STATE OF NEW JERSEY v. JAMES ROYAL

NOT FOR PUBLICATION WITHOUT THE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.

JAMES ROYAL,

Defendant-Appellant.

_____________________________________________________

July 7, 2014

 

Argued January 7, 2014 Decided

 

Before Judges Messano, Hayden and Rothstadt.

 

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 04-02-0180.

 

Ryan J. Cooper, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Robert J. Kipnees, Melissa Toner Lozner and Mr. Cooper, on the brief).

 

Teresa A. Blair, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Ms. Blair, on the brief).

 

Appellant filed a pro se supplemental brief.

PER CURIAM

The Cumberland County grand jury returned a twelve-count indictment charging defendant James Royal in counts one through five with events that occurred on January 16, 2003, specifically: second-degree kidnapping of Felicia Flores, N.J.S.A. 2C:13-1(b)(2) (count one); second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count two); third-degree possession of a knife for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count three); third-degree terroristic threats against Flores, N.J.S.A. 2C:12-3(a) (count four); and third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b). Counts six through twelve charged defendant with offenses that allegedly occurred the following day, January 17, 2003, specifically: first-degree murder of Flores and her older sister, Natasha Ferrer, N.J.S.A. 2C:11-3(a)(1) and (2) (counts six and seven); two counts of second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a) (counts eight and nine); second-degree burglary, N.J.S.A. 2C:18-2(b) (count ten); third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count eleven); and fourth-degree criminal contempt, N.J.S.A. 2C:29-9(b) (count twelve).1

Following trial, the jury acquitted defendant of count two, but found him guilty of the remaining charges.2 As to the murders of Flores and Ferrer, the jury also found two aggravating sentencing factors, i.e., that each murder was committed during the commission of the burglary and the other murder.

After appropriate mergers, the judge imposed two consecutive terms of life imprisonment without parole for the murders of Flores and Ferrer, a consecutive seventeen-year term, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, for the kidnapping of Flores, two concurrent four-year terms for the weapons offenses in counts five and eleven, and a concurrent eight-year sentence subject to NERA on the armed burglary offense.

Before us, defendant raises the following points for our consideration:

I. DEFENDANT WAS DEPRIVED OF A FAIR TRIAL WHEN THE PROSECUTOR IMPROPERLY DISPARAGED AND DEMEANED THE DEFENSE AND THE DEFENSE'S EXPERT WITNESS DR. JONATHAN MACK (RAISED BELOW)

 

II. THE TRIAL COURT ABUSED ITS DISCRETION IN ADMITTING HEARSAY TESTIMONY BY TEONDRA BOWMAN THAT DOES NOT FIT WITHIN ANY EXCEPTION TO THE HEARSAY RULE (RAISED BELOW)3

 

III. THE TRIAL COURT ERRED IN GRANTING THE PROSECUTOR'S MOTION TO JOIN THE COUNTS RELATED TO THE JANUARY 16 INCIDENT FROM [SIC] THE COUNTS RELATED TO THE JANUARY 17 SHOOTING

 

IV. THE TRIAL COURT ERRED IN ADMITTING, WITHOUT A PROPER LIMITING INSTRUCTION, TESTIMONY CONCERNING A PRIOR INCIDENT OF ALLEGED DOMESTIC VIOLENCE BY DEFENDANT AGAINST MS. FLORES THAT HAD PREVIOUSLY BEEN RULED INADMISSIBLE (RAISED BELOW)

 

V. THE TRIAL COURT IMPROPERLY ALLOWED THE JURY TO USE, AND ADMITTED IN EVIDENCE, A TRANSCRIPT PREPARED BY THE PROSECUTOR OF MS. FERRER'S 911 CALL (RAISED BELOW)

VI. DEFENDANT'S BURGLARY CONVICTION MUST BE REVERSED BECAUSE THERE WAS INSUFFICIENT EVIDENCE TO ESTABLISH THE ELEMENTS OF THE OFFENSE (NOT RAISED BELOW)

VII. THE COURT'S SENTENCE IS AN ABUSE OF DISCRETION BECAUSE THE COURT FAILED TO CONSIDER THE YARBOUGH4 FACTORS IN IMPOSING THREE CONSECUTIVE SENTENCES AND FAILED TO PROPERLY WEIGH THE MITIGATING AND AGGRAVATING FACTORS (RAISED BELOW)

In a pro se supplemental brief, defendant raises the following points:

I. TESTIMONY FROM DR. HOOD CONCERNING SPECIFIC INFORMATION THAT HE RECEIVED FROM NON-TESTIFYING INDIVIDUALS HAD IMPLICATED THAT THE WOUNDS THE VICTIMS SUFFERED WERE DISTANT WOUNDS (RAISED BELOW)5

II. THE TRIAL COURT ERRONEOUSLY ADMITTED BARBARA RAINEARS' HEARSAY TESTIMONY FOR WHICH THE CONTENT OF HER TESTIMONY HAD BEEN ATTESTED TO BY OTHER WITNESSES INCLUDING THE ACTUAL STATEMENT GIVEN BY THE VICTIM (RAISED BELOW)

III. PLAIN ERROR IN THE COURTS' FAILURE, SUA SPONTE TO CHARGE THE JURY ON LESSER INCLUDED OFFENSE/PASSION-PROVOCATION MANSLAUGHTER (RAISED BELOW)

IV. THE TRIAL COURT ERRED IN ADMITTING DEFENDANTS['] INADMISSIBLE STATEMENT/REMARKS AS TESTIFIED TO BY ARRESTING OFFICER VIOLATES MIRANDA6

V. DEFENDANT WAS DEPRIVED OF A FAIR TRIAL WHEN THE MISCONDUCT OF THE PROSECUTOR WAS ALLOWED TO CONTINUE WITHOUT ANY CONSEQUENCE (RAISED BELOW)

VI. THE TRIAL COURT ERRED IN ALLOWING THE STATE TO DECEIVE THE JURY WITH THE ADMISSION OF SAID SUPPORTING FACTORS FOR AGGRAVATING FACTORS IN ATTEMPT TO CONCEAL THEIR TRUE MEANING (RAISED BELOW)

We have considered these arguments in light of the record and applicable legal standards. We affirm.

