STATE OF NEW JERSEY VS. HARRY J. NEHER (13-09-0902, GLOUCESTER COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-0818-15T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
HARRY J. NEHER, a/k/a JOHN NEHER,
Defendant-Appellant.
__________________________________
Submitted December 4, 2017 – Decided June 7, 2018
Before Judges Messano and Vernoia.
On appeal from Superior Court of New Jersey,
Law Division, Gloucester County, Indictment
No. 13-09-0902.
Joseph E. Krakora, Public Defender, attorney
for appellant (Jay L. Wilensky, Assistant
Deputy Public Defender, of counsel and on the
briefs).
Charles A. Fiore, Acting Gloucester County
Prosecutor, attorney for respondent (Douglas
B. Pagenkopf, Special Deputy Attorney General/
Acting Assistant Prosecutor, on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant Harry J. Neher appeals his convictions following a
jury trial and aggregate forty-year sentence for first-degree
murder, tampering with evidence, hindering apprehension and
weapons offenses. Based on our review of the evidence in light
of the applicable law, we affirm defendant's convictions, vacate
his sentence and remand for resentencing.
I.
On December 31, 2012, Sabrina Bullock's lifeless body was
discovered in a storage shed behind defendant's apartment building
in Woodbury. Bullock was found with a computer keyboard cord tied
around her neck, and it was later determined she died as a result
of blunt force head and neck trauma.
Defendant, a self-employed electronics technician, was
subsequently arrested and charged in an indictment with the
following offenses: knowing or purposeful murder, N.J.S.A. 2C:11-
3(a)(1) (count one); possession of a weapon for an unlawful
purpose, N.J.S.A. 2C:39-4(d) (count two); tampering with evidence,
N.J.S.A. 2C:28-6(1) (count three); hindering apprehension,
N.J.S.A. 2C:29-3(b)(1) (count four); and unlawful possession of a
weapon, N.J.S.A. 2C:39-5(d) (count five).
The evidence presented at defendant's trial showed that on
December 30, 2012, Bullock was reported missing by her mother,
Maggie Bullock, who last spoke with Bullock at around 5:30 p.m.
2 A-0818-15T4
the previous day. Maggie Bullock went to defendant's apartment
to look for her daughter because she had previously seen Bullock
and defendant together. Later in the day, Maggie Bullock spoke
with defendant on the phone and defendant asked, "[W]hat do you
think, I killed [Bullock]?"
Defendant and his then-girlfriend Kelly Gall lived in an
apartment building on Broad Street in Woodbury and often bought
drugs from Bullock. Based on information received from Bullock's
mother, on December 30, 2012, Woodbury Patrolman Andrew
DiGiambattista went to defendant's apartment seeking information
concerning Bullock's whereabouts. Defendant said he had seen
Bullock the previous evening at "[a]pproximately [eight] p.m.,"
and spoke with Bullock about assisting her with her laptop
computer.
Police used information obtained from Bullock's cell phone
carrier to trace Bullock's phone to the parking lot behind
defendant's apartment. On December 31, 2012, DiGiambattista
investigated the parking lot, and found Bullock's body inside a
storage shed. She "appeared to have full rigor mortis and . . .
was cold to the touch." DiGiambattista also observed "a [keyboard]
cord wrapped around her neck."
During DiGiambattista's trial testimony, he identified
photographs depicting the shed as he observed it on December 31,
3 A-0818-15T4
2012. Following an objection by defense counsel, DiGiambattista
acknowledged he did not take the photographs. In response to
questions posed by the court, however, he testified he was present
when some of the photographs were taken and that all of the
photographs accurately depicted the scene in the shed as he
observed it.
Detective Nicholas Schock took the photographs and also
testified they accurately depicted the scene in the shed. He
identified photographs showing "footwear impressions that [were]
made in blood" around the victim and "a keyboard that was found
underneath [Bullock] with the cord" wrapped around her neck.
Schock also took photographs of defendant's apartment, tested
areas of the bathroom he believed might contain suspected blood
and swabbed a blood sample from the bathroom sink. A crime scene
investigator testified he removed a section from the shed's floor
that appeared to contain evidence of "footwear impressions."
The evidence also showed two trash bags containing clothing
were recovered during the investigation: one from a dumpster behind
defendant's apartment, and another from a trash corral located
near the apartment. The bag recovered from the dumpster contained
a black hooded jacket, a ski mask, a pair of sneakers, blue knit
gloves, a green hooded sweatshirt and a black Airwalk T-shirt.
Schock testified the sneakers were a men's size ten and a half,
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and had a distinctive "jagged" tread sole pattern. The bag
recovered from the trash corral contained household garbage, a
pill bottle prescribed to Gall, and two pairs of sweatpants, one
of which contained areas with suspected blood.
The State presented evidence showing comparisons between
defendant's DNA, Bullock's DNA, and DNA obtained from the clothing
found in the bags recovered from the dumpster and trash corral.
Bullock's DNA was obtained through the use of a sexual assault
evidence collection kit, which in part included the taking of a
blood sample from Bullock's body.
