STATE OF NEW JERSEY v. CHRISTOPHER A. SMITH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-00220-12T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CHRISTOPHER A. SMITH,

Defendant-Appellant.

________________________________

August 29, 2014

 

Submitted April 30, 2014 Decided

 

Before Judges Sapp-Peterson, Lihotz and Maven.

 

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 09-07-0477.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief).

 

John J. Hoffman, Acting Attorney General, attorney for respondent (Emily R. Anderson, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

A grand jury indicted defendant Christopher Smith on charges of first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (counts one through three); second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count four); second-degree unlawful possession of a firearm, N.J.S.A. 2C:39-5(b) (count five); fourth-degree possession of a firearm by a person under the age of twenty-one, N.J.S.A. 2C:58-6.1(b) (count six); and third-degree witness tampering, N.J.S.A. 2C:28-5(a) (count seven). Prior to trial, defendant moved to suppress a statement he made to police shortly after his arrest. The court denied the motion and the matter proceeded to trial. The first trial ended in a mistrial. Upon re-trial, the jury found defendant not guilty of attempted murder, but convicted him of the weapons offenses. At sentencing, the court imposed an aggregate eight-year custodial term with a four-year period of parole ineligibility. We affirm.

I.

The evidence presented at trial from which the jury arrived at its verdict is as follows. After midnight on May 19, 2009, Mr. Davis, Mr. Taylor, and Mr. White were walking through a park in Franklin Township when they encountered a black Nissan Maxima. One of the occupants of the vehicle, later identified as defendant, emerged from the vehicle inquiring whether any of the individuals were "L Dog." An acrimonious verbal exchange followed and defendant eventually went to the rear of the Maxima and retrieved a firearm. The three men began running from the park as defendant discharged his weapon five times in the direction of the three men.

Police arrived at the scene a short time later. They recovered two spent shell casings and a white Nokia "Musical Express" cell phone on a grassy median separating the park's parking lot from the adjoining road. They also observed a hole in the front bay window of a nearby residence consistent with a projectile. One of the investigating officers, who had been at this residence on several prior occasions and never noticed any hole, suspected this hole could have been from a gunshot. Police entered the residence in search of the projectile, to no avail. The continuing investigation led to the discovery of defendant as the owner of the cell phone. Police secured a search warrant for the Maxima and defendant's residence. They recovered a .380 caliber semi-automatic handgun from the Maxima. The ammunition from the handgun was the same caliber as the spent shell casings recovered from the park. While searching the home, police also recovered an empty cell phone case.

After recovering this evidence, police established surveillance in the area to await defendant's arrival. They observed a school bus drop defendant off and arrested him as he approached his home. En route to the police station, defendant asked police "what's this was all about[?]" When told he was under arrest for a "shooting incident that occurred earlier in the week[,]" which police wanted to discuss with him, defendant responded that he did not "do this." Once at the police station, defendant asked police to contact his mother and was told the police were trying to get in touch with her. Police administered Miranda1 warnings to him. He waived his rights under Miranda and then agreed to provide officers with a statement. During the course of his interrogation, he asked for his mother twice.

In responding to the questions posed to him during the interrogation, defendant admitted he discharged the handgun four times out of fear the three men were armed, explaining that one of the individuals "reached in his pants like he had something[.]" He insisted that he did not intend to hurt anyone, and indicated he held the weapon sideways.

Following defendant's indictment, he moved to suppress the statement he gave during his custodial interrogation. The court conducted a suppression hearing and, upon its completion, denied the motion. The court credited the testimony of the State's witnesses and found "no impropriety in the methods used by the officers, and . . . that the [sic] promises were not made and there was no inducement." The court concluded defendant provided the statement "freely and voluntarily." The ensuing jury trial ended in a mistrial.

Following a six-day re-trial, at which numerous witnesses testified, the jury found defendant guilty of three weapons offenses: second-degree possession of a firearm for an unlawful purpose (count four); second-degree unlawful possession of a firearm (count five); and fourth-degree possession of a firearm by a person under the age of twenty-one (count six). At sentencing, the court found three aggravating factors and no mitigating factors. The court imposed an aggregate eight-year term of imprisonment with a four year period of parole ineligibility.

On appeal defendant raises the following points for our consideration:

POINT I

 

THE TRIAL COURT MISAPPLIED ITS DISCRETION IN INSTRUCTING THE JURY ON COUNT FOUR ON THE LESSER INCLUDED OFFENSES OF SECOND AND THIRD DEGREE AGGRAVATED ASSAULT AND FOURTH DEGREE POINTING [A FIREARM] BECAUSE THEY WERE NOT INCLUDED IN THE INITIAL CHARGE TO THE JURY, BECAUSE THEY WERE INCONSISTENT WITH THE STATE'S THEORY OF THE CASE, AND BECAUSE THEY WERE SO UNANTICIPATED BY THE DEFENSE AS TO UNDERMINE THE FAIRNESS OF THE TRIAL.

