STATE OF NEW JERSEY v. KHALID KHAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 
 

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KHALID KHAN, a/k/a KHALID

I. KHAN,

Defendant-Appellant.

January 23, 2017

 

Submitted December 8, 2016 Decided

Before Judges Hoffman, O'Connor and Whipple.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 12-03-0868.

Joseph E. Krakora, Public Defender, attorney for appellant (Brian P. Keenan, Assistant Deputy Public Defender, of counsel and on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Andrew R. Burroughs,Special DeputyAttorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following a trial on a four-count Essex County indictment, a jury convicted defendant Khalid Kahn of first-degree murder, N.J.S.A. 2C:11-3(a) (count one); fourth-degree unlawful possession of weapons, N.J.S.A. 2C:39-5(d) (count two); third-degree possession of weapons for unlawful purposes, N.J.S.A. 2C:39-4(d) (count three); and second-degree endangering welfare of children, N.J.S.A. 2C:24-4(a) (count four).

At sentencing, the trial judge merged count three into count one and sentenced defendant to fifty years of imprisonment subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. The judge sentenced defendant to concurrent 17- and 108-month terms on counts two and four, respectively. The judge also imposed appropriate fines and penalties.

On appeal, defendant raises the following contentions

POINT I

[DEFENDANT'S] STATEMENT TO THE POLICE SHOULD HAVE BEEN SUPPRESSED BECAUSE HE CLEARLY STATED THAT HE DID NOT AGREE TO WAIVE HIS RIGHT TO COUNSEL; THE INTERROGATING OFFICER FAILED TO CEASE QUESTIONING OR CLARIFY [DEFENDANT'S] REQUEST FOR COUNSEL, AND UNDER THESE CIRCUMSTANCES, [DEFENDANT'S] DECISION TO SIGN A MIRANDA FORM THAT INCLUDED BOTH AN EXPLANATION OF HIS RIGHTS AND A WAIVER PARAGRAPH, FAILED TO ESTABLISH A KNOWING AND INTELLIGENT WAIVER OF HIS RIGHT TO COUNSEL.

POINT II

[DEFENDANT'S] CONFRONTATION CLAUSE RIGHTS WERE CLEARLY VIOLATED WHEN THE TRIAL JUDGE ALLOWED AN OFFICER TO TESTIFY ABOUT WHAT THE DECEASED SAID WHEN OFFICERS ARRIVED AT THE SCENE OF AN EARLIER ALLEGED DOMESTIC VIOLENCE INCIDENT, SPOKE TO [DEFENDANT] OUTSIDE THE APARTMENT, LEFT [DEFENDANT] INSIDE WITH ANOTHER OFFICER AND THEN WENT INSIDE AND ASKED HER "WHAT HAPPENED."

POINT III

THE TRIAL JUDGE'S ABUSE OF DISCRETION IN ADMITTING UNDULY PREJUDICIAL TESTIMONY REGARDING AN ALLEGED PRIOR DOMESTIC VIOLENCE INCIDENT TO PROVE MOTIVE VIOLATED N.J.R.E. 404(B), BECAUSE LESS PREJUDICIAL EVIDENCE WAS INTRODUCED THAT SUFFICED FOR THAT PURPOSE.

POINT IV

IN A BLATANT ACT OF MISCONDUCT, THE PROSECUTOR ELICITED AND FOCUSED HER OPENING AND CLOSING STATEMENTS ON EGREGIOUSLY PREJUDICIAL AND IRRELEVANT TESTIMONY ABOUT THE DECEASED'S FUTURE PLANS AND HOW THE DECEDENT'S YOUNG DAUGHTER LEARNED ABOUT HER DEATH IN AN EFFORT TO DISTRACT THE JURY FROM A FAIR ADJUDICATION OF [DEFENDANT'S] GUILT OR INNOCENCE.

After reviewing the record in light of the contentions advanced on appeal, we affirm.

I.