An expert in forensic serology and biological stain analysis
testified that blood was recovered and tested from one of the
sneakers, and the sweatshirt and jacket recovered from the bag
found in the trash corral. An expert in DNA testing analysis
testified that the DNA found on the sweatshirt contained a mixed
DNA profile, with Bullock as the major contributor and defendant
as the minor contributor. The expert further explained that the
DNA found on a second sweatshirt sample also contained a mixed
profile, and that defendant's DNA was the source of the major DNA
profile found.
The expert also determined that one of the DNA samples from
the jacket showed a mixed DNA profile, with the victim as the
major contributor and defendant as the minor contributor. The
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expert explained that the second DNA sample from the jacket
revealed three contributors, with defendant as the source of the
major DNA profile.
An expert in footwear impression analysis testified that she
conducted test impressions of the sneakers recovered from the bag
found in the dumpster, and compared them to the impressions
developed from the shed's flooring. Defendant objected to the
expert's testimony concerning photographs of the impressions used
during the analysis because the expert had not taken the
photographs. The court questioned the expert, and she explained
that the photographs accurately depicted the impressions and the
flooring. Defendant's counsel indicated he was satisfied, and
there was no further objection to the testimony.
The expert opined that eight of the twenty-two impressions
from the shed's floor shared a similar "chevron" or "zig[-]zag"
pattern as the soles of the recovered sneakers. She testified
that eight of the other impressions did not include sufficient
characteristics to provide a basis for comparison, and
acknowledged the possibility that other impressions did not come
from the recovered sneakers.
The State presented testimony from an expert in forensic
pathology that Bullock suffered a "half inch fracture in the right
side and . . . a quarter inch fracture in the left side of the
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neck." Bullock also suffered from "compression of the neck or
blunt trauma to the neck" which indicated her neck "was either
squeezed" or there was a blow to her neck causing a hemorrhage.
The expert testified Bullock "died of blunt head and neck trauma
that caused bleeding around the membranes of the brain and bleeding
within the brain. Additionally there was hemorrhage in the neck
organs indicating blunt neck trauma with possible compression."
Defendant testified at trial that he knew Bullock because he
bought drugs from her. He explained she came to his apartment
during the morning hours of December 29, 2012, and later he fought
with Gall because she believed he was "cheating on her" with
Bullock. He testified that during the day, Gall called Bullock
and argued with her over the phone.
Defendant testified he called Bullock at around 7:40 p.m. to
see if he could buy marijuana, and Bullock came to the apartment
a short time later. According to defendant, he and Bullock left
the apartment and went outside to smoke marijuana. He returned
to the apartment alone to obtain a cellphone for Bullock and while
he looked around the apartment, he saw Gall in the bathroom wearing
an "Airwalk t-shirt" washing blood off her hands. He saw blood
on Gall's forehead, and when he told her he was going outside to
meet Bullock, Gall pushed him causing him to injure his thumb.
7 A-0818-15T4
Defendant explained that he prepared to leave the apartment,
put on his jacket and noticed blood on his hand. He said he asked
Gall to see her hands but did not see any cuts, and that is when
he "found out that it was [Bullock's] blood and that [Gall] had
attacked [Bullock]." Defendant did not explain what caused him
to reach that conclusion.
Defendant denied killing Bullock, but admitted taking clothes
Gall placed into the plastic bag and putting the bag in the trash
corral. He admitted the sneakers had been given to him by Gall,
but said he did not wear them because they were too small. He
denied wearing the jacket and sweatshirt found in the bag on the
day of the murder. He admitted he disposed of the bag in the
trash corral, and Gall cleaned their apartment.
Defendant testified that Gall placed the other bag in the
dumpster. He admitted the bag contained clothes that he wore on
the day Bullock was murdered. He testified he found out Bullock
was murdered on December 31, 2012, but also stated that on December
30, 2012, he knew Bullock was in the shed. On cross-examination,
defendant "admit[ed] that [he] tried to cover up a crime, but
. . . didn't commit the murder."
Gall testified as a rebuttal witness for the State. She
explained that she knew Bullock because she and defendant bought
drugs from her. Gall denied believing defendant was cheating on
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her with Bullock, and testified she knew defendant went to
Bullock's house on occasion to fix her computer. Gall said that
on the evening of December 29, 2012, defendant returned to their
apartment and asked for assistance because he "got jumped." She
saw defendant take off his clothes and put them in a plastic bag.
He then said he was going to the hospital and left the apartment
with the plastic bag. Gall denied any involvement in Bullock's
murder.
The jury found defendant guilty on each of the charges in the
indictment. At defendant's sentencing proceeding, the court
imposed a forty-year sentence with "a parole ineligibility period
of [thirty] years," for defendant's first-degree murder
conviction. The court merged defendant's conviction for tampering
with evidence with his conviction for hindering apprehension, and
sentenced defendant to a term of eighteen months on those charges.
The court also merged defendant's convictions for the two weapons
offenses, and sentenced defendant to eighteen months. The court
ordered that the sentences be served concurrently.