I.

The judge conducted hearings on several pretrial in limine motions made by the State that are relevant to this appeal. He admitted in evidence statements that Flores made to Barbara Rainear, a high school security guard, on January 16, and to her best friend, Teondra Bowman, on the day of the shooting. The judge also admitted in evidence the recording of a 9-1-1 call Ferrer made to police which captured portions of the fatal encounter.

Trial commenced with the testimony of Sherry Gonzalez, the mother of Flores and Ferrer. She described the stormy relationship between defendant and her daughter, who at the time of her death was a seventeen-year-old high school senior and mother of defendant's son. Flores and Ferrer, who was nineteen, and their respective sons lived with Gonzalez. Gonzalez testified that defendant did not live with them, did not have a key to the home and was not allowed to enter without permission. Prior to trial, the judge determined that a N.J.R.E. 104 hearing was necessary before permitting Gonzalez to testify regarding an incident of domestic violence that allegedly occurred between defendant and Flores on January 7, 2003. At trial, Gonzalez began to describe her knowledge of the incident before defense counsel objected and reminded the judge of his prior ruling. The judge conducted a Rule 104 hearing outside the presence of the jury, and after listening to Gonzalez's testimony, determined the evidence was inadmissible. When the jury returned, the judge gave a curative instruction regarding the limited testimony already adduced.

Gonzalez testified that on Christmas Day 2002, defendant, who was twenty-years old, proposed marriage to Flores. In early January, in front of Ferrer, Gonzalez and Bowman, Flores refused the offer by giving defendant a letter. We quote some of the letter, which Gonzalez read to the jury:

I don't want to be with you. . . . I['ve] been acting like everything is fine when it's really not. I thought about this for a while. . . . [M]aybe I'm too young . . . for all this moving in together and getting married. I can't do all that. I know you want our son to grow up in a loving family, but I cannot be with someone who I'm not in love with. I'm not trying to be rude, but I feel you're holding me back . . . . Right now I just want to do my own thing. . . . Like I told you before, and I really mean it, you should only talk to me when you need to, if you want to know about the baby, or if you want him. If it comes down to it, we don't even have to be friends. . . . I just want everything to . . . end. . . . No matter what you say I don't want to be with you. I don't need you. And I don't want you.

According to Gonzalez, after reading the letter, defendant threw it on the table and left the house.

Robert Steven, the head of security for the Bridgeton Board of Education, testified that on the morning of January 16, 2003, he saw Flores in front of the high school as she exited a vehicle driven by an African-American male.7 Rainear, who knew Flores well, was on duty as a security guard at the high school and saw Flores arrive "just about hysterical," sobbing and as if she were "in flight." She told Rainear that defendant "took [her] off the bus stop, and . . . said he was going to kill [her]." Defendant "grabbed [Flores] by the neck" and drove to a nearby park. He had a gun and knife with him and "showed [Flores] a bullet with [her] name on it." According to Flores, defendant was distraught, wanted her to kill him, and told Flores, "[I]f you don't kill me[,] I'm going to kill you."

During her testimony, Rainear began to describe an incident of violence between Flores and defendant that occurred "a week prior" to January 16. Defense counsel immediately objected, and, at sidebar moved for a mistrial based upon the judge's prior ruling. The judge denied the motion and again gave the jury a curative instruction.

Rainear testified that the school immediately contacted the Bridgeton Police Department on January 16. The responding officer, James Shrader, spoke with Flores, went to the park where she alleged defendant had taken her and recovered her cell phone. The police took photographs of the left side of Flores's face, which bore evidence of injury. Shrader prepared a complaint for defendant's arrest but did not locate him until the next day, after the shootings had occurred.

Mary Anne Burke managed the supermarket where Flores worked. On the afternoon of January 16, accompanied by Bowman, Flores went to the store and told Burke she would not be able to work that evening. Burke described Flores as being "very shaky" because of something that had happened to her earlier that day, and the left side of her face looked discolored and "quite swollen."

School was cancelled on January 17 due to inclement weather. Gonzalez called her daughters between 11:00 a.m. and noon and learned that Bowman was with them. Bowman testified that at approximately 2:00 p.m., Ferrer unlocked the front door in anticipation of Gonzalez's return from work. At 2:05, the phone rang and Bowman answered it. It was defendant; she gave the phone to Flores.

Bowman was doing Flores' hair, so she remained in the room while Flores conversed with defendant. She heard Flores tell defendant, "yes, no, and I don't know." After approximately five minutes, Flores hung up and told Bowman that defendant had asked her "about the events from the day before, if the cops knew what happened, if they were looking for him, if he was supposed to go to jail and what was supposed to happen to him."

Fifteen minutes later, while in the kitchen washing her hands, Bowman heard Ferrer yell to her sister, "tell him to get out. I'm going to call the cops." Bowman turned and saw defendant standing in front of Flores in the dining room. Bowman saw that defendant had a gun when he lifted his sweatshirt.

