STATE OF NEW JERSEY VS. JOSEPH S. MACCHIA (16-12-0814, UNION COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-5473-17
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOSEPH S. MACCHIA,
Defendant-Appellant.
________________________
Argued November 16, 2020 – Decided October 4, 2021
Before Judges Currier, Gooden Brown and DeAlmeida.
On appeal from the Superior Court of New Jersey, Law
Division, Union County, Indictment No. 16-12-0814.
John Vincent Saykanic argued the cause for appellant.
Michele C. Buckley, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued the cause
for respondent (Lyndsay V. Ruotolo, Acting Union
County Prosecutor, attorney; Michele C. Buckley, of
counsel and on the brief).
The opinion of the court was delivered by
GOODEN BROWN, J.A.D.
Following a jury trial, defendant was convicted of second-degree reckless
manslaughter, N.J.S.A. 2C:11-4(b)(1), and sentenced to a six-year term of
imprisonment, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. The
charge stemmed from the fatal shooting of Michael Gaffney outside a bar.
Defendant, then an off-duty police officer, and the victim engaged in fist fights
during the night, which ended when defendant fired his service weapon, hitting
the victim three times. At trial, the State presented a surveillance video of the
encounter as well as the accounts of multiple eyewitnesses. Defendant claimed
he shot the victim in self-defense because the victim was reaching for
defendant's gun.
On appeal, defendant raises the following points for our consideration:
POINT I
THE TRIAL COURT'S ADMITTEDLY ERRONEOUS
INSTRUCTION AS TO WHAT THE JURY WAS
REQUIRED TO FIND IN ORDER TO DISALLOW
SELF-DEFENSE (THE COURT'S INCORRECTLY
REQUIRING THAT DEFENDANT "DID NOT
PROVOKE THE ENCOUNTER WITH THE
PURPOSE TO KILL" AS OPPOSED TO THE
CORRECT "DID NOT PROVOKE THE USE OF
FORCE AGAINST HIMSELF IN THE ENCOUNTER
WITH THE PURPOSE TO KILL") DEPRIVED
DEFENDANT OF HIS DUE PROCESS RIGHT TO A
FAIR TRIAL (U.S. CONST. AMENDS. V, VI, XIV;
N.J. CONST. (1947) ART. I, PARA. 9).
A-5473-17
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POINT II
THE TRIAL COURT ERRED IN ITS INSTRUCTION
BY NOT SPECIFICALLY INSTRUCTING THE
JURY THAT IT NEEDED TO UNANIMOUSLY
AGREE ON THE FACTORS DISPROVED BY THE
STATE BEYOND A REASONABLE DOUBT (IN
SPITE OF THE DEFENSE REQUEST AND
OBVIOUS JURY CONFUSION), AND FAILED TO
PROVIDE THE JURY WITH A SPECIAL
INTERROGATORY REGARDING THE THEORY
FORMING THE BASIS FOR ITS CONVICTION
RESULTING IN AN UNCONSTITUTIONAL
PATCHWORK/FRAGMENTED OR LESS THAN
UNANIMOUS VERDICT (U.S. CONST. [AMENDS.]
V, VI, XIV; N.J. CONST. (1947) ART. I, PARA. 9);
AND R[ULE] 1:8-9.
POINT III
THE ERRONEOUS JURY INSTRUCTION AS TO
THE TIMING WITH REGARDS TO THE DUTY TO
RETREAT "AFTER THE SECOND ALTERCATION"
WHEN, IN REALITY, IT WAS AT THE MOMENT
OF THE USE OF DEADLY FORCE, DEPRIVED
DEFENDANT OF HIS DUE PROCESS RIGHT TO A
FAIR TRIAL (U.S. CONST. AMENDS. V, VI, XIV;
N.J. CONST. (1947) ART. I, PARA. 9).
POINT IV
THE TRIAL COURT DENIED DEFENDANT OF HIS
SIXTH AMENDMENT RIGHT OF
CONFRONTATION TO FULLY CROSS-EXAMINE
A KEY STATE'S WITNESS[] (U.S. CONST.
AMEND. VI; N.J. CONST. (1947) ART. I, PARA. 10).
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POINT V
THE IMPROPER STATE'S CLOSING STATEMENT
(INCLUDING AN IMPROPERLY UTILIZED
POWER POINT PRESENTATION MIS[S]TATING
THE LAW AS TO DUTY TO RETREAT) DEPRIVED
DEFENDANT OF HIS SIXTH AMENDMENT RIGHT
TO A FAIR TRIAL AND FOURTEENTH
AMENDMENT DUE PROCESS RIGHT AND STATE
CONSTITUTIONAL RIGHT TO A FAIR TRIAL (U.S.
CONST. AMENDS. VI, XIV; N.J. CONST. (1947)
ART. I, PARAS. 1, 10).
POINT VI
THE TRIAL COURT ERRED IN ADMITTING
MANY HIGHLY PREJUDICIAL HEARSAY
STATEMENTS OF GAFFNEY THROUGH THE
TRIAL TESTIMONY OF ROBERT LIMA AS
PRESENT SENSE IMPRESSIONS UNDER [N.J.R.E.]
803(C)(3) AND UNDER [N.J.R.E.] 803(C)(2); THE
GAFFNEY/LIMA STATEMENTS SHOULD ALSO
HAVE BEEN RULED INADMISSIBLE UNDER
[N.J.R.E.] 403; DEFENDANT'S CONFRONTATION
AND DUE PROCESS RIGHTS WERE VIOLATED
(U.S. CONST. AMENDS. V, VI, XIV; N.J. CONST.
(1947) ART. I, PARA. 10).
POINT VII
THE TRIAL COURT COMMITTED PLAIN ERROR
(R. 2:10-2) IN FAILING TO ADDRESS TO THE
JURY (EITHER WITH A LIMITING INSTRUCTION
DURING THE TESTIMONY OF LIMA OR DURING
FINAL JURY INSTRUCTIONS) THE LIMITED
PURPOSE OF THE "PRESENT SENSE/STATE-OF-
MIND" HEARSAY EVIDENCE (NOT RAISED
BELOW).
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POINT VIII
THE TRIAL COURT ERRED IN DENYING THE
MOTION FOR JUDGMENT OF ACQUITTAL AS
THE STATE DID NOT PROVE DEFENDANT'S
GUILT BEYOND A REASONABLE DOUBT; THE
DEFENDANT'S CONVICTION IS CONTRARY TO
THE FOURTEENTH AMENDMENT OF THE
UNITED STATES CONSTITUTION AND [THE]
NEW JERSEY STATE CONSTITUTION (1947) ART.
I, PARAS. 1, 10.
POINT IX
THE NUMEROUS LEGAL ERRORS COMMITTED
BY THE COURT DEPRIVED DEFENDANT OF HIS
FIFTH, SIXTH AND FOURTEENTH AMENDMENT
DUE PROCESS RIGHT TO A FAIR TRIAL AND
NEW JERSEY CONSTITUTIONAL RIGHT TO A
FAIR TRIAL; (U.S. CONST. AMENDS. VI AND XIV;
N.J. CONST. (1947) ART. I, PAR. 10) (NOT RAISED
BELOW).
POINT X
AS THE SENTENCING JUDGE FOUND THAT THE
MITIGATING FACTORS SUBSTANTIALLY
OUTWEIGHED THE ONE AGGRAVATING
FACTOR, THE DEFENDANT SHOULD HAVE
BEEN SENTENCED TO A SENTENCE ONE
DEGREE LOWER PURSUANT TO [N.J.S.A.] 2C:44-
1[(F)](2) AND SENTENCED TO THE MINIMUM
TERM PERMISSIBLE.
We have considered these arguments in light of the record and applicable
legal principles. We reject each of the points raised and affirm.
A-5473-17
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I.
Following the adjudication of various pre-trial motions, an eleven-day
jury trial was conducted on various dates in May and June 2018, during which
the State produced seventeen witnesses. In addition to the medical examiner
and various law enforcement witnesses, the bar owner, the bartender, and seven
bar patrons testified for the State, including defendant's wife. Defendant
testified on his own behalf. He did not present any additional witnesses. We
glean these facts from the trial record.
Defendant was an eleven-year veteran police officer with the Newark
Police Department. Upon completion of his shift on May 12, 2016, defendant
returned to his home, changed into his civilian clothes, and secured his service
weapon on his waist in an off-duty holster, covering it with "an oversized tee
shirt." Thereafter, defendant and his wife, Katherine Macchia, went to Paddy's
Place, a bar located in Union to celebrate Katherine's newly discovered
pregnancy.1 They arrived at about 11:00 p.m., socialized and listened to music.
Several of the patrons, including defendant and his wife, were regular customers
1
The parties stipulated that "Newark Police Department rules and regulations
give off-duty police officers the option of being armed with their service
weapons when they engage in activity that includes the consumption of alcoholic
beverages."
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who knew each other. Over the course of about two hours, defendant consumed
"[six] Miller Lite beers and [two] shots . . . of Jack Daniels" while his wife drank
"[s]eltzer water."
Michael Gaffney, with whom defendant was acquainted, arrived at
Paddy's Place around 10:30 p.m. to meet his friend, Robert Lima, to discuss a
potential construction job. Gaffney and Lima both worked in the construction
industry and had known each other for about twenty years. Lima arrived at the
bar between 10:00 p.m. and 10:30 p.m. and consumed "[a]bout two [drinks]."
Shortly after 1:00 a.m. the following morning, Lima was in the process of
leaving when "he saw Gaffney had a cigarette in his mouth." While outside,
Lima and Gaffney playfully jostled each other over the cigarette Gaffney was
smoking, prompting Gaffney to "joking[ly]" hit Lima's shoulder. According to
Gregory Netschert, another bar patron and friend of Gaffney and Lima, Gaffney
was known among his friends for "play fight[ing]" and had "punched [Netschert]
in the chest" as he was leaving the bar.
Around that time, defendant was also outside smoking a cigarette. When
defendant saw Gaffney hit Lima, he asked Gaffney if he "liked to throw hands"
and Gaffney responded "sometimes." Gaffney and defendant then began "slap
boxing" with each other, which Lima described as "the two . . . squar[ing] with
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each other and hit[ting] each other" without "try[ing] to be malicious." By all
accounts, Gaffney was significantly taller and heavier than defendant.2 At one
point, Gaffney hit defendant and defendant "went down." Gaffney then tackled
defendant, and the two wrestled on the ground. Lima tried unsuccessfully to
separate them. At some point, defendant grabbed Gaffney by the shirt and pulled
the shirt off of him. By that time, other patrons, and the bartender, Nicolette
Bedlivy, had exited the bar and tried to convince defendant and Gaffney to stop
fighting. Eventually, they were separated, and Gaffney walked back inside the
bar while defendant remained outside with his wife, who was pleading with him
to leave. However, defendant was visibly agitated. One bar patron, Anthony
DiMondi, approached defendant and tried to get him to calm down, telling him
he didn't "want to ruin [his] career." Defendant did not respond.