At a subsequent resentencing hearing, the court explained
that it erred in its imposition of the parole ineligibility period
for the sentence on the murder conviction. The court stated that
the sentence imposed for the murder conviction was subject to the
No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and therefore
9 A-0818-15T4
modified that sentence to include an eighty-five percent period
of parole ineligibility and a five-year period of parole
supervision as required under NERA.
Defendant appealed from the judgment of conviction and
presents the following arguments for our consideration:
POINT I
THE TRIAL COURT ERRED PREJUDICIALLY IN
ADMITTING EVIDENCE OF A RAPE KIT TAKEN OF THE
VICTIM IN THE ABSENCE OF ANY EVIDENCE OR
ALLEGATION OF SEXUAL ASSAULT.
POINT II
THE PROSECUTOR COMMITTED PREJUDICIAL
MISCONDUCT, NECESSITATING REVERSAL, [U.S.
Const. amend. XIV]; [N.J. Const. art. I, ¶¶
9, 10]. (NOT RAISED BELOW)
A. State's Opening Statement
1. The Opening Constituted a
Repeated Declaration of
Guilt.
2. The Opening Was Overly
Inflammatory.
3. The Opening Was Improperly
Argumentative.
B. State's Summation
C. These Improprieties Constituted
Plain Error.
POINT III
THE TRIAL COURT ENGAGED IN EXCESSIVE
QUESTIONING OF WITNESSES, TO THE DEFENDANT'S
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PREJUDICE. [U.S. Const. amend. XIV]; [N.J.
Const. art. I, ¶¶ 9, 10]. (NOT RAISED BELOW).
POINT IV
THE TRIAL COURT IMPOSED AN EXCESSIVE SENTENCE,
NECESSITATING REDUCTION.
In a supplemental pro-se brief, defendant further argues:
POINT I
THE PROSECUTOR COMMITTED PREJUDICIAL
MISCONDUCT, NECESSITATING REVERSAL. [U.S.
Const. amend. XIV]; [N.J. Const. art. I, ¶¶
9, 10].
POINT II
THE TRIAL COURT ERRED WHILE DELIVERING
INSTRUCTIONS TO THE JURY.
POINT III
THE CUMULATION OF CERTAIN ERRORS DEPRIVED
DEFENDANT OF A FAIR TRIAL.
II.
A.
Defendant first argues the court erred by allowing testimony
that a sexual assault evidence collection kit was utilized to
collect evidence from Bullock's body, and that the results of the
testing did not reveal any evidence of a sexual assault. 1
Defendant argues the testimony was irrelevant because there was
1
Defendant does not argue that the evidence obtained from the
use of the kit, such as Bullock's blood sample and resulting DNA
profile, was improperly admitted into evidence.
11 A-0818-15T4
no allegation or evidence Bullock was the victim of a sexual
assault, and highly prejudicial because it unnecessarily
introduced the specter of sexual assault into the case, producing
revulsion toward defendant and sympathy for Bullock. We are not
persuaded.
"[C]onsiderable latitude is afforded a trial court in
determining whether to admit evidence, and that determination will
be reversed only if it constitutes an abuse of discretion." State
v. Kuropchak, 221 N.J. 368, 385 (2015) (citation omitted). "In
light of the broad discretion afforded to trial judges, an
appellate court evaluates a trial court's evidentiary
determinations with substantial deference." State v. Cole, 229
N.J. 430, 449 (2017). "Under that standard, an appellate court
should not substitute its own judgment for that of the trial court,
unless 'the trial court's ruling was so wide of the mark that a
manifest denial of justice resulted.'" Kuropchak, 221 N.J. at 385
(citations omitted). We apply those standards here.
"The fundamental principle guiding the admission of evidence
is relevance." State v. Weaver, 219 N.J. 131, 149 (2014).
Evidence is relevant if it has "a tendency in reason to prove or
disprove any fact of consequence to the determination of the
action." N.J.R.E. 401. Nevertheless, even "relevant evidence may
be excluded if its probative value is substantially outweighed by
12 A-0818-15T4
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." N.J.R.E. 403.
We find no abuse of discretion in the court's admission of
the experts' testimony about the use of the sexual assault kit and
the results of their findings from the kit, including the absence
of sperm or any other indicia of a sexual assault. The testimony
established facts of consequence: law enforcement's comprehensive
investigation of the potential circumstances surrounding Bullock's
murder and the processes used to obtain the DNA evidence that
inculpated defendant. Defendant and Bullock's mixed DNA profiles
in the blood found on the clothing directly linked defendant to
Bullock's murder. Bullock's DNA was obtained from the use of the
sexual assault kit.
