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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3676-12T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
LATONIA E. BELLAMY a/k/a NA-NA,
Defendant-Appellant.
_________________________________
Argued September 12, 2017 – Decided November 8, 2017
Before Judges Fisher, Sumners and Moynihan.
On appeal from Superior Court of New Jersey,
Law Division, Hudson County, Indictment No.
11-03-0348.
Daniel Rockoff, Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender, attorney;
Al Glimis, Assistant Deputy Public Defender,
of counsel and on the brief).
Roseanne Sessa, Assistant Prosecutor, argued
the cause for respondent (Esther Suarez,
Hudson County Prosecutor, attorney; Ms. Sessa,
on the brief).
PER CURIAM
A jury convicted defendant of the first-degree murders of Nia
Haqq and Michael Muchioki and other offenses related to a
carjacking and robbery. She was sentenced to life and a
consecutive thirty-year term. In appealing, defendant contends
the trial judge: (1) erred in its jury instructions; (2) allowed
prosecutorial misconduct during summations without providing a
curative instruction; (3) imposed an excessive sentence; and (4)
committed cumulative error. We conclude that, based upon the
evidence presented, the trial judge's instructions were
appropriate. Also, the prosecutor's summation remarks were fair
comment on the evidence and the defense's summation. Consequently,
there was no cumulative error, and we therefore affirm the
conviction. However, we remand for resentencing as the trial
judge failed to adequately explain the application of aggravating
factors and his decision not to apply mitigating factor eight as
requested by defendant.
I.
Defendant was indicted, along with her cousin, Shiquan D.
Bellamy, and Darmelia Lawrence, with multiple counts of first-
2 A-3676-12T2
degree murder, felony murder, carjacking, robbery, and weapons
offenses. Defendant was tried alone.1
At trial, the jury heard testimony from Amanda Muchioki that,
at approximately 2:30 a.m. on April 4, 2010, she heard a car pull
up in front of her Jersey City home where she lived with her
brother, Michael, and his fiancée, Nia. Amanda heard a male voice
say "get out of the car" that was followed by "a loud bang." She
looked out the window but could not identify the "two people
standing at the car" or ascertain their gender. As Amanda ran to
another room to obtain her cellphone to call 911, she heard "three
more shots." She estimated these other shots - described as three
"smaller explosion[s]" - occurred approximately "ten, [fifteen]
seconds" after the first "big bang." After calling 911 to report
the incident, Amanda remained out of sight because she feared
someone would enter the home. When police arrived approximately
five minutes later, Amanda went outside and saw the gunshot bodies
of Michael and Nia, laying on the ground outside of Nia's black
SUV.
1
Shiquan was tried separately, and convicted of multiple counts
of murder, felony murder, carjacking, robbery, weapons offenses,
and conspiracy to commit robbery. Lawrence pled guilty to two
counts of robbery and agreed to cooperate with the prosecution.
She testified on behalf of the State against Shiquan but did not
testify at defendant's trial.
3 A-3676-12T2
Another neighbor testified that, after she heard a "loud
boom," she ran to her second-floor window to see three individuals,
whom she described as consisting of one male and two female
African-Americans, get into a black SUV. The witness went back
to bed but then heard three other "pops" which she knew were
"gunshots," which caused her to call the police. She looked out
the window again to see the three individuals get out of the
vehicle and run down the street.
In the follow-up investigation, the prosecutor's office
interrogated Lawrence after finding her fingerprints on Nia's
vehicle. Because of her interrogation, the prosecutor's office
asked defendant to come in for questioning. Defendant voluntarily
reported to the prosecutor's office, and after being advised of
her Miranda2 rights, she gave a video-recorded statement
implicating herself, Lawrence, and Shiquan3 in the murder,
carjacking and robbery of Michael and Nia, which was played to the
jury.
Defendant stated they left a party, and went to an apartment
where Shiquan retrieved a shotgun and 9 mm handgun. When they
2
Miranda v. Arizona,
384 U.S. 436,
86 S. Ct. 1602,
16 L. Ed. 2d 694 (1966).
3
We use his first name because he has the same last name as
defendant.
4 A-3676-12T2
left the apartment with no specific destination in mind, she
possessed the handgun and Shiquan had the shotgun. They eventually
came across the victims outside a vehicle, when Shiquan ordered
them to the ground and "to give [him] everything." Despite their
compliance, Shiquan shot Michael in the head with the shotgun.
