STATE OF NEW JERSEY v. MIKE MARTINEZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0655-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MIKE MARTINEZ,

Defendant-Appellant.

November 13, 2013

 

Submitted April 18, 2012 - Decided

 

Before Judges Fuentes, Graves and Koblitz.

 

On appeal from Superior Court of New Jersey,

Law Division, Somerset County, Indictment Nos.

05-02-00116, 08-03-00192.

 

Joseph E. Krakora, Public Defender, attorney

for appellant (Michael Confusione, Designated

Counsel, on the brief).

 

Geoffrey D. Soriano, Somerset County Prosecutor,

attorney for respondent (James L. McConnell,

Assistant Prosecutor, of counsel and on the brief).

The opinion of the court was delivered by

FUENTES, P.J.A.D.

On February 17, 2005, a Somerset County grand jury returned Indictment No. 05-02-00116 against defendant Mike Martinez, charging him with first degree aggravated manslaughter of Kerron Butler, N.J.S.A. 2C:11-4(a)(1), first degree attempted murder of Earnest Earvin, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3(a)(1),(2), third degree possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4(d), and fourth degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d). On May 18, 2008, another Somerset County grand jury returned Indictment No. 08-03-00192 against defendant, charging him with one count of third degree possession of cocaine with the intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3).

Starting in April and ending on May 16, 2008, defendant was tried before a jury over a period of nine non-sequential days on the homicide and related charges in Indictment No. 05-02-00116. The jury found defendant guilty of second degree aggravated assault of Earnest Earvin, N.J.S.A. 2C:12-1(b)(3), (as a lesser-included offense of the charge of attempted murder), third degree possession of a weapon for unlawful purposes, and fourth degree unlawful possession of a weapon. The jury was unable to reach a unanimous verdict on the charge of first degree aggravated manslaughter of Kerron Butler, forcing the court to declare a mistrial on that charge.

Defendant was retried before another jury on the charge of first degree aggravated manslaughter over a six-day period in April 2009. That jury found defendant guilty of second degree reckless manslaughter, N.J.S.A. 2C:11-4(b)(1), which is a lesser-included offense of aggravated manslaughter. Defendant thereafter pleaded guilty to the single count in Indictment No. 08-03-00192 charging him with third degree possession of cocaine with the intent to distribute.

On the charges reflected in Indictment No. 05-02-00116, the court sentenced defendant to an aggregate term of fifteen years with an eighty-five percent period of parole ineligibility and three years of parole supervision pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Specifically, after merging the convictions of third degree possession of a weapon for unlawful purposes and fourth degree unlawful possession of a weapon with the second degree aggravated assault conviction, the court imposed an eight-year term on the reckless manslaughter of Kerron Butler, to run consecutive to a seven-year term on the aggravated assault conviction involving Earnest Earvin. These two terms of imprisonment are subject to the parole restrictions in NERA. On the charge of possession of cocaine with intent to distribute in Indictment No. 08-03-00192, the court sentenced defendant to a term of four years, to run consecutive with the sentence imposed on Indictment No. 05-02-00116. Thus, defendant received a total aggregate term of imprisonment of nineteen years, with twelve years and nine months to be served without parole.

In this appeal, defendant argues that both the prosecutor and the trial judge made improper comments before the jury during the first trial that irreparably tainted the fairness of those proceedings, warranting reversal of his convictions. Defendant also argues the trial judge erred in his instructions to the jury on voluntary intoxication, by refusing to modify the definition of "reasonable belief" in the part of the charge that explains self-defense and defense-of-others. Defendant also claims the trial judge erroneously admitted into evidence an autopsy photograph of the victim's heart that should have been excluded under N.J.R.E. 403 because its prejudicial effect far exceeded its probative value. Finally, defendant challenges the imposition of consecutive sentences on the manslaughter and aggravated assault charges, and claims the judge improperly found and considered certain aggravating factors while failing to find or properly consider countervailing mitigating factors.

After carefully reviewing the record before us and mindful of prevailing legal standards, we are not persuaded that any of defendant's arguments require reversal of the verdicts reached by the jury in either the first or second trial. We are also satisfied the sentence imposed by the trial judge, which included the imposition of consecutive terms for violent crimes committed by defendant against two separate victims, is supported by the record and constitutes a reasonable exercise of the judge's discretionary authority under Title 2C.

Because defendant's appeal involves issues that overlap into both trials, our factual recitation will cover the entire spectrum of evidence presented by the parties during both trials. Where appropriate, however, we will identify the differences in the presentations between the first and second trial.

I

A

On December 31, 2004, a group of friends and relatives gathered at the Clarion Suites Hotel in Franklin Township to celebrate the new year. The group included Quiyana Johnson, her cousin Stephanie McGaw, Johnson's friend Brian Butler, and his brother Kerron Butler. The Butlers' cousins Earnest Earvin, IV and Rashod Eato were also at the hotel, as were Brian Butler's friends Craig Rawles, Devraun Thompson, and twin brothers Christopher and Calvin Lamont. All of these individuals were young adults in their late teens or early twenties.

Some of the youths who came to the New Year's party did not book rooms in the hotel. As the evening festivities progressed, those in attendance eventually migrated into the hallways; shortly after midnight, hotel management asked anyone who was not a registered guest of the hotel to leave. Johnson, McGaw, and the Lamont brothers were among those who heeded management's request and left the hotel premises and headed in the direction of a parking lot located behind the hotel.

Defendant, who was nineteen years old at the time, was also in the hotel that night celebrating the new year with some of his friends, including Miguel Reyes and Kevin Robinson. They attended a party in a room booked by Reyes' cousin. Shortly after they arrived, defendant and his friends learned Reyes' cousin had been asked to leave the hotel; they thus decided to join him and headed toward the parking lot behind the hotel. Defendant and his friends eventually came upon Johnson and McGaw. Johnson testified she was highly intoxicated at the time and was running around the parking lot "screaming and acting crazy." The witnesses who testified at trial or gave statements to the responding police officers disagree about the precise nature of the event or acts that triggered the violent, and ultimately tragic, chain reaction that caused the death of one young man and left another young man seriously injured. There is no dispute, however, that the precipitating event was an altercation between Johnson and Reyes.