Defendant argues the witnesses' reference to a "sexual
assault kit" and the evidence showing Bullock was tested for
physical evidence of sexual assault was unnecessary, unduly
prejudicial and diverted the jury's attention by introducing
sexual assault into the case. The record does not support this
contention. There was no allegation of sexual assault, defendant
was not charged with sexual assault and the testimony established
there was no evidence of a sexual assault. The only evidence
obtained from the use of the kit was Bullock's blood and the
13 A-0818-15T4
resulting DNA profiles. Indeed, on cross-examination of one of
the State's experts, defense counsel ably obtained an unequivocal
admission that the use of the kit yielded no evidence of a sexual
assault. Defendant makes no showing that the testimony confused
the jury or diverted its attention from the charges in the
indictment. We therefore find no basis to depart from the
"substantial deference" we pay "to the trial court's 'highly
discretionary determination.'" State v. Cook, 179 N.J. 533, 568
(2004).
Moreover, even if it was error to permit the experts to refer
to the "sexual assault kit," the error was harmless. R. 2:10-2.
The evidence showing defendant's guilt was overwhelming, and based
on our review of the record, we are convinced that admission of
the testimony, even if error, was not clearly capable of producing
an unjust result. R. 2:10-2; State v. R.B., 183 N.J. 308, 328
(2005).
B.
Defendant next argues a reversal is required because the
prosecutor engaged in misconduct in his opening and closing
arguments. More specifically, defendant claims that during the
prosecutor's opening statement, he repeatedly declared defendant's
guilt, used inflammatory language to attack defendant and create
sympathy for Bullock and was improperly argumentative. Defendant
14 A-0818-15T4
further contends that during summation, the prosecutor denigrated
defendant, expressed impermissible personal opinions about
defendant's credibility and the evidence and made misstatements
about the evidentiary record.
"A prosecutor must 'conscientiously and ethically undertak[e]
the difficult task of maintaining the precarious balance between
promoting justice and achieving a conviction,' ensuring that at
all times his or her 'remarks and actions [are] consistent with
his or her duty to ensure that justice is achieved.'" State v.
Jackson, 211 N.J. 394, 408 (2012) (alterations in original)
(quoting State v. Williams, 113 N.J. 393, 447-48 (1988)).
"Notwithstanding the high standard to which a prosecutor is
held as he or she gives an opening statement or summation, 'not
every deviation from the legal prescriptions governing
prosecutorial conduct' requires reversal." Id. at 408-09 (quoting
Williams, 113 N.J. at 452). "Prosecutorial misconduct is a basis
for reversal of a criminal conviction if the conduct was so
egregious that it deprived the defendant of the right to a fair
trial." State v. Gorthy, 226 N.J. 516, 540 (2016) (quoting State
v. Josephs, 174 N.J. 44, 124 (2002)).
In reviewing a claim of prosecutorial misconduct, a reviewing
court considers: "whether 'timely and proper objections' were
raised; whether the offending remarks 'were withdrawn promptly';
15 A-0818-15T4
. . . whether the trial court struck the remarks and provided
appropriate instructions to the jury . . . [and] whether the
offending remarks were prompted by comments in the summation of
defense counsel." State v. Smith, 212 N.J. 365, 403-04 (2012)
(citations omitted).
Generally, if no objection was made to the
improper remarks, the remarks will not be
deemed prejudicial. Failure to make a timely
objection indicates that defense counsel did
not believe the remarks were prejudicial at
the time they were made. Failure to object
also deprives the court of the opportunity to
take curative action.
[State v. Timmendequas, 161 N.J. 515, 576
(1999) (citations omitted).]
Measured against these standards, we find no basis to reverse
defendant's convictions based on the prosecutor's alleged improper
statements.
Defendant argues the following comments in the prosecutor's
opening constituted impermissible statements about defendant's
guilt:
Who you will not see in this courtroom is []
Bullock. She will not be here to tell you
what happened on December 29, 2012. And I get
to introduce to you her, who [] Bullock was
before this man right here got to her.
. . . .
Ladies and gentlemen, let me reintroduce you
to the person who did this. This killer right
there, take a look at him.
16 A-0818-15T4
. . . .
[T]he police in this case did locate that
evidence he attempted to discard, and it was
found.
And but for that being found he possibly could
have gotten away with murder.
. . . .
Ladies and gentlemen, this man's a killer,
right here. He is a murderer, and the State
intends to prove that.
A prosecutor has great leeway in his or her opening comments.
See id. at 692. Our review of a prosecutor's opening statement
"is two-fold: whether the prosecutor committed misconduct, and,
if so, 'whether the prosecutor's conduct constitutes grounds for
a new trial.'" State v. Wakefield, 190 N.J. 397, 446 (1994)
(quoting State v. Smith, 167 N.J. 158, 181 (2001)). In order to
satisfy the second prong of that test, a prosecutor's misconduct
"must have been 'so egregious that it deprived defendant of a fair
trial.'" Ibid. To warrant a new trial, the prosecutor's comments
"must have substantially prejudiced defendant's fundamental right
to have a jury fairly evaluate the merits of his defense." Ibid.We reject defendant's contention that the prosecutor's
statements were impermissible or require a reversal. Defendant
relies on select statements but fails to properly consider them
in their context. The prosecutor made each statement as part of
17 A-0818-15T4
a broader and permissible message that the State intended to prove
defendant was a murderer, and not that the prosecutor was declaring
defendant as such.