Meanwhile, Gaffney was inside the bar with his friend and former Paddy's
Place bartender, Catherine Vinsko. Vinsko told Gaffney to stop fighting
because defendant would "sue him if he kept it up." Gaffney finally agreed and
walked back to the front door. Standing in the doorway, Gaffney said to
defendant: "Bro, it's over." "I don't want to fight." "Just let's end it." Witnesses
2
According to defendant, Gaffney was "six[-foot] three, six[-foot] four, 260,
270 pounds" and he was "five[-foot] seven, 195 pounds."
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testified that at that juncture, Gaffney and defendant "shook hands" and "chest
bumped" each other to signify a reconciliation. Gaffney then walked back inside
the bar. On the other hand, defendant stayed outside, saying he was "not done."
Although his wife tried to get him to leave, defendant refused. Instead,
defendant stood by the doorway of the bar, looking and pointing at Gaffney "to
entice him to come back out." In response, Gaffney yelled "stop eyeballing me."
Eventually, Gaffney came to the door, and he and defendant began to fight
again. Defendant fell to the ground, and Gaffney got on top of him, punching
him repeatedly. Realizing the fight was not going to stop, Lima went over to
Gaffney and grabbed him. Vinsko also tried to grab Gaffney. As they pulled
him off of defendant, defendant shot Gaffney, striking Gaffney in the chest,
shoulder, and abdomen. Gaffney fell on top of defendant and died shortly
thereafter. Vinsko went back inside the bar and "hit the panic button . . . under
the register," prompting the Union Police Department to respond.
When Union police officers responded to the scene, defendant said he was
"a Newark police officer and [Gaffney] was going for [his] gun." The officers
promptly disarmed and arrested defendant. The officers then approached
Gaffney, who was "non-responsive." When the medical examiner arrived at the
scene, he took control of Gaffney's body.
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After his arrest, defendant was placed in the back of Officer Christopher
Connors's patrol vehicle. Because defendant would not stop talking, Connors
read defendant his Miranda3 rights. Defendant's statements were recorded on
the vehicle's dashboard camera and played for the jury during the trial. In the
recording, defendant said he "almost passed out" and Gaffney "fucked [him]
up." Defendant stated: "It happened, then it stopped and then he came out
again." Defendant repeated that he was a Newark police officer, and that
Gaffney was going for his gun.
Officer Rahmel Spann and his partner were responsible for transporting
defendant to the hospital to treat his injuries. While they were in the waiting
room, defendant asked about Gaffney's condition and "showed remorse." He
also asked Spann what he would do if he were "in that situation." Defendant
stated Gaffney "knew [he] was a cop," and reiterated that he thought Gaffney
was "going for [his] gun." Further, defendant told Spann "[he] defecated on
himself" and "felt like he was going to black out." Defendant was discharged
from the hospital with a "head injury, broken nose . . . abrasions to . . . both
knees," and "a sprained left wrist."
3
Miranda v. Arizona, 384 U.S. 436 (1966).
A-5473-17
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When Bedlivy spoke to officers at the scene, her statements were recorded
on the dashboard camera and played for the jury during the trial. In the recording
and during her trial testimony, Bedlivy said Gaffney "tried to grab [defendant's]
gun." However, at trial, she acknowledged she did not see Gaffney reach for
defendant's gun, and the reason she initially said she did was because defendant's
wife "told [her] that's what" occurred. Defendant's wife confirmed during her
trial testimony that "it was [her] perception" that Gaffney reached for her
husband's gun. Lima, on the other hand, testified at trial that he did not see
Gaffney reach for defendant's gun.
One week after the incident, defendant was interviewed at the Union
County Prosecutor's Office. He was accompanied by his attorney and was
administered his Miranda rights. The recorded interview was played for the jury
at trial. In his statement, defendant explained the altercation began when
Gaffney approached him while he was outside smoking a cigarette and asked
him if he "wanted to fight." 4 Given the size difference, defendant responded
"no." Nevertheless, Gaffney punched him "in the chest" and tackled him to the
ground. While they were wrestling on the ground, "the fight was broken up,"
4
Defendant suggested Gaffney's solicitation to fight may have been prompted
by defendant intervening earlier in Gaffney's attempt to fight another bar patron
who was much smaller and older than Gaffney.
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and the two "shook hands." Thereafter, when defendant stood outside the bar
door to get "somebody's attention" to "get [his] jacket" and "settle [his] tab,"
Gaffney asked defendant if he was "eyeballing" him and started fighting again
despite defendant's response that he was not "eyeballing" him. During the
second fight, while Gaffney was "straddling [him]," and "pummeling [him] on
the ground . . . both [Gaffney's] hands . . . went to [his] duty weapon." Defendant
said he was "in fear of [his] life and [his] wife's life so [he] had no choice but to
fire to stop the threat." According to defendant, he "fired three . . . shots
consecutively." 5
Surveillance video was recovered from Paddy's Place by Union County
Prosecutor's Office Detective Darius Tokarz. The video was played for the jury
and referred to by the witnesses multiple times during the trial.
Dr. Junaid Shaikh, the medical examiner who performed Gaffney's
autopsy, testified Gaffney "sustained three gunshot wounds, one to the left side
of the chest, one to the left upper shoulder, and one to the right upper aspect of
the abdomen." The gunshot wound to the chest was the fatal wound. Based on
the stippling of gun powder residue observed around each bullet entry wound,
5
During the trial, defendant's grand jury testimony was read to the jury. The
grand jury testimony was largely consistent with his recorded statement.
A-5473-17
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Shaikh believed the gun was fired approximately seven to eight inches from the
skin. Additionally, Shaikh testified Gaffney had injuries to his face, including
bruising just above his left eyebrow and lip, superficial injuries to his nose, a
laceration to his upper lip, and swelling under his left eye. Gaffney also had
injuries to his right knee and right front thigh. According to Shaikh, those
injuries were consistent with a "scuffle or physical altercation."6
At trial, defendant testified on his own behalf consistent with his recorded
statement. He insisted he had done nothing to entice or encourage Gaffney to
fight him. Although Gaffney punched him and broke his nose, causing him to
bleed "profusely," defendant said he did nothing to fight back. Instead,
defendant testified he tried to "hug[] him like a boxer would" to try to get him
to "stop," but Gaffney kept punching him. Defendant said he eventually fell to
the ground, causing his shirt to ride up and expose his gun. He put his hand on
his gun to "retain it in the holster" while Gaffney held him down with his right
6
"Toxicology by the Medical Examiner's Office indicated . . . Gaffney's BAC
[blood alcohol content] was .30% at 1:16 a.m., the time of his death," and "also
indicated . . . Gaffney had consumed cocaine." Defendant's BAC was "estimated
to have been approximately .13%, at 1:16 a.m."
A-5473-17
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arm and punched him in his face with his left fist. 7 Defendant said Gaffney then
went towards defendant's "right side . . . towards [his] duty weapon." At that
moment, defendant decided to "draw and shoot" to stop Gaffney from obtaining
his gun. Defendant testified he was "quite certain [he] was going to die."
Defendant's motion for judgment of acquittal at the close of the State's
case pursuant to Rule 3:18-1, was denied.8 Following the jury's guilty verdict,
defendant was sentenced on July 27, 2018, and a memorializing judgment of
conviction was entered on the same date. This appeal followed.
II.
In Point I, defendant argues the judge incorrectly instructed the jury on
self-defense. Specifically, defendant contends that in his initial charge to the
jury, the judge left out "the crucial words: 'did not provoke the use of force
against himself in the encounter.'" Although defendant acknowledges the judge
"corrected" the error when he reinstructed the jury, he argues the judge "created
7
Defendant testified he viewed Gaffney "punch[ing him] repeatedly about [his]
head and [his] head hitting the concrete" as "deadly force" being used against
him.
8
After the motion was adjudicated, the State moved to reopen its case to call
an additional witness, which was granted.
A-5473-17
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an incurable and insurmountable obstacle to the jury's clear understanding," as
a result of which his conviction should be reversed. We disagree.
In the initial charge on self-defense, the judge instructed the jury, in
pertinent part:
To put it succinctly, if the defendant had an honest and
reasonable belief that the use of deadly force was
immediately necessary to save his own life or to avoid
serious bodily harm, he did not provoke the encounter
with the purpose to kill or cause serious bodily harm,
and he could not have safely retreated, then self-defense
applies and the defendant is not guilty.
[Emphasis added.]
There was no objection to the charge.
Following the charge, the jury sent out several notes regarding the self -
defense charge. Consequently, the parties agreed although "there was no error
in the jury charge that was given," a revised instruction was necessary to provide
clarification. In the revised instruction that was agreed to by both parties, the
judge stated in part:
To put it succinctly, if the defendant had an honest and
reasonable belief that the use of deadly force was
immediately necessary to save his own life or to avoid
serious bodily harm, he did not provoke the use of force
against himself in the encounter with the purpose to kill
or cause serious bodily harm and he could not have
safely retreated when he resorted to the use of deadly
A-5473-17
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force, then self-defense applies and the defendant is not
guilty.
[Emphasis added.]
Because defendant did not object to the jury charge, we review for plain
error and only reverse if the error was "clearly capable of producing an unjust
result." State v. McKinney, 223 N.J. 475, 494 (2015) (quoting R. 2:10-2).
In the context of jury instructions, plain error is "[l]egal
impropriety in the charge prejudicially affecting the
substantial rights of the defendant and sufficiently
grievous to justify notice by the reviewing court and to
convince the court that of itself the error possessed a
clear capacity to bring about an unjust result."
[State v. Camacho, 218 N.J. 533, 554 (2014) (quoting
State v. Adams, 194 N.J. 186, 207 (2008)).]
"Defendant is required to challenge instructions at the time of trial." State
v. Morais, 359 N.J. Super. 123, 134 (App. Div. 2003) (citing R. 1:7-2). "Where
there is a failure to object, it may be presumed that the instructions were
adequate." Id. at 134-35 (citing State v. Macon, 57 N.J. 325, 333 (1971)). "The
absence of an objection to a charge is also indicative that trial counsel perceived
no prejudice would result." Id. at 135. "Consequently, we should only reverse
if we find plain error." Ibid. (citing R. 2:10-2).
"An essential ingredient of a fair trial is that a jury receive adequate and
understandable instructions." State v. Afanador, 151 N.J. 41, 54 (1997).
A-5473-17
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"Appropriate and proper jury instructions are essential to a fair trial." State v.
Green, 86 N.J. 281, 287 (1981). "The [trial] judge 'should explain to the jury in
an understandable fashion its function in relation to the legal issues involved.'"
McKinney, 223 N.J. at 495 (quoting Green, 86 N.J. at 287). "The trial judge
must deliver 'a comprehensible explanation of the questions that the jury must
determine, including the law of the case applicable to the facts that the jury may
find.'" Ibid. (quoting Green, 86 N.J. at 287-88).
When reviewing an alleged error in the jury charge, "portions of a charge
alleged to be erroneous cannot be dealt with in isolation but the charge should
be examined as a whole to determine its overall effect," State v. Wilbely, 63 N.J.