We derive the following facts from the record. On the afternoon of July 3, 2011, defendant brought his young daughter S.K. (Sally) to the emergency room at Mountainside Hospital to treat a toothache.1 Sally lived with her mother, who was also defendant's estranged wife S.K. (Sharon), in a second-floor apartment in Montclair. Sharon expected defendant to bring Sally back to the apartment that evening. She initially awaited her daughter's arrival on the front porch, but was then invited into her neighbor M.G.'s downstairs apartment. Sharon returned to her apartment between 9:00 and 10:00 p.m.

After leaving the hospital, Sally and defendant went to Sally's grandmother's house, the pet store, and then defendant rode a bus with Sally to Montclair. He walked with her to the apartment, and Sharon let the two in. Sally retired to her mother's bedroom and went to bed while her parents were still in the kitchen. Sally heard their "voices" through the open bedroom door, but could not discern what they were saying. She did not know whether they continued talking when she fell asleep.

Sally woke up later that night, needing to use the bathroom, but found the bathroom door locked. At about 12:18 a.m., she used her mother's cell phone to call B.W., who lived close by, and asked B.W. to come to the apartment. B.W. arrived to find Sally standing "[s]cared and crying" outside her home. B.W. entered the apartment and went into the kitchen, noticing the knife drawer and cabinet beneath the sink were open. B.W. then went downstairs and knocked on M.G.'s door to ask if Sharon was with her. After speaking with M.G., B.W. returned to the apartment and called Sharon's name; she then noticed a light under the locked bathroom door. After she knocked several times to no response, she pried the door open to find Sharon in the bathtub. B.W. screamed and then told M.G. to call 911, which she did. M.G. then entered the bathroom and observed Sharon lying in the tub in a fetal position, her head and neck covered in blood.

Police arrived within ten minutes. Emergency responders observed Sharon appeared to have bled out from her neck and showed "obvious signs of death." Sharon was pronounced dead at 12:57 a.m. on July 4, 2011.

At trial, assistant medical examiner Dr. Di Wang, who had performed the autopsy, testified the death was a homicide caused by a sharp force injury to Sharon's neck. He identified nine significant wounds and other minor wounds, including several "defensive" wounds to her arms and hands. He also confirmed that a silver folding knife, which had been recovered from the bottom drawer of a dresser in defendant's bedroom, could have caused such injuries. The knife yielded a weak positive result on a presumptive test for blood, but no results for DNA.

The State presented a DNA expert, who concluded Sharon's DNA matched the minor profile of one of the samples collected from defendant's jeans. She also identified Sharon as the source of DNA in one of the samples collected from the vehicle defendant's girlfriend let him drive the night of the incident.

The State further introduced a statement defendant gave to police on the evening of July 4, 2011, after signing a form waiving his right to counsel. In this statement, defendant said on July 3 he brought Sally to Sharon's apartment by bus, arriving at a nearby stop and then walking with the child until they reached Glenfield School, when he saw his wife approaching. At that point, which defendant estimated was just after 10:00 p.m., he turned around and walked back up the road to fetch a cab to his girlfriend's apartment. He borrowed her car, went home to change his shoes, and then returned to take her to a club, where they stayed until after 2:00 a.m. The following morning, while attending a barbecue, defendant received a call from his brother informing him that his wife had "passed away," leaving him "in shock." Defendant's brother also advised him that the police were looking for him, and defendant ultimately agreed to come to the station.

Defendant further stated he and his wife had a difficult, "[l]ove and hate" relationship. He said Sharon was "nagging" him on the night in question and explained that, because she had subjected him to considerable "abuse and threats" over the prior few days, he purposefully avoided her the night he brought Sally home. He said he did not remember speaking to her in person that evening, could not remember going anywhere near her apartment, and could not recall what happened to him between 10:00 and 10:44 p.m. He also expressed some uncertainty as to whether the woman he saw approaching that night with whom he left his daughter was actually Sharon, explaining that he saw the "illusion of her."

Defendant also stated the scratches on his neck were caused by the strings of a laundry bag. He believed he sustained the "fresh" cut on his finger the day before, but could not recall how.