For example, after calling defendant the "killer right
there," the prosecutor stated: "Now you may be wondering . . .
[w]hat proof do you have?" and explained in detail the evidence
the State would present to establish defendant killed Bullock.
The prosecutor's explanation of how he intended to prove defendant
was the killer is not only within the bounds of permissible
conduct, but is also what an opening statement is intended to be.
See State v. Walden, 370 N.J. Super. 549, 558 (App. Div. 2004) ("A
prosecutor's opening statement should provide an outline or
roadmap of the State's case. It should be limited to a general
recital of what the State expects, in good faith, to prove by
competent evidence." (quoting State v. Torres, 328 N.J. Super.
77, 95 (App. Div. 2000))).
At all times during his opening statement, the prosecutor
reminded the jury of what he intended to prove, using phrases such
as "You'll be able to see," "You'll hear from those individuals,"
and "the State [] expects to present to you," certain types of
evidence. The prosecutor also made clear that the State "must
prove" defendant murdered the victim beyond a reasonable doubt,
and that "it intend[ed] to prove that." Thus, when considered in
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context, we discern no intention by the prosecutor to declare
defendant's guilt.
Moreover, defendant did not object to any of the prosecutor's
declarations during the opening statement. To the contrary,
defense counsel began his opening statement by properly reminding
the jury that, in accordance with the court's preliminary
instructions, "what is said in an opening statement is not
evidence," and that "[a]nything [the prosecutor] just said [is
not] evidence."
Defendant's reliance on State v. Rivera, 437 N.J. Super. 434(App. Div. 2014), is misplaced. In Rivera, the prosecutor
explicitly declared the defendant's guilt by using a PowerPoint
presentation in his opening statement that showed "a photograph
[of the] defendant's face and neck, which [was] displayed with a
bright red border." Id. at 447. "It also include[d] text, printed
in the same color and density, 'Defendant GUILTY OF: ATTEMPTED
MURDER.' The words 'Defendant' and 'GUILTY OF:' appear[ed] on
separate lines to the right of [the] defendant's photograph, and
'ATTEMPTED MURDER' appear[ed] below the photograph in much larger
typeface." Ibid.The prosecutor in Rivera explicitly declared the defendant's
guilt by listing the words "guilty of" next to "attempted murder."
Ibid. In reversing the defendant's convictions, we recognized
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that "[o]ur Supreme Court "has consistently condemned conduct that
invades the exclusive province of the jury to resolve factual
disputes, assess credibility and decide whether the State's
evidence establishes guilt." Id. at 449 (citations omitted). We
found "[i]t is difficult to conclude that a prosecutor's
declaration of the defendant's guilt before the first witness is
sworn would not have invaded the province of the jurors." Id. at
450.2
Here, the prosecutor's comments do not rise to the same level
or degree as those employed by the prosecutor in Rivera. There
was no declaration of defendant's guilt, and the prosecutor's
comments were accompanied by an acknowledgment that the State had
the burden of proving the elements of the offenses charged and a
description of the evidence which the prosecutor intended to
introduce to satisfy that burden. See State v. Hipplewith, 33
N.J. 300, 311 (1960) (explaining it is improper for a prosecutor
2
Our decision in Rivera did not turn exclusively on the
prosecution's use of the PowerPoint presentation during its
opening. The prosecutor also used the PowerPoint presentation in
summations and "included statements about the law of self-defense
that were so oversimplified as to be misleading." Id. at 463.
Thus, we were also concerned with the jury's "capacity to follow
[the trial judge's] instructions." Id. at 464 (citations omitted).
We reversed based on the "cumulative impact of the prosecutor's
misconduct." Id. at 465.
20 A-0818-15T4
to state, explicitly or implicitly, his or her personal belief of
a defendant's guilt unless it is based on the evidence).
Moreover, even if the prosecutor's statements were improper,
they did not deprive defendant of a fair trial, Wakefield, 190
N.J. at 467, and the lack of any objection to the statements may
be properly viewed as an acknowledgement they were not prejudicial,
See State v. Frost, 158 N.J. 76, 83 (1999) (holding generally,
"remarks will not be deemed prejudicial" if no objection was made
at trial); see also State v. Abdullah, 372 N.J. Super. 252, 267-
68 (App. Div. 2004) ("Where, as here, the defendant's lawyer fails
to object at trial, we may legitimately infer that counsel did not
consider the remarks inappropriate or prejudicial."), aff'd in
part, rev'd in part on other grounds, 184 N.J. 497 (2005).
We also reject defendant's assertion that the prosecutor's
opening statement was overly inflammatory based on his description
of how Bullock appeared when her body was found:
The [] Bullock that you'll see? She's bloody,
beaten, swollen, with her lifeless body
propped on a keyboard with its cord wrapped
around her neck . . . .
[The State] took photographs of [defendant's]
hands . . . .