Defendant stated she fired two shots from the handgun towards Nia,
but did not know whether the bullets hit Nia. She claimed Shiquan
then told her to give him the handgun, which he used to shoot Nia
in the head. They got in the vehicle, but after a locking device
on the steering wheel prevented them from driving away, they got
out and ran back to the apartment. While in route, Shiquan
discarded the wallets containing credit cards, driver's license,
and cellphone, but gave defendant twenty to forty dollars taken
from the victims. The discarded items were located by police in
their search of the crime scene or were later turned over to police
by a neighborhood resident.
The jury also heard testimony from the county medical
examiner. An autopsy of Michael's body demonstrated he died from
a near contact shotgun wound to his head and a gunshot wound to
his buttocks, delivered from a distance greater than eighteen
inches. An autopsy of Nia's body revealed she died from gunshots
from a distance greater than eighteen inches to the back of her
5 A-3676-12T2
head and her left thigh that appeared to have hit the pavement
before entering her body.
Defendant testified on her behalf. She stated she was not
aware of Shiquan's plans to rob, shoot or carjack anyone, and did
not willingly participate in such crimes. She admitted telling
Shiquan before they left the apartment that she wanted to fire a
gun but asserted she did not intend to shoot at anyone when they
went outside. She claimed Shiquan directed her to shoot Nia but
she only shot at the ground because she did not have the heart to
shoot her. She stated her fear of what Shiquan might do to her,
made her accept the victims' stolen money from him and kept her
from leaving when she realized what Shiquan was doing.
The jury found defendant guilty of first-degree purposeful
or knowing murder of Nia,
N.J.S.A. 2C:11-3(a)(1) and (2); four
counts of first-degree felony murder,
N.J.S.A. 2C:11-3(a)(3); two
counts of first-degree carjacking,
N.J.S.A. 2C:15-2; two counts
of first-degree robbery,
N.J.S.A. 2C:15-1; two counts of second-
degree possession of a weapon for an unlawful purpose,
N.J.S.A.
2C:39-4(a); and second-degree conspiracy to commit robbery,
4 N.J.S.A. 2C:15-1 and
N.J.S.A. 2C:5-2. She was found not guilty
of Michael's murder and some weapons offenses. She was sentenced
4
Subsequently dismissed upon the State's motion.
6 A-3676-12T2
to a life term subject to the No Early Release Act (NERA),
N.J.S.A.
2C:43-7.2, for Nia's murder, and a consecutive thirty-year term
subject to NERA for felony murder of Michael. After merger and
imposition of consecutive terms, she will have to serve ninety-
three and three-quarter years before being eligible for parole.
II.
Before us, defendant argues:
POINT I
A CRITICAL SECTION OF THE ACCOMPLICE LIABILITY
CHARGE THAT CAUTIONED THE JURY THAT MERE
PRESENCE AT OR NEAR THE SCENE DOES NOT MAKE
ONE A PARTICIPANT IN THE CRIME WAS OMMITTED.
POINT II
THE TRIAL COURT ERRED IN FAILING TO CHARGE THE
JURY ON THE DEFENSE OF DURESS WHICH WAS
CLEARLY INDICATED BY THE EVIDENCE AT TRIAL.
THE ERROR DEPRIVED DEFENDANT OF THE RIGHT OF
DUE PROCESS AND A FAIR TRIAL. (NOT RAISED
BELOW).
POINT III
THE TRIAL COURT'S DENIAL OF DEFENDANT'S
REQUEST TO CHARGE THE JURORS ON THEFT BY
RECEIVING STOLEN PROPERTY, AS A LESSER
INCLUDED OFFENSE OF ROBBERY, DEPRIVED
DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW
AND A FAIR TRIAL.
POINT IV
THE PROSECUTOR, IN SUMMATION, DENIGRATED THE
DEFENSE AND COMMENTED ON FACTS NOT IN
EVIDENCE. AS DEFENDANT TIMELY OBJECTED TO
THESE COMMENTS, THE TRIAL COURT'S FAILURE TO
7 A-3676-12T2
SUSTAIN DEFENDANT'S OBJECTION AND ISSUE A
CURATIVE INSTRUCTION DENIED DEFENDANT A FAIR
TRIAL.