420, 422 (1973), and "to determine whether the challenged language was
misleading or ambiguous," State v. Nelson, 173 N.J. 417, 447 (2002). In
"assessing the soundness of a jury instruction," a reviewing court considers how
ordinary jurors would "understand the instructions as a whole," based upon "the
evidence before them, and the circumstances of the trial." State v. Savage, 172
N.J. 374, 387 (2002) (quoting Crego v. Carp, 295 N.J. Super. 565, 573 (App.
Div. 1996)).
Moreover, the effect of any error "must be evaluated in light 'of the overall
strength of the State's case.'" State v. Walker, 203 N.J. 73, 90 (2010) (quoting
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State v. Chapland, 187 N.J. 275, 289 (2006)). "Nevertheless, because clear and
correct jury instructions are fundamental to a fair trial, erroneous instructions in
a criminal case are 'poor candidates for rehabilitation under the plain error
theory.'" Adams, 194 N.J. at 207 (quoting State v. Jordan, 147 N.J. 409, 422
(1997)).
Here, the language defendant asserts was missing from the initial charge
was included in the revised instruction. In fact, it was also included in the initial
charge in the paragraph preceding the objectionable language as follows:
[D]eadly force is not justifiable in a situation where the
actor with the purpose of causing death or serious
bodily harm provoked the use of force against himself
in the same encounter . . . . Nor is the use of deadly
force justifiable where the actor knows that he can
avoid the necessity of using such force with complete
safety by retreating.
Even if there was confusion, which we are satisfied there was not, any confusion
was clarified by the judge's revised instruction. Reviewing the charge as a
whole, we find no plain error in the self-defense charge.
III.
In Point II, defendant argues the judge erred in failing to include a specific
unanimity charge as part of the self-defense charge. Defendant claims there was
"obvious jury confusion" regarding self-defense, which the judge failed to
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clarify. According to defendant, the "instructions were 'at best confusing , and
at worst misleading,'" warranting reversal of his conviction.
In the initial self-defense charge to the jury, the judge stated:
Under the law, the State must prove that self-
defense does not apply here. The State must do so
beyond a reasonable doubt. Accordingly[,] the State
must show that: 1) the defendant's belief that the use of
deadly force was necessary to save his own life or to
avoid serious bodily harm was not honest and
reasonable; or 2) although the defendant's belief was
honest and reasonable, the defendant provoked the
encounter with the purpose to kill or cause serious
bodily harm; or 3) although the defendant's belief was
honest and reasonable and the defendant did not
provoke the encounter with the purpose to kill or cause
serious bodily harm, the defendant could have retreated
in complete safety.
Here[,] there is no dispute that the defendant used
deadly force against Mr. Gaffney.
A reasonable belief is one which would be held
by a person of ordinary prudence and intelligence
situated as this defendant was. Please note that self-
defense exonerates a person who uses force in the
reasonable belief that such action was immediately
necessary to prevent his or her death or serious injury,
even if his belief was later proven mistaken.
Accordingly, the law requires only a reasonable, not
necessarily a correct, judgment. The belief must be
sincerely held, that is, it must be a belief that is honestly
held at the time.
ln your inquiry as to whether the defendant knew
that an opportunity to retreat with complete safety was
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available, the total circumstances including the
attendant excitement accompanying the situation must
be considered. You must consider the defendant's
ability to retreat at the time that the defendant decided
to use deadly force.
If the State does not satisfy its burden and you do
have a reasonable doubt, then it must be resolved in
favor of the defendant and you must acquit the
defendant based upon self-defense.
If the State has proved any one of these three
items beyond a reasonable doubt, then the defendant
did not act in self-defense and you must go on to
consider the crime of reckless manslaughter.
After the initial charge, the jury sent out a note asking the "judge [to] go
over self-defense as stated on page [seventeen]." The jury was provided with a
written copy of the jury charge. Page seventeen of the charge contained the
language quoted above. However, because the parties were unclear about the
request, the judge asked the jury for clarification. The jury then sent out a
second note stating "[d]o all three questions have to be yes for self-defense or
one of the three to be self-defense?"
After conferring with counsel, the judge responded:
Based on your prior question I know you're referring to
the three questions that appear on page [seventeen] of
[twenty-two] in the jury charge. Here is the response
and I think there may be some confusion among you
because the State has to disprove self-defense beyond a
reasonable doubt. And when you're talking about
A-5473-17
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things being proved and things being disproved,
sometimes it's hard to understand what "yes" means and
what "no" means so I'll try to clarify that.
Talking about the items one, two and three . . . on
page [seventeen] of [twenty-two] of the jury charge, the
State must prove one or two or three beyond a
reasonable doubt in order to disprove self-defense.
Said differently, if the State proves one or two or three
beyond a reasonable doubt, then there can be no self-
defense.
Before the end of the day, at the request of the parties, the judge provided
the jurors with further clarification on the self-defense charge as follows:
Ladies and gentlemen, before I send you home for the
day, I do want to provide you with some additional
clarification with regard to the applicability of [one],
[two], and [three], the meaning of those rules of law in
the context of your determination.
I'm referring to page [seventeen] of the charge.
With regard to Item N[umber] [One] which addresses
the defendant's belief that the use of deadly force was
necessary to save his own life or to avoid serious bodily
harm being honest or reasonable -- excuse me -- honest
and reasonable, you're to analyze that question as of the
time the deadly force was used. However, you are free
to consider all the facts and circumstances in evidence
that led up to that moment in time in performing that
analysis.
With regard to number [two], the provocation
issue, whether or not the defendant provoked the
encounter with the purpose to kill or cause serious
bodily harm. It will be up to you to determine when the
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21
encounter began, but it must be some time after the
reconciliation that you've heard about in the testimony.
With regard to item [three], which is the duty to
retreat, the duty to retreat applies when the defendant
resorts to the use of deadly force. So[,] when you're
considering the opportunity to retreat, it must be as of
the time deadly force is used. So[,] there's a little bit of
a different time period depending upon which question
you're looking to and I want to make sure there's no
confusion that it is not all exactly the very same time
period potentially.
Both parties agreed the judge's clarification was responsive and appropriate.
On the next court day, the parties again discussed the self-defense charge:
[COURT]: So[,] we've had some discussions
concerning the jury's questions that were sent to the
[c]ourt, and I think we've reached a resolution of the
issue, but I want to go over a couple things with counsel
first.
First of all, I believe that the parties agree that
there was no error in the jury charge that was given to
the jurors. Is that correct, [Prosecutor]?
[PROSECUTOR]: Yes. Thank you.
[COURT]: [Defense counsel]?
[DEFENSE COUNSEL]: That is correct.
[COURT]: Now due to the jury's request for
clarification of certain issues, the parties agree that it is
prudent to provide them with a revised charge on self-
defense . . . . The parties have reviewed the revised
A-5473-17
22
charge . . . and consent to it. Do I have that correct,
[Prosecutor]?
[PROSECUTOR]: Yes. Thank you.
[COURT]: [Defense counsel]?
[DEFENSE COUNSEL]: Yes.
In the revised charge, the judge instructed the jury:
Now we're getting to the point in the self-defense
charge that's modified to address your questions.
The State must prove that self-defense does not
apply here. The State must do so beyond a reasonable
doubt. Accordingly, the State must prove any one of
the following beyond a reasonable doubt to show that
self-defense does not apply here: 1) At the time
defendant resorted to deadly force his belief that the use
of deadly force was necessary to save his own life or to
avoid serious bodily harm was not honest and
reasonable; or 2) After the reconciliation between
defendant and Mr. Gaffney, the defendant provoked the
use of deadly force against himself in the encounter
with the purpose to kill or cause serious bodily harm.
It is for the jury to decide what the encounter was and
when the encounter began after the reconciliation
between defendant and Mr. Gaffney; or 3) At the time
he resorted to deadly force the defendant could have
retreated in complete safety.
Here, there is no dispute that the defendant used
deadly force against Mr. Gaffney.
....
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23
If the State does not satisfy its burden and you do
have a reasonable doubt, then it must be resolved in
favor of the defendant and you must acquit the
defendant based upon self-defense.
If the State has proved any one of these three
items beyond a reasonable doubt, then the defendant
did not act in self-defense and you must go on to
consider the crime of reckless manslaughter.
There was no objection to the revised charge.
Later that day, the jury sent another note, stating "[j]ury cannot come to
unanimous decision on question one on the verdict sheet."9 After discussing the
note with counsel, the judge — with counsels' approval — instructed the jury to
continue deliberations as it had "not spent any significant amount of time
deliberating" given the "interruptions for breaks and video readbacks and
testimony readbacks." The judge, without objection, also repeated the portion
of the general charge relating to the jurors' obligation "to consult with one
another" and "deliberate with a view to reaching an agreement if you can do so
9
Question one on the verdict sheet read:
Did the State disprove, beyond a reasonable doubt, the
applicability of self-defense? If your answer is yes,
proceed to question two. If your answer is no, then you
have found the defendant not guilty due to self-defense.
Stop your deliberations and notify the Sheriff's Officer,
but do not reveal your results.
A-5473-17
24
without violence to individual judgment." The judge also reminded the jurors
to "not surrender [their] honest conviction[s] as to the weight or effect of
evidence . . . solely because of the opinion of [a] fellow juror[] or for the mere
purpose of returning a verdict." The jury did not reach a verdict that day.
On the next court day, the judge addressed an e-mail he received from
defense counsel suggesting, in response to the jury's note regarding its inability
to reach a verdict on question one, the court should instruct the jury that its
decision must be unanimous as to whether the State met its burden to disprove
self-defense under prong one, two, or three of the self-defense charge. In other
words, according to defense counsel, all jurors had to agree the State proved, for
example, defendant could have retreated for the State to meet its burden. If six
jurors believed defendant could have retreated, and six jurors believed defendant
provoked the victim, then the State did not meet its burden. The judge responded
that the issue raised in defense counsel's e-mail was premature considering the
jury's continued deliberations without additional questions.
Later that day, the jury sent another note, asking for, among other things,
"more clarification on justification, self-defense, page [seventeen] . . . where
self-defense does not apply here. Number one, number [two], and number
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25
[three] in plain English." In response, with the consent of the parties, the judge
instructed the jury:
1. You have heard the defendant say that he used
deadly force because at the time he used deadly force
he believed that it was necessary to save his own life or
to avoid serious bodily harm to himself.
The State must prove beyond a reasonable doubt
that defendant's expressed belief was not honest or that
it was not reasonable. If the State proves this beyond a
reasonable doubt, then there is no self-defense.
2. Another way self-defense could be disproven is by
the State proving beyond a reasonable doubt that after
defendant and Mr. Gaffney shook hands outside of
Paddy's Place, defendant with the purpose to kill or
cause serious bodily harm to Mr. Gaffney provoked the
use of force against himself.
If the State proves this beyond a reasonable
doubt, then there can be no self-defense.
[3.] Another way self-defense could be disproven is by
the State proving beyond a reasonable doubt that at the
time defendant used deadly force defendant could have
retreated in complete safety. If the State proves this
beyond a reasonable doubt, then there can be no self-
defense.
....