Bowman heard Ferrer again implore her sister to tell defendant to leave, or she would call the police. Bowman heard Ferrer place the 9-1-1 call. Ferrer told Bowman to take her son out of the house, so Bowman "grabbed" the child and "headed for the back door." She heard two shots as she left. Bowman ran towards her home, three or four houses away, and heard another shot when she reached the front steps.

The jury heard a recording of the 9-1-1 call and was provided with a transcript that included the following:

Female Caller (Natasha Ferrer): We have an emergency in here. We've got an emergency in here. This young man has a fucking gun . . . and my son is in here.

. . . .

Female voice in background (Felicia Flores, "Fee"): (screaming.)

. . . .

Female voice in background (Felicia Flores, "Fee"): Oh my god.

Male voice in background (James Royal): It's a gun. You know that. Huh? You see what you did to me.

Background: (Two shots fired.) (Female voice screaming.)

Male voice in background (James Royal): Huh? You see what you did to me.

. . . .

Look at me. Look at me. My life's over. I loved you.

. . . .

Look at me. You did this.

. . . .

Female voice in background (Felicia Flores, "Fee"): No it's not. No it's not.

Male voice in background (James Royal): My life is over.

Female voice in background (Felicia Flores, "Fee"): No it's not. Listen to me.

. . . .

No. . . No . . . No. . . . June . . . June don't do this. Don't this. [sic] (Indiscernable)

. . . .

Don't . . . June . . . June stop.8

Bowman's cousin, Dave Smith, lived with her and testified that she was "hysterical" when she arrived home. Bowman told Smith that "her girlfriend's boyfriend [had entered] the [Gonzalez] house with a gun." As he walked toward the Gonzalez residence, Smith dialed 9-1-1 and heard a gunshot.

Police arrived at the Gonzalez home shortly after Smith's call. Inside, they found Flores and defendant on the kitchen floor, and Ferrer's dead body in the laundry room. Although Flores was initially responsive, she soon lost consciousness and expired.9 Defendant was bleeding from his abdomen and told one of the officers, "I've been shot. I've been shot." The officer observed powder burns and residue on the sweatshirt defendant was wearing and surmised that the gun had been fired at close range. Paramedics attended to defendant before he was transported from the scene. A bullet was lodged in his abdomen. Police later found defendant's mother's car parked on a nearby street.

From the kitchen floor, investigators recovered a nine-millimeter, semi-automatic handgun that contained two live rounds and a spent casing that had failed to eject from the chamber. They also found three spent casings; one on the dining room table had "Fee" scratched on the surface. Police also recovered three bullets from the scene. No bullets were recovered from the victims' bodies during autopsy.

The State called Wilmer King, a teacher who had provided defendant home instruction in 2000, and her daughter, Sheri, as witnesses. Defendant had been staying with them in the days preceding the shooting. Both women testified that defendant appeared normal during his stay and did not appear depressed or suicidal; both were shocked when they heard of the shooting. Sheri met with defendant several times after the shooting, and he never mentioned that he had intended to commit suicide on January 17.

The conclusions drawn from the autopsies of Flores and Ferrer were that both had been shot from a distance of greater than eighteen inches. Ferrer was likely bending over when struck by a single shot. Flores had been shot twice, the second shot likely having been fired while she was laying on the floor.

The State's firearms expert, State Police Investigator James Joyce, testified that the casings and bullets found in the Gonzalez home were fired from the gun recovered at the scene. Joyce opined that the fourth shell failed to eject because the shooter retarded the movement of the slide on the weapon. State Police Sergeant David Gripp, an expert in audio enhancement, described how he enhanced the recording of Ferrer's 9-1-1 call. Gripp concluded that the call captured two separate gun shots.

After the State rested, defendant's older sisters testified that they and defendant had unstable childhoods and had often been subjected to abuse and neglect by their parents and their parents' paramours. Both of defendants' siblings had attempted suicide.

For the moment, it suffices to say that primarily through the testimony of Dr. Jonathan Harold Mack, defendant's expert psychologist, it was the defense contention that defendant was depressed and suicidal after Flores rebuffed his proposal. The homicides were unintended, in the sense that defendant planned to kill himself, and the gun went off accidentally when Ferrer attempted to grab the weapon. We discuss Mack's testimony in greater detail below.

II.

In Point III, defendant contends it was error to "grant[] the prosecutor's motion to join the counts related to the January 16 incident [with] the counts related to the January 17 shooting." The State correctly points out that all the counts were included in one indictment, and defendant never sought severance.

Clearly, a motion seeking relief from prejudicial joinder must be made prior to trial. See R. 3:15-2(c) ("A motion for separate trial of counts of an indictment or accusation must be made pursuant to [Rule] 3:10-2, unless the court, for good cause shown, enlarges the time); R. 3:10-2(c) (requiring "all . . . objections based on defects in the . . . indictment . . . must be raised before trial"). Defendant's claim in this regard does not amount to error, much less plain error. R. 2:10-2.

Rule 3:7-6 provides that offenses may be charged in the same indictment if they "are of the same or similar character or are based on the same act or transaction or on [two] or more acts or transactions connected together or constituting parts of a common scheme or plan." "Central to the inquiry is 'whether, assuming the charges were tried separately, evidence of the offenses sought to be severed would be admissible under [N.J.R.E. 404(b)] in the trial of the remaining charges.'"10 State v. Chenigue-Puey, 145 N.J. 334, 341 (1996) (alteration in original) (quoting State v. Pitts, 116 N.J. 580, 601-02 (1989)). If the evidence could be admitted at both trials, the offenses may be consolidated because a defendant cannot claim prejudice. Ibid.