 

 

 

 

POINT II

 

THE TRIAL COURT MISAPPLIED ITS DISCRETION IN INSTRUCTING THE JURY ON FLIGHT BECAUSE NO EVIDENCE RELEVANT TO THE DOCTRINE WAS ADDUCED AT TRIAL.

 

POINT III

 

DEFENDANT'S CONVICTION SHOULD BE REVERSED BECAUSE FINDING [MRS.] TAYLOR AND [MR.] TAYLOR "UNAVAILABLE" WAS NOT ANTICIPATED BY N.J.R.E. 804(A)(2) SINCE IT RESULTED IN A PUNITIVE DE FACTO APPLICATION OF THE "FORFEITURE BY WRONGDOING" DOCTRINE, AND BECAUSE THE FINDING VIOLATED DEFENDANT'S SIXTH AMENDMENT RIGHT TO CONFRONTATION AND SIXTH AMENDMENT RIGHT TO A JURY TRIAL.

 

POINT IV

 

DEFENDANT'S CONVICTION SHOULD BE REVERSED BECAUSE, UNDER THE CIRCUMSTANCES OF THIS CASE, HIS REQUESTS TO SPEAK WITH HIS MOTHER CONSTITUTED AN INVOCATION OF HIS FIFTH AMENDMENT PRIVILEGE AGAINST SELF INCRIMINATION.

 

POINT V

 

THE TRIAL COURT DEPRIVED DEFENDANT OF HIS RIGHT TO PRESENT A COMPLETE DEFENSE BY DISALLOWING TESTIMONY BY DETECTIVE PAPPAS.

 

POINT VI

 

DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BY PROSECUTORIAL OVERZEALOUSNESS IN SUMMATION.

 

POINT VII

 

THE CUMULATIVE EFFECT OF THE ERRORS THAT OCCURRED DURING DEFENDANT'S TRIAL WARRANT REVERSAL OF HIS CONVICTION.

 

POINT VIII

 

THE [EIGHT-]YEAR BASE TERM IMPOSED ON DEFENDANT'S CONVICTION ON COUNT FOUR WAS MANIFESTLY EXCESSIVE.

 

II.

 

We have reviewed the record in light of these points, the arguments advanced and the applicable legal principles. In that vein, we reject defendant's points as a basis to reverse his conviction and the sentence imposed. The record demonstrates defendant received a fair trial. The court did not commit any error, either singly or cumulatively, with regard to any of its evidentiary rulings or in its instructions to the jury. Moreover, the prosecutor's comments during summation were not so egregious as to have denied defendant a fair trial. Finally, the sentence imposed comported with statutory mandates and does not shock the judicial conscience.

In Point V,2 defendant contends his conviction should be reversed because police failed to honor his repeated request to speak to his mother, which constituted an invocation of his Fifth Amendment privilege against self-incrimination. We find no merit to this contention.

The Fifth Amendment to the United States Constitution provides that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself." U.S. Const. amend. V. Under our New Jersey Constitution, there is no explicit reference to the privilege against self-incrimination. However, in State v. O'Neill, 193 N.J. 148, 176 (2007), our court reiterated the privilege against self-incrimination is a right "so venerated and deeply rooted in this state's common law that it has been deemed unnecessary to include the privilege in our State Constitution."

While federal decisions interpreting the Fifth Amendment inform our analysis in any challenge to the admissibility of a statement taken during custodial interrogation, the contours for determining whether the right has been violated are much broader under New Jersey decisions "than those that are applied to [our] federal counterparts." State v. Diaz-Bridges, 208 N.J. 544, 564 (2012) (citing O'Neill, supra, 193 N.J. at 176-77). To that end, whether there has been a knowing and voluntary waiver of the right to remain silent is examined by considering

the totality of the circumstances, including both the characteristics of the defendant and the nature of the interrogation. Relevant factors to be considered include the suspect's age, education and intelligence, advice concerning constitutional rights, length of detention, whether the questioning was repeated and prolonged in nature, and whether physical punishment and mental exhaustion were involved.

 

[State v. Galloway, 133 N.J. 631, 654 (1993).]

The thrust of this analysis is the assessment of "whether the person's decision to confess results from a change of mind rather than from an overbearing of the suspect's will." Id. at 655. Appellate review of a motion court's decision to admit police-obtained confessions must be "searching and critical." State v. Pickles, 46 N.J. 542, 577 (1966).

