STATE OF NEW JERSEY v. HAROLD F. ELLIOT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

HAROLD F. ELLIOT,

Defendant-Appellant.

______________________________

July 22, 2014

Submitted April 29, 2014 Decided

Before Judges Espinosa and O'Connor.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 10-06-1678.

Zucker Steinberg Sonstein & Wixted, P.A., attorneys for appellant (Jeffrey C. Zucker, of counsel; David W. Sufrin, on the brief).

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Nancy P. Scharff, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals his conviction and sentence for reckless manslaughter and possession of a weapon for an unlawful purpose. For the reasons that follow, we affirm.

Defendant was indicted for first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2) (count one); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count two). The matter was tried but resulted in a hung jury. On re-trial, the jury acquitted defendant of murder but convicted him of the lesser-included offense of second-degree reckless manslaughter, N.J.S.A. 2C:11-4(b)(1) (amended count one). He was also convicted of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count two).

After count two was merged into amended count one, defendant was sentenced to a term of eight-years, with an eighty-five percent period of parole ineligibility.

I

During the trial1, the State alleged defendant murdered his sister's boyfriend, Michael Unger, following a physical altercation with the victim. There is no dispute defendant used his .357 magnum handgun to shoot Unger to death. At the time of the incident, both defendant and the victim were intoxicated. Defendant asserted he acted in self-defense but such claim was rejected by the jury.

During the State's case, a number of photographs of the crime scene were put into evidence without objection from defendant. One of the State's witnesses went through each photograph and, in very general terms, briefly described what each photograph depicted. When the witness discussed a particular photograph, an enlarged copy of the picture was displayed to the jury on a television screen. Both defendant and the defense attorney positioned themselves in the courtroom so that they could see the screen while the witness testified.

The record does not reveal the size of the television screen or the size of any of the photographs when enlarged. More important, it is not known if the enlargement of any photograph provided greater clarity than when not enlarged.

When the witness was asked to describe one particular photograph,marked "S-60" in evidence, the witness merely stated, "Just another angle within the bedroom showing the other corner." The witness then moved on to describe the next photograph. There was no other reference to S-60 by this or any other witness during the trial or during either attorney's summation.

At the end of the State's case, defendant moved for a mistrial on the grounds that nine-millimeter shells could be seen in the photograph marked as S-60. In the alternative, defendant asked that the photograph be removed from evidence. Defendant noted and the State did not dispute that during the first trial, the court ruled that evidence of any firearm or ammunition found in defendant's home, other than the gun and ammunition used to kill Unger, could not be admitted into evidence. During the colloquy on defendant's motion for a mistrial, the defense attorney conceded that one has to look closely to see bullets in the photograph and that he had not noticed any bullets until defendant brought them to his attention. Defense counsel did not argue that the bullets were more clearly visible when the photograph was displayed before the jury on the television screen.

The court found there were no grounds to declare a mistrial, because defendant had not objected to the admission of the photograph and no bullets could be seen in the picture. The court also denied the motion to remove the photograph from evidence.

Defendant raises the following points for our consideration.

POINT I THE TRIAL COURT REFUSED TO EXCLUDE OR CURE THE INTRODUCTION TO THE JURY OF HIGHLY PREJUDICIAL, INFLAMMATORY AND IRRELEVANT EVIDENCE.

POINT II THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT SENTENCED THE DEFENDANT ABOVE THE MID-RANGE.

In his brief, defendant contends it was error for the trial court to have denied his motion for a mistrial or, in the alternative, his request to remove the photograph from evidence.2 He claims the admission of the photograph was prejudicial, as it showed defendant had bullets in his home that are used for weapons other than a .357 magnum handgun. He claims the bullets created the impression he had an arsenal of weapons in his apartment, which may have caused the jury to believe he was "mentally-unbalanced."

"A mistrial is an extraordinary remedy that should be used only to prevent a manifest injustice." State v. Goodman, 415 N.J. Super. 210, 234 (App. Div. 2010) (citing State v. Winter, 96 N.J. 640, 646-47 (1984)), certif. denied, 205 N.J. 78 (2011).

"The decision to grant or deny a mistrial is entrusted to the sound discretion of the trial court, which should grant a mistrial only to prevent an obvious failure of justice." State v. Harvey, 151 N.J. 117, 205 (1997) (citing State v. Rechtschaffer, 70 N.J. 395, 406 (1976) (internal citation omitted)). "A trial court's decision on a motion for a mistrial 'is granted great deference on appeal' and should be affirmed unless it would result in manifest injustice." State v. Hogan, 297 N.J. Super. 7, 15 (App. Div.), certif. denied, 149 N.J. 142 (1997).

We affirm the trial court's decision to deny the motion for a mistrial. The court did not abuse its discretion, as there was no indication a mistrial was needed to thwart an injustice. The evidencesupports thetrial court'sfinding thatone cannot discern there are bullets in the photograph, not to mention bullets that cannot be used in a .357 magnum handgun. Further, there is no evidence in the record the bullets were visible in the photograph that was viewed by the jury on the television screen.

Similarly, the court did not abuse its discretion by refusing to remove the photographs from evidence. "In reviewing a trial court's evidential ruling, an appellate court is limited to examining the decision for abuse of discretion." See Brenman v. Demello, 191 N.J. 18, 31 (2007). While there was a ruling in effect that no evidence of any weaponry or ammunition other than that used to shoot Unger was to be put into evidence, because the nine millimeter bullets were virtually undetectable in the photograph, for all intents and purposes the previous ruling was not violated.

II

On the issue of sentencing, defendant contends the court erred by finding mitigating factors three, four, five, eight, nine, and twelve, did not apply. N.J.S.A. 2C:44-1(b)(3), (4), (5), (8), (9), and (12). He further complains the court did not sufficiently explain why such factors were inapplicable.

At the time of sentencing, defendant did not ask the trial court to consider these factors. However, the court did state that none of these factors applied and specifically explained why factors eight and nine were unsuitable. To the extent defendant complains the court's findings were not sufficiently explicit, defendant must show plain error, Rule 2:10-2, as he raises this argument for the first time on appeal. Under the plain error rule, we may reverse only if the error was clearly capable of producing an unjust result. See State v. McGuire, 419 N.J. Super. 88, 142-43 (App. Div.), certif. denied, 208 N.J. 335 (2011). We find the court's failure to elaborate further upon why these mitigating factors were not applicable did not produce such a result.

Defendant also argues the court erred by imposing a sentence of eight years, which is one year greater than the mid-range for a second-degree crime. N.J.S.A. 2C:43-6(a)(2). The imposition of a term of eight years was well within the trial court's discretion, to which we are obligated to give deference. See State v. Bieniek, 200 N.J. 601, 612 (2010).

1 Unless stated otherwise, "trial" refers to the second trial in this matter.

2 In his brief defendant claims the trial court also "refused" to issue a "corrective" instruction. There is no evidence defendant requested any instruction; the subject of giving the jury an instruction was not raised by either party or the court.