Defendant argues that since Bowman's testimony regarding Flores's version of her conversation with defendant was inadmissible hearsay, a point we address below, there was insufficient testimony to link the events of the prior day to the fatal shootings. We disagree, because even without Bowman's hearsay testimony, the evidence regarding defendant's actions on January 16 would have been admissible at a separate trial as to the murders on January 17.

In State v. Cofield, 127 N.J. 328, 338 (1992), the Court adopted a four-part test to determine the admissibility of evidence under N.J.R.E. 404(b).

The Cofield test requires that:

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

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

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

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

 

[State v. Williams, 190 N.J. 114, 122 (2007) (citations omitted).]

 

Additionally,

even if relevant under N.J.R.E. 404(b), such evidence must nevertheless survive the crucible for all relevant evidence: "relevant evidence may be excluded if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence."

 

[State v. Lykes, 192 N.J. 519, 534-35 (2007) (quoting N.J.R.E. 403).]

 

Because defendant never sought severance, the judge never conducted a Cofield analysis. In such circumstances, "we may conduct a plenary review to determine . . . admissibility." State v. Barden, 195 N.J. 375, 391 (2008) (citing Lykes, supra, 192 N.J. at 534).

Here, testimony regarding the events of January 16 would have been admitted at a separate trial on the homicide charges because it tended to prove an absence of "mistake or accident" when defendant fired the fatal shots. N.J.R.E. 404(b). This directly rebutted defendant's diminished capacity defense. The events of January 16 were also relevant to prove defendant's motive. Ibid.; see, e.g., State v. Nance, 148 N.J. 376, 388-89 (1997) (prior bad acts between the defendant and his girlfriend were admissible to prove that the shooting of her male friend was motivated by jealousy). Defendant's argument warrants no further discussion.

III.

We now turn to defendant's claims of error during the trial.

A.

Gonzalez testified that defendant was controlling and verbally abusive towards Flores, and that "he got physical with her." The judge sustained defendant's ensuing objection, finding an inadequate foundation for admission of this evidence. When questioning resumed, the prosecutor asked Gonzalez how she knew that defendant had gotten physical with Flores; she responded that around January 7, she had received a phone call to take Flores to the hospital because her jaw was bruised and swollen.

At this point, the jury was excused and the judge conducted the Rule 104 hearing we referenced above. After ruling that the evidence of the prior incident was inadmissible, the judge provided the following instruction to the jury:

Before we left there was some testimony by Ms. Gonzalez regarding [Flores's] jaw being bruised and swollen, and she thought it was January 7th or something. I've determined that that should be stricken from the record. And what that means is that although you heard it, you have to forget it. And this may occur from time to time during the trial. I know that's sometimes difficult. It's like un-ringing a bell, but you have to do that, and you have to make the conscious -- a conscious effort to disregard that. You cannot consider it in any manner, in any way as we progress.

The following occurred during Rainear's testimony before the jury:

Q: Did [Flores] indicate to you whether the defendant assaulted her in any way?

 

A: Yes, she did.

 

Q: What did she tell you?

 

A: She told me a week prior to this, or several days prior to this, that he had choked her by the neck, and that her mother had took [sic] her to the hospital, and she said my neck still hurts because he grabbed me by the neck again today.

Defendant immediate requested a sidebar, at which time the prosecutor apologized and stated that he had not expected Rainear's response. Defendant moved for a mistrial, but the judge denied the request and instead issued another curative instruction:

[T]he information that the witness just gave regarding something that happened several days before, that was the same information I told you to disregard. That is not part of this case. You are not to use that in any way. You are to forget it, not use it in any way in your deliberations, in your thought processes in any way. It did not happen. . . . [Y]ou're not to consider the last answer the witness gave, which had to do with something that happened several days before.

In Point IV, defendant contends that the judge's curative instructions were inadequate, and his motion for a mistrial should have been granted. We disagree.

As the Court has explained:

[A] trial is not a perfectly scripted and choreographed theatrical presentation; rather, it is an extemporaneous production whose course is often unpredictable given the vagaries of the human condition. Attorneys will sometimes pose inartfully crafted questions, and even the most precise question may bring an unexpected response from a witness. In any trial, "inadmissible evidence frequently, often unavoidably, comes to the attention of the jury."

 

[State v. Yough, 208 N.J. 385, 397 (2011) (quoting State v. Winter, 96 N.J. 640, 646 (1984).]

"Whether testimony or a comment by counsel is prejudicial and whether a prejudicial remark can be neutralized through a curative instruction or undermines the fairness of a trial are matters 'peculiarly within the competence of the trial judge.'" Ibid. (quoting Winter, supra, 96 N.J. at 646-47). "For that reason, an appellate court should not reverse a trial court's denial of a mistrial motion absent a 'clear showing' that 'the defendant suffered actual harm' or that the court otherwise 'abused its discretion.'" Ibid. (quoting State v. Labrutto, 114 N.J. 187, 207 (1989)).

In this case, defendant's objections were immediately sustained by the judge who gave a strong curative charge on both occasions. We find no mistaken exercise of the broad discretion afforded to the judge. Defendant takes issue with some of the phrasing of the curative charge, but, taken as a whole, the instructions clearly conveyed to the jury that it was not to consider the testimony regarding the prior incident.

B.

The State sought to admit the transcript of Ferrer's 9-1-1 call into evidence, arguing that the audiotape of the call had been authenticated by Gonzalez and Bowman, as well as numerous law enforcement witnesses whose voices appeared on the tape, and the transcript would help the jury identify those voices. Defense counsel objected to the transcript's admission into evidence, arguing it was cumulative evidence; he did not, however, object to the jury using the transcript as an aid.