An adult's request to speak to a parent is not treated the same as that of a juvenile. See State v. Presha, 163 N.J. 304, 315 (2000) ("In respect of confessions by juveniles of any age, courts should consider the adult's absence as a highly significant factor among all other facts and circumstances."). Irrespective of the age of a defendant, a request to speak to a family member "necessitate[s] a review of the context in which the request [is] made." Diaz-Bridges, supra, 208 N.J. at 567. Thus, if an adult detainee requests to speak with a parent, the voluntariness analysis is dependent on the circumstances. See id. at 572 (finding the defendant did not invoke the right to remain silent where he was advised of his rights, waived them, requested his mother's presence three-and-one-half-hours into the interrogation, and, shortly thereafter, confessed to murder); State v. Harvey, 121 N.J. 407, 418-19 (1990) (finding defendant effectively invoked his right to remain silent when, following three days in custody, he sought the "chance to consult with a close family member"), cert. denied, 499 U.S. 931, 111 S. Ct. 1336, 113 L. Ed. 2d 268 (1991); State v. Roman, 382 N.J. Super. 44, 54-55, 67 (App. Div. 2005) (holding a defendant's request to speak with his parents was not a re-invocation of his right to remain silent where he stated "I want to talk to my father[,]" the detective continued questioning, and the defendant then confessed to the murder of his son), certif. dismissed, 189 N.J. 420 (2007).

Although defendant requested to speak with his mother on three separate occasions, he never expressly conditioned continuing to answer questions from police upon the presence or arrival of his mother. He never asked that the questioning stop until his mother arrived. He merely verbalized his desire for her presence. Moreover, because defendant was eighteen years old, police had no obligation to contact his mother. Presha, supra, 163 N.J. at 315. While the record established that police told defendant they were attempting to contact his mother and in fact took her contact information from defendant, circumstances do not suggest police induced defendant to respond to questions by using promises to contact his mother.

In addition, the circumstances of the interview, which lasted a little over one hour and was held in a "child-interview" room, do not reflect that defendant's will had been overborne when he waived his rights and proceeded with the interrogation. See Galloway, supra, 133 N.J. at 654. After reviewing the DVD of the interview, the motion judge noted "[defendant] was then again presented with a Miranda statement of five statements, answered yes to each of the questions, and didn't appear to hesitate" in expressing his understanding of his rights and his willingness to speak with Detective Justin Berger. The trial court found, and the record supports the conclusion, that there was "no impropriety in the methods used by the officers" and "no inducement" resulting in defendant's statement. Therefore, we find no basis to disturb this determination in this regard.

III.

In Points III and V, defendant challenges two evidentiary rulings the court rendered. In Point III, defendant contends the court violated his Sixth Amendment Right to confrontation and to a jury trial when it allowed the jury to hear the testimony of two witnesses taken from their prior videotaped testimony in the first trial rather than compelling their live testimony in the second trial. In Point V, defendant contends the court impermissibly interfered with his right to present a complete defense when it precluded him from presenting testimony from Sergeant Mark Pappas. We reject both contentions.

Our review of a trial court's evidentiary rulings is limited in scope. "Traditional rules of appellate review require substantial deference to a trial court's evidentiary rulings." State v. Morton, 155 N.J. 383, 453 (1998); see also Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000). A judge's discretionary rulings on the admissibility of evidence may not be disturbed absent a mistaken exercise of discretion so long as the rulings are consistent with applicable law. State v. Fortin, 189 N.J. 579, 597 (2007); State v. Cook, 179 N.J. 533, 568-69 (2004). Error in the admission of evidence is not harmful if the defendant's fundamental rights were not impaired and the cumulative evidence against the defendant enjoys great weight. State v. Soto, 340 N.J. Super. 47, 65 (App. Div.), certif. denied, 170 N.J. 209 (2001).

The two witnesses, Mr. Taylor and his mother Mrs. Taylor, in whose home the police observed what appeared to be a gunshot through a front bay window, refused to testify at the second trial. Despite having testified at the first trial, they, at a hearing held outside the presence of the jury, expressed fear for their safety and the safety of the remaining members of their immediate family if they testified at the second trial. Specifically, Mrs. Taylor explained at the hearing that she and her eight children had been subjected to intimidation and threats. Similarly, Mr. Taylor testified that he had received death threats. The court probed further into their unwillingness to testify for two days before declaring both witnesses "unavailable" to testify.