POINT V
THE TRIAL WAS SO INFECTED WITH ERROR THAT EVEN
IF EACH INDIVIDUAL ERROR DOES NOT REQUIRE
REVERSAL, THE AGGREGATE OF THE ERRORS DENIED
[DEFENDANT] A FAIR TRIAL.
POINT VI
THE IMPOSITION OF OVER NINETY-THREE YEARS OF
PAROLE INELIGIBILITY WAS A MANIFESTLY
EXCESSIVE SENTENCE UNDER ALL OF THE APPLICABLE
CIRCUMSTANCES.
A.
Defendant's initial three points challenge the trial judge's
jury instructions. "Clear and correct jury instructions are
essential for a fair trial." State v. Randolph,
441 N.J. Super.
533, 558 (App. Div. 2015), aff'd,
228 N.J. 566 (2017) (citing
State v. Brown,
138 N.J. 481, 522 (1994)). "'[E]rroneous
instructions on material points are presumed to' possess the
capacity to unfairly prejudice the defendant." State v. Baum,
224 N.J. 147, 159 (2016) (citing State v. Bunch,
180 N.J. 534, 542
(2004)). However, "[n]o party is entitled to have the jury charged
in his or her own words; all that is necessary is that the charge
as a whole be accurate." State v. Jordan,
147 N.J. 409, 422
(1997).
8 A-3676-12T2
Thus, when the trial judge does not give a jury a charge
requested by defendant, we must determine if the omission of the
charge was not harmless error. See State v. Macon,
57 N.J. 325,
337-38 (1971). "The test of whether an error is harmless depends
upon some degree of possibility that it led to an unjust verdict."
State v. Burton,
309 N.J. Super. 280, 289 (App. Div.), certif.
denied,
156 N.J. 407 (1998). "If the possibility of an unjust
result is sufficient to raise in our minds a reasonable doubt as
to whether the error led the jury to a result it otherwise might
not have reached, a new trial is required." State v. Walden,
370 N.J. Super. 549, 562 (App. Div.), certif. denied,
182 N.J. 148
(2004).
Defendant first argues that the trial judge mistakenly
believed he instructed the jury on the "mere presence"5 portion of
5
Pursuant to the Criminal Model Jury Charge, "Liability for
Another's Conduct," the "mere presence" portion of the accomplice
liability charge is as follows:
Mere presence at or near the scene does not
make one a participant in the crime, nor does
the failure of a spectator to interfere make
him/her a participant in the crime. It is,
however, a circumstance to be considered with
the other evidence in determining whether
he/she was present as an accomplice. Presence
is not in itself conclusive evidence of that
fact. Whether presence has any probative
value depends upon the total circumstances.
To constitute guilt there must exist a
9 A-3676-12T2
the accomplice liability charge when he gave his initial
instruction. She also points out that the judge did not instruct
on "mere presence" when he recharged the jury in response to a
jury question on accomplice liability. She asserts this portion
of the charge "would have informed the jury that it needed to
examine the totality of the circumstances as those circumstances
appear in the evidence in order to determine whether she was an
accomplice to Shiquan . . . ." We are unpersuaded.
Defendant's testimony and her statement to police do not
support a "mere presence" charge. She voluntarily took a loaded
handgun from Shiquan, knowing he had a loaded shotgun, and went
out to the Jersey City streets. She admitted that, during the
community of purpose and actual participation
in the crime committed.
While mere presence at the scene of the
perpetration of a crime does not render a
person a participant in it, proof that one is
present at the scene of the commission of the
crime, without disapproving or opposing it,
is evidence from which, in connection with
other circumstances, it is possible for the
jury to infer that he/she assented thereto,
lent to it his/her countenance and approval
and was thereby aiding the same. It depends
upon the totality of the circumstances as
those circumstances appear from the evidence.
[Model Jury Charge (Criminal), "Liability for
Another's Conduct (
N.J.S.A. 2C:2-6)
Accomplice" (1995).]
10 A-3676-12T2
commission of the robbery, she fired the handgun at Nia after
Shiquan had already shot Michael.
Furthermore, we are convinced the accomplice liability
instruction given by the judge, adequately addressed the
defendant's position that she was not an active participant in the
crimes. The judge charged the jury:
Before turning to the distinctions between
these forms of homicide, you need to
understand how the law assigns responsibility
for the commission of a crime.
As relevant in this case, a person can be held
responsible for the commission of a crime in
two ways.
First, if the person actually commits this
crime, he is a[s] accountable as a principal.