The State also introduced a redacted letter defendant wrote to Sally on May 12, 2012, while awaiting trial, on the theory it demonstrated his consciousness of guilt through an attempt to influence her anticipated trial testimony. The court admitted it into evidence, subject to an appropriate limiting instruction. Defendant wrote he was "very sad" to learn what Sally said to the police and that he wanted her to "know the truth." He claimed Sharon "hate[d]" her, "never wanted to have" her in the first place, and even arranged to have an abortion until he intervened and persuaded Sharon against it. He acknowledged that he and Sharon fought "a lot," but accused Sharon of keeping Sally from him.

In order to establish defendant's motive and the existence of an enduring hostile relationship, the State offered testimony from Officer Ramil Carandang of the Montclair Police Department. Officer Carandang had responded to the couple's home on a domestic violence call in December 2009, and testified he found Sharon "[f]rantic" and "crying," with small cuts to her lip and below her eye. When asked what had happened, she replied that defendant struck her in the face. Sally testified to her recollection of the same incident, stating she saw defendant hit Sharon on the eye.

Last, contrary to defendant's statements, defendant's girlfriend testified he unexpectedly arrived at her home at 10:40 p.m. on the night of the incident. Defendant initially told his girlfriend he dropped Sally at the corner and watched her meet Sharon, but later said he actually "put [Sally] to sleep."

II.

In Point I, defendant argues the court should have granted his motion to suppress his recorded statements to police because he did not waive his right to counsel prior to interrogation. We disagree.

Prior to taking defendant's video-recorded statement, police advised defendant of his constitutional rights, presented him with a form outlining those rights, and asked him to sign the form signifying that he was voluntarily waiving these rights. As defendant read the form out loud, the following exchange occurred between defendant and Detective Anthony Iemmello, the interrogating officer

MR. KAHN: "Waiver. I have been advised and I have read the statements of my rights shown above. I understand what the right[s] are. I am willing to answer questions and make a statement. I do not want a lawyer" -- I waive -- I don't agree to this.

DET. IEMMELLO: What do you mean?

([Mr. Kahn] reads form)

MR. KAHN: Signature.

DET. IEMMELLO: Uh-huh.

([Mr. Kahn] writes on form)

MR. KAHN: The time?

DET. IEMMELLO: 9:48 p.m.

(Mr. Kahn writes on form)

DET. IEMMELLO: And the date is 7/4/2011.

(Mr. Kahn writes on form)

At the Miranda2 hearing, Detective Iemmello testified that after asking defendant for clarification the single time reflected above, he did not pursue the matter further or inquire whether defendant understood he was waiving his rights. He said defendant did not respond to his question, but continued reading the waiver form and then asked about the signature. Iemmello stated at no other point did defendant request an attorney.

After reviewing the recorded interview, transcript, and the Miranda form, the trial judge determined defendant knowingly and voluntarily waived his right to counsel. The trial judge rejected defendant's argument that his statement was an unequivocal invocation of his right to counsel, concluding instead

In this case, the defendant's equivocal statement, while reading his rights form, was not specifically linked to any one of the rights on the form. Detective Iemmello then attempted to clarify defendant's statement. Instead of responding verbally, the defendant continued to read the form. Upon reaching the bottom, signed the form, dated it, initialed it -- each of his rights. Under these circumstances, the defendant knowingly or voluntarily waived his right to counsel, despite his initial equivocal response to the waiver form.

The judge also found the "circumstances of [defendant's] background" demonstrated the waiver was voluntary, concluding defendant was "legally sophisticated" because he had previously received a similar version of the Mirandaform in the military and had been arrested and given Mirandawarnings on prior occasions.

In reviewing a motion to suppress, we "must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007) (citation omitted). However, the trial court's application of the law to the factual findings is not given the same deference. State v. Handy, 206 N.J. 39, 45 (2011).

When a defendant challenges a statement made during a police interrogation, the State must prove beyond a reasonable doubt that the waiver of the defendant's Miranda rights "was knowing, intelligent, and voluntary in light of all the circumstances." State v. Presha, 163 N.J. 304, 313 (2000). If an individual "indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning." Miranda, supra, 384 U.S. at 444-45, 86 S. Ct. at 1612, 16 L. Ed. 2d at 707.