I'm going to leave those pictures for you to
judge. You can evaluate them. You can
evaluate if they are bruises on his hands and
if it's consistent with being involved in this
brutal, vicious murder of [] Bullock.
21 A-0818-15T4
"A prosecutor may summarize the State's case graphically and
forcefully." State v. W.L., 292 N.J. Super. 100, 110 (1996). At
the same time, however, a prosecutor "may not make 'inflammatory
and highly emotional' appeals which have the capacity to defer the
jury from a fair consideration of the evidence of guilt." Id. at
111 (quoting State v. Marshall, 123 N.J. 1, 161 (1991)).
We have not hesitated to criticize rhetorical excesses by
prosecutors that invite juror sympathy for the victim. See, e.g.,
State v. Roman, 382 N.J. Super. 44, 58-59 (App. Div. 2005)
(criticizing prosecutor's remarks that it was the duty of adults,
including the jurors, to protect the child victim); State v.
Buscham, 360 N.J. Super. 346, 364-65 (App. Div. 2003) (same);
State v. Hawk, 327 N.J. Super. 276, 282 (App. Div.
2000) (suggestions that the jury "send a message" through its
verdict, "were inappropriate, inflammatory and constitute[d]
misconduct"). Contrary to defendant's claim, however, the
prosecutor's comments were not "calculated to arouse sympathy for
the victim and hate and anger against the defendant," like the
comments we determined required a reversal in W.L., 292 N.J. Super.
at 111. In W.L., the prosecutor commented on the innocence of all
children generally, the effects of the crime on the victim's
family, and advised the jury that if it found the State has proven
22 A-0818-15T4
its case it had a "strong duty to find him guilty." Id. at 105-
09.
Here, the prosecutor provided nothing more than a brief and
accurate description of Bullock's body as it appeared when it was
discovered, coupled with a preview of the evidence that would be
presented to establish the body's condition. The prosecutor's
description was graphic, but there was no objection, and the
description was neither impermissible, see W.L., 292 N.J. Super.
at 110-11, nor capable of depriving defendant of a fair trial, see
Wakefield, 190 N.J. at 443.
We similarly reject defendant's contention that the
prosecutor's opening statement was unduly argumentative. We find
no support in the record for defendant's reliance on State v.
Spano, 64 N.J. 566, 567 (1974), where the Court reversed a
defendant's conviction because the prosecutor interrupted defense
counsel's opening statement and declared the defendant had an
opportunity to appear before the grand jury and testify, but did
not do so. The Court determined the prosecutor's comment
constituted a declaration that the defendant would have testified
if he was innocent, but was guilty because he did not. Id. at
567-68. The prosecutor made no comparable remarks here.
23 A-0818-15T4
C.
Defendant further contends the prosecutor committed
prosecutorial misconduct by misstating facts in support of his
argument defendant was not credible and by stating defendant was
a liar. Although we agree the prosecutor's comments were improper,
we are not convinced they were sufficiently prejudicial to have
deprived defendant of a fair trial.
We consider the propriety of a prosecutor's comments during
summation under a standard similar to that applied in our
consideration of comments made during opening statements. A
prosecutor is "entitled to wide latitude in his [or her] summation
. . . [s]o long as he [or she] stays within the evidence and the
legitimate inferences therefrom." R.B., 183 N.J. at 330 (quoting
State v. Mayberry, 52 N.J. 413, 437 (1968)).
In our determination of the propriety of a prosecutor's
summation, we consider "whether 'timely and proper objections'
were raised; whether the offending remarks 'were withdrawn
promptly'; and whether the trial court struck the remarks and
provided appropriate instructions to the jury." Smith, 212 N.J.
at 403 (internal citation omitted) (quoting Frost, 158 N.J. at
83). If prosecutorial misconduct occurred and the comments "were
sufficiently egregious, a new trial is appropriate, even in the
24 A-0818-15T4
face of overwhelming evidence" of a defendant's guilt. Id. at
404.
"Whether particular prosecutorial efforts can be tolerated
as vigorous advocacy or must be condemned as misconduct is often
a difficult determination to make. In every instance, the
performance must be evaluated in the context of the entire trial,
the issues presented, and the general approaches employed." State
v. Negron, 355 N.J. Super. 556, 576 (App. Div. 2002). "To justify
reversal, the prosecutor's conduct must have been clearly and
unmistakably improper, and must have substantially prejudiced
[the] defendant's fundamental right to have a jury fairly evaluate
the merits of his [or her] defense." State v. Nelson, 173 N.J.
417, 460 (2002) (alterations in original) (quoting State v.
Papasavvas, 163 N.J. 565, 625 (2000)).
Defendant argues he was improperly denigrated by the
prosecutor's comments concerning defendant's statements to
Bullock's mother when she asked if he had seen Bullock after
Bullock went missing. The prosecutor told the jury:
[W]hat type of ruthless individual will look
a mother who's looking for her daughter in the
eye when he knows, he knows she's dead. He
knows she's dead and he didn't tell her. He
knows it.