The judge admitted the transcript into evidence. Before the recording was played, the judge carefully told the jury that the evidence in the case was "what you hear . . . . In other words, your ears control not your eyes." He repeated this instruction during his final charge.

In Point V, defendant contends it was error to permit the jury to use the transcript during deliberations, because it referenced two shots having been fired, thereby precluding the jury from independently finding otherwise. He contends this lent credence to the State's version of events.

However, the jury heard evidence from Gripp, the State's expert on audio enhancement, that two separate shots were captured during the phone call. This was circumstantially corroborated by other evidence at the crime scene and at autopsy. More importantly, the judge's limiting instructions militated against any prejudice from the transcript's admission into evidence.

C.

During pretrial proceedings, the State conceded that Flores's remarks to Bowman regarding her conversation with defendant were hearsay. It argued, however, that defendant's statements to Flores were admissible as exceptions to the hearsay rule, and Flores's recapitulation of defendant's statements was also admissible pursuant to the present-sense impression exception. See In re J.A., 195 N.J. 324, 336-337, (2008) ("That exception provides for the admissibility of '[a] statement of observation, description or explanation of an event or condition made while or immediately after the declarant was perceiving the event or condition and without opportunity to deliberate or fabricate . . . .'") (quoting N.J.R.E. 803(c)(1)). The judge agreed. In point II, defendant argues this was prejudicial error.

We exercise limited review of the trial judge's evidentiary rulings, applying an abuse of discretion standard. State v. Harris, 209 N.J. 431, 439 (2012). However, our review is de novo when the trial court "fails to apply the proper test in analyzing the admissibility of proffered evidence." Konop v. Rosen, 425 N.J. Super. 391, 401 (App. Div. 2012) (quoting Pressler & Verniero, Current N.J. Court Rules, comment 4.6 on R. 2:10-2 (2012)).

Defendant's statements to Flores were admissible pursuant to N.J.R.E. 803(b)(1) ("a statement offered against a party which is . . . the party's own statement . . . ."). "[S]ubject to N.J.R.E. 104(c), the State may introduce at a criminal trial any relevant statement made by a defendant." State v. Covell, 157 N.J. 554, 572 (1999).

Whether Flores's statements to Bowman were excepted from the hearsay rule pursuant to N.J.R.E. 803(c)(1), however, is less clear. Flores spoke to Bowman immediately after she ended her call with defendant. Thus, the evidence satisfied the requirements that the statements be made "while or immediately after . . . perceiving the event or condition." N.J.R.E. 803(c)(1); compare J.A., supra, 195 N.J. at 340 (concluding that non-appearing witness's statements regarding a robbery that occurred ten minutes earlier did not satisfy the Rule).

The issue is whether in recounting defendant's words, Flores was making a "statement of observation, description or explanation of an event or condition . . . ." N.J.R.E. 803(c)(1). Although not exactly on point, in State v. Burris, 357 N.J. Super. 326, 331-332 (App. Div. 2002), certif. denied, 176 N.J. 279 (2003), we held that hearsay testimony by witnesses who overheard a telephone conversation between the victim and the defendant wherein the victim stated, "[d]on't threaten me," was admissible. The victim's statements qualified as present sense impressions regarding the defendant's implicit threat, which was admissible as a statement against interest, N.J.R.E. 803(c)(25). Id. at 332.

Of course in this case, Bowman did more than testify about Flores's half of the phone conversation with defendant. She recounted Flores's version of what defendant had actually said. Nevertheless, Flores was explaining "an event," her conversation with defendant, "immediately after . . . perceiving the event." N.J.R.E. 803(c)(1). The judge specifically found that Flores did not have any "opportunity to deliberate or fabricate" about the conversation. Ibid. We therefore conclude the evidence was admissible. See Nuttall v. Reading Co., 235 F.2d 546, 551-53 (3rd Cir. 1956) (finding reversible error, based upon the trial court's decision to exclude decedent's wife's testimony regarding telephone conversation she overheard him having with his employer, and what he told her immediately after he hung up the phone).

However, even if we were wrong in our analysis, admission of Bowman's testimony in this regard does not require reversal. See State v. Bradshaw, 195 N.J. 493, 509 (2008) ("If there is a 'reasonable doubt as to whether the error denied a fair trial and a fair decision on the merits,' a new trial is required.") (quoting State v. Macon, 57 N.J. 325, 338 (1971)). Defendant contends that Bowman's testimony was the critical link in the chain supporting the State's contention that defendant purposely or knowingly killed Flores and Ferrer. In other words, the State's case rose or fell on the assertion that defendant killed Flores because he knew police had knowledge of the events of January 16.

But this overlooks the substantial evidence of what actually occurred on January 16, and the fact that defendant kidnapped Flores and threatened her life with a gun. We harbor no reasonable doubt as to whether defendant was fairly tried, even if admission of this testimony was erroneous.

The evidentiary arguments made by defendant in his pro se supplemental brief, as well as his contention that the judge should have sua sponte charged the jury on passion/provocation manslaughter, lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

D.

As noted, critical to defendant's claim that he intended to commit suicide, and not kill Flores and Ferrer, was the testimony of Dr. Mack, who had evaluated defendant on four occasions on various dates in 2007 and reviewed discovery materials and defendant's medical records. Dr. Mack opined that defendant had not entered the Gonzalez home with an intent to commit murder.