The State contends defendant and his friend Miguel Reyes attempted to sexually harass Johnson by putting their hands down her shirt. The State emphasized that Reyes took advantage of Johnson's vulnerable state of intoxication. Earvin testified he saw Reyes choke Johnson. From this point, what began as a verbal confrontation between Earvin and Reyes, quickly escalated into physical violence; when Reyes attempted to strike Earvin, a full blown fight erupted. McGaw described the melee as "a humongous fight" at which "a group of people" attacked Reyes. Thompson testified that he attempted to separate Earvin and Reyes and thereby break up the fight.

As the initial altercation between Reyes and Earvin appeared to subside, another one soon erupted when Reyes pulled his shirt off and, in an enticing manner, said: "come on, shoot me a fair one . . . fear don't live here." According to Earvin, the fight began as a one-on-one altercation with Reyes. However, almost immediately, other fights broke out around them. Earvin testified he punched Reyes in the face, causing Reyes to fall to the ground; when he began to kick Reyes as he lay prostrate, defendant jumped on Earvin and "hit" him in the back. Earvin fell to the ground and noticed he was bleeding. He then heard gunshots, and the fighting stopped. Craig Rawles stayed by Earvin's side until the ambulance arrived.

Christopher Lamont's testimony corroborated Earvin's account of how the confrontation developed and ended. He described how Miguel Reyes took off his shirt and invited Earvin to "square up," which Lamont explained meant to engage in a "face to face fight." When asked specifically by the prosecutor whether Reyes was carrying any weapons, Lamont answered: "He didn't have one as far as I know." Lamont testified he saw Earvin had Reyes in a "headlock" when they fell to the ground. At this point, "nice1 Spanish guys comes over, [sic] starts punching three times, four times in his [Earvin's] back, what we thought was a punch at the time." (Emphasis added.)

According to Lamont, Kerron Butler pulled defendant off Earvin's back. From Lamont's perspective, the fatal event that took Kerron Butler's life occurred almost imperceptibly. That is, the chaos and fluidity that characterized this act of extreme violence made it nearly impossible for Lamont to discern exactly when and how Butler sustained his mortal wounds. Lamont's description of the events he witnessed captured the essence of this fog of violence:

Stuff started going on. Commotion starts to happen. I - - I'm - - I'm on the other side. So I'm just walking around not knowing what's going on yet, but then I turn around and then Kerron's [Butler] like, walking over, like, you all been hit, I been hit. So we look up and he was bleeding through his chest. So he falls to the ground. So, like, when he fall [sic] to the ground I go attend to Kerron. I'm looking at him try to see what is going on with him, where he is hit at. Earnie [Earvin] walking around my back hurt. My back hurt. Calvin [Christopher Lamont's twin brother] walks over to him to see what is going on with him. Then when I am looking down with Kerron, see what is going with him, gunshots go off. So when gunshots go off everybody scatters. So when everybody scatters that's the end of that - - end of that part of that situation. All the fighting commences, everything else happens and we're just dealing with the problems we have then.

Christopher Lamont also testified that he did not see either Earnest Earvin or Kerron Butler carry or use a knife, a firearm, or any other object fashioned as a weapon against defendant, Reyes, or any other person involved in that fateful early morning incident.

Brian Butler testified that he was inside the hotel during the fighting; his brother Kerron had already been stabbed and was on the ground bleeding when he and Rashod Eato went outside. Brian denied being involved in any of the various fights that allegedly occurred at the same time Reyes and Earvin were engaged. In response to the prosecutor's question on direct examination, Brian also testified that he told the police officers investigating the incident that Kerron used to sell marijuana and owned a nine millimeter handgun. However, he did not see his brother with drugs or weapons on the night he was killed.

On cross-examination by defense counsel, Brian Butler admitted that several months before the start of the first trial, he pleaded guilty to two counts of hindering apprehension or prosecution and one count of tampering with physical evidence. He was sentenced to a term of three years imprisonment. As framed by defense counsel, Brian admitted that the charge of hindering apprehension or prosecution and one count of tampering with physical evidence involved

taking a gun that Rashod Eato used to kill another human being and hiding it under the car so it wouldn't be found and he wouldn't be prosecuted for that crime, correct sir?

 

BRIAN BUTLER: I removed the handgun from the scene. That's all.

 

DEFENSE COUNSEL: You removed the handgun, left the scene and kept possession of the handgun, correct?

 

BRIAN BUTLER: Yes.

 

DEFENSE COUNSEL: And thereafter you got rid of it, correct?

 

BRIAN BUTLER: Yes.

 

DEFENSE COUNSEL: And that was the same handgun that fired the two gunshots that went off at the scene of this incident, correct, sir?

 

BRIAN BUTLER: I'm not sure.

 

DEFENSE COUNSEL: That was the same handgun, the nine millimeter handgun that your brother Kerron Butler owned, wasn't it, sir?

 

BRIAN BUTLER: No sir.

 

Several Franklin Township police officers responded to the hotel after receiving a report of shots fired. Detective Bryan Stillwell gave the following description of the chaotic situation he witnessed: "a very, very large crowd acting violently, fighting, a lot of yelling and screaming. We just tried to maintain the crowd, gain control as other officers arrived." He estimated there were between 50 to 100 people in the parking lot. Although he did not know how many officers were actually at the scene, Stillwell conceded on cross-examination that the responding police officers "were vastly outnumbered." He also characterized the crowd as "loud" and "disorderly."

Despite the daunting nature of the task, the responding police officers were eventually able to secure the scene. There were two injured men in the parking lot; Kerron Butler had a wound to his chest and was non-responsive; and Earnest Earvin had an apparent stab wound to his back but was able to talk.

Butler's cousin Rashod Eato accompanied him in the ambulance to Robert Wood Johnson University Hospital. Attending trauma surgeon Dr. Jeffrey Stuart Hammond was the emergency room physician on call that day. Dr. Hammond testified that Butler arrived by ambulance showing "a single large stab wound to the chest." He did not display any vital signs. Dr. Hammond pronounced Kerron Butler dead at 2:46 a.m., on January 1, 2005; he was twenty-three years old.