Another way a person can be responsible is as
an accomplice to the person who actually
commits the crime.
A person is an accomplice of another person
in the commission of an offense if, with the
purpose of promoting or facilitating the
commission of the offense, he or she either
solicits such other person to commit it and/or
aids or agrees to aid such person in planning
or committing it.
. . . .
Now[,] Count 17 charges the [d]efendant with
the murder of Michael Muchioki. The State
does not contend that this [d]efendant fired
the shot which brought about his death.
However, they do allege that this [d]efendant
was an accomplice of Shiquan Bellamy, the
principal.
11 A-3676-12T
2 Count 24 charges this [d]efendant with the
murder of Nia Haqq. The State contends that
this [d]efendant actually fired the fatal shot
resulting in her death. Alternatively, they
argue that even if she did not fire that shot,
she is legally accountable for the murder of
Ms. Haqq as an accomplice to Shiquan Bellamy,
the person who fired the shot.
The [d]efendant argues she did not fire the
fatal shot to Ms. Haqq, nor was she an
accomplice to Shiquan Bellamy insofar as she
did not have the purpose to murder either Ms.
Haqq or Mr. Muchioki.
Whether or not the [d]efendant bears
responsibility for either or both murders will
depend therefore upon your findings of fact
as they relate to what, if any, role she played
in this event, and what her purpose was.
If you find the State has proved beyond a
reasonable doubt that this [d]efendant
purposefully or knowingly fired the fatal shot
to Ms. Haqq and caused her death, then she
would be guilty of her murder as a principal.
If you find the State has not proved beyond a
reasonable doubt that she fired a fatal shot,
but find that she, having the purpose to
murder Ms. Haqq, aided or assisted Shiquan
Bellamy in committing the murder, then she
would be guilty of her murder as his
accomplice.
If you find that this [d]efendant aided or
assisted Shiquan Bellamy in the commission of
the offense, but that she did not share with
him the purpose to cause her death, but rather
to cause some lesser injury, then she would
not be guilty of murder, but guilty of the
lesser offense as his accomplice.
If you find the State has failed to prove
beyond a reasonable doubt that the [d]efendant
12 A-3676-12T2
fired the fatal shot to Ms. Haqq, or that she
acted as Shiquan Bellamy's accomplice in
either murder, then she must be found not
guilty of the murder of Ms. Haqq or Mr.
Muchioki.
Hence, we find no error in the judge's jury instructions.
Indeed, even if the judge could be said to have erred in failing
to give greater emphasis to defendant's alleged "mere presence"
at the crime scene, such an error would be harmless because it
could not produce an unjust result.
Defendant next argues the trial judge failed to sua sponte
charge the jury with the affirmative defense of duress. She claims
the judge should have done so based upon her testimony that she
denied any intent to rob or kill anyone and that she failed to
leave Shiquan during the crime because he was armed with a shotgun
during the entire incident and she feared him. We disagree.
Since defendant did not request a jury instruction for the
affirmative defense of duress, the plain error standard applies.
State v. Burns,
192 N.J. 312, 341 (2007) (citing R. 2:10-2; State
v. Torres,
183 N.J. 554, 564 (2005)). With regard to a jury
charge,
plain error requires demonstration of "[l]egal
impropriety in the charge prejudicially
affecting the substantial rights of the
defendant sufficiently grievous to justify
notice by the reviewing court and to convince
the court that of itself the error possessed
13 A-3676-12T2
a clear capacity to bring about an unjust
result."
[Ibid. (alteration in original) (quoting State
v. Jordan,
147 N.J. 409, 422 (1997)).]
N.J.S.A. 2C:2-9, defines duress as:
an affirmative defense that the actor engaged
in the conduct charged to constitute an
offense because he was coerced to do so by the
use of, or a threat to use, unlawful force
against his person or the person of another,
which a person of reasonable firmness in his
situation would have been unable to resist.
Under
N.J.S.A. 2C:2-9, "the burden [is] on the defendant to
come forward with some evidence of the defense and the burden of
proof on the State to disprove the affirmative defense beyond a
reasonable doubt." State v. Romano,
355 N.J. Super. 21, 35-36
(App. Div. 2002) (citation omitted). In addition, Rule 3:12-1
provides that a defendant intending to raise the defense of duress
must give written notice to the prosecutor "[n]o later than seven
days before the Initial Case Disposition Conference . . . . If a
party fails to comply with this Rule, the court may take such
action as the interest of justice requires" including an
adjournment or an extension of time. The Rule, however, does not
obligate a judge to sua sponte consider such relief. The court's
duty to act sua sponte "arises only when the record evidence
14 A-3676-12T2
clearly indicates the need for or clearly warrants [action]." See
State v. Rivera,
205 N.J. 472, 489 (2011) (citation omitted).
Applying these guidelines, we are satisfied the judge did not
commit plain error by not giving the jury a duress charge.