Under both our federal and state constitutions, "[a] criminal defendant has the right 'to be confronted with the witnesses against him' and 'to have compulsory process for obtaining witnesses in his favor.'" State v. Garron, 177 N.J. 147, 168-69 (2003) (quoting U.S. Const. amend. VI; N.J. Const. art. I, 10), cert. denied, 540 U.S. 116, 124 S. Ct. 1169, 157 L. Ed. 2d 1204 (2004). "'The central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact.'" State v. Castagna, 187 N.J. 293, 309 (2006) (quoting Maryland v. Craig, 497 U.S. 836, 845, 110 S. Ct. 3157, 3163, 111 L. Ed. 2d 666, 678 (1990)). "Those constitutional rights, however, may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process, such as established rules of evidence and procedure designed to ensure the fairness and reliability of criminal trials." Garron, supra, 177 N.J. at 169 (internal quotation marks omitted). As a consequence of this balance, under the Confrontation Clause, testimonial hearsay is admissible if the declarant is unavailable and the defense has been afforded "a prior opportunity for cross-examination." Crawford v. Washington, 541 U.S. 36, 54, 124 S. Ct. 1354, 1365, 158 L. Ed. 2d 177, 194 (2004).

Under N.J.R.E. 804(a)(2), a witness may be deemed "unavailable" for his or her refusal to testify if the witness "persists in refusing to testify concerning the subject matter of the statement despite an order of the court to do so[.]" The criteria for being deemed unavailable may be met where the court is convinced that the witness, fully cognizant of the consequences of disobeying a court order to testify, continues to refuse to testify. See State v. Byrd, 393 N.J. Super. 218, 233 n.5 (App. Div. 2007), aff d, 198 N.J. 319 (2009) (holding "[a] witness must know that there will be consequences if a court order is disobeyed. If the witness continues to refuse to testify after the threat of contempt, he will be deemed an unavailable witness").

Once a witness is deemed "unavailable," his or her prior testimony from the prior trial may be admitted "if the party against whom the testimony is now offered had an opportunity and similar motive in the prior trial . . . to develop the testimony by examination or cross-examination." N.J.R.E. 804(b)(1)(A). The key to admissibility of the prior testimony is a defendant's opportunity during the prior trial to cross-examine the witness for the same purpose and objective the defendant has in the present trial. State v. Wooters, 228 N.J. Super. 171, 179 (App. Div. 1988).

Here, over the course of two days, the trial court probed into the witnesses' unwillingness to testify before declaring the witnesses were "unavailable." Mrs. Taylor testified she was concerned about the safety of her eight children as "[p]eople generally" were "[m]aking threats . . . where [they] lived." She explained "[p]eople [were] going around talking" and "[g]iving threats[,]" "[i]t's gang related," and she did not "feel safe right now talking." When questioned by the prosecutor, she told the court "I don't want to give him answers." When pressed by the court about what she would do if ordered to testify, she said "I'm not trying to go to jail. I am not trying to get killed either."

Similarly, Mr. Taylor refused to testify, saying "people [were] after [him] now" and "people [were] probably going to do something to [him] when they get the chance." He said someone told him "people [were] going to kill [him] [be]cause [he] took the stand." When asked if he would testify following a court order to so, he replied in the negative. Neither witness specified who threatened them, nor did they state defendant threatened them.

The next day, the court probed further into their unwillingness to testify. Mrs. Taylor vaguely described an incident in which she was near the park near her house when someone confronted her about testifying. She refused, however, to elaborate on what this person said to her. The court stated it was going to order her to testify, and she responded that "[she was] going to try to protect her family. [She could not] say [any]more." She repeated she would not have testified if ordered to do so. Following this colloquy, the court explained its findings on the sincerity of Mrs. Taylor's refusal:

But the old adage a picture speaks a thousand words is applicable here. This witness is scared. Everything about her tone of voice, her body language, her discomfort on the stand, her pleading with me not to make her testify bespeaks a fear which is in her mind real . . . .

 

I find based upon my observations of the witness and the totality of these circumstances that [she] by all of the means and methods which [I have] articulated has refused to testify despite a court order to do so.

 

When Mr. Taylor took the witness stand, the court told him it was going to "order [him to] remain and to testify in this trial[,]" to which he responded that he would not testify. The court told Mr. Taylor that it could "literally have [him] locked up in contempt of court[,]" and Mr. Taylor repeated that "[he] fear[ed] for [his] life." Accordingly, the trial court found he also persisted in refusing to testify despite a court order to do so. After this extensive questioning and thorough articulation of factual findings, the trial court found the two witnesses were unavailable within the meaning of N.J.R.E. 804(a)(2). The court additionally found "defendant had an opportunity and similar motive [during the] prior trial to cross-examine the witness[es] and develop the testimony thereby."

Deferring to the trial court's factual findings related to the witnesses' unavailability, we conclude the record reflects a comprehensive probing of the witnesses before deeming them unavailable within the meaning of N.J.R.E. 804(a)(2). Moreover, defendant stood accused of the same charges in the first trial as he did in the second. Defense counsel had the opportunity to cross-examine Mrs. Taylor on two occasions, but declined to do so, presumably for strategic reasons. Counsel's failure to impeach an adverse witness' credibility during a prior trial does not bar the admission of the witness' prior testimony upon a later finding of his or her unavailability. The Confrontation Clause guarantees a defendant's right to confront witnesses subject to its waiver. See State v. Williams __ N.J. __, __ (2014) (slip op. at 18) ("The right of confrontation, like other constitutional rights, may be waived by the accused."). Here, defendant waived the right to confront Mrs. Taylor in the first trial, and presents no additional evidence from which the court could have reasonably found a need to cross-examine her. As to the victim, Mr. Taylor, defense counsel extensively cross-examined him and likewise failed to proffer any explanation as to why that examination did not address all issues relevant to defendant's defense.