B

An autopsy performed by Medical Examiner Dr. Zhongxue Hua revealed Butler sustained two stab wounds to his chest. Examination of the larger of the two wounds indicated that the knife penetrated between three and four inches and went between his ribs, injuring the left side of his lung before puncturing the left side of his heart. The larger injury caused a dramatic and rapid loss of blood. Given Butler's weight of approximately 155 pounds, Dr. Hua opined he should have had 5.5 liters of blood in his body; Dr. Hua found the stab wound caused two liters of blood to accumulate on the left side of his chest, leading to shock and, within a short period of time, death. Dr. Hua classified the manner of death as a homicide caused by the larger stab wound. Toxicology tests performed on Kerron Butler revealed the presence of alcohol and marijuana.

Dr. Hammond also treated Earnest Earvin. During his initial interactions with him, he characterized his condition as "stable." He described his wounds as "two penetrating injuries to the back and flank and the superficial injury." Specifically, Earvin had an injury to the right buttock relative to the "costal margin" on the left and right side of the rib cage, and "a superficial injury on the left buttock." Both injuries were the result of stab wounds. After conducting a series of diagnostic tests, Dr. Hammond concluded that Earvin had a "pneumothorax, which is a collapsed lung on that side. The other injury was in proximity to his large intestine and rectum . . . ."

Although he did not have an independent recollection of the treatment he provided to Earvin, Dr. Hammond testified that a collapsed lung is ordinarily treated by inserting a chest tube, "which is a tube between the ribs into the chest in which we can reinflate the lung." In most cases, "the chest tube would stay in for somewhere on the order of two or three days, and then once the injury to the lung is no longer leaking then the tube comes out." A pneumothorax is a potentially life-threatening injury that requires immediate medical intervention. Earvin was hospitalized at Robert Wood Johnson University Hospital for four days.

The Somerset County Prosecutor's Office investigators who assumed control of the crime scene found a large plastic bag containing smaller bags of "green leafy vegetation" near the area where Kerron Butler was fatally stabbed. Although the content inside the smaller bags was not chemically tested, a detective testified that the substance and packaging was visually consistent with marijuana.

Investigators also recovered two nine millimeter shell casings in the area where Butler fell. No firearms were found at the scene. Investigators found a silver knife in shrubs near the parking lot and a small black knife under the front passenger seat of a car parked in the parking lot adjacent to the hotel. This was the car defendant and his friends used to drive to the hotel on December 31, 2004. Forensic investigators did not find any fingerprints or blood traces on either knife. Miguel Reyes' blood was found on the car.

Police investigators who canvassed the hotel found Reyes in one of the rooms with a laceration on his arm. He was taken to Robert Wood Johnson University Hospital where his injury was treated and the laceration closed with stitches. Police officers thereafter transported Reyes to police headquarters for questioning.

Police officers found defendant in another room at the hotel. He had a red bruise on his face and red stains on his clothes. DNA testing established the blood on defendant's clothes was from Kerron Butler. Defendant gave three voluntary statements to investigators, one on January 1, 2005, and two on January 5, 2005. All three statements were admitted into evidence by the trial court.

C

In his first two statements,2 defendant claimed he was part of a large group of people who beat up Reyes in response to Reyes's inappropriate behavior with Quiyana Johnson. Defendant admitted he hit Earvin when he tried to intervene in favor of Reyes. In his first statement taken at 12:03 p.m. on New Year's Day 2005, defendant denied stabbing anyone. In his second statement, taken four days later,3 defendant admitted stabbing Earvin in the back after the second fight erupted. Defendant claimed, however, that he intervened only to defend Reyes.

[O]ne dude [who came] out of nowhere ran on [Reyes], I mean swung like crazy, crazy, um punk, punk, punch. He duck, snuck him so I ran up on him and I stabbed him. That's, soon as, soon as I seen Micky [sic] running over there I took the knife out so I'm running over there so I see dude run up I mean, Micky [sic] snuck him whatever he did snuck him, I mean, soon as he snuck him I grabbed him and I (inaud[ible]) stabbed him.

 

He claimed that "[s]omebody hand[ed] me a knife, I really don't remember who." In his third statement,4 defendant admitted stabbing Kerron Butler. Defendant claimed he stabbed Butler after defendant was attacked for coming to Reyes' aid. He used the same knife and swung his arms and knife defensively while he was being punched and kicked. He felt the knife hit someone one time, but did not learn he had stabbed Butler until later. He claimed he did not even see the person he stabbed. He admitted to wiping the knife off before dropping it in the parking lot. He concluded his statement to the police interrogators with the following declaration of remorse: "Shouldn't even have hurt anybody that night yo, shouldn't of happened like that, should of just had fucking fun, it was fucking new year[']s man."

D

At the first trial, defense counsel called Eato, Reyes, Robinson, and Thomas S. Hofgaseng, a defense investigator, as fact witnesses. Counsel also supported his self-defense and defense of others strategy with two expert witnesses: Gary Mayer, a ballistics expert, and Timothy Vazquez, an expert in narcotics distribution and street gang identification and behaviors.5 Defendant did not testify in his own defense at the first trial.

The State's case at the second trial tracked the evidence presented in the first trial. In stark contrast to the multifaceted defense strategy presented at the first trial, defendant was the only witness to testify for the defense at the second trial. He testified that five-to-ten people attacked Reyes following his altercation with Quiyana Johnson. After that fight ended, he tried unsuccessfully to get a female acquaintance to drive Reyes home. Instead, Reyes became angry, took off his shirt, and walked toward the crowd of people and asked for someone to take him on in a fair one-on-one fight.