If the State has proved any one of these three
items beyond a reasonable doubt, then the defendant
did not act in self-defense and you must go on to
consider the crime of reckless manslaughter.
A-5473-17
26
If the State does not satisfy its burden and you do
have a reasonable doubt, then it must be resolved in
favor of the defendant and you must acquit the
defendant based upon self-defense.
Following this instruction, the judge asked if the parties had any issues
with what he read. Defense counsel requested that the judge instruct the jury,
"if the State has not proved any one of these three items beyond a reasonable
doubt, then the State does not satisf[y] its burden." The judge responded:
I understand your position. I'm looking at what you
propose compared to the words that I read. I find it to
be a distinction without a difference and I don't find that
the clarification is necessary . . . . I'm not going to give
the clarification that you seek because I think it's clear.
I think the burdens are appropriately identified . . . and
the jury was properly instructed.
The jury did not ask any further questions regarding the self-defense charge.
On appeal, defendant argues the judge should have instructed the jury
"that it needed to unanimously agree on the factors disproved by the State
beyond a reasonable doubt."
"The notion of unanimity requires 'jurors to be in substantial agreement
as to just what a defendant did' before determining his or her guilt or innocence."
State v. Frisby, 174 N.J. 583, 596 (2002) (quoting United States v. Gipson, 553
F.2d 453, 457 (5th Cir. 1997)); see also Ramos v. Louisiana, 590 U.S. ___, ___,
140 S. Ct. 1390, 1396-97 (2020) (recognizing "a defendant 'enjoys a
A-5473-17
27
constitutional right to demand that his liberty should not be taken from him
except by the joint action of the court and the unanimous verdict of a jury of
twelve persons'" (quoting Thompson v. Utah, 170 U.S. 343, 351 (1898))).
Indeed, both the New Jersey Constitution and Court Rules require a unanimous
jury verdict in a criminal case. N.J. Const. art. I, para. 9; R. 1:8-9.
"Ordinarily, a general instruction on the requirement of unanimity suffices
to instruct the jury that it must be unanimous on whatever specifications it finds
to be the predicate of a guilty verdict." State v. Parker, 124 N.J. 628, 641 (1991).
Our Supreme Court has held, however, that a specific unanimity requirement is
necessary "in cases where there is a danger of a fragmented verdict" and, in such
cases, "the trial court must upon request offer a specific unanimity instruction."
Id. at 637 (quoting United States v. North, 910 F.2d 843, 875 (D.C. Cir. 1990)).
This circumstance can arise where the facts are "exceptionally complex" or
where there is a variance between the indictment and the trial proofs. Id. at 636.
Moreover, "[a]lthough such a charge should be granted on request, in the
absence of a specific request, the failure so to charge does not necessarily
constitute reversible error." Id. at 637. The "core question" in such cases is
whether the "instructions 'as a whole posed a genuine risk that the jury would
be confused.'" Id. at 638 (quoting North, 910 F.2d at 951).
A-5473-17
28
Here, the judge gave a general unanimity charge, in accord with the Model
Jury Charges (Criminal), "Criminal Final Charge" (rev. May 12, 2014). At the
end of the instructions, the judge stated in pertinent part:
You are to apply the law as I have instructed you
to the facts as you find them to be for the purpose of
arriving at a fair and correct verdict. The verdict must
represent the considered judgment of each juror and
must be unanimous as to each charge. This means all
of you must agree if the defendant is guilty or not guilty
on each charge. That would apply to the issue of self-
defense as well.
....
You may return on each crime charged a verdict
of either not guilty or guilty. Your verdict, whatever it
may be as to each crime charged, or the issue of self-
defense, must be unanimous. Each of the [twelve]
members of the deliberating jury must agree as to the
verdict.
[Emphasis added.]
We are satisfied that the charge given was sufficient. The State did not
advance different theories based on different acts and different evidence.
Moreover, nothing in our jurisprudence suggests that the jury's findings need be
unanimous on how the State disproves self-defense so long as the jury
unanimously agrees that the State disproved self-defense beyond a reasonable
doubt. See, e.g., Model Jury Charges (Criminal), "Justification – Self Defense
A-5473-17
29
(In Self Protection) (N.J.S.A. 2C:3-4)" (rev. June 13, 2011).10 Nonetheless,
relying on State v. Tindell, 417 N.J. Super. 530 (App. Div. 2011), defendant
asserts a specific unanimity instruction was required.
In Tindell, we held:
The risk of a non-unanimous verdict occurs if, as here,
there are multiple alleged victims who are not
separately identified in the charging instrument, by
name or by such other characteristics as to enable a
reasonable person to ascertain their identity as the
victims of the crime, and are not specifically identified
as such in the jury charge and on the verdict sheet.
Here, the nature of the alleged threats and the
circumstances surrounding them required that the
victims be identified with particularity. Without such
specificity, there is a distinct and legally unacceptable
risk that a jury may return a verdict that was not based
on the unanimous judgment of the deliberating jurors.
[Id. at 555.]
10
As for other jurisdictions, while not controlling, in People v. Mosely, 488
P.3d 1074, 1076 (Colo. 2021), the Colorado Supreme Court held that "the jury
need not unanimously agree on the specific reason that self-defense was
disproven, so long as it unanimously agrees that the prosecution disproved self -
defense beyond a reasonable doubt." The Court explained that self-defense was
"treated as an additional element that the prosecution bears the burden of
disproving," and "a jury must unanimously agree only on whether, but not how,
each element of a charged offense was established[.]" Id. at 1081. See also
State v. Mekoshvili, 223 A.3d 834, 841-43 (Conn. App. Ct. 2020) (finding
"unanimity on whichever element of self-defense the jury might find to have
been disproven" was not required), certif. granted, 223 A.3d 60 (Conn. 2020);
Harrod v. State, 203 S.W.3d 622, 628 (Tex. App. 2006) (holding that the jury
was "not required to agree unanimously on the specific component of self-
defense on which it was not persuaded").
A-5473-17
30
None of the concerns identified in Tindell that warranted a specific
unanimity charge are applicable here. There were no separate evidential theories
or victims presented in the State's proofs.
Defendant also relies on State v. Bzura, 261 N.J. Super. 602 (App. Div.
1993) to support his position, but his reliance is misplaced. In Bzura, the
defendant was charged with false swearing under N.J.S.A. 2C:28-2(a), but the
indictment actually alleged "the form of false swearing proscribed by N.J.S.A.
2C:28-2[(c)]." Id. at 613. Although the trial judge allowed the State "to amend
the indictment to allege a violation of N.J.S.A. 2C:28-2[(c)] rather than N.J.S.A.
2C:28-2[(a),]" the judge delivered jury instructions that described elements of
both false swearing offenses. Id. at 613-615.
In reversing defendant's false swearing conviction, we held:
[T]he jury instruction would have permitted some
jurors to vote for a guilty verdict based on the form of
false swearing proscribed by N.J.S.A. 2C:28-2(a), . . .
while permitting other jurors to find guilt based on the
form of false swearing proscribed by N.J.S.A. 2C:28-
2(c) . . . . To permit individual jurors to agree on a
guilty verdict based on such different factual predicates
would countenance a non-unanimous jury verdict . . . .
[Id. at 614-15.]
The facts here are clearly distinguishable.
A-5473-17
31
Likewise, defendant's reliance on State v. Jackson, 326 N.J. Super. 276(App. Div. 1999) and Frisby, 174 N.J. at 593, is misguided. In Jackson, we held
that although the State had established a prima facie case that the defendant
possessed cocaine found in the pocket of some pants, the evidence was
insufficient to establish a prima facie case that the defendant possessed other
cocaine found in a dresser drawer. 326 N.J. Super. at 279. Because the jury
charge failed to distinguish between the two, we concluded "it [was] possible
that some of the jurors convicted defendant based only on possession of cocaine
found in the dresser drawer. Thus, the jury's required unanimity was
compromised." Id. at 282.
In Frisby, the State offered two separate theories to support the charge of
endangering the welfare of a child: 1) injuring the child or failing to properly
supervise him, which resulted in the injury; or 2) abandoning the child. 174 N.J.
at 599. To that end, the State advanced different theories "based on different
acts and entirely different evidence." Ibid. Our Supreme Court held because
"the allegations . . . were 'contradictory,' 'conceptually distinct,' and not even
'marginally related' to each other," the general unanimity charge was insufficient
and a more specific unanimity instruction was required. Id. at 599-600.
A-5473-17
32
In contrast, here, the State's evidence was uncomplicated. The State did
not try to prove that defendant committed the crime by presenting different
theories based on different acts or different evidence. The State presented only
one theory to support the charge of reckless manslaughter — defendant and
Gaffney engaged in a fist fight, which ended in defendant shooting and killing
Gaffney. Thus, there was no danger of a fragmented verdict and a specific
unanimity charge was not required. The judge's charge was appropriate and did
not sanction a non-unanimous verdict.
As to jury confusion, we are satisfied that any initial confusion the jury
may have had about the self-defense charge was remedied by the judge's answers
to the jury's questions and the judge's supplemental instructions, which were
sanctioned by both parties. It is firmly established that "[w]hen a jury requests
clarification," the trial court "is obligated to clear the confusion." State v.
Conway, 193 N.J. Super. 133, 157 (App. Div. 1984). If the jury's question is
ambiguous, the trial court must clarify the jury's inquiry by ascertaining the
meaning of its request. State v. Graham, 285 N.J. Super. 337, 342 (App. Div.
1995). Here, the judge satisfied his obligation as evidenced by the fact that the
jury had no further questions or requests for clarification of the self-defense
charge. See State v. McClain, 248 N.J. Super. 409, 421 (App. Div. 1991) ("The
A-5473-17
33
failure of the jury to ask for further clarification or indicate confusion [after
readback of jury charge] demonstrates that the response was satisfactory.").
IV.
In Point III, defendant argues for the first time on appeal that the judge
gave an erroneous instruction on "the timing with regard to the duty to retreat"
in connection with the self-defense charge. Specifically, he argues the judge
should have instructed the jury that the duty to retreat was "at the moment of the
use of deadly force" and not "after the second altercation."
After the final charge, the jury sent out a note, asking "Does the 'encounter'
begin when Gaffney came out of the bar or when [defendant] was on the
ground?" With the agreement of the parties, the judge responded, "When the
third encounter begins is for you to decide. However, it must be after the
defendant and Mr. Gaffney reconciled." Later that same day, with the agreement
of the parties, the judge further clarified the duty to retreat, telling the jurors
"the duty to retreat applies when the defendant resorts to the use of deadly force.
So[,] when you're considering the opportunity to retreat, it must be as of the time
deadly force is used."
On the next court day, following discussions with the parties regarding
"the jury's request for clarification of certain issues" related to the self-defense
A-5473-17
34
charge, the judge determined with the agreement of the parties that it would be
"prudent to provide [the jury] with a revised charge on self-defense." The judge
then gave the jury the revised instructions after the parties reviewed and agreed
on them. As to the duty to retreat, in the revised instructions, the judge told the
jury:
In your inquiry as to whether the defendant knew
that an opportunity to retreat with complete safety was
available, the total circumstances including the
attendant excitement accompanying the situation must
be considered. You must consider the defendant's
ability to retreat at the time that the defendant decided
to use deadly force.