Our Supreme Court has held "a suspect need not be articulate, clear, or explicit in requesting counsel; any indication of a desire for counsel, however ambiguous, will trigger entitlement to counsel." State v. Reed, 133 N.J. 237, 253 (1993). To determine whether an individual has invoked his or her right to counsel, our courts employ a "totality of the circumstances approach that focuses on the reasonable interpretation of [the] defendant's words and behaviors." State v. Diaz-Bridges, 208 N.J. 544, 564 (2012).

Should a suspect's "words amount to even an ambiguous request for counsel, the questioning must cease, although clarification is permitted; if the statements are so ambiguous that they cannot be understood to be the assertion of a right, clarification is not only permitted but needed." State v. Alston, 204 N.J. 614, 624 (2011). In responding to an ambiguous statement, the officer must limit himself or herself to clarification, "not questions that operate to[] delay, confuse, or burden the suspect in his assertion of his rights." State v. Johnson, 120 N.J. 263, 283 (1990) (citation omitted).

Defendant first argues his statements were an unambiguous assertion of the right to counsel, and therefore the trial court erred by finding they were equivocal. In support of this argument, defendant points to the fact he stopped reading the form and objected immediately after the sentence, "I do not want a lawyer." Defendant contends Detective Iemmello should have immediately ceased all questioning after this statement. However, we agree with the trial court that this statement was ambiguous. Defendant only stated he did not agree with "this" after reading a list of sentences relating to his rights. When asked what he meant, defendant did not respond, then signed the form without making reference to counsel.

Defendant further contends, however, even if his statement was ambiguous, Detective Iemmello failed to meet the requirements for properly clarifying an ambiguous statement. Defendant points to Alston where our Court noted "when faced with an ambiguous assertion of a right, it is only through evaluation of clarifying follow-up inquiries and the responses to those inquiries that a court can ensure that a waiver of defendant's right was given intentionally and voluntarily." Alston, supra, 204 N.J. at 623 (emphasis added) (citing State v. Fussell, 174 N.J. Super. 14, 21 (App. Div. 1980)). Defendant argues, because he did not respond to Detective Iemmello's question, the detective should have ceased questioning to further clarify what defendant meant. Defendant also argues he misheard the question as "continue reading" instead of "what do you mean," contending the video shows Detective Iemmello asked his question quickly with his hands covering his mouth.

However, we find sufficient credible evidence in the record supports the trial judge's denial of defendant's motion to suppress. Applying the "totality of the circumstances" standard focusing on defendant's "words and behaviors," Diaz-Bridges, supra, 208 N.J. at 564, we find defendant's actions showed he knowingly waived his rights. Defendant read each line of the waiver form and initialed next to each line, including, "You have the right to talk to a lawyer and have him/her present with you while you are being questioned." Detective Iemmello asked defendant to clarify his equivocal statement, but defendant did not respond and ultimately signed the form under the "Waiver" paragraph, which again advised him of his rights.

Moreover, the trial judge properly found defendant was "legally sophisticated," having prior experience with Miranda procedures from his time in the military and prior arrests. Courts may consider a defendant's prior experience with police in determining whether a waiver is knowing and voluntary. State v. Knight, 183 N.J. 449, 466 (2005). Under the totality of these circumstances, we discern no basis for disturbing the trial judge's conclusion that defendant waived his rights knowingly, intelligently, and voluntarily.

III.

In Point II, defendant argues the trial court erred by allowing a police officer to testify to statements Sharon made to police regarding the prior domestic violence incident in December 2009. Defendant contends this admission violated his constitutional right to confrontation. We disagree.

Criminal defendants have the constitutional right to confront witnesses against them. U.S. Const. amend. VI; N.J. Const. art. I, 10; State v. Branch, 182 N.J. 338, 348 (2005). "The right of confrontation is an essential attribute of the right to a fair trial, requiring that a defendant have a 'fair opportunity to defend against the State['s] accusations.'" Ibid. (quoting State v. Garron, 177 N.J. 147, 169 (2003), cert. denied, 540 U.S. 1160, 124 S. Ct. 1169, 157 L. Ed. 2d 1204 (2004)). This right is exercised through cross-examination. Ibid.