According to defendant, the fight started when someone pushed Reyes into Earvin; the latter quickly got the upper hand in the fight and slammed Reyes to the ground and began hitting and kicking him; several other bystanders soon joined in the assault against the hapless Reyes, hitting him in the legs, while Earvin stomped on his head. Defendant testified he was afraid Reyes would be killed if he did not intervene. He took out the knife someone had handed him during the initial fight and jumped on Earvin's back. Defendant stabbed Earvin in the back only after unsuccessfully attempting to pull him off of Reyes. Someone then pulled him off of Earvin and tried to hit him.

Defendant claimed he tried to run away, but was repulsed by an array of punches that seemed to be coming from all directions: "from the back, from the side, from the front." When he fell to the ground, his attackers intensified the assault, "punching me, kicking me." Instinctively, he curled into a fetal position in an attempt to shield his head and body from the blows that continued to rain down on him from all directions.

At that point I remember hitting the ground like this and, like, rolling to my side fast and, like, getting fetal position because they was [sic] just hitting me from all over. So I blocked - - I remember blocking my face, putting my knee to my chest and just balling up in, like, a little ball on the floor.

 

Defendant testified that in an effort to fight off his attackers, he began swinging his arms and trying to block the kicks with his knife. Although he testified that he did not remember striking or stabbing anyone while he had the knife in his hand, he conceded he would have stabbed "somebody" to protect himself. At some point, the beating stopped; defendant heard gunshots as he rose from the ground and "ran straight" to his car that was parked nearby. This was the same car he drove to the hotel earlier that evening. He wiped the blood off of the knife and put it under the car seat. Defendant testified he "had knots" all over his head and was bleeding from his mouth and nose.

II

Against this record, defendant now appeals raising the following arguments.

POINT I

 

THE TRIALS WERE TAINTED BY UNFAIR COMMENT BY THE PROSECUTOR BEFORE THE JURY, WARRANTING VACATION OF THE VERDICTS OBTAINED BELOW.

POINT II

 

DEFENDANT'S MANSLAUGHTER CONVICTION IS INVALID BECAUSE THE TRIAL COURT IMPROPERLY CHARGED VOLUNTARY INTOXICATION OVER DEFENDANT'S OBJECTION.

 

POINT III

 

GRAPHIC PHOTOGRAPHS SHOWN TO THE JURY UNFAIRLY PREJUDICED THE DEFENDANT AND CAUSED AN UNFAIR TRIAL.

 

POINT IV

 

THE JURY CHARGE ON SELF-DEFENSE AND DEFENSE OF OTHERS WAS INSUFFICIENT AND FLAWED, WARRANTING VACATION OF THE RESULTING CONVICTIONS.

 

POINT V

 

THE TRIAL COURT'S REMARKS TO THE JURY WERE PREJUDICIAL TO DEFENDANT AND WARRANT A NEW TRIAL ON THE MANSLAUGHTER CHARGE.

 

POINT VI

 

DEFENDANT'S SENTENCE IS IMPROPER AND EXCESSIVE.

 

None of these arguments warrant reversal of defendant's convictions. In the interest of clarity, however, we will address in some detail the arguments raised in Points II and IV.

We start our discussion by addressing defendant's claim of prosecutorial misconduct. At the first trial, defense witness Kevin Robinson testified that he heard gun shots that prompted the end of the melee, looked toward Kerron Butler, and saw either Brian Butler or Rashod Eato holding a gun.

As part of her summation to the jury, the prosecutor noted that Robinson first mentioned this observation during a meeting with defense counsel the day before his testimony. She also emphasized that Robinson's statement at trial was inconsistent with an earlier statement he gave to police investigators, at which he stated he did not see anyone with a gun. She then stated: "But of course now they have to make this up to make [this defense credible.]"

Although the trial judge sustained defense counsel's immediate objection, the judge did not simultaneously instruct the jury to disregard the prosecutor's ill-advised comment. At the conclusion of the State's summation and outside of the presence of the jury, defense counsel moved for a mistrial arguing that the prosecutor's comment impermissibly suggested defense counsel and Robinson engaged in a deliberate obstruction of justice. Alternatively, defense counsel requested that the judge instruct the jury to disregard the comment.

The judge denied the motion for a mistrial, concluding the comment related to a very small part of the entire case. The judge also noted that he immediately sustained defense counsel's timely objection. Although he was satisfied the jury understood the meaning of a sustained objection, the judge acceded to defense counsel's alternative application to instruct the jury that the comment was improper and should be disregarded. Out of an abundance of caution, the judge also indicated that he would not repeat or restate the precise words found objectionable as part of his curative instructions. The judge indicated he planned only to refer to "the comment" that triggered the objection sustained by the court. Defense counsel concurred with this approach.

When the jury returned, the judge gave the following curative instruction:

Before I get started in my comments there was an objection made during - - a second objection made during the prosecutor's closing comments to the jury and I sustained that objection. Now, with regard to what the prosecutor was discussing at that point and her comments, I'm directing that you disregard that comment. I'm not going to remind you what the comment is because I'll just highlight it. But if you do remember what the comment was disregard it, meaning set it aside, don't consider it with regard to your factual determination. It should - - an inappropriate comment should not have been made so disregard it.

 

The law governing our review of a trial court's decision addressing the prosecutor's conduct in a criminal trial is well-settled. Prosecutors have considerable leeway to make arguments during summation. State v. Echols, 199 N.J. 344, 359-60 (2009). This leeway is obviously not without limits. A prosecutor cannot make inaccurate factual claims or suggest to the jury that he or she has knowledge beyond that admitted into evidence. Ibid. It is appropriate, however, for the prosecutor to "'comment on the facts shown by or reasonably to be inferred from the evidence.'" State v. R.B., 183 N.J. 308, 330 (2005) (quoting State v. Carter, 91 N.J. 86, 125 (1982)). The jury ultimately must decide whether to make any inferences suggested by the prosecutor. R.B., supra, 183 N.J. at 330.