Neither party objected to the revised instruction. Indeed, the prosecutor
stated he and defense counsel "worked on the language yesterday and it's
acceptable." Nonetheless, on appeal, defendant now argues the revised
instruction on the "duty to retreat" was erroneous. However, we find no error,
let alone plain error, in the instruction.
The general rule is that a person is not justified in using deadly force if he
may avoid death or serious bodily injury by retreating. N.J.S.A. 2C:3-4(b)(2).
"The Code requires that if a person 'knows that he can avoid the necessity of
using [deadly] force with complete safety by retreating,' he must do so or lose
self-defense as a justification for his conduct." State v. Rodriguez, 195 N.J. 165,
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35
175 (2008) (alteration in original) (quoting N.J.S.A. 2C:3-4(b)(2)(b)). The duty
to retreat arises only in cases involving deadly force. Stated differently, there
is no duty to retreat unless deadly force is used. See State v. Moore, 158 N.J.
292, 304, 308-11 (1999) (explaining there is no duty to retreat where the actor
"display[s] or brandish[es] a firearm . . . when the need for self-protection is
reasonably perceived and he merely intends to create an apprehension in the
aggressor that he will use deadly force if necessary" (quoting State v. Harmon,
203 N.J. Super. 216, 223 (App. Div. 1985), rev'd on other grounds, 104 N.J. 189(1986))). There is also no duty to retreat unless one "can do so safely." State v.
Gartland, 149 N.J. 456, 467 (1997).
Here, the judge properly instructed the jury that defendant's duty to retreat
arose when he decided to use deadly force. Up until that point in time, defendant
did not have a duty to retreat. Consequently, there was no error in the judge's
revised instructions.
V.
In Point IV, defendant argues the judge deprived him of his right to "fully
cross-examine" one of the State's witnesses, Robert Lima. We disagree.
On numerous occasions during Lima's cross-examination, defense counsel
contrasted Lima's recollection of events on the night in question with the
A-5473-17
36
videotape, while injecting counsel's own observations of the video. The
prosecutor eventually asked to be heard at sidebar:
I think we've established Mr. Lima remembers a
different sequence than on the video. I just want to be
careful moving forward and I don't think counsel is
doing this purposely, but injecting helpful facts that
enlarge contradiction, so if he could just keep – maybe
just the time frame, describing what the parties are
doing in the time frame almost as a refreshed
recollection . . . . So[,] I'm just asking you isolate it to
the minute and time without the over editorialization.
The judge responded to the prosecutor's objection as follows:
Here is what I'm seeing. I'm seeing that the defense is
seeking an advantage, playing out discrepancies
between the witness' recollection and the tape.
However, when the discrepancy is found, the defense
goes forward and tries to amplify the difference by
switching between temporal positioning, meaning what
the witness recalls and what the witness is seeing today
on the tape to try to broaden the gap between the
discrepancy. I think we're now at the point where it's
confusing the jury in the sense of it's taking away from
what this witness says he recalls and now we're getting
into an exposition on what this witness believes he sees
on the tape. The witness has recounted the events as he
recalls them twice now. The tape is the tape, and
arguments can be made from the tape with regard to the
reliability and credibility of this witness. I think at this
point we're now getting into an area where the jurors
are going to end up being confused and we're not
serving a useful purpose through this exercise.
Defense counsel disagreed with the judge's assessment, saying:
A-5473-17
37
I'm going back and forth to make sure we're talking
about the same thing and always differentiating what is
on the video and what he recalls. This is cross-
examination. I can lead this witness. I want to show
the jury that he is manufacturing. He's embellishing.
His memory is abysmally bad and he does invent
things; and when we go back and review the tape he
sees that it doesn't square with what he said, and then
we need to probe so that the jury sees this witness is
abysmally unreliable.
In response, the judge told defense counsel his method was improper and
suggested "show[ing Lima] the tape and ask[ing] him if he believe[d] the tape
show[ed] what he recalled." According to the judge, that way, Lima will "give
you a yes or no" answer. The following colloquy ensued:
[DEFENSE COUNSEL]: This little incident right
here, the second push. There's a question of the first
push and second push. He said it was the first push. He
acknowledged it. His position conformed with the
video. Okay. We're good. Now we have a second
fight. He's saying that Macchia goes after Gaffney. I'm
using the push as a point of reference in the testimony
to show it's manifestly false. He didn't go after him.
[COURT]: The issue whether or not he went after him
is an issue to be decided by the jury upon viewing the
tape. It's not going to depend upon whether or not the
witness agrees with what the tape shows. What I would
like to have happen, I would like to stop the practice of
going back and forth between the tape and the witness'
testimony and trying to in a positive feedback way have
the witness continue to be impeached. It's not serving
a purpose. You'll have your arguments.
A-5473-17
38
[DEFENSE COUNSEL]: This is the first time in
my entire career impeaching a State's witness is
considered a bad thing. That's the essence of cross-
examination.
[COURT]: That's not what I'm saying. The practice
that you're employing is confusing and misleading to
the jury. It is not serving a useful purpose. You have
your grounds for argument from impeachment. I'm not
saying you can't question this witness. What I'm
saying, you have to change your method.
[Emphasis added.]
Following the sidebar discussion, defense counsel continued to question Lima
using the surveillance videotape. Neither the prosecutor nor the court
interjected.
"Both the federal and New Jersey constitutions guarantee criminal
defendants the right 'to be confronted with the witnesses against'" them. State
v. Budis, 125 N.J. 519, 530 (1991) (quoting U.S. Const. amend. VI; N.J. Const.
art. I, para. 10). "The right to cross-examine is an essential element of that
right." State v. Harvey, 151 N.J. 117, 188 (1997). The right of confrontation
affords defendants the opportunity "to cross-examine the state's witnesses" and
"protects against improper restrictions on questions defense counsel may ask
during cross-examination." Budis, 125 N.J. at 530-31. "It further encompasses
the right to elicit favorable testimony on cross-examination of the state's
A-5473-17
39
witnesses." Id. at 531. Nevertheless, "evidence helpful to the defense" may be
excluded "if exclusion serves the interests of fairness and reliability." Id. at 531-
32. "Thus, a defendant's constitutional right to confrontation does not guarantee
unlimited cross-examination of a witness." Harvey, 151 N.J. at 188.
"The scope of cross-examination . . . rests within the sound discretion of
the trial court." Ibid.; see also N.J.R.E. 611(a)(3) and (b) (allowing the court to
exercise reasonable control over cross-examination to "protect witnesses from
harassment or undue embarrassment"). "[T]rial courts 'retain wide latitude . . .
to impose reasonable limits on . . . cross-examination based on concerns about,
among other things, harassment, prejudice, confusion of the issues, the witness'
safety, or interrogation that is repetitive or only marginally relevant.'" Budis,
125 N.J. at 532 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)).
Indeed, "a cross-examiner does not have a license to roam at will under the guise
of impeaching credibility." State v. Engel, 249 N.J. Super. 336, 375 (App. Div.
1991). "A trial judge has broad discretion to determine the proper limits of
cross-examination of a witness whose credibility is put in issue." Ibid. We "will
not interfere with [the trial court's] control [of cross-examination] unless clear
error and prejudice are shown." State v. Gaikwad, 349 N.J. Super. 62, 86-87
A-5473-17
40
(App. Div. 2002) (quoting State v. Murray, 240 N.J. Super. 378, 394 (App. Div.
1990)).
Here, we discern no abuse of discretion in the judge limiting defense
counsel's method of going "back and forth" between Lima's testimony and the
videotape based on the judge's determination that the methodology was
"confusing and misleading to the jury." Notably, the judge did not stop defense
counsel from questioning Lima or from using the videotape; rather, the judge
simply instructed defense counsel to question Lima in a less confusing manner.
As the judge astutely pointed out, "[t]he tape is the tape, and arguments can be
made from the tape with regard to the reliability and credibility of th[e] witness"
regardless of "whether or not the witness agrees with what the tape shows."
VI.
In Point V, defendant argues the prosecutor misstated the law on self-
defense and duty to retreat in summations, and the misstatement was
compounded by the prosecutor's use of a PowerPoint presentation, which
included the misstatement. Defendant urges, "th[e] visual imagery was
extremely prejudicial," and the judge's refusal to give a curative instruction
deprived him of a fair trial, warranting a reversal of his conviction.
A-5473-17
41
During summation, the prosecutor argued, "There are options that were
not taken. [Defendant] could have left in complete safety between the final
encounter and the second [sic] encounter. His wife asked him to go. He
doesn't." Defense counsel promptly objected. The judge sustained the objection
and instructed the jury to "disregard the last comment by the prosecutor."
The prosecutor continued, "At the time another option that's available to
a trained officer, [defendant], is to call 9-1-1. Now, clearly he's getting beaten
up. He's getting beaten repeatedly in the face. He can't do that to himself. He
can't get to his phone." Defense counsel again objected. At sidebar, defense
counsel stated: "We have the visual up which is perpetuating an incorrect
statement that he couldn't retreat, the second fight, which is the essence of the
sustained objection. I originally asked it to be taken off. It's the first line. "
After viewing the screen displaying the prosecutor's PowerPoint, the judge
directed the prosecutor to remove the objectionable slide and "continue with
[his] argument."
Shortly thereafter, defense counsel made another objection, arguing the
PowerPoint slide displayed an "[i]ncorrect statement of the law." Defense
counsel stated: "It's not provoke, it's provoke with intent to cause serious bodily
injury or death, and that's the essence of the difficulty here." The judge
A-5473-17
42
responded he did not "see any harm" and did not "see a necessity for [a] curative
instruction" because defense counsel had "given a clear explanation of the law"
during his summations and the judge would "give a clear explanation of the law"
during the final charge. Further, according to the judge, "the jury [would] be
instructed to disregard anything that differs from" the court's instructions on the
law.
"[P]rosecutors in criminal cases are expected to make vigorous and
forceful closing arguments to juries" and are therefore "afforded considerable
leeway in closing arguments as long as their comments are reasonably related to
the scope of the evidence presented." State v. Frost, 158 N.J. 76, 82 (1999). In
other words, as long as the prosecutor "stays within the evidence and the
legitimate inferences therefrom," State v. R.B., 183 N.J. 308, 330 (2005)
(quoting State v. Mayberry, 52 N.J. 413, 437 (1968)), "[t]here is no error," State
v. Carter, 91 N.J. 86, 125 (1982). In that regard, "[v]isual aids such as
PowerPoint presentations" are permissible in closing arguments but "must
adhere to the same standards as counsels' spoken words." State v. Williams, 244
N.J. 592, 617 (2021).
On the other hand, "prosecutors may not advance improper arguments,"
State v. Lazo, 209 N.J. 9, 29 (2012), and "[i]t is as much [the prosecutor's] duty
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43
to refrain from improper methods calculated to produce a wrongful conviction
as it is to use every legitimate means to bring about a just one," Frost, 158 N.J.
at 83 (quoting State v. Farrell, 61 N.J. 99, 105 (1972)). Nonetheless, "even when
a prosecutor's remarks stray over the line of permissible commentary," reversal
of a conviction is not automatically required. State v. McNeil-Thomas, 238 N.J.