We acknowledge that defendant's contention that the court's ruling deprived him of confronting Mrs. Taylor about her purported statement to the prosecutor following her testimony in the first trial that she had lied on the stand about not having found a bullet projectile when she in fact had. We also acknowledge defendant's position that he was deprived of the opportunity to cross-examine Mr. Taylor about his denial that he had a "Twitter account." We conclude that these asserted lost opportunities did not deprive defendant of a fair trial.

Irrespective of whether Mrs. Taylor found a bullet projectile, the State presented evidence that the shell casings recovered from the park, where the confrontation between defendant and the three individuals occurred, were discharged from the firearm found in the trunk of the Maxima registered to defendant's mother. Likewise, defendant has not explained how the opportunity to question Mr. Taylor about his Twitter account would have altered the outcome of the trial.

Turning to Sergeant Mark Pappas's testimony that Mr. Davis had a reputation for violence, he testified the basis of his opinion stemmed from charges brought against Davis in March 2011 and February 2012 for attempted murder and robbery, respectively. While Davis's reputation for violence may be established with opinion testimony, Sergeant Pappas's opinion was based upon events occurring two years after the incident for which defendant was on trial. Of even greater significance is the fact that these two charges represent specific instances of conduct, which were not the subject of convictions. See N.J.R.E. 405(a) (stating that "[s]pecific instances of conduct not the subject of a conviction of a crime shall be inadmissible[]" as a method of proving character). Thus, the court did not err when it exercised its discretion to exclude Sergeant Pappas's opinion testimony.

IV.

In Points I and II, defendant challenges the court's jury instructions on count four because it instructed the jury on lesser-included charges after the jury submitted a question to the court, neither party had requested the lesser-included jury instruction on count four, and defense counsel had no prior notice the court would give such an instruction. Further, defendant contends the court erred when it instructed the jury on flight. We disagree.

"[C]lear and correct jury instructions are essential for a fair trial." State v. Brown, 138 N.J. 481, 522 (1994). "A charge is a road map to guide the jury, and without an appropriate charge a jury can take a wrong turn in its deliberations." State v. Martin, 119 N.J. 2, 15 (1990). Accordingly, "[e]rrors impacting directly upon . . . sensitive areas of a criminal trial," such as those delineating the elements of a crime, are "poor candidates for rehabilitation under the harmless error philosophy."3 State v. Simon, 79 N.J. 191, 206 (1979). See also State v. Jordan, 147 N.J. 409, 422-23 (1997) (noting "court[s] must always charge on the elements of the crime"). Otherwise, under the harmless error analysis, reversal is unwarranted if "any prejudice to [the] defendant was not such that created a real possibility that the jury arrived at a result it otherwise might not have reached." State v. Marrero, 148 N.J. 469, 492-93 (1997). This analysis centers on "whether in all the circumstances there was a reasonable doubt as to whether the error denied a fair trial and a fair decision on the merits[.]" State v. Macon, 57 N.J. 325, 338 (1971).

Count four charged defendant with second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a). Conviction for this offense requires the State to prove beyond a reasonable doubt:

(1) the object possessed was a "firearm" within the meaning of N.J.S.A. 2C:39-1(f); (2) the firearm was possessed by defendant as defined in N.J.S.A. 2C:2-1(c); (3) the defendant's purpose in possessing the firearm was to use it against the person or property of another; and (4) the defendant intended to use the firearm in a manner that was unlawful.

[State v. Diaz, 144 N.J. 628, 635 (1996).]

"The focus of the charge is on a defendant's purpose in possessing a firearm." Ibid. The underlying purpose "must be illegal and existent 'at whatever time the State claims that the [possession for an unlawful purpose] offense took place.'" Ibid. (alteration in original) (quoting State v. Petties, 139 N.J. 310, 321 (1995)).

When charging a jury on N.J.S.A. 2C:39-4(a), a trial court must provide guidance on what constitutes an "unlawful purpose" within the meaning of the provision:

A jury is not qualified to say without guidance which purposes for possessing a gun are unlawful under N.J.S.A. 2C:39-4(a) and which are not. For that reason, because a conviction for a coupled active crime cannot be counted on to supply the unlawful purpose, a jury instruction on a charge of gun possession for unlawful purpose must include an identification of such unlawful purposes as may be suggested by the evidence and an instruction that the jury may not convict based on their own notion of the unlawfulness of some other undescribed purpose.