The Confrontation Clause prohibits the use of an out-of-court testimonial hearsay statement unless the person who made the statement is unavailable to testify at trial and the defendant had a prior opportunity for cross-examination. State v. Cabbell, 207 N.J. 311, 329-30 (2011). The United States Supreme Court explained when statements are testimonial

Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose . . . is to establish or prove past events potentially relevant to later criminal prosecution.

[Davis v. Washington, 547 U.S. 813, 822, 126 S. Ct. 2266, 2273-74, 165 L. Ed. 2d 224, 237 (2006).]

For confrontation purposes, testimonial statements include those in which witnesses "bear testimony" against the accused by making "a formal statement to government officers," Crawford v. Washington, 541 U.S. 36, 51, 124 S. Ct. 1354, 1364, 158 L. Ed. 2d 177, 192 (2004), as well as certain statements that are the product of police interrogation, see Cabbell, supra, 207 N.J. at 329.

At the admissibility hearing in the instant matter, Officer Carandang testified he was dispatched to defendant and Sharon's home in response to defendant's call reporting a domestic disturbance. He arrived approximately three minutes after the call, at which point another officer was speaking with defendant on the front porch. Within five minutes of arriving, Officer Carandang went upstairs with the other officer to speak with Sharon, while a third officer remained outside with defendant. The officers found Sharon in the kitchen, "frantic" and "sobbing," with a "cut by her lip and by her eye." The other officer asked her what happened, but she could not initially respond due to her emotional state. When the officers calmed her down "as best [as they] could," Sharon said she and defendant had gotten into an argument and he hit her.

Following this hearing, the trial court concluded Sharon's statement was nontestimonial, noting "the primary purpose of the officer's inquiry was to respond to [an] ongoing emergency rather than to elicit facts to support a criminal investigation as to past conduct." The court noted the officer had not asked for the identity of the person who had caused the injury, and had not specifically inquired whether Sharon's husband had hit her. Instead, the court found the officer's inquiry only enabled him to "meet an ongoing emergency presented by the undetermined severity" of Sharon's injury, when he found her crying with wounds to her face. The court also found the statements were admissible under the excited utterance hearsay exception. SeeN.J.R.E.803(c)(2).

Defendant argues the court erroneously found these statements were nontestimonial because there was no ongoing emergency, in the instant matter. In support of this argument, defendant relies on Hammon v. Indiana, a case consolidated with and reported with Davis, supra, 547 U.S. 813, 126 S. Ct. 2266, 165 L. Ed. 2d 224. In Hammon, police responded to a domestic disturbance and found the victim alone on her porch and her husband inside the house she was "somewhat frightened" but stated nothing was wrong. Id. at 819, 126 S. Ct. at 2272, 165 L. Ed. 2d at 235. Police went into the house to speak with the husband, and spoke to the victim again in a separate room, at which point she recounted her version of events and completed a battery affidavit. Id. at 819-20, 126 S. Ct. at 2272, 165 L. Ed. 2d at 235-36. The Court found the victim's statements were testimonial because they were part of a criminal investigation and there was no emergency in progress. Id. at 829-30, 126 S. Ct. at 2278, 165 L. Ed. 2d at 241-42.

The circumstances in the present matter are readily distinguishable from the facts in Hammon. Although defendant and Sharon were physically separated, and several minutes had passed since police arrived, a "reasonable listener" could conclude this was an ongoing emergency situation due to Sharon's "frantic" condition. Id. at 827, 126 S. Ct. at 2276, 165 L. Ed. 2d at 240. We further note the police's questions "objectively indicate[d]" their primary purpose was to meet this potential emergency, as they were open-ended and were only intended to assess the situation, not investigate defendant. Id. at 828, 126 S. Ct. at 2277, 165 L. Ed. at 240.

Defendant also argues the trial judge erred by admitting Sharon's statements as excited utterances, contending they occurred long after the incident. However, considering "the circumstances of the incident [and] the mental and physical condition" of Sharon, State v. Buda, 195 N.J. 278, 293 (2008) (citation omitted), we find she made these statements while "under the stress of excitement caused by the event or condition and without opportunity to deliberate or fabricate." N.J.R.E. 803(c)(2).