256, 275 (2019). Rather, "the severity of the misconduct and its prejudicial
effect on the defendant's right to a fair trial" is weighed, and a conviction is
reversed only if "the conduct was so egregious as to deprive defendant of a fair
trial." State v. Wakefield, 190 N.J. 397, 437 (2007) (quoting State v.
Papasavvas, 163 N.J. 565, 625 (2000)); see State v. Jackson, 211 N.J. 394, 408-
09 (2012) ("'[N]ot every deviation from the legal prescriptions governing
prosecutorial conduct' requires reversal." (quoting State v. Williams, 113 N.J.
393, 452 (1988))).
"Prosecutorial comments are deemed to have violated the defendant's right
to a fair trial when they 'so infect[] the trial with unfairness as to mak e the
resulting conviction a denial of due process.'" Jackson, 211 N.J. at 409
(alteration in original) (quoting State v. Koedatich, 112 N.J. 225, 338 (1988)).
A determination as to whether a prosecutor's comments had the capacity to
deprive defendant of a fair trial must be made "within the context of the trial as
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44
a whole." State v. Feaster, 156 N.J. 1, 64 (1998). To warrant reversal, there
must have been "some degree of possibility that [the prosecutor's comments] led
to an unjust result." R.B., 183 N.J. at 330 (quoting State v. Bankston, 63 N.J.
263, 273 (1973)). That "possibility must be real, one sufficient to raise a
reasonable doubt as to whether [it] led the jury to a verdict it otherwise might
not have reached." Ibid. (alteration in original) (quoting Bankston, 63 N.J. at
273).
Here, following defense counsel's objection, the judge instructed the jury
to disregard the prosecutor's comment regarding when defendant could have left
the scene. Additionally, the judge instructed the prosecutor to remove the
objectionable slide from his PowerPoint presentation, thereby minimizing any
prejudice.11 What is more, in accordance with the Model Jury Charges, in the
final charge, the judge instructed the jury:
You must accept and apply this law for this case as I
give it to you in this charge. Any ideas you have of
what the law is or what the law should be or any
statements by the attorneys as to what the law may be
11
In Williams, 244 N.J. at 616, the Court stated "[t]o avoid objection or possible
error, we encourage counsel to disclose to each other and the court any visual
aids intended to be used during closing argument, but we do not require that
practice." It is unclear in the record whether the PowerPoint presentation was
disclosed to counsel and the court prior to summations, but, as the Court stated,
such disclosure is not required. Ibid.
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45
must be disregarded by you if they are in conflict with
my charge.
....
Arguments, statements, remarks, openings, and
summations of counsel are not evidence and must not
be treated as evidence. Although the attorneys may
point out what they think important in this case, you
must rely solely upon your understanding and
recollection of the evidence that was admitted during
the trial. Whether or not the defendant has been proven
guilty beyond a reasonable doubt is for you to
determine based on all of the evidence presented during
the trial. Any comments by counsel are not controlling.
We are satisfied that the judge's instruction on the applicable law and the
import of any contrary statements by the attorneys as to the applicable law
sufficed to cure any error. "The authority is abundant that courts presume juries
follow instructions." State v. Herbert, 457 N.J. Super. 490, 503 (App. Div.
2019).
VII.
In Point VI, defendant argues the judge erred in "admitting many highly
prejudicial hearsay statements of Gaffney through the trial testimony of Robert
Lima." We disagree.
Pre-trial, the State moved to admit through Lima's testimony three hearsay
statements Gaffney allegedly made to defendant prior to being shot: 1) "I'm
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46
done"; 2) "What's going on here?"; 12 and 3) "Stop, stop, stop." The State argued
Gaffney's statements were admissible under the state-of-mind exception to the
hearsay rule, N.J.R.E. 803(c)(3), and were relevant because "the verbal jousting
and repartee between Gaffney and [d]efendant [were] a central feature of the
case." In response, defense counsel argued Gaffney's statements were not
relevant and Lima's recollection was so poor that it was inherently unreliable
and thus excludable under N.J.R.E. 403.13
In a written opinion issued May 14, 2018, the judge granted the State's
motion. Initially, the judge found Gaffney's statements were "relevant to the
issues of the reasonableness of [d]efendant's use of deadly force; opportunity to
retreat; and provocation." Further, according to the judge, the statements were
"not unfounded speculation or a general statement of fear"; instead, they were
"contemporaneous expressions of intent made directly to the [d]efendant" and
"reflect[ed] Gaffney's mental . . . condition." Additionally, "although two
separate altercations occurred," according to the judge, because "there was no
cooling down period between the two" and "[b]oth [d]efendant and Gaffney
12
The statement "What's going on here?" was never testified to at trial by any
witness.
13
Defendant did not object to similar hearsay statements made by Vinsko.
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47
were under the stress of the events," the statements "were made without the
opportunity to fabricate." Thus, the judge admitted the statements under the
state-of-mind exception to the hearsay rule, N.J.R.E. 803(c)(3), as well as the
excited utterance exception to the hearsay rule, N.J.R.E. 803(c)(2). 14
Further, in rejecting defendant's argument that Lima's testimony was
excludable under N.J.R.E. 403 due to the unreliability of Lima's recollection,
the judge found "[t]he probative value of the evidence [was] not substantially
outweighed by its potential prejudice." The judge explained:
The [c]ourt has no doubt that Mr. Lima was a legally
competent witness. There is no indicia of fraud or any
abuse of the integrity of the [c]ourt that would warrant
the court to preclude his testimony. The defense is free
to attack his recollection and credibility on cross-
examination before the jury.
We review "the trial court's evidentiary rulings for abuse of discretion."
State v. Gorthy, 226 N.J. 516, 539 (2016). Thus, "trial courts are granted broad
discretion in making decisions regarding evidentiary matters, such as whether a
piece of evidence is relevant . . . and whether a particular hearsay statement is
14
The judge further noted that if the statements were not being offered for the
truth of the matter asserted, "but to show that [d]efendant was aggressive after
the end of the first fight," then they were also "admissible as non-hearsay
evidence."
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admissible under an appropriate exception." State v. Scharf, 225 N.J. 547, 572
(2016) (citations omitted).
When a declarant's "state of mind . . . is at issue in a case," N.J.R.E.
803(c)(3) "allows admission of extrajudicial statements to show the [declarant's]
state of mind." State v. Benedetto, 120 N.J. 250, 255-56 (1990). Specifically,
under N.J.R.E. 803(c)(3), a statement is admissible if it was "made in good faith"
and described "the declarant's then existing state of mind, emotion, sensation or
physical condition (such as intent, plan, motive, design, mental feeling, pain, or
bodily health), but not including a statement of memory or belief to prove the
fact remembered or believed."
"The necessary predicate to admission of such evidence is that: a) the
statement reflects a mental or physical condition of the declarant which
constitutes a genuine issue in the case; or b) the statement is otherwise relevant
to prove or explain the declarant's conduct." State v. Downey, 206 N.J. Super.
382, 390 (App. Div. 1986). That said, "[t]he 'state of mind' hearsay exception
should be construed narrowly, focusing specifically on the declarant's state of
mind and whether that state of mind is directly relevant to the issues at trial."
State v. McLaughlin, 205 N.J. 185, 189 (2011).
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49
"[W]hen a victim's state-of-mind hearsay statements are relevant to show
the declarant's own conduct, and when such conduct is known or probably
known to the defendant, it also can give rise to motive, and the statements
become admissible for that purpose, subject to the usual balancing under
N.J.R.E. 403." State v. Calleia, 206 N.J. 274, 296 (2011). "When a victim's
projected conduct permits an inference that defendant may have been motivated
by that conduct to act in the manner alleged by the prosecution, the statement
satisfies the threshold for relevance." Ibid.; see, e.g., State v. Rogers, 19 N.J.
218, 228 (1955) ("All evidentiary circumstances which are relevant to or tend to
shed light on the motive or intent of the defendant or which tend fairly to explain
his actions are admissible . . . ."). "Of course, trial courts should remain vigilant
to ensure that an evidentiary submission's probative value is not substantially
outweighed by prejudicial effect." Calleia, 206 N.J. at 297 (citing N.J.R.E. 403).
"Particularly where the declarant is deceased, the rule is rooted in
necessity and justified upon the basis that the circumstances provide a rational
substitute for the benefit of cross-examination." Downey, 206 N.J. Super. at
390. "It is said that the purpose and object underlying the confrontation
requirement are satisfied because the circumstances afford a sufficient guarantee
of testimonial trustworthiness to justify admission." Ibid. Thus, the victim's
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50
state of mind is a relevant issue to be decided by the jury where there is "an issue
as to whether a deceased might have harbored a suicidal design," or "was
accidentally killed," or "so feared the accused that he was an unlikely aggressor
where the justification of self-defense is raised." Id. at 391. Even "[w]hen the
victim's declarations do not express fear of the defendant, they might be
admissible . . . as a declaration of the victim's state of mind." State v. Machado,
111 N.J. 480, 489 (1988).
Here, the judge acknowledged for the State to overcome defendant's self-
defense claim, it would have to prove:
1) [d]efendant's belief that the use of deadly force was
necessary to save his own life or to avoid serious bodily
injury was not honest or reasonable; or 2) although
[d]efendant's belief was honest and reasonable,
[d]efendant was the aggressor; or 3) although
[d]efendant's belief was honest and reasonable, and
[d]efendant was not the aggressor, [d]efendant could
have retreated in complete safety.
The judge correctly concluded Gaffney's statements were relevant and
admissible to show Gaffney's actions in response to defendant's conduct and
"that defendant may have been motivated . . . to act in the manner alleged by the
prosecution." Calleia, 206 N.J. at 296.
As noted, alternatively, the judge found Gaffney's statements were
admissible as excited utterances under N.J.R.E. 803(c)(2). Under the Rule, three
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51
conditions must be met. The statement must be: 1) related to a startling event;
2) made under the stress of excitement caused by the event; and 3) made without
opportunity for the declarant to deliberate or fabricate. State ex rel. J.A., 195
N.J. 324, 340 (2008). Here, the evidence submitted at the pretrial hearing, which
included the videotape and witness testimony, clearly showed Gaffney was
under the stress of the fight when he made the statements and had no opportunity
to deliberate or fabricate. Thus, we discern no abuse of discretion in the judge's
alternative admissibility ruling.
Defendant further argues that Gaffney's statements should have been
excluded under N.J.R.E. 403(a). The Rule "mandates the exclusion of evidence
that is otherwise admissible '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. Cole, 229 N.J. 430, 448 (2017) (quoting N.J.R.E 403). We
see no basis to question the judge's balancing of the pertinent factors and finding
that N.J.R.E. 403(a) did not warrant exclusion of the evidence.
VIII.