 

[State v. Jenkins, 234 N.J. Super. 311, 316 (App. Div. 1989).]

 

The court, in its initial charge to the jury, instructed the jury on the elements of the offense without instructing the jury to consider whether the State had proven the unlawful purpose through proof of the lesser-included offenses for which it instructed the jury, at defendant's request, in connection with the attempted murder and aggravated assault charges. During deliberations, the jury requested the court re-instruct it on count four. The court instructed the jury that it could consider unlawful purposes attendant to the lesser-included offenses on counts one through three in deciding whether defendant possessed a firearm with an unlawful purpose:

[I]n this case the State contends that the defendant's unlawful purpose in possessing the firearm was to kill [Mr.] White, [Mr.] Taylor, [and] [Mr.] Davis. Now, if you've gone past the attempted murder then the State's contention is the purpose . . . in possessing the item was to commit an aggravated assault with significant bodily injury. Or if you get past that . . . [an] attempt to cause bodily injury . . . with a deadly weapon.

 

So, the intention . . . follows in descending order as you may feel appropriate the initial crime charged in which the State said it was . . . his intention to kill and then the lesser includeds. So the intent to kill does not follow down to the lesser included[] [charges]. If you . . . found intent to kill then you are back to attempted murder.

 

You must not rely on your own notions of the unlawfulness or some other undescribed purpose of the defendant. Rather, you must consider whether the State has proven the specific unlawful purpose charged. . . . The specific unlawful purpose on count four is to attempt to cause bodily injury with a deadly weapon. If you find defendant had a lawful purpose, for example, to use the firearm to protect himself against the use of unlawful force, or if you have a reasonable doubt as to the defendant's purpose, then the State has failed to carry its burden of proof beyond a reasonable doubt.

 

[Emphasis added.]

 

Defense counsel immediately objected to the court's instruction. Thus, we review the claimed error under the harmless error standard. See Rule 2:10-2

Unquestionably, the court, in its initial instructions to the jury, should have expanded its charge on count four to include the lesser-included offenses which defense counsel requested the court to consider in connection with the attempted murder and aggravated assault offenses. We cannot conclude, however, that the court's failure to do so was so egregious as to produce an unjust result. First, there was a rational basis to instruct the jury on the lesser-included offenses, as evidenced by defendant's request that the court do so with respect to counts one through three. If there were a rational basis to instruct the jury on the lesser-included offenses, it is also logical that the unlawful purpose aspect of the charge of possession of a firearm for an unlawful purpose could be based upon the jury's finding defendant guilty of any one of the lesser-included offenses. It is doubtful that defense counsel's summation would have been impacted had defense counsel known the court intended to instruct the jury to consider the lesser-included offense in connection with its deliberations related to count four. Defendant was entitled to a fair trial, not a perfect trial. State v. Swint, 328 N.J. Super. 236, 261 (App. Div.), certif. denied, 165 N.J. 492 (2000).

Likewise, the evidence in the record supports the court charging the jury on flight. Immediately after the shooting, defendant left the scene and, during the course of his departure, realized he did not have his phone. He made no attempt to return to the scene to retrieve the phone, which was later recovered by police. From these two facts alone, an inference of avoidance from accusation and apprehension may be inferred. See State v. Wilson, 57 N.J. 39, 49 (1970) (holding that a defendant need not "flee[] from custody or . . . be found hiding" for an instruction to be warranted on flight, where flight may be inferred from actions of a defendant in immediately departing the scene). Moreover, assuming these facts were insufficient to justify a flight charge, we are convinced its inclusion in the jury instructions did not rise to the level of "'legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.'" State v. Chapland, 187 N.J. 275, 289 (2006) (quoting State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970)).

V.

Next, defendant challenges several statements made during the prosecutor's summation.4 We begin this discussion by noting that "prosecuting attorneys, within reasonable limitations, are afforded considerable leeway in making . . . summations." State v. DiFrisco, 137 N.J. 434, 474 (1994) (internal quotations omitted). "So long as he stays within the evidence and the legitimate inferences therefrom the Prosecutor is entitled to wide latitude in his summation." State v. Mayberry, 52 N.J. 413, 437 (1968), cert. denied, 393 U.S. 1043, 89 S. Ct. 673, 21 L. Ed. 2d 593 (1969). "Indeed, prosecutors . . . are expected to make vigorous and forceful closing arguments to juries." State v. Frost, 158 N.J. 76, 82 (1999).