Defendant did not provide proper notice of such defense, and has
not demonstrated that in the interest of justice she should have
been allowed to make an untimely request. Moreover, the record
does not indicate duress applies here, where there was no evidence
of defendant being coerced or threatened by Shiquan to fire the
handgun at Nia or participate in the offenses committed that early
morning. Despite defendant's testimony that, after Shiquan shot
Michael and before she fired two shots at Nia, Shiquan told her,
"you want to shoot a fucking gun, shoot the gun," and "shoot the
fuckin gun," there is no evidence that she was forced to shoot.
In fact, Shiquan's assertion amplifies defendant's testimony that
when Shiquan gave her the handgun, she stated she "always wanted
to shoot a gun[,]" which belies her claim she was not a willing
participant in the criminality that occurred.
In addition, while defendant testified she thought they were
only going to shoot the gun "in the air" or possibly at some cans,
she admitted that she had a gut feeling "something was gonna
happen." When asked why she did not turn around or stop what she
was doing, she replied "[c]ause that's my cousin and I wanted to
15 A-3676-12T2
go with him . . . [h]e's like my brother." Significantly,
defendant neither testified nor presented any evidence that
Shiquan pointed his shotgun at her or otherwise threatened her to
do anything.
Defendant's last contention concerning jury instructions
involves the trial judge's refusal of her request to instruct the
jury on theft by receiving stolen property as a lesser-included
offense of second-degree robbery. She argues the instruction was
merited because she testified she had no intention to rob the
victims and her receipt of twenty to forty dollars from Shiquan
indicated she could be found guilty of theft by receiving stolen
property rather than robbery. We disagree.
When a defendant requests a charge on a lesser-included
offense, the trial court applies a two-prong test to determine if
the charge should be given: "whether an included offense charge
is appropriate requires (1) that the requested charge satisfy the
definition of an included offense set forth in
N.J.S.A. 2C:1-8(d),6
6 N.J.S.A. 2C:1-8(d) states an offense is a lesser-included
offense when:
(1) It is established by proof of the same or
less than all the facts required to establish
the commission of the offense charged; or
16 A-3676-12T2
and (2) that there be a rational basis in the evidence to support
a charge on that included offense." State v. Thomas,
187 N.J.
119, 131 (2006).
The court must consider "whether the evidence presents a
rational basis on which the jury could acquit the defendant of the
greater charge and convict the defendant of the lesser." State
v. Brent,
137 N.J. 107, 117 (1994). "[S]heer speculation does not
constitute a rational basis. The evidence must present adequate
reason for the jury to acquit the defendant on the greater charge
and to convict on the lesser." Id. at 118-19 (citations omitted).
"'[A] contention that the jury might accept the prosecution's
evidence in part and might reject it in part ought not to be
sufficient.'" Id. at 115 (citing Model Penal Code § 1.08 cmt. at
42-43 (Tentative Draft No. 5, 1956) (citations omitted)).
Defendant was charged with robbery, which occurs when:
. . . in the course of committing a theft, he:
(2) It consists of an attempt or conspiracy
to commit the offense charged or to commit an
offense otherwise included therein; or
(3) It differs from the offense charged only
in the respect that a less serious injury or
risk of injury to the same person, property
or public interest or a lesser kind of
culpability suffices to establish its
commission.
17 A-3676-12T2
(1) Inflicts bodily injury or uses force upon
another; or
(2) Threatens another with or purposely puts
him in fear of immediate bodily injury; or
(3) Commits or threatens immediately to commit
any crime of the first or second degree.
An act shall be deemed to be included in the
phrase "in the course of committing a theft"
if it occurs in an attempt to commit theft or
in immediate flight after the attempt or
commission.
[N.J.S.A. 2C:15-1(a).]
The crime of theft of receiving stolen property occurs when
a person "knowingly receives . . . movable property of another
knowing that it has been stolen, or believing that it is probably
stolen . . . . 'Receiving' means acquiring possession, control or
title, or lending on the security of the property."
