further contact. The fact that White's body was never found does not preclude defendant's conviction for his murder. See State v. Zarinski, 143 N.J. Super. 35, 54 (App. Div. 1976), aff'd, 75 N.J. 101 (1977). Finally, the defense reliance on testimony that White had been seen several days after February 23rd was effectively discredited by cross-examination of the defense witnesses regarding accuracy of the sightings and evidence from police investigators suggesting that the sightings did not occur as reported.

We conclude the jury's finding of guilt was not against the weight of the evidence.

Affirmed.

1 Although unclear, Easley seems to have been referring to water being "sucked" into the ground.

2 In Quercia, supra, 289 U.S. at 469-70, 53 S. Ct. at 699, 77 L. Ed. at 1325, the Court also stated that a federal trial judge may, when appropriate, give his opinion of the evidence, although not a one-sided opinion. That statement has been refined and modified in the ensuing years as demonstrated by the subsequent federal cases we cite. In citing federal precedent, we do not suggest that trial judges in our State courts may express their opinion about witness testimony. In State v. Knight, 63 N.J. 187, 194 (1973), the New Jersey Supreme Court explained that a judge's summarizing of testimony is not tantamount to expressing his belief or opinion that the testimony is true or accurate.