In Point VII, defendant argues the judge committed error by failing to
provide a limiting instruction for Lima's testimony regarding the hearsay
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52
statements Gaffney made during his encounter with defendant. Because
defendant did not raise this issue at trial, we again review under the plain error
standard of review. See State v. Townsend, 186 N.J. 473, 498 (2006).
In Scharf, the Court permitted the State to introduce statements made by
the victim about her fear of the defendant. 225 N.J. at 572-73. The Court found
these statements were "relevant to disputed, material factual issues about [the
victim's] state of mind toward defendant, about her marital relationship, and
about her likely conduct that were ultimately argued [at trial] where the defense
was accidental death." Id. at 574-575. However, to ensure the evidence was
used properly, the Court determined that a limiting instruction was necessary.
Id. at 580.
One of the hearsay statements deemed admissible in Scharf was the
statement the victim made to a friend that she was "very afraid for her life" and
"very afraid [the defendant] was going to kill her." Id. at 562. The Court stated
"[a] limiting instruction is required here to guard against the risk that the jury
will consider the victim's statements of fear as evidence of the defendant's intent
or actions." Id. at 581 (citing Calleia, 206 N.J. at 292). The Court explained
"[s]uch state-of-mind testimony may properly be used only for evaluating the
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victim's actions or the likelihood of him or her acting in a certain way"; and "the
evidence may not be used as evidence of the defendant's actions or intent." Ibid.Here, the statements that were admitted, "I'm done" and "Stop," were
clearly admitted as evidence of Gaffney's state of mind and actions, namely, his
desire to discontinue the fight with defendant. Unlike Scharf, there was no clear
risk the jury could have considered these statements as evidence of defendant's
"actions or intent." Ibid. Thus, we conclude the judge's failure to provide a
limiting instruction following Lima's testimony did not have the capacity to
produce "an unjust result." R. 2:10-2.
In any event, "the prejudicial effect of an omitted instruction must be
evaluated in light of the totality of the circumstances." Townsend, 186 N.J. at
499 (quoting State v. Marshall, 123 N.J. 1, 145 (1991)). The evidence against
defendant was significant. The jurors had the benefit of watching the damning
surveillance videotape for themselves as well as hearing multiple witnesses'
accounts of how the fight between Gaffney and defendant evolved. See Walker,
203 N.J. at 90 (finding the effect of any error must be considered "in light 'of
the overall strength of the State's case'" (quoting Chapland, 187 N.J. at 289)).
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IX.
In Point VIII, defendant argues the judge erred in denying his motion for
a judgment of acquittal as the State did not "prove beyond a reasonable dou bt
that defendant did not reasonably and honestly believe that it was immediately
necessary for him to use deadly force to prevent Gaffney from inflicting death
or serious bodily injury upon him." Defendant also argues the State "failed to
prove beyond a reasonable doubt that defendant provoked the use of force
against himself in the encounter, with the purpose of causing serious bodily
injury or death to Gaffney" and "failed to prove beyond a reasonable doubt that
defendant had an opportunity to retreat in complete safety at the time that he
resorted to the use of deadly force against Gaffney."
At the conclusion of the State's case, defense counsel moved for a
judgment of acquittal, arguing "no reasonable jury could conclude beyond a
reasonable doubt that the State has disproven the claim of self-defense in this
case." In denying the motion, the judge explained:
Among the evidence that's significant is that the jurors
may see this matter as a fist fight. The defendant,
although he says he has a fractured nose and he had a
small bone displaced in his wrist, suffered injuries that
a reasonable juror might look at and say nothing
different than an ordinary person would sustain in an
ordinary fight and that from those injuries draw the
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55
inference that at no time was the defendant facing
serious bodily harm.
There's also evidence . . . from the medical
examiner that if it's accepted by a juror would have
[defendant] giving as good as he got to Mr. Gaffney
essentially. Mr. Gaffney reportedly had multiple facial
injuries that came from blunt force trauma that was not
the result of him hitting the sidewalk after he had been
shot dead. Furthermore, the video in this case supports
the fact that he did not fall face first onto the sidewalk
because he fell on top of [defendant]. I think that's
plain from the video. As such he would have been
cushioned in his fall.
....
The description of the defendant throughout the
evening after the first encounter was that he was in a
highly agitated state. Those are my words, not any
witness' words. He was intoxicated. He was out of
control. These are conclusions that an ordinary juror
could reach. And they would reach these conclusions
by watching the video, listening to the testimony of him
ignoring the pleas of his newly pregnant wife to go
home and others. If they accepted Mr. Lima's version
of the events, the victim himself was telling the
defendant to leave. The jurors may listen to the excuse
offered by the defendant of wanting to pay his bill to
avoid theft of services and to get his jacket as not being
honestly made, and they could listen to that and find
that that is a post hoc excuse being offered by the
defendant and, therefore, reflective of his mental state
and purpose at the time . . . . They may find that
because the defendant is seen on the video towards the
end standing in front of the door and gesturing with an
arm, they may find that to be the defendant was
pointing to Mr. Gaffney and essentially calling Mr.
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56
Gaffney out after being abused by Mr. Gaffney and
enraged. They may find he was so enraged he decided
to kill Mr. Gaffney. That is a result that would be
supported by the evidence.
With regard to the issue of retreat, in addition to
everything I just mentioned, they may find that when
they look at the video . . . they see the defendant
reaching for his weapon as he falls. They may find that
he had decided at that point to kill Mr. Gaffney. That
would be a point in time that was sooner than the point
being advanced by counsel as the point that the jurors
must consider, that being the point advanced by counsel
is the point in time where Mr. Gaffney is standing over
the defendant and repeatedly striking him.
The jurors could find it was mutual combat, as I
noted earlier . . . and although [defendant] was on the
ground, he had an opportunity to escape, to roll over, to
go away, to not go for his gun as an initial matter.
These are things that a reasonable juror looking at the
totality of the evidence could see and could reasonably
find.
The judge stated further that once the jurors "overcome the hurdle of self-
defense, the issue of manslaughter and the sufficiency of the evidence available
to sustain a conviction of manslaughter . . . is patent."
Under Rule 3:18-1, a defendant is entitled to a judgment of acquittal at the
close of the State's case, "if the evidence is insufficient to warrant a conviction."
The test is "whether, based on the entirety of the evidence and after giving the
State the benefit of all its favorable testimony and all the favorable infere nces
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57
drawn from that testimony, a reasonable jury could find guilt beyond a
reasonable doubt." State v. Williams, 218 N.J. 576, 594 (2014) (citing State v.
Reyes, 50 N.J. 454, 458-59 (1967)). The evidence may be "direct or
circumstantial," Reyes, 50 N.J. at 459, and "[i]nferences need not be established
beyond a reasonable doubt." Tindell, 417 N.J. Super. at 549. "We review the
record de novo in assessing whether the State presented sufficient evidence to
defeat an acquittal motion." State v. Dekowski, 218 N.J. 596, 608 (2014).
Applying these principles, we conclude that based on the State's proofs, a
reasonable jury could find that defendant did not act in self-defense and
committed the crime of reckless manslaughter.
"Criminal homicide constitutes manslaughter when . . . [i]t is committed
recklessly . . . ." N.J.S.A. 2C:11-4(b)(1). "Under the Code, exoneration on the
basis of self-defense would be clearly inconsistent with a finding of
manslaughter that a person recklessly killed his aggressor." Rodriguez, 195 N.J.
at 172. However, under N.J.S.A. 2C:3-4(b)(2), the use of deadly force is not
justifiable "unless the actor reasonably believes that such force is necessary to
protect himself against death or serious bodily harm." Deadly force is
impermissible if "[t]he actor, with the purpose of causing death or serious bodily
harm, provoked the use of force against himself in the same encounter; or [t]he
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actor knows that he can avoid the necessity of using such force with complete
safety by retreating." Ibid. at 171-72 (quoting N.J.S.A. 2C:3-4(b)(2)).
"Self-defense exonerates a person who kills in the reasonable belief that
such action was necessary to prevent his or her death or serious injury, even
though this belief was later proven mistaken." Id. at 172 (quoting State v. Kelly,
97 N.J. 178, 198 (1984)). "Before resorting to deadly force, one must have both
an objectively reasonable and an honest that is, sincere belief 'in the need to kill
in self-defense.'" Ibid. (quoting Kelly, 97 N.J. at 198-200). "Based on the
Code's own language, a person who kills in the honest and reasonable belief that
the protection of his own life requires the use of deadly force does not kill
recklessly." Ibid.Thus, in order to overcome a self-defense claim, the State is required to
prove that: 1) defendant's belief that the use of deadly force was necessary to
save his own life or to avoid serious bodily injury was not honest or reasonable;
or 2) although defendant's belief was honest and reasonable, defendant was the
aggressor; or 3) although defendant's belief was honest and reasonable, and
defendant was not the aggressor, defendant could have retreated in complete
safety. See N.J.S.A. 2C:3-4(b)(2).
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The State's proofs included the surveillance videotape of the fight, from
which a reasonable jury could find in and of itself proof beyond a reasonable
doubt that defendant did not act in self-defense.15 The State's proofs also
included the testimony of multiple eyewitnesses, including Lima, from which a
reasonable jury could conclude that defendant did not act in self-defense. As
the judge pointed out, although defendant sustained injuries during the fight, a
reasonable jury could find that these injuries were not life-threatening, but
injuries typically sustained in a fistfight. While defendant argued that he did
not punch or otherwise attack Gaffney, the videotape showed otherwise.
Moreover, the medical examiner testified that Gaffney sustained injuries ot her
than the bullet wounds. Based on the entirety of the evidence, we agree with
the judge that a jury could find beyond a reasonable doubt the State disproved
defendant's claim of self-defense and proved defendant was guilty of reckless
manslaughter.
X.
In Point IX, defendant argues the cumulative effect of the trial errors
undermined his rights to due process and a fair trial, warranting reversal of his
15
Our review of the surveillance videotape supports the State's position that
Gaffney did not reach — or even attempt to reach — for defendant's gun.
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60
conviction. "We have recognized in the past that even when an individual error
or series of errors does not rise to reversible error, when considered in
combination, their cumulative effect can cast sufficient doubt on a verdict to
require reversal." State v. Jenewicz, 193 N.J. 440, 473 (2008). However, here,
because we conclude there were no reversible errors either alone or combined,
defendant's cumulative error argument must also fail.
In Point IX, defendant also argues the judge erred in "overruling a defense
objection" to the readback of his cross-examination only, in response to the
jury's request for same. On the fourth day of deliberations, 16 the jury sent a note
requesting a "read back of defendant's testimony while on the stand, specifically
just the prosecutor's cross-examination part." Over the State's objection, defense
counsel asked the judge to essentially read back defendant's entire testimony.
In denying counsel's request, the judge stated:
I'm going to deny the defendant's request for the
following reasons. One, the question is specific and
emphatic. The word "just" is underlined which to me
indicates that the jurors have considered the testimony
as a whole and have determined for whatever reason
that they only want to hear the cross-examination. I
understand the arguments of defense counsel.
However, those arguments assume or presuppose that
the jurors need to be reminded of what happened on
direct. Here, as I said, from the phrasing of the specific
16
The jury returned its verdict on the fifth day of deliberations.