N.J.S.A.
2C:20-7.
Our court has concluded that theft is a lesser-included
offense of robbery, and it is appropriate to charge theft if "there
is a question whether the defendant's act of 'inflict[ing] bodily
injury,' 'us[ing] force upon another’ or 'threat[ening] another
with [or] purposefully put[ting] him in fear of bodily injury'
occurred 'in the course of committing a theft.'" State v. Harris,
357 N.J. Super. 532, 539 (App. Div. 2003) (alterations in original)
18 A-3676-12T2
(citing State v. Jordan,
240 N.J. Super. 115, 120-21 (App. Div.),
certif. denied,
122 N.J. 328 (1990)).
Here, defendant's admission that she fired two shots while
the victims were on the ground leaves no doubt that she either
inflicted bodily injury or threatened immediate bodily injury on
the victims during the theft. Thus, there is no evidence
supporting a rational basis for an instruction of theft by
receiving stolen property.
B.
Defendant contends in Point IV that she was denied a fair
trial based upon two comments by the prosecutor during his closing
argument. First, defense counsel objected, contending it was not
"fair comment," and the prosecutor was "characterizing and
mischaracterizing" defendant, when the prosecutor maintained:
While I was sitting here, I couldn't believe
he said this. He said – . . . you are going
to get more law than you need. You never get
more law than you need, ever.
What does he want you to do? Just sort of
like go in there and decide well, you know,
she dressed nice when we first saw her. She
had those nice little glasses on that made her
look like a librarian. She's probably not a
bad person. Yeah, okay, I am sure she's sorry
for what she did. Is that what he wants you
to do.
19 A-3676-12T2
The judge denied the objection, explaining the prosecutor was
referring to a statement by defense counsel,7 and that the
prosecutor is "entitled to frame his argument as he sees it. . .
[t]hat is comment on what [defense counsel] said."
Second, the prosecutor made the following comment, which
defense counsel objected to, that: "[l]et me throw just one more
thing here that I want to talk about. Here is where that spent
cartridge was found. Remember that, and you'll notice where it's
in proximity to Nia's head, right here, okay." Defense counsel
argued this remark misled the jury because the detective could not
conclude whether a particular shell was attributed to a particular
bullet.
The judge denied the objection, explaining:
[The prosecutor] is commenting on the state
of the evidence. He's not testifying that
that's the bullet that hit her in the head.
7
During summation, defense counsel said:
Before you can even arrive at determining
whether or not the [j]udge will instruct you
and I caution you, you are going to get a lot
of law. However, you apply the law to those
facts you find. If your facts don't size up
to the law you're getting, you just move on.
You and you alone are the absolute ultimate
fact-finders here.
So you're going to get more law than you need.
Trust me. The facts, the few facts that you
would find about her involvement, it's that
what you apply the law to.
20 A-3676-12T2
It is, nonetheless, a possibility, and a fair
inference for the jury to draw. He's
suggesting an inference from the evidence.
The evidence is, the cartridge casing was
found where he's indicated and it is fair to
suggest how it got there.
Further, in response to defense counsel's contention that there
was no expert testimony to support the prosecutor's assertion, the
judge reasoned:
The evidence indicates where the casing was
found. He's free to suggest how it got there.
Doesn't have to have an expert opinion that
that bullet and that casing were at one time
together. It is not necessary to make the
comment.
A defendant's conviction should only be reversed due to
prosecutorial wrongdoing "where the . . . misconduct was so
egregious that it deprived the defendant of a fair trial." State
v. Frost,
158 N.J. 76, 83 (1999) (citations omitted). While a
prosecutor "in . . . summation may suggest legitimate inferences
to be drawn from the record," a prosecutor "commits misconduct
when [the summation] goes beyond the facts before the jury." State
v. Harris,
156 N.J. 122, 194 (1998). The misconduct "must have
been 'clearly and unmistakably improper,' and must have
substantially prejudiced defendant's fundamental right to have a
jury fairly evaluate the merits of his defense." State v.
Timmendequas,
161 N.J. 515, 575 (1999), cert. denied, 534 U.S. 21 A-3676-12T2
858,
122 S. Ct. 136,
151 L. Ed. 2d 89 (2001). In this case, none
of the prosecutor's remarks compromised the ability of the jury
to fulfill its fact-finding function. We agree with the trial
judge's rulings for the reasons set forth in his oral decisions.