Defendant told Dr. Mack that he had been rejected by the Marine Corps and was experiencing financial difficulty when Flores rejected his marriage proposal. He also told Dr. Mack that he had witnessed one of his sisters' suicide attempts. Dr. Mack opined that defendant suffered from post-traumatic stress disorder (PTSD), major depressive disorder and borderline personality disorder (BPD). Dr. Mack told the jury,

it is my opinion that [defendant] was in an extremely depressed state, that he was suicidally depressed at the time of these events as a consequence of his borderline personality structure in combination with major depression.

It is my opinion, and he repeated this to me again and again, that . . . his contacts with [Flores] the day before and the day of the incidents in question, were to seek guidance and help and reassurance from her that he brought the gun . . . and showed it to demonstrate to [Flores] how serious he was about wanting to kill himself . . . .

. . . .

It is my opinion that he again went there with suicidal intent and with the idea that [Flores] could talk him out of it.

Dr. Mack opined as to the likely course of events on the day of the shooting:

[Ferrer] . . . freaked out at the sight of the weapon. She started to, from what he told me, she grabbed it . . . .

The gun went off without clear intent on the part of [defendant] to kill or harm anybody. [H]is intent was to hurt himself and to have [Flores] talk him out of his suicidality.

And things unfolded quickly, became chaotic. The gun went off. [Ferrer] was struck.

. . . .

[W]hat happened after [Ferrer] was hit was that [Flores] said don't do it and at that point, as [defendant] told me, he was getting ready to shoot himself.

Another chaotic situation occurred, gun went off again, [Flores] was struck twice, then he shot himself.

Dr. Mack acknowledged that defendant had been psychiatrically evaluated twenty-two times while in custody and was diagnosed with depression, rather than major depressive disorder; they had found no indication of BPD. Dr. Mack conceded that he never spoke with anyone else who had evaluated defendant, but he nonetheless suggested that based on his knowledge of the "routine" while defendant was in custody, the psychiatric staff had engaged only in "very brief medication examinations" of defendant.

During direct examination, the prosecutor inappropriately commented aloud regarding Dr. Mack's testing of defendant, and the judge immediately told the jury to disregard the comment. During cross-examination, Dr. Mack agreed with an article the prosecutor referenced that described the importance of prior evaluations in formulating opinions. This prompted the prosecutor to comment, "Well I guess that wouldn't make you a very good forensic . . . evaluator according to that article you agree with." The judge sustained the ensuing objection on the ground that the question was argumentative, leading the prosecutor to withdraw the question and apologize.

Defendant also objected when the prosecutor began addressing Dr. Mack as "Doc." At sidebar, the judge agreed this was disrespectful. When questioning resumed, the prosecutor asked Dr. Mack if he thought it was disrespectful to be called, "Doc," prompting yet another objection, which the judge sustained.

During summation, defense counsel underscored his client's traumatic childhood:

Was it surprising to hear, given the history that both of [defendant's] sisters had attempted suicide[?]

That kind of experience at a young age makes an impression, it causes harm, it plants a seed. All three children attempted to take their lives. All three have diagnoses of major depression with suicidal tendencies.

. . . .

Did we really need Dr. Mack to confirm that this was an emotionally and mentally damaged young man? Was it such a huge surprise that he was diagnosed after the fact with these disorders? [D]on't let the shouting matches between [the prosecutor] and Dr. Mack distract you from the essence of the issue here. [Defendant] was suffering from the diagnoses that Dr. Mack gave him. . . . [W]asn't it obvious both from his behavior and the legacy of his childhood that he was suffering from mental illnesses[?]

Counsel stressed that the State had failed to prove beyond a reasonable doubt the dispositive issue in the case, i.e., whether defendant had intended to kill Flores and Ferrer.

The prosecutor immediately began his summation by stating,

[I]f [defendant's attorneys] are so sure that this was a botched suicide that went awry, and it was an accident, then ask yourselves, why did they go to the trouble of hiring Dr. Mack to convince you that he didn't have requisite intent? An accident? There is no intent. Right? So, what does that tell you? Maybe they're not so convinced that the evidence shows it was an accident. So, we better cover the basis [sic] and hire an expert and try to convince the jury this was diminished capacity.

Defendant did not object to this comment.

Later in his closing, the prosecutor criticized Dr. Mack's credentials:

Dr. Mack . . . exaggerated [defendant's] symptoms, he exaggerated his diagnoses of [defendant] and he also exaggerated his credentials. If I cross examined him harshly [it] is because he deserved it. He comes in here holding himself out as an expert in . . . forensic psychology and forensic neuropsychology but yet he's not board certified in either specialty field . . . .

He has no education in the specialty fields of forensic psycholog[y] and neuropsychology, no post-graduate training in either of those areas.

Without objection, the prosecutor told the jury that he had not intended to insult Dr. Mack and the jury would have to determine how much weight to accord to any expert's opinion. He then said: "I don't mean to insult the court in New Jersey but, in New Jersey it's not that hard to get qualified as an expert." Defense counsel objected, but the judge permitted the prosecutor to continue without ruling.

Lastly, the prosecutor criticized Dr. Mack's diagnosis:

[I]f Dr. Mack would have said [the shootings were] the basis for [his PTSD] diagnosis . . . I wouldn't even have cross examined him on that. You know why? I would agree with it. It's a hell of a traumatic event. Two people dead or seriously injured plus myself injured. I almost die. Yeah, that's traumatic. But you see, that's after the fact. So, that couldn't support a pre-existing [PTSD] diagnosis.