A prosecutor's wide latitude, however, is not unfettered. State v. Williams, 113 N.J. 393, 447 (1988). "A prosecutor's remarks and actions must at all times be consistent with his or her duty to ensure that justice is achieved." Id. at 447-48. Significantly, "[p]rosecutorial misconduct is not ground for reversal of a criminal conviction unless the conduct is so egregious that it deprived defendant of a fair trial." State v. Pindale, 249 N.J. Super. 266, 285 (App. Div. 1991). Viewed in the context of these principles, we do not conclude the prosecutor's summation denied defendant a fair trial.

First, defendant contends the prosecutor effectively urged the jury to convict out of societal duty when he remarked: "[the State's] position is that when [defendant] took possession, aimed and fired at those people, that is an unlawful use of deadly force. . . . It is unlawful. It is not permitted in a society that values human life." Immediately preceding the challenged statement, the State argued "[t]he last element is that the defendant's purpose was to use the fire[arm] unlawfully. That would somewhat presuppose that he did not have a self-defense issue in this case." Understood as a response to defendant's assertion of self-defense, the statement neither rose to an invocation of the "the need [for the jury] to protect society from defendant's future crimes," nor was it an attempt to intimidate the jury to return a guilty verdict. Cf. State v. Pennington, 119 N.J. 547, 576 (1990) (finding remarks improper where the prosecutor stated, "I'm going to ask you to live up to your oath and apply the law[,]" and "I'm going to ask you to return the verdict that's called for by your oath").

Defendant also notes the impropriety of the prosecutor's statement that "[defendant's] from New Brunswick. He's got no lawful, legitimate business being in that closed park at midnight[.]" The trial court agreed this statement was improper and appropriately instructed the jury to ignore the challenged remark, noting "[w]hatever brought [defendant] to that location is not connected with the course of conduct that occurred thereafter." Thus, having decided the statement prejudiced defendant, the trial court properly, promptly, and effectively exercised its discretion to issue a curative instruction. See State v. Loftin, 146 N.J. 295, 365-66 (1996) ("The determination of whether the appropriate response is a curative instruction, as well as the language and detail of the instruction, is within the discretion of the trial judge . . . ."). We presume the jury understood and followed the court's instructions. State v. Savage, 172 N.J. 374, 394 (2002) (citing State v. Burris, 145 N.J. 509 (1996)); see also State v. Manley, 54 N.J. 259, 270 (1969) (stating that, with regard to proper use of evidence, "the Court presumes that juries will understand and abide by the court's instruction").

Defendant asserts the State "denigrate[d]" him during summation by rhetorically asking: "[W]hy would [defendant] have to clear the area[ i]f the victims were already in flight[?] [He d]idn't need to clear the area. [Defendant] isn't a do[-]gooder." We disagree. This was a vigorous argument that defendant's departure from the scene was a flight warranting an inference of consciousness of guilt. While the prosecutor's remark that defendant was not a "do[-]gooder" was improper, it was made once and in passing. Cf. Pennington, supra, 119 N.J. at 577 (finding the State consistently denigrated the defendant by describing him as a "coward," "liar," and a "jackal").

Defendant also points to the prosecutor's three iterations that "[a]n innocent man doesn't change his story." These comments should be contextualized amidst the prosecutor's discussion of defendant's credibility. The prosecutor was properly arguing the jury should infer from inconsistencies in defendant's statement that his account of the shooting was not credible. His remarks did not expressly place the burden of proof upon defendant, nor did they purport to instruct the jury on the law. The use of the term "innocent man," however, in this context was improper because it could be construed as the prosecutor's instruction to the jury on the law. Nonetheless, we are persuaded any prejudice resulting to defendant from these comments was sufficiently mitigated by the trial court's thorough instruction on the State's burden of proof. Thus, these remarks were not sufficiently egregious to find defendant was deprived of a fair trial. Frost, supra, 158 N.J. at 83.

VI.

Finally, we reject defendant's contention that the cumulative effect of the errors committed during his trial warrants reversal. Defendant has failed to demonstrate any error or pattern of errors, rising to the level, either singly or cumulatively, to have denied him a fair trial. As stated earlier, "defendant is entitled to a fair trial but not a perfect one." Lutwak v. United States, 344 U.S. 604, 619, 73 S. Ct. 481, 490, 97 L. Ed. 593, 605 (1953).

VII.

We next address defendant's final point that the eight-year base term imposed on defendant's conviction for second-degree unlawful possession of a firearm was manifestly excessive. The range of sentencing available to a sentencing judge for a second-degree crime is from five to ten years. N.J.S.A. 2C:43-6(a)(2). Defendant contends the court failed to consider applicable mitigating factors, which, if properly considered, would have lowered the custodial term imposed. We find no merit to this argument.