Therefore, we find testimony regarding Sharon's statements did not violate defendant's right of confrontation.

IV.

Next, in Point III, defendant argues the court erred by admitting unduly prejudicial testimony on Sharon's statements during the domestic violence incident, and his daughter's trial testimony regarding the same incident, in order to prove motive. We disagree.

We review a trial court's ruling on the admissibility of other crimes, wrongs, or bad acts evidence for abuse of discretion. State v. Barden, 195 N.J. 375, 390-91 (2008). We afford great deference to the court's ruling and will reverse only where there was a clear error of judgment. Ibid.

N.J.R.E. 404(b) generally precludes the admission of evidence relating to other crimes or wrongs, except to show "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." In State v. Cofield, 127 N.J. 328, 338 (1992), our Supreme Court articulated a four-prong test

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.

In the instant matter, the State moved to introduce testimony from Officer Carandang and Sally regarding the December 2009 domestic violence incident, which the trial court concluded was admissible to prove motive. Defendant now challenges the trial court's findings on prong four of the Cofield test, where the court stated, "This evidence is clearly probative of a disputed fact. The history of the relationship, assaultive relationship is clearly relevant, based upon the charge here of homicide and use of a weapon, a sharp cutting instrument, to stab the victim." The court then concluded the prejudicial nature of the evidence did not outweigh its probative value.

Although the fourth prong requires a "careful and pragmatic evaluation of the evidence to determine whether the probative worth of the evidence is outweighed by its potential for undue prejudice," Barden, supra, 195 N.J. at 389 (citation omitted), a "very strong" showing of prejudice is required to exclude motive evidence under this prong, State v. Castagna, 400 N.J. Super. 164, 180 (App. Div. 2008) (quoting State v. Covell, 157 N.J. 554, 570 (1999)). However, "[i]f other less prejudicial evidence may be presented to establish the same issue," the balance of the evidence "will tip in favor of exclusion." Barden, supra, 195 N.J. at 392 (citation omitted). Moreover, where a court concludes evidence is admissible, it must issue a careful, precise limiting instruction to the jury as to the appropriate use of the evidence. Cofield, supra, 127 N.J. at 340-41.

Defendant argues there was other evidence in the record to establish motive, and therefore the prejudice of the statements at issue outweighed their probative value. Defendant specifically points to his own statement that he and Sharon had a "love and hate" relationship, his letter to Sally admitting he and Sharon "did fight a lot," and evidence that Sharon dated people after separating from defendant.

However, we find the trial judge did not abuse his discretion in admitting this evidence. The statements at issue were not unduly prejudicial, as they were the only evidence available to prove defendant's relationship with Sharon was acrimonious enough to rise to the level of physical violence. When motive is at issue, "evidence of arguments or violence between a defendant and a homicide victim has long been admitted." State v. Engel, 249 N.J. Super. 336, 373-74 (App. Div.) (collecting cases), certif. denied, 130 N.J. 393 (1991).

Moreover, the court gave the jury clear limiting instructions to only consider this evidence for the purpose of motive. Cofield, supra, 127 N.J. at 340-41. We conclude the trial court did not abuse its discretion on this issue.

V.

Last, in Point IV, defendant argues the prosecutor's opening and closing statements and certain testimony she elicited from the witnesses were irrelevant and inflammatory, thereby depriving defendant of a fair trial. Defendant raised some of these arguments in a motion for new trial and judgment of acquittal, which the trial court denied. We now disagree with defendant's arguments and affirm.

"[P]rosecutors are charged not simply with the task of securing victory for the State but, more fundamentally, with seeing that justice is served." State v. Reddish, 181 N.J. 553, 641 (2004). A prosecutor's "duty is to prove the State's case based on the evidence and not to play on the passions of the jury or trigger emotional flashpoints, deflecting attention from the hard facts on which the State's case must rise or fall." State v. Blakney, 189 N.J. 88, 96 (2006).