So, he had to go back to find something and what does he find? Something that he reveals for the first time in court. Crystal and Shirley's attempt[s] at suicide. Did it happen? I don't know. I can't tell you whether it did or didn't. They said it did. I supposed [sic] it did. I had no opportunity to even check it out. How he knew about Crystal's attempted suicide is beyond me because the report that I received from [defendant's counsel] is dated after he wrote that report. So, I don't know how he knew about it. I would think if he knew about it, he would have mentioned it in his report but he didn't. I kind of felt blind sided by that testimony and I questioned its reliability.

 

Defendant did not object to these remarks.

In Point I, defendant argues that the prosecutor's cross-examination of Dr. Mack and his summation comments were so egregious that reversal is required. While we agree that some of the comments were improper, we do not think they denied defendant a fair trial.

"New Jersey courts have commented repeatedly on the special role filled by those entrusted with the responsibility to represent the State in criminal matters, observing that the primary duty of a prosecutor is not to obtain convictions but to see that justice is done." State v. Smith, 212 N.J. 365, 402-03 (2012) (citing State v. Daniels, 182 N.J. 80, 96 (2004)). "A finding of prosecutorial misconduct does not end a reviewing court's inquiry because, in order to justify reversal, the misconduct must have been 'so egregious that it deprived the defendant of a fair trial.'" State v. Smith, 167 N.J. 158, 181 (2001) (quoting State v. Frost, 158 N.J. 76, 83 (1999)). To warrant reversal, the prosecutor's conduct must constitute a clear infraction and "'substantially prejudice the defendant's fundamental right to have a jury fairly evaluate the merits of his [or her] defense.'" State v. Roach, 146 N.J. 208, 219, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996) (quoting State v. Bucanis, 26 N.J. 45, 56 (1958)).

A court must consider the following three factors in assessing "the impact of improper prosecutorial remarks: '(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.'" State v. Jackson, 211 N.J.394, 409 (2012) (quoting Smith, supra, 167 N.J. at 182). We consider the prosecutor's comments in the context of the entire summation. Ibid.

Here, the prosecutor's cross-examination of Mack was aggressive, but the judge never abdicated his broad discretion to control the courtroom and the examination of all witnesses. N.J.R.E. 611. We are, however, troubled by the prosecutor's attack upon the defense in general, and Dr. Mack's role in that defense.

"Consistent with their obligation to seek justice, prosecutors may not advance improper arguments. They cannot cast unjustified aspersions on defense counsel or the defense, or imply that defense counsel and defense witnesses "concocted" an alibi[.]" State v. Lazo, 209 N.J. 9, 29 (2012) (internal quotations and citations omitted); and see Smith, supra, 167 N.J. at 182-88 (holding prosecutor's comments regarding defense experts required reversal).

The most egregious comment was made in reply to defense counsel's claim that defendant's mental instability was obvious and no expert testimony was necessary. Although the prosecutor was entitled to rebut that claim, he exceeded the bounds of proper comment when he said that defense counsel concluded they "better cover the basis [sic] and hire an expert and try to convince the jury this was diminished capacity." However, there was no objection to this remark. See Jackson, supra, 211 N.J. at 409 (noting whether counsel made "timely and proper objections to the improper remarks" is one factor guiding "the [c]ourt's assessment of the impact of improper prosecutorial remarks"). The failure to object indicates defense counsel "perceived no prejudice." Smith, supra, 212 N.J. at 407.

The prosecutor's criticism of Dr. Mack's expertise and methods was proper, although his statement that it was "not that hard to get qualified as an expert" in New Jersey courts was improper. It demeaned the trial process, in particular the judge's ruling, over the State's objection, that recognized Dr. Mack as an expert. However, when we assess the various complaints defendant now makes versus the strength of the State's case, we are convinced that reversal is not required. See State v. Bunch, 180 N.J. 534, 549 (2004) (prosecutor's improprieties did not warrant reversal because there was substantial evidence of the defendant's guilt).

Defendant's pro se arguments regarding the prosecutor's conduct lack sufficient merit to warrant discussion. R. 2:11-3(e)(2).

IV.

In Point VI, defendant claims that his burglary conviction should be reversed because there was insufficient evidence to prove the essential elements of the offense beyond a reasonable doubt. The State correctly points out that defendant never raised this issue below, and therefore it argues the issue is not cognizable on appeal. See R. 2:10-1 ("the issue of whether a jury verdict was against the weight of the evidence shall not be cognizable on appeal unless a motion for a new trial on that ground was made in the trial court"). Nevertheless, we may consider whether submitting the burglary count to the jury was plain error. See, e.g., State v. Smith, 262 N.J. Super. 487, 512 (App. Div. 1998) ("Appellate intervention is warranted only to correct an injustice resulting from a plain and obvious failure of the jury to perform its function.") (internal quotations and citations omitted).

The time-honored test for determining whether there is sufficient evidence to support a criminal conviction is

whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.

[State v. Reyes, 50 N.J. 454, 459 (1967).]

To convict defendant of second degree burglary, the State had to prove beyond a reasonable doubt that he: 1) entered the Gonzalez home, which he was not "licensed or privileged to enter," "with purpose to commit an offense therein;" and 2) in the course of committing the burglary, he "[p]urposely, knowingly or recklessly" inflicted bodily injury or was armed with a deadly weapon. N.J.S.A. 2C:18-2. Defendant argues that there was insufficient proof that he was not licensed or privileged to enter.

The State maintains, however, that the jury could conclude beyond a reasonable doubt that defendant entered the Gonzalez home without permission, based upon Gonzalez's testimony and Bowman's statement that she heard Ferrer yelling at Flores to "tell him to get out." It further claims that the jury could infer that Flores did not voluntarily permit defendant to enter, but, instead, he took advantage of the door being unlocked in anticipation of Gonzalez's return. The jury was also free to infer that given the events of the day before, it was unlikely that Flores would have willingly let defendant in the house. Furthermore, although she was in another room, Bowman testified that she did not hear a doorbell or a knock.