And not only did he not tell her, Taylor
Bullock was there too, her poor daughter. He
looked her in the eye too. They're looking
25 A-0818-15T4
for [the victim] . . . and he knows. Ladies
and gentlemen, that is not a character trait
of someone who just covers a crime up. That
is a character trait of a murderer. That is
a character trait of someone who kills a
wom[a]n and tries to take another one down
while doing it. That's what he is.
We have criticized a prosecutor's use of derogatory
statements about a defendant, see, e.g., Wakefield, 190 N.J. at
467; State v. Pennington, 119 N.J. 547, 576-77 (1990), and the
prosecutor's references to defendant as "ruthless" and having a
"character trait of a murderer" were improper comments having no
place in defendant's trial. However, we must evaluate the
challenged remarks in the context of the "summation as a whole."
State v. Atwater, 400 N.J. Super. 319, 335 (App. Div. 2008)
(citation omitted).
Here, the prosecutor's comments were fleeting, and made
during a summation that otherwise detailed the substantial
evidence supporting the determination of defendant's guilt.
"Generally, . . . a 'fleeting and isolated' remark is not grounds
for reversal." Gorthy, 226 N.J. at 540 (quoting State v. Watson,
224 N.J. Super. 354, 362 (App. Div. 1988)). Moreover, "[w]hen,
as here, the defendant does not object to the prosecutor's
statement, that statement does not warrant reversal of the
conviction unless it is 'of such a nature as to have been clearly
capable of producing an unjust result.'" Ibid. (quoting R. 2:10-
26 A-0818-15T4
2); accord State v. Echols, 199 N.J. 344, 360 (2009). We are
therefore satisfied that the improper comments did not
"substantially prejudice[] . . . defendant's fundamental right to
have a jury fairly evaluate the merits of his . . . defense."
State v. Ingram, 196 N.J. 23, 43 (2008).
We have carefully considered defendant's remaining
contentions, including those asserted in defendant's pro se
supplemental brief, and find they are without sufficient merit to
warrant discussion in a written opinion. R. 2:11-3(e)(2). We add
only that the prosecutor's assertions of fact during summation,
when considered in context, were either directly supported by the
evidence or constituted inferences reasonably drawn from the
evidence. In addition, the court instructed the jurors that they
were "the sole exclusive judges of the evidence, of the credibility
of the witnesses, and the weight to be attached to the testimony
of each witness . . . regardless of what counsel said or may have
said recalling the evidence in this case." We presume the jury
followed the court's instructions, Smith, 212 N.J. at 409, and
therefore accorded no weight to any purported misstatement of fact
in the prosecutor's summation. The challenged statements
otherwise did not deprive defendant of a fair trial.
27 A-0818-15T4
D.
Defendant further contends the court erred by engaging in
what he characterizes as excessive questioning of DiGiambattista
and the State's footwear impressions expert. During
DiGiambattista's testimony, the court asked questions about
whether the photographs he was shown accurately depicted the scene
in the shed and Bullock's body when he found her. The court
similarly asked the expert questions about whether photographs
that she did not take accurately depicted the footwear impressions
found on the shed's flooring. Defendant argues the questioning
constituted unwarranted judicial intervention and violated his
right to a fair trial. We disagree.
Defendant did not object to the court's questioning of the
witnesses. We therefore review for plain error, and "disregard
any alleged error 'unless it is of such a nature as to have been
clearly capable of producing an unjust result.'" State v.
Funderburg, 225 N.J. 66, 79 (2016) (quoting R. 2:10-2). We find
no plain error here.
In State v. Ross, 229 N.J. 389, 408-09 (2017), the Court
recently summarized the relevant legal standard:
The New Jersey Rules of Evidence explicitly
permit trial judges to interrogate witnesses.
Judges are authorized to question witnesses
"in accordance with law and subject to the
28 A-0818-15T4
right of a party to make timely
objection." N.J.R.E. 614.
Indeed, we have recognized that the
discretionary power of a judge to participate
in the development of proof is of "high
value." [State v. Guido, 40 N.J. 191, 207
(1963)]. A trial judge may intervene to
expedite the proceedings and clarify
testimony. [State v. O'Brien, 200 N.J. 520,
534 (2009)]. A trial judge may also pose
questions to help elicit facts from a witness
who is in severe distress. [State v. Taffaro,
195 N.J. 442, 451 (2008)].
Although a trial judge has wide latitude to
question witnesses, a judge must exercise this
authority with "great restraint," especially
during a jury trial. Ibid. A judge must use
considerable care when questioning witnesses
to avoid influencing the jury. Ibid. There
is a grave risk that a trial court may
influence a jury through its questioning by
signaling doubt about a witness's credibility
or suggesting that it favors one side over the
other. See O'Brien, 200 N.J. at 523 (noting
that [a] judge "holds powerful symbolic
position vis-a-vis jurors . . . and must
refrain from any action that would suggest
that he favors one side over the other, or has
a view regarding the credibility of a party
or a witness"). A fine line separates proper
and improper judicial questioning. A trial
court crosses this line when its inquiries
give the jury an impression that it takes one
party's side or that it believes one version
of an event and not another. See Taffaro, 195
N.J. at 451.