Moreover, the judge instructed the jury that they are the sole
judges of the evidence and that summations are not evidence and
should not be treated as such. And we presume the jurors followed
the court's instructions. State v. Montgomery,
427 N.J. Super.
403, 410 (App. Div. 2012), certif. denied,
213 N.J. 387 (2013).
C.
Given our conclusions that there were no trial errors, there
can be no cumulative errors as contended in Point IV that could
have denied defendant a fair trial.
III.
Finally, we turn to defendant's argument that her sentence
is excessive because the record did not support the judge's
weighing of aggravating and mitigating factors. Defendant
specifically contends the judge should not have applied
aggravating factors one, three, and nine.
N.J.S.A. 2C:44-1(a)(1)
(the nature and circumstances of the offense); -1(a)(3) (the risk
of re-offense); -1(a)(9) (need to deter defendant and others from
violating the law). She further asserts the judge did not give
22 A-3676-12T2
proper weight to mitigating factor seven and failed to apply
mitigating factor eight.
N.J.S.A. 2C:44-1(b)(7) (lack of criminal
record); -1(b)(8) (circumstances unlikely to occur). Defendant
also maintains that the judgment of conviction (JOC) incorrectly
provides that the judge applied aggravating factors two and four,
which he did not mention in his oral decision sentencing defendant.
We begin by noting that review of a criminal sentence is
limited; a reviewing court must decide "whether there is a 'clear
showing of abuse of discretion.'" State v. Bolvito,
217 N.J. 221,
228 (2014) (citing State v. Whitaker,
79 N.J. 503, 512 (1979)).
Under this standard, a criminal sentence must be affirmed unless
"(1) the sentencing guidelines were violated; (2) the findings of
aggravating and mitigating factors were not based upon competent
credible evidence in the record; or (3) the application of the
guidelines to the facts of the case shock[s] the judicial
conscience." Ibid. (alteration in original) (citation omitted).
"In general, a trial court should identify the relevant aggravating
and mitigating factors, determine which factors are supported by
a preponderance of evidence, balance the relevant factors, and
explain how it arrives at the appropriate sentence." State v.
O'Donnell,
117 N.J. 210, 215 (1989) (citations omitted). If a
sentencing court properly identifies and balances the factors, and
their existence is supported by sufficient credible evidence in
23 A-3676-12T2
the record, this court will affirm the sentence. See State v.
Carey,
168 N.J. 413, 426-27 (2001). A sentencing court, however,
must avoid "double-counting" facts that establish the elements of
the relevant offense in making that determination. State v.
Fuentes,
217 N.J. 57, 74-75 (2014).
Applying these principles, we are constrained to remand for
resentencing. In setting forth his basis for applying aggravating
factor three, the judge took into consideration reasons related
to aggravating factor one when he determined:
I also find aggravating factor [three]
applies, the risk of this defendant's re-
involvement. While an actor's prior record
is usually a fairly accurate predictor for
future behavior, in this case I find it is
not. This defendant's lack of prior
involvement with the criminal justice system
and her pursuit of higher education would,
using the ordinary paradigm, contraindicate
homicide or other antisocial behavior.
However, the facts here have proven that model
to be inapplicable here, and lead me to
conclude that this defendant does not possess
normal impulse control, and is capable of both
random and extreme violence. If she were
released, it is highly likely she would
reoffend.
This constitutes double-counting of aggravating factor one. In
addition, we agree with defendant that there is no basis in the
record for finding she lacks normal impulse control, which would
lead her to re-offend. Accordingly, the judge should not have
applied aggravating factor three.
24 A-3676-12T2
We also conclude the judge did not address why the requested
mitigating factor eight was not considered. On remand, the judge
should do so. The judge should also correct the JOC, which
incorrectly states aggravating factors two and four were applied.
See State v. Abril,
444 N.J. Super. 553, 564-65 (App. Div.)
(requiring a remand where the JOC erroneously notes a finding of
aggravating factor one, which the record confirms the court
explicitly did not find, the judgment must be corrected for that
error), certif. denied,
226 N.J. 213 (2016). We take no issue
with the judge's application of aggravating factors one and nine
and mitigating factor seven because the record supports the judge's
reasoning.
We affirm the conviction, but reverse and remand for
resentencing consistent with this decision. We do not retain
jurisdiction.
25 A-3676-12T2
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