"Appellate review of the length of a sentence is limited." State v. Miller, 205 N.J. 109, 127 (2011). A reviewing court "does not sit to substitute its judgment for that of the trial court." State v. O'Donnell, 117 N.J. 210, 215 (1989). "The critical focus of the appellate power to review and correct sentences is on whether the basic sentencing determination of the lower court was 'clearly mistaken.'" State v. Jarbath, 114 N.J. 394, 401 (1989). Thus, appellate review of a sentencing decision requires this court consider:

first, whether the correct sentencing guidelines, or . . . presumptions, have been followed; second, whether there is substantial evidence in the record to support the findings of fact upon which the sentencing court based the application of those guidelines; and third, whether in applying those guidelines to the relevant facts the trial court erred clearly by reaching a conclusion that could not have reasonably been made upon a weighing of the relevant factors.

 

[State v. Roth, 95 N.J. 334, 365-66 (1984).]

 

Resolution of this issue necessitates review of the trial court's deliberative process.

At sentencing, the trial court identified applicable aggravating factors and articulated findings supported by substantial credible evidence in the record. The court applied aggravating factor three, "[t]he risk that defendant will commit another offense[.]" N.J.S.A. 2C:44-1(a)(3). It found defendant likely to re-offend based on his juvenile record and the circumstances of the shooting, particularly his discharge of the firearm "numerous times" in the vicinity of three individuals following a "relatively brief disrespectful conversation." The trial court also applied aggravating factor six, "[t]he extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted[,]" N.J.S.A. 2C:44-1(a)(6), noting defendant's juvenile record, which reflected delinquency adjudications on one charge of simple assault, one charge of possession of firearms, two charges of robbery, and three violations of probation. The court also applied factor nine, "[t]he need for deterring the defendant and others from violating the law[.]" N.J.S.A. 2C:44-1(a)(9).

Defendant asserts the trial court should have applied mitigating factors one, his "conduct neither caused nor threatened serious harm[,]" N.J.S.A. 2C:44-1(b)(1); two, he "did not contemplate that his conduct would cause or threaten serious harm[,]" N.J.S.A. 2C:44-1(b)(2); and three, he "acted under a strong provocation[,]" N.J.S.A. 2C:44-1(b)(3). As the court observed, the discharge of a firearm in the vicinity of other individuals carries a high risk of harm. Additionally, there is substantial evidence supporting the trial court's finding there was no "strong provocation," as the victims "[did not] induce or facilitate the commission of the[] crimes." Contrary to defendant's assertion, Messrs. Davis, Darius, and White all testified they were not armed and did not "flash" defendant prior to the shooting. Considering this and Ms. Munoz's testimony, defendant's friend who was also at the park, there is substantial evidence in the record supporting the trial court's finding that although the victims responded in "an impolite and rough manner," they did not provoke or induce defendant's violent actions.

Also unpersuasive is defendant's argument the trial court should have applied mitigating factors seven, "[t]he defendant has no history of prior delinquency or criminal activity[,]" N.J.S.A. 2C:44-1(b)(7), and (12), "[t]he willingness of the defendant to cooperate with law enforcement authorities[,]" N.J.S.A. 2C:44-1(b)(12). Defendant has an extensive juvenile history making factor seven inapplicable. We also agree, as the trial court found, that even if defendant's statement signified his willingness to cooperate within the meaning of N.J.S.A. 2C:44-1(b)(12), it was entitled to only minimal weight as to not have "influence[d] t[he] court's sentencing function." See State v. Read, 397 N.J. Super. 598, 613 (App. Div.) ("[W]e question whether a confession qualifies as 'cooperation' within the intent of [N.J.S.A. 2C:44-1(b)(12)], at least in the absence of any indication the confession identified other perpetrators or assisted in solving other crimes[.]"), certif. denied, 196 N.J. 85 (2008). Thus, the trial court applied the appropriate statutory provisions to findings supported by substantial credible evidence in the record. See Roth, supra, 95 N.J. at 355-56.

Defendant also contends the trial court improperly weighed the factors and "failed to acknowledge the 'real time' consequences of the mandatory Graves Act period of parole ineligibility imposed." Contrary to defendant's contention, the trial court expressly recognized defendant was subject to "a four-year period of parole ineligibility pursuant to N.J.S.A. 2C:43-6[(c)]" and noted the sentence was justified in light of defendant's "violent and assaultive juvenile" history." In short, a review of the record establishes the court identified and carefully weighed the applicable factors in fashioning the sentence imposed, which neither reflects a clear error of judgment, nor shocks the judicial conscience. Roth, supra, 95 N.J. at 363-65.

Affirmed.

 

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

2 We address the points raised not in numerical order but in the sequence during which they arose pre-trial, during trial, and post-trial.

3 Because defense counsel objected immediately following the re-charging of the jury, this court should review defendant's challenge under the harmless error standard. See Rule 2:10-2 ("Any error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result[.]").

4 Defendant timely objected to all of these statements immediately following the State's summation.