A prosecutor also "may suggest to the jury that the defense's presentation of the evidence was unbalanced and incomplete." State v. Josephs, 174 N.J. 44, 127 (2002). That being said, a prosecutor may not "'cast unjustified aspersions' on defense counsel or the defense." State v. Frost, 158 N.J. 76, 86 (1999) (quoting State v. Lockett, 249 N.J. Super. 428, 434 (App. Div.), certif. denied, 127 N.J. 553 (1991)); see also State v. Abdullah, 372 N.J. Super. 252, 269 (App. Div. 2004), aff'd, in part, rev'd in part on other grounds, 184 N.J. 497 (2005) ("prosecutor is not permitted to attack, disparage, or demean adverse counsel, either directly or indirectly"); State v. Adams, 320 N.J. Super. 360, 370 (App. Div.), certif. denied, 161 N.J. 333 (1999) ("Ad hominem attacks on defense counsel . . . are not acceptable.").

In a criminal trial, prosecutorial misconduct that warrants reversal is "conduct . . . so egregious that it deprived the defendant of the right to a fair trial." Josephs, supra, 174 N.J. at 124 (citations omitted). The New Jersey Supreme Court has provided the following guidance for determining whether the conduct was sufficiently egregious to warrant reversal:

[A]n appellate court must take into account the tenor of the trial and the degree of responsiveness of both counsel and the court to improprieties when they occurred. Specifically, an appellate court must consider (1) whether defense counsel made timely and proper objections to the improper remarks; (2) whether the remarks were withdrawn promptly; and (3) whether the court ordered the remarks stricken from the record and instructed the jury to disregard them.

 

[Frost, supra, 158 N.J. at 83-84 (internal quotation marks and citations omitted).]

In our view, the catchall term "prosecutorial misconduct" needlessly groups together conduct involving serious ethical lapses or clear and egregious violations of a defendant's constitutional rights, with conduct that most times can be fairly described as ill-advised prosecutorial excess or hubris. The former almost always requires judicial intervention to purge the taint of unfairness, coupled with strong and unequivocal condemnation by the court to deter its recurrence. The latter, however, is usually sufficiently addressed and corrected by the type of tempered, balanced approach employed by the trial court here.

We are satisfied the trial judge correctly addressed what the record shows was nothing more than an isolated lapse in judgment by the prosecutor. The judge's curative instructions appropriately provided the jury with the analytical guidance it needed to reach a fair and sustainable verdict based on the evidence presented at trial. Defendant's arguments attacking the prosecutor's conduct at the second trial lack sufficient merit to warrant discussion in this written opinion.6 R. 2:11-3(e)(2).

We turn next to address defendant's argument concerning the sufficiency of the court's self-defense charge. Defendant argues the trial court committed reversible error by failing to modify the jury instruction on self-defense and defense-of-others as requested at his first trial. Defendant's argument is in two parts. First, defendant claims the court erred by not tailoring the instruction to the circumstances of the case with regard to the definition of a "reasonable belief." Second, he argues the trial court erred by not instructing the jury that it needed to unanimously agree on the factors disproved by the State beyond a reasonable doubt. We disagree in both respects.

During the charge conference at the first trial, defense counsel requested modifications to the model charges on self-defense and defense-of-others. He specifically requested that the jury be instructed that "a reasonable belief is one which would be held by a person of ordinary prudence of [defendant's] age, experience and intelligence situated as [defendant] was" at the time. Counsel also requested an instruction requiring the jury to agree unanimously that the State disproved at least one of the conditions required to establish the defense of self-defense. The State objected to the proposed change to the reasonable person standard, arguing that it was an attempt to convert an objective standard to a subjective one. The State also argued that the unanimity charge requested by defense counsel had not been endorsed or supported by any reported judicial decision.

The trial judge denied defendant's request to modify the self-defense and defense-of-others charges to define "a reasonable belief" in light of defendant's age and experience. He agreed with the State that such a modification would improperly convert the relevant objective standard into a subjective one. The judge also denied defendant's request to add a specific unanimity instruction to the self-defense and defense-of-others charges. The judge opted instead to rely on the model charges approved by the Supreme Court.

Immediately after instructing the jury on the substantive elements the crime, the judge instructed the jury on self-defense and defense-of-others, closely tracking the model jury charges for those defenses, Model Jury Charge (Criminal), "Justification - Self Defense, In Self Protection" (2006); Model Jury Charge (Criminal), "Justification - Use of Force in Protection of Others" (1988). At defendant's request, the judge omitted the section on non-deadly force. On defendant's state of mind, the judge instructed the jury that a "reasonable belief is one which would be held by a person of ordinary prudence and intelligence situated as defendant was" at the time.

With respect to the burden of proof on the self-defense charge, the judge gave the jury the following instruction:

The State has the burden to prove to you beyond a reasonable doubt that the defense of self-defense is untrue. This defense only applies if all the conditions or elements previously described exist. The defense must be rejected if the State disproves any of the conditions beyond a reasonable doubt. Same theory applies to the issue of retreat.

The judge similarly instructed the jury on the law governing the burden of proof for the defense-of-others defense:

Always remember the State has the burden of disproving the defense of protection of third persons beyond a reasonable doubt. Unless the State has convinced you beyond a reasonable doubt that the defendant is not justified, then you must find the defendant not guilty. On the other hand, if you are convinced beyond a reasonable doubt that the defendant did not have the right to resort to force or deadly force to protect this third person, then this particular offense [verbatim] fails.

 

Toward the end of the jury charge, the judge gave the following general unanimity instruction:

The verdict must be unanimous as to each individual charge. This means that all of you must agree as to whether the defendant should be found guilty or not guilty on each individual count. It's your duty as jurors to consult with one another and deliberate with a view towards reaching agreement if you can do so without violence to your individual judgment. Each of you must decide the case on your own, do so only after a fair and impartial consideration of all of the evidence with your fellow jurors.

In those deliberations do not hesitate to reexamine your own views and change your opinion if you're convinced you are wrong. However, don't surrender your honest convictions as to the weight or the effect of the evidence simply because of the opinion of some other juror or for the more [sic] purpose of returning a verdict. You are not partisans. You are judges and we ask that you judge the facts and apply the law as instructed by the Court. Again, the verdict must be unanimous as to each individual count on the indictment. All twelve of you must agree as to whether the defendant should be found guilty or not guilty before a verdict is actually reached.