Where prosecutorial misconduct has occurred, courts should not reverse unless the conduct was "so egregious that it deprived the defendant of a fair trial." State v. Wakefield, 190 N.J. 397, 438 (2007) (quoting State v. Smith, 167 N.J. 158, 181 (2001)), cert. denied, 522 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008). The prosecutor's conduct must constitute a clear infraction and "must have substantially prejudiced [the] defendant's fundamental right to have a jury fairly evaluate the merits of his [or her] defense." State v. Timmendequas, 161 N.J. 515, 575 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001).

In determining whether prosecutorial misconduct warrants reversal, courts should consider "(1) whether defense counsel made timely and proper objections to the improper remarks; (2) whether the remarks were withdrawn promptly; and (3) whether the court ordered the remarks stricken from the record and instructed the jury to disregard them." Smith, supra, 167 N.J.at 182 (citing Timmendequas, supra, 161 N.J.at 575). "Generally, if no objection was made to the improper remarks, the remarks will not be deemed prejudicial." State v. Frost, 158 N.J.76, 83 (1999).

Defendant first challenges the prosecutor's opening statement and the testimony she elicited from certain witnesses during trial regarding Sharon's "future plans." During her opening statement, the prosecutor characterized Sharon as working "diligently" and having "a lot of plans for her future." Next, during trial, the prosecutor elicited testimony from Sharon's neighbor, over defense counsel's objection for relevance, regarding her plans for the July 4. Another of Sharon's friends also testified she was going to meet her on July 4, and a male friend stated Sharon had invited him to a barbecue for the holiday.

Defendant next argues the prosecutor improperly elicited testimony from Sharon's colleague about how Sally learned of her mother's death. The colleague stated, "I told [Sally] that her mom got hurt very bad and that she's in heaven, she didn't make it." Last, defendant challenges the prosecutor's summation, where she again highlighted Sharon's "future," twice stated Sharon "had a right to life and a right to die in her own time," and highlighted the young age of defendant's daughter, among other statements of these same general themes.

Defendant argues all these statements were irrelevant to the determination of his guilt and were only intended to inflame the outrage of the jury, comparing them to the problematic comments in State v. Williams, 113 N.J. 393 (1988). We are not persuaded.

In Williams, during her opening and summation in the guilt phase of a capital murder trial, the prosecutor described the victim as "[b]right, beautiful, educated, [and] religious" and recounted her part-time work to earn extra money for her upcoming wedding. Id. at 448. Our Supreme Court explained these "inflammatory" comments regarding the victim's virtues "contain[ed] nothing that would aid the jury in determining the defendant's guilt or innocence" and could result in "unduly prejudicing the jury against [the] defendant." Id. at 452. We find, however, that none of the challenged statements in the instant matter rose to the level of denying defendant a fair trial. Wakefield, supra, 190 N.J. at 438.

First, although the statements and testimony concerning Sharon's future plans could have evoked some sympathy from the jury, this information was material to the State's theory of the case that defendant was motivated, in part, by his awareness Sharon was asserting her independence and making future plans that did not include him. The State demonstrated this theory by highlighting the victim's new friends, efforts to obtain financial independence through work, and seeing other men socially.

Second, we find the testimony describing how Sally learned of her mother's death and that she was in "heaven," although inappropriate, was not so extensive or inflammatory so as to deprive defendant of a fair trial. We reach the same conclusion regarding the summation comments about Sally's young age.

Last, we find the prosecutor's summation statements that Sharon "had a right to life and a right to die in her own time" were not unduly prejudicial. Although less relevant and more emotionally inflammatory than the "future plan" comments, we find these statements were also related to the State's theory that defendant was motivated by his desire to control Sharon. See State v. Atwater, 400 N.J. Super. 319, 335 (App. Div. 2008) (noting that in reviewing closing arguments, we look not to isolated remarks but "to the summation as a whole"). We further find any remaining challenged remarks not specifically addressed were not unduly prejudicial.

In sum, we are satisfied defendant was not deprived of a fair trial. Frost, supra, 158 N.J. at 83.

Affirmed.

1 We use pseudonyms to protect the anonymity of the victim and her daughter.

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