In determining whether a trial judge crossed
over this line, we must examine the record as
a whole. See id. at 454. "[I]t is the impact
of the court's questions, and not the number
of minutes they lasted, which matters
most." Ibid.29 A-0818-15T4
Measured against that standard, we are satisfied the court
did not abuse its discretion by questioning the witnesses about
the accuracy of the photographs. The court's questions were
limited to the witnesses' knowledge concerning the photographs,
and could neither be reasonably interpreted as favoring one side
of the case nor as expressing an opinion on the credibility of
either side's version of the events. Cf. O'Brien, 200 N.J. at 537(reversing conviction based on judge's questioning of a witness
"le[ft] the impression that [the judge] did not believe [the]
defendant's claim"). The record simply does not support or permit
a conclusion that the court's questioning was capable of producing
an unjust result. R. 2:10-2.
E.
Defendant challenges his sentence, claiming the court erred
by imposing an excessive sentence based upon its application of
aggravating factors one, "[t]he nature and circumstances of the
offense, and the role of the actor therein, including whether or
not it was committed in an especially heinous, cruel, or depraved
manner," N.J.S.A. 2C:44-1(a)(1); three, the risk defendant will
commit another offense, N.J.S.A. 2C:44-1(a)(3); six, the extent
and seriousness of defendant's prior record, N.J.S.A. 2C:44-
1(a)(6); and nine, the need to deter defendant and others from
violating the law, N.J.S.A. 2C:44-1(a)(9).
30 A-0818-15T4
"Appellate review of sentencing is deferential, and appellate
courts are cautioned not to substitute their judgment for those
of our sentencing courts." State v. Case, 220 N.J. 49, 65 (2014)
(citation omitted). Thus, disturbing a sentence is permissible
in "only three situations: (1) the trial court failed to follow
the sentencing guidelines, (2) the aggravating and mitigating
factors found by the trial court are not supported by the record,
or (3) application of the guidelines renders a specific sentence
clearly unreasonable." State v. Carey, 168 N.J. 413, 430 (2001).
Our Supreme Court has cautioned that a reviewing court should
not second-guess a trial court's diligent exercise of its
sentencing discretion that is in accordance with the sentencing
guidelines. State v. Cassady, 198 N.J. 165, 180-81 (2009); State
v. Roth, 95 N.J. 334, 365 (1984). Rather, appellate courts must
abide by a sentence imposed in accordance with the sentencing
guidelines unless it "shocks the judicial conscience." Cassady,
198 N.J. at 180; see also State v. Tindell, 417 N.J. Super. 530,
570 (App. Div. 2011). We are "empowered – indeed obligated – to
correct a clearly unreasonable sentence, even if the judge applied
correctly the statutory sentencing guidelines." Tindell, 417 N.J.
Super. at 571.
A trial court must not only make findings of aggravating and
mitigating factors, but must also weigh and balance the factors
31 A-0818-15T4
in a process that requires more than a quantitative comparison of
"the number of pertinent aggravating factors with the number of
applicable mitigating factors." State v. Fuentes, 217 N.J. 57,
72 (2014). The sentencing court must "qualitatively assess[] and
assign[] appropriate weight in a case-specific balancing process."
Id. at 72-73. "When the aggravating and mitigating factors are
identified, supported by competent, credible evidence in the
record, and properly balanced," an appellate court must affirm the
sentence provided it does not shock our judicial conscience. Case,
220 N.J. at 65. If the sentencing court "forgoes a qualitative
analysis" of the aggravating and mitigating factors "or provides
little 'insight into the sentencing decision,' then the
deferential standard of appellate review of a sentence does not
apply. Ibid.
In a sentencing court's application of aggravating factors,
"sentencing courts are cautioned to avoid 'double counting'
circumstances that the Legislature has already incorporated as an
element of the offense." State v. Lawless, 214 N.J. 594, 608
(2013). Thus, relying on factors that support an element of a
crime, such as the victim's death which underlies the murder
offense, may not be used as aggravating factors for sentencing of
that particular crime. Ibid.32 A-0818-15T4
Here, defendant argues the court engaged in impermissible
double counting by finding aggravating factor one based on the
injuries resulting in Bullock's death. The court gave substantial
weight to aggravating factor one, and found the factor because
Bullock "died of blunt head and neck trauma" that "caused bleeding
around the membrane of the brain and bleeding within the brain,"
as well as "hemorrhage within the neck organs indicating blunt
neck trauma with possible compression." The court also noted that
a "cord was used" that was "wrapped around her neck."
Where the defendant is charged with a purposeful and knowing
murder, "the sentencing court's application of aggravating factor
one must be based on factors other than the death of the victim
and the circumstances essential to support a finding" that the
defendant knowingly and purposely caused the victim's death.
Fuentes, 217 N.J. at 76. The sentencing court must engage in a
"nuanced analysis of the defendant's offense," and provide a clear
explanation to permit an appellate