Under all these circumstances, we conclude the jury could have found defendant guilty of second-degree burglary beyond a reasonable doubt.

V.

In imposing sentence, the judge concluded that it was appropriate to impose a consecutive sentence for the kidnapping offense, which occurred at a different time than the murders and involved Flores, but not Ferrer. He also reasoned that two consecutive life terms were appropriate because there were two victims.

The judge found three aggravating factors: "[t]he risk that the defendant will commit another offense, N.J.S.A. 2C:44-1(a)(3); "[t]he extent of the defendant's prior criminal record and the seriousness of" his latest convictions, N.J.S.A. 2C:44-1(a)(6); and the need to deter defendant and others from violating the law, N.J.S.A. 2C:44-1(a)(9). The judge rejected defendant's argument that mitigating factor four applied, based upon defendant's childhood traumas. See N.J.S.A. 2C:44-1(b)(4) ("[t]here were substantial grounds tending to excuse or justify the defendant's conduct, though failing to establish a defense"). The judge noted that mitigating factor six, "defendant has compensated or will compensate the victim of his conduct for the damage or injury that he sustained, or will participate in a program of community service," N.J.S.A. 2C:44-1(b)(6), applied to a degree because defendant would be ordered to pay restitution, but he gave it only "slight weight" because defendant was unlikely to make payment from prison. The judge also considered, but gave no weight to, mitigating factor eleven, "imprisonment of the defendant would entail excessive hardship to himself or his dependents." N.J.S.A. 2C:44-1(b)(11).

The judge concluded that the aggravating factors preponderated. He noted that defendant had an extensive juvenile criminal history and a recent assault conviction as an adult, and he accorded "substantial weight" to the seriousness of defendant's recent crimes and the need for specific deterrence.

In Point VII, defendant argues that the judge failed to appropriately consider the factors set forth in Yarbough, supra, before imposing consecutive sentences on the homicide and kidnapping offenses. He also contends the sentence was manifestly excessive. We disagree.

"Appellate review of the length of a sentence is limited." State v. Miller, 205 N.J. 109, 127 (2011). We assess whether the aggravating and mitigating factors were based upon "'competent credible evidence in the record.'" Ibid. (quoting State v. Bieniek, 200 N.J. 601, 608 (2010)). We do not "'substitute [our] assessment of aggravating and mitigating factors' for the trial court's judgment." Ibid.(quoting Bieniek, supra, 200 N.J.at 608). When the judge has followed the sentencing guidelines, and his findings of aggravating and mitigating factors are supported by the record, we will only reverse if the sentence "shocks the judicial conscience" in light of the particular facts of the case. State v. Roth, 95 N.J. 334, 364 (1984); accord State v. Cassady, 198 N.J. 165, 183-84 (2009).

In Yarbough, supra, 100 N.J. at 643-44, the Court set forth factors to be considered when deciding whether to impose consecutive or concurrent sentences. The Yarbough factors essentially focus upon "'the nature and number of offenses for which the defendant is being sentenced, whether the offenses occurred at different times or places, and whether they involve numerous or separate victims.'" State v. Carey, 168 N.J. 413, 423 (2001) (quoting State v. Baylass, 114 N.J. 169, 180 (1989)).

Here, although the judge did not provide a lengthy explanation of his reasons, we cannot conclude that he mistakenly exercised his discretion by imposing consecutive sentences for the two murders, and a consecutive sentence on the kidnapping charge. See Cassady, supra, 198 N.J. at 181-82 (affirmingconsecutive sentence where trial court found "[s]imply stated, they were separate crimes, against separate victims, at separate times, and in different locations"); State v. Swint, 328 N.J. Super. 236, 264 (App. Div.) ("While we recognize that the offenses were not predominately independent of each other and were committed close in time and place . . . our judicial conscience is not the least bit shocked by the imposition of consecutive sentences."), certif. denied, 165 N.J. 492 (2000).

We also disagree with defendant's claim that the judge failed to give adequate consideration to the mitigating sentencing factors, or that the sentences imposed were "gratuitous and unlawful." We find defendant's pro se argument regarding his sentence to lack sufficient merit to warrant discussion. R. 2:11-3(e)(2).

Affirmed.

 

1 When charged, defendant was eligible for the death penalty, and specific aggravating sentencing factors were alleged in the two counts of murder. Prior to trial in this case, the Legislature abrogated the death penalty. See State v. Troxell, 434 N.J. Super. 502, 510-11 (App. Div. 2014) (explaining repeal of the death penalty and the Legislature's enactment of life imprisonment without eligibility for parole in its place).

2 Counts three and twelve were dismissed prior to jury deliberations.

3 We have omitted the sub-point headings contained in defendant's table of contents, and those in defendant's pro se supplemental brief.

4 State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).

5 Dr. Ian Hood was one of two medical examiners produced by the State as witnesses at trial. He did not perform the autopsies on the victims.

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

7 Defendant is African-American.

8 Flores was known by the nickname, "Fee"; "June-June" was a nickname she used for defendant.

9

One of the responding officers testified that Ferrer was the individual in the kitchen with defendant, however, the balance of the testimony reveals that this officer was confused and Ferrer was dead in the laundry room when police arrived.

10 N.J.R.E. 404(b) provides:

Other crimes, wrongs, or acts. Except as otherwise provided by Rule 608(b) evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.