At his second trial, defendant did not renew his request to modify the definition of reasonable belief and to include a specific unanimity instruction with regard to the self-defense and defense-of-others charges. The court's instructions at the second trial were thus substantively identical to the instructions at the first trial.

As was the case when we addressed defendant's argument based on prosecutorial misconduct, our standard of review concerning the sufficiency of legal instructions a trial court gives to a jury in a criminal trial is long-settled. Appropriate jury instructions are an essential component of a fair trial. State v. LaBrutto, 114 N.J. 187, 203-04 (1989); State v. Green, 86 N.J.281, 287 (1981). We thus "'examine the entire charge to see whether the jury was misinformed as to the controlling law'" and determine "'whether the charge in its entirety was ambiguous or misleading.'" R.B., supra, 183 N.J.at 324 (quoting State v. Hipplewith, 33 N.J.300, 317 (1960)).

Here, defendant requested the court to modify the self-defense and defense-of-others charges at his first trial. By contrast, defendant opted not to renew this request at his second trial. The legal principles that guide a jury as it performs its fundamental fact-finding function cannot be manipulated to suit a party's strategic considerations. "No party is entitled to have the jury charged in his or her own words; all that is necessary is that the charge as a whole be accurate." State v. Jordan, 147 N.J.409, 422 (1997). Furthermore, "'erroneous instructions on material issues are presumed to be reversible error.'" State v. Lopez, 187 N.J. 91, 101 (2006) (quoting State v. Marshall, 173 N.J. 343, 359 (2002)).

Absent an objection to the instruction and subject to the plain error rule, a defendant waives the right to contest an instruction on appeal. State v. Torres, 183 N.J. 554, 564 (2005). Thus, defendant's claim of error with respect to his conviction of aggravated assault following his first trial is subject to the harmless error standard. His claim of error with respect to his conviction of manslaughter at his second trial is subject to the plain error standard of review. R. 2:10-2. Even under the higher plain error standard, however, errors in a jury charge "crucial to the jury's deliberations on the guilt of a criminal defendant" are "'poor candidates for rehabilitation.'" Jordan, supra, 147 N.J. at 422 (quoting State v. Simon, 79 N.J. 191 (1979)). We discern no legal basis to conclude the trial court erred in its instructions to the jury on the subject of self-defense and defense-of-others.

Under N.J.S.A. 2C:3-4(a): "[T]he use of force upon or toward another person is justifiable when the actor reasonably believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion." The Code further provides:

The use of deadly force is not justifiable . . . unless the actor reasonably believes that such force is necessary to protect himself against death or serious bodily harm; nor is it justifiable if:

(a) The actor, with the purpose of causing death or serious bodily harm, provoked the use of force against himself in the same encounter; or

(b) The actor knows that he can avoid the necessity of using such force with complete safety by retreating . . . .

[N.J.S.A. 2C:3-4b(2).]

"[S]elf-defense requires an actual, honest, and reasonable belief by the defendant of the necessity of using force." Josephs, supra, 174 N.J. at 101. "The reasonableness of the defendant's belief is determined by the jury, using an objective standard of what a reasonable person in the defendant's position would have done at the time the force was used." Ibid.

The use of force to protect others is a valid defense if a defendant "reasonably believed both that the person he sought to aid was unlawfully attacked and that the force used was necessary to protect that person from the attack." State v. Bryant, 288 N.J. Super. 27, 35 (App. Div.), cert. denied, 144 N.J. 589 (1996).

Pursuant to N.J.S.A.2C:3-5, the use of force for the protection of another person is justified when:

(1) The actor would be justified under section 2C:3-4 in using such force to protect himself against the injury he believes to be threatened to the person whom he seeks to protect; and

(2) Under the circumstances as the actor reasonably believes them to be, the person whom he seeks to protect would be justified in using such protective force; and

(3) The actor reasonably believes that his intervention is necessary for the protection of such other person.

b. Notwithstanding subsection a. of this section:

(1) When the actor would be obliged under section 2C:3-4 b. (2)(b) to retreat or take other action he is not obliged to do so before using force for the protection of another person, unless he knows that he can thereby secure the complete safety of such other person, and

 

(2) When the person whom the actor seeks to protect would be obliged under section 2C:3-4 b. (2)(b) to retreat or take similar action if he knew that he could obtain complete safety by so doing, the actor is obliged to try to cause him to do so before using force in his protection if the actor knows that he can obtain complete safety in that way; and

 

(3) Neither the actor nor the person whom he seeks to protect is obliged to retreat when in the other's dwelling to any greater extent than in his own.

 

As with self-defense, "the reasonableness of the defendant's belief is judged from the perspective of a reasonable person in [the] defendant's position under the circumstances existing at the time he intervened." Bryant, supra, 288 N.J. Super. at 35.

The jury must be charged on self-defense and the use of force in protection of others if there is sufficient evidence in either party's case to provide a rational basis for the applicability of those defenses. Ibid. If there is sufficient evidence to support the charge, then the State has the burden of proving that the defendant did not act in self-defense or in the defense of others beyond a reasonable doubt. Josephs, supra, 174 N.J. at 101-02; Bryant, supra, 288 N.J. Super. at 35-36.

Here, defendant argues that the judge erred by not charging the jury that, in determining whether defendant reasonably believed in the necessity of the use of force, its decision should be based on a reasonably prudent person of defendant's age, intelligence, and experience. We are not persuaded by defendant's argument. The reasonable belief requirement encompasses both a subjective component, that defendant honestly believed that the use of force was necessary, and an objective component, based on a reasonable person facing the same circumstances. State v. Kelly, 97 N.J. 178, 199-200 (1984). The definition of a reasonable belief in the self-defense charge used by the court here tracked verbatim the definition in the model jury charge on self-defense.