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61
question itself, it appears to the court that they are
mindful of it but for their own reasons wish only to hear
cross-examination. I don't see that the interests of
justice would be offended by answering their specific
question and, therefore, I'm denying the request.
"Jurors should not be required to watch or hear more testimony than they
ask for." State v. Miller, 205 N.J. 109, 123 (2011) (citing State v. Wilson, 165
N.J. 657, 661 (2000)).
[W]here a request is clearly circumscribed, the trial
court has no obligation to compel jurors to hear
testimony they have not asked for or to continue a read
back after they have expressly indicated that they have
heard enough. That is so even if one of the parties
registers a request for a further read back.
[Wilson, 165 N.J. at 661 (citations omitted).]
"Courts have broad discretion as to whether and how to conduct read-
backs and playbacks." Miller, 205 N.J. at 122. Here, we discern no abuse of
the judge's discretionary authority. The jury's request was clear and specific.
Thus, the judge was under no obligation to read back defendant's direct
examination in addition to his cross-examination, despite defense counsel's
request.
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XI.
In Point X, defendant argues that because the mitigating factors
substantially outweighed the aggravating factors, the judge should have
downgraded his sentence to the range for a third-degree offense.
We review sentences "in accordance with a deferential standard," State v.
Fuentes, 217 N.J. 57, 70 (2014), and are mindful that we "should not 'substitute
[our] judgment for those of our sentencing courts,'" State v. Cuff, 239 N.J. 321,
347 (2019) (quoting State v. Case, 220 N.J. 49, 65 (2014)). Thus, we will
affirm the sentence unless 1) the sentencing guidelines
were violated; 2) the aggravating and mitigating factors
found by the sentencing court were not based upon
competent and credible evidence in the record; or 3)
"the application of the guidelines to the facts of [the]
case makes the sentence clearly unreasonable so as to
shock the judicial conscience."
[Fuentes, 217 N.J. at 70 (alteration in original) (quoting
State v. Roth, 95 N.J. 334, 364-65 (1984)).]
At defendant's sentencing hearing, the judge found aggravating factor
nine, N.J.S.A. 2C:44-1(a)(9) ("need for deterring . . . defendant and others from
violating the law"), and mitigating factors three, seven, and eight, N.J.S.A.
2C:44-1(b)(3) ("defendant acted under a strong provocation"); N.J.S.A. 2C:44-
1(b)(7) ("defendant has no history of prior delinquency or criminal activity" );
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63
N.J.S.A. 2C:44-1(b)(8) ("defendant's conduct was the result of circumstances
unlikely to recur").17
Although the judge found the mitigating factors "substantially
outweigh[ed]" the sole aggravating factor, the judge "decline[d] to downgrade"
defendant's sentence to the third-degree range. Citing N.J.S.A. 2C:44-1(f)(2),
17
We reject defendant's contention that the judge erred in his evaluation and
rejection of mitigating factors two, four, five, nine, ten, and eleven. As to factor
two, N.J.S.A. 44-1(b)(2) ("defendant did not contemplate that [his] conduct
would cause or threaten serious harm"), the judge found it "inapplicab le"
because the evidence showed "defendant knew he was using deadly force at the
time he used it." As to factor four, N.J.S.A. 44-1(b)(4) ("substantial grounds
[exist] tending to excuse or justify the defendant's conduct, though failing to
establish a defense"), the judge stated defendant "picked a fight" with Gaffney
after the two had reconciled, and when defendant started "losing, he used his
weapon without legal justification." Similarly, the judge rejected factor five,
N.J.S.A. 44-1(b)(5) (the victim "induced or facilitated" the commission of the
crime), because defendant "reinstituted the dispute after reconciliation." As to
factor nine, N.J.S.A. 44-1(b)(9) ("[t]he character and attitude of the defendant
indicate that [he] is unlikely to commit another offense"), despite the numerous
letters submitted regarding defendant's good character, the judge, citing State v.
O'Donnell, 117 N.J. 210 (1980), found there was "a lack of true remorse" on
defendant's part. As to factor ten, N.J.S.A. 44-1(b)(10) (defendant would
"respond affirmatively to probationary treatment"), the judge found this factor
"inapplicable" as defendant was convicted of a second-degree crime which
carried a presumption of imprisonment. Finally, as to factor eleven, N.J.S.A.
2C:44-1(b)(11) (defendant's "imprisonment . . . would entail excessive
hardship"), the judge found, that while defendant would suffer some hardship,
he failed to show how such hardship was beyond those "common to all persons
. . . subject to prolonged incarceration." As to factor six, N.J.S.A. 44-1(b)(6)
(defendant would "compensate the victim" or "participate in a program of
community service"), defendant conceded its inapplicability.
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which permits a sentence one degree lower where "the interest of justice
demands," the judge explained:
In [State v.] Megargel, [143 N.J. 484, 501-502 (1996)],
our Supreme Court held that in determining what is in
the interest of justice, the defendant must come forward
with compelling reasons that are, "[i]n addition to and
separate from," the factors argued in mitigation . . . .
There must be truly, extraordinary, and unanticipated
circumstances to overcome the presumption of
imprisonment.
[D]efense counsel lists what are argued as compelling
factors in . . . his submission . . . . I find that . . .
counsel's points did not make compelling reasons.
Instead, they served to highlight that defendant should
have known better. As a police officer, he should not
have drunk to excess, having [six] beers and two Jack
Daniels in . . . the [little] time he was at the bar, and
certainly he shouldn't have done it while he was armed.
He should not have brushed his pregnant wife aside
when she was begging him to leave and physically
trying to direct him away. He should not have ignored
the pleas of, literally, the entire bar who were telling
him to go. He should not have persisted in picking a
fight with a much larger and stronger man who he
believed to be using illegal drugs. He should not have
remained in an establishment where he believed patrons
were using illegal drugs. Furthermore, counsel's
recollection of events is not accurate, in the [c]ourt's
estimation, when he says [defendant] was always
retreating and never threw a punch. The video shows
otherwise. There's nothing unique about [defendant] as
a person. For example, this is not a case involving
mental retardation or other similar, unique
circumstance for the [c]ourt to consider. To put it
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65
succinctly there are no compelling reasons to
downgrade here.
Sentencing a first- or second-degree offender to a sentence one degree
lower is governed by N.J.S.A. 2C:44-1(f)(2), which provides, in pertinent part:
In cases of convictions for crimes of the first or
second degree where the court is clearly convinced that
the mitigating factors substantially outweigh the
aggravating factors and where the interest of justice
demands, the court may sentence the defendant to a
term appropriate to a crime of one degree lower than
that of the crime for which he was convicted.
In Megargel, our Supreme Court observed that "the standard governing
downgrading is high," and proceeded to provide guidance on when a defendant's
first- or second-degree conviction should be downgraded pursuant to the
statutory framework. 143 N.J. at 500. Specifically, the Court established a two-
part test: 1) "[t]he court must be 'clearly convinced that the mitigating factors
substantially outweigh the aggravating ones'"; and 2) "that the interest of justice
demand[s] a downgraded sentence." Id. at 496 (quoting N.J.S.A. 2C:44-1(f)(2)).
The Court further explained that in applying this test, "the severity of the crime"
is "the most . . . important factor . . . ." Id. at 500 (citing State v. Hodge, 95 N.J.
369, 379 (1984)).
The Court continued, "[i]n evaluating the severity of the crime, the trial
court must consider the nature of and the relevant circumstances pertaining to
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the offense," including if "[t]he surrounding circumstances" make the offense
"very similar to a lower degree offense, thus suggesting that a downgraded
sentence may be appropriate." Id. at 500. Although trial courts may consider
"facts personal to the defendant" including "a defendant's role in the incident to
determine the need to deter him from further crimes and the corresponding need
to protect the public from him," the focus should be the crime itself. Id. at 501
(citing State v. Jarbath, 114 N.J. 394, 407 (1989)). The Court explained "[t]he
paramount reason we focus on the severity of the crime is to assure the
protection of the public and the deterrence of others. The higher the degree of
the crime, the greater the public need for protection and the more need for
deterrence." Id. at 500.
Additionally, "[t]he decision to downgrade a defendant's sentence 'in the
interest of justice' should be limited to those circumstances in which defendant
can provide 'compelling' reasons for the downgrade." Id. at 501-02 (quoting
State v. Jones, 197 N.J. Super. 604, 607 (App. Div. 1984)). "These reasons must
be in addition to, and separate from, the 'mitigating factors which substantially
outweigh the aggravating factors,' that the trial court finds applicable to a
defendant under the first prong of [N.J.S.A. 2C:44-1(f)(2)]." Id. at 502.
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Here, the judge found no "compelling reasons" to sentence defendant in
the third-degree range despite defendant's arguments to the contrary. Instead,
based on the balancing of the aggravating and mitigating factors, the judge
sentenced defendant to the lower end of the second-degree range. See Case, 220
N.J. at 64-65 ("[W]hen the mitigating factors preponderate, sentences will tend
toward the lower end of the range, and when the aggravating factors
preponderate, sentences will tend toward the higher end of the range." (quoting
State v. Natale, 184 N.J. 458, 488 (2005))).
Defendant's reliance on State v. L.V., 410 N.J. Super. 90 (App. Div. 2009),
to support his argument for a downgraded sentence is misplaced. In L.V., we
determined that "the high standard governing downgrading [a sentence]" under
N.J.S.A. 2C:44-1(f)(2) was met. Id. at 112. We held that "[t]he judge erred in
refusing to sentence defendant as a third-degree offender," id. at 113, for
"second-degree aggravated assault and second-degree reckless manslaughter"
stemming from her throwing her two newborn babies out the window at the
direction of her abusive father, leading to the death of the first child and severe
injuries to the second. Id. at 93-96. The babies were conceived from her father's
repeated and pervasive sexual molestation of defendant over a five-year period.
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Id. at 93-96. The first child was born when defendant was sixteen years old and
the second was born when defendant was eighteen years old. Id. at 95-96.
In L.V., the record revealed that the defendant was "a person of very
limited intelligence, functioning at a level in school initially below a five-year-
old child and by the time of the crimes at the level of a six-year-old child." Id.
at 112. She had "a severe language disorder and severe deficits in
comprehension and syntax" and suffered "from PTSD and Major Depressive
Disorder." Ibid. Further:
The circumstances surrounding her behavior were
extreme and severe. She had been raped by her father
repeatedly for years, causing impairment of her
judgment and decision-making ability. She felt
powerless toward her father and feared for her life and
that of her mother. Her cognitive limitations impaired
her ability to seek help with respect to the rapes and her
pregnancies and affected her desire not to have her
babies abused, and she was socially isolated by her
abusive father. Her cultural and language barriers and
her lack of assimilation into the community also
prevented her from seeking help.
[Id. at 112-13.]
Clearly, those circumstances do not obtain here.
In sum, because the judge's findings were supported by the record,
comported with the sentencing guidelines, and do not shock the judicial
conscience, we discern no abuse of the judge's sentencing discretion.
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Affirmed.
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