Defendant has not cited and we have not found any published opinion in this state suggesting that the objective component of the reasonable belief standard should be tailored to reflect general characteristics of the particular defendant, such as age or intelligence. To the contrary, "testimony as to the emotional instability and lack of intelligence of a defendant . . . is not relevant as to the reasonableness of [the] defendant's belief justifying a killing in self-defense." Cannel, New Jersey Criminal Code Annotated, comment 3 on N.J.S.A.2C:3:-4 (2011) (citing State v. Bess, 53 N.J.10 (1968)); see alsoState v. Moore, 178 N.J. Super.417, 426 (App. Div.), certif. denied, 87 N.J.406 (1981) ("the rule remains an objective test to the extent that justification for killing depends on the jury's determination of what it thinks a reasonable man would have done under the circumstances and not upon a subjective exploration of defendant's psyche").

We acknowledge that evidence of prior domestic abuse and expert testimony on battered-woman syndrome is relevant to the jury's determination of whether a defendant had a subjectively honest and objectively reasonable belief that the use of force was necessary for self-protection. E.g, State v. Gartland, 149 N.J.456, 472-73 (1997); Kelly, supra, 97 N.J.at 202-04; State v. Tierney, 356 N.J. Super.468, 478 (App. Div.), certif. denied, 176 N.J.72 (2003); see alsoState v. B.H., 183 N.J.171, 201 (2005) (holding that, for duress, defense expert testimony on battered woman syndrome is relevant to "defendant's subjective perception of a threat from her abuser and, in that respect, can be relevant to her credibility"). This line of cases, however, addresses a unique circumstance and do not support a general rule requiring consideration of a defendant's individual characteristics and experiences into the objective reasonable person standard.

Equally unavailing is defendant's claim that the court erred by not including a specific unanimity charge applicable to the self-defense and defense-of-others charges. A unanimous jury verdict in criminal cases is required under the New Jersey Constitution, N.J. Const.art.I., para.9, and Rule1:8-9. State v. Parker, 124 N.J.628, 633 (1991), cert. denied, 503 U.S. 939, 112 S. Ct. 1483, 117 L. Ed.2d. 625 (1992)). That requirement "'impresses on the trier of fact the necessity of reaching a subjective state of certitude on the facts in issue.'" Ibid. (quoting United States v. Gipson, 553 F.2d 453, 457 (5th Cir. 1977)). It "requires 'jurors to be in substantial agreement as to just what a defendant did' before determining his or her guilt or innocence." State v. Frisby, 174 N.J.583, 596 (2002) (quoting Gipson, supra, 553 F.2d at 457).

Here, the judge issued a general unanimity charge at the end of the jury instructions at both trials. The charge "cannot be read as sanctioning a non-unanimous verdict." Parker, supra, 124 N.J.at 638 (quoting State v. Jennings, 583 A.2d 915, 924 (Conn. 1990)). The question before us is whether this case presented circumstances warranting a specific unanimity instruction applicable to the self-defense and defense-of-others charges.

In State v. Tindell, we held:

The risk of a non-unanimous verdict occurs if, as here, there are multiple alleged victims who are not separately identified in the charging instrument, by name or by such other characteristics as to enable a reasonable person to ascertain their identity as the victims of the crime, and are not specifically identified as such in the jury charge and on the verdict sheet. Here, the nature of the alleged threats and the circumstances surrounding them required that the victims be identified with particularity. Without such specificity, there is a distinct and legally unacceptable risk that a jury may return a verdict that was not based on the unanimous judgment of the deliberating jurors.

 

[417 N.J. Super.530, 555 (App. Div. 2011).]

 

None of the concerns militating in favor of a specific unanimity charge identified in Tindellare applicable here. There is no requirement for a specific unanimity charge where a defendant's factual proffer for a self-defense and defense-of-others charge is clearly addressed in the traditional model instructions used by the trial court here.

Defendant's reliance on Frisby, supra, and State v. Gentry, 183 N.J.30 (2005) is misplaced. In Frisby, supra, the State offered two distinct theories to support the charge of endangering the welfare of a child. The first was that the defendant directly injured the child or caused the injury by failing to provide adequate supervision and the second was that the defendant abandoned the child. 174 N.J.at 598. Those theories were "based on different acts and entirely different evidence." Id.at 599. The Court held that a specific unanimity instruction was required because the allegations were "contradictory, conceptually distinct, and not even marginally related to each other." Id.at 600 (internal quotation marks omitted). In Gentry, supra, the Court held that there must be jury unanimity with regard to the identity of the victim of a robbery. 183 N.J.at 33.

This case does not involve distinct theories involving contradictory facts or uncertainty regarding the identity of the victims. Cf.Tindell, supra, 417 N.J. Super.at 554-55. Rather, the charges are based on one relatively brief, continuous incident and it is essentially uncontroverted that defendant caused Kerron Butler's death and Earnest Earvin's injuries. We also note that defendant did not renew his application for a specific unanimity instruction or for modification of the definition of a reasonable belief at his second trial.

Defendant's remaining arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

III

Finally, we reject defendant's arguments challenging the sentence imposed by the court substantially for the reasons expressed by the trial judge at the sentencing hearing. With respect to the convictions of the charges reflected in Indictment No. 05-02-0016, the judge found three aggravating factors: N.J.S.A. 2C:44-1(a)(3), the risk that defendant will commit another offense; N.J.S.A. 2C:44-1(a)(6), the extent of defendant's prior criminal record and the seriousness of the offenses; and N.J.S.A. 2C:44-1(a)(9), the need for deterring defendant and others from violating the law. He also found two mitigating factors: N.J.S.A. 2C:44-1(b)(4), substantial grounds tending to excuse or justify defendant's conduct, though failing to provide a defense; and N.J.S.A. 2C:44-1(b)(6), defendant will compensate the victim. As the trial judge explained:

I do find the risk of further crime. You were already on probation for drug offenses while you committed this offense. You are out on bail for a homicide case when you commit another offense. So yeah, I do find that there is a risk of further crime. You do have a prior juvenile history. I do find the need to deter you and others from attacking people with a knife who are unarmed, and after stabbing him bragging, I just stabbed a guy out in the parking lot, to Kevin Robinson.

 

On the mitigating factors, I do find grounds that help to explain your conduct although not amounting to a defense; that is, your perception that you were coming to aid your friend Reyes as he was being stomped out in the parking lot, but rejected by the jury as a valid defense, twice. I also will order you to pay compensation for burial costs, so that compensation is a mitigating factor.

 

The sentences of seven and eight years imprisonment on the aggravated assault and manslaughter convictions respectively fall well-within the range of discretionary authority for a second degree ordinary term offense of five to ten years. N.J.S.A. 2C:43-6(a)(2).7 Defendant also pleaded guilty to possession of cocaine with intent to distribute and two related motor vehicle charges. Those offenses occurred while defendant was out on bail on the charges underlying this appeal.

In reviewing a sentence imposed by the trial court, "[w]e assess the judge's sentencing determination under a deferential standard of review. An appellate court does not substitute its judgment for the judgment of the sentencing court." State v. Lawless, 212 N.J. 594, 606 (2013). Here, the imposition of a consecutive term of four years on this charge is clearly warranted. As the trial judge noted, by committing this crime while on bail for a first degree aggravated manslaughter charge, defendant showed a shocking disregard for the rule of law.

Affirmed.

 

 

1 We assume there may be two possible explanations for this conspicuously odd description: (1) the witness' description of these violent interlopers as "nice Spanish guys" was meant to be taken sarcastically or with a sense of irony; or (2) this was a typographical error in the transcript and the actual word the witness uttered was "nine Spanish guys . . . ." We infer this latter possibility from a claim made by defendant in his first voluntary statement to Franklin Township Police interrogators dated January 5, 2005. According to defendant, immediately after he stabbed Earvin he was attacked by a "coup" of guys that could have been "more than fifteen, but . . . I can't say how many it was. . . ." Thus, from both Lamont's and defendant's perspective, there were many belligerents who could have or may have actually taken part in the melee.

2 In his introductory remarks to defendant's first statement, Franklin Township Detective Patrick Colligan indicated that he and defendant were "gathered together" at police headquarters for "the purpose of taking a voluntary statement from Mike Martinez concerning a homicide occurring at the Clarion Suites." Detective Colligan made no reference to defendant's custodial status. He also did not indicate whether he had previously apprised defendant of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), whether defendant had acknowledged understanding those rights, and thereafter made a voluntary, knowing, and intelligent decision to waive those rights and agreed to answer Detective Colligan's questions.

3 In contrast to the glaring omissions of key information noted in the first statement, the statement taken by Somerset County Prosecutor's Office Major Crime Unit Detective Douglass A. Brownlie at 2:20 p.m. on January 5, 2005, reflects most of the information we expect to be included in a modern police interrogation document. Unfortunately, this document shares the same glaring omission of any information concerning defendant's custodial status. Nevertheless, Detective Brownlie made clear to defendant that he and his fellow Detective Sean Hebbon intended to question him "concerning your knowledge of a matter now under investigation involving the stabbing that occurred on January 1, 2005 at the Clarion Suites in Franklin Township." At this point, Detective Brownlie "advise[d]" defendant of his rights under Miranda, and obtained, in response to a direct question, a clear statement from defendant indicating his willingness to answer the detectives' questions.

4 The third statement was taken at 7:04 p.m., on the same day as the second one and by the same interrogators. Detective Brownlie acknowledged that "since the last time we were on tape . . . we've been speaking to each other and through this time um, like I stated to you there was somewhat of a gap in your last statement . . ." Although this practice of "speaking" to a defendant "off-tape" was not uncommon in 2005, we nevertheless note its potential for untrustworthiness and emphasize that it is now prohibited pursuant to Rule 3:17(a). Deviation from this mandate is strictly regulated and circumscribed under Rule 3:17(b).

5 Vazquez opined that Eato was a gang member based on an analysis of his criminal history, tattoos, his alias of "Manifest" and his admission to prison officials. Vazquez also deduced that, at the time of his death, decedent Kerron Butler was involved in illicit drug distribution as part of a gang, based on the following factors: (1) his brother Brian Butler stated that Kerron sold marijuana and possessed a nine millimeter handgun; (2) the police recovered baggies containing what appeared to be marijuana near his body; (4) Kerron had a large amount of cash on his person at the time of his death; and (5) tattoos on his body were "consistent with the present gang culture that we have." The trial court also permitted Vazquez to testify before the jury and give his opinion that Kerron and his cousin, Rashod Eato, were involved in a criminal enterprise to distribute illicit narcotics. Vazquez referred to Eato as Kerron's "enforcer." Again, based on tattoos, Vazquez opined that Eato was a member of another gang called "M O B," which stood for either "Members of Blood and [or] money over bitches." According to Vazquez, the code of fidelity in gang culture would demand fellow members to come to the aid of any member under duress. The State presented a rebuttal expert in gang identification and gang activity who opined that Kerron's tattoos were not "indicative of any kind of gang membership or gang culture." Defense counsel did not present this "gang affiliation" defense strategy at the second trial.

6 In fact, we disagree with the trial judge's ruling sustaining defense counsel's sidebar objection to a comment made by the prosecutor during her summation at the second trial. Specifically, the court found the prosecutor improperly suggested to the jury that the knife found by the police next to Kerron Butler was the same knife defendant used to stab him. In sustaining the objection, the trial judge agreed with defense counsel that the absence of direct evidence on this issue made the remark by the prosecutor improper. Given the location of the knife next to the victim's body, the prosecutor was entitled to suggest to the jurors it was entirely reasonable for them to infer this was the same knife defendant used to stab the victim. There is no requirement that the prosecutor's comment be supported by direct evidence. As the Court recently noted in State v. Cagno, 211 N.J. 488, 512 (2012), "[j]uries are routinely instructed that they may draw logical inferences from the evidence presented to them and that circumstantial evidence is of as equal weight as direct evidence."

7 Although these were defendant's first indictable convictions, he had been adjudicated delinquent for possession of illicit drugs with intent to distribute. Although he was an adult at the time of sentencing before the Law Division, Criminal Part, he was still on probation for that adjudication of delinquency, and thus subject to the jurisdiction of the Chancery Division, Family Part for violating the terms of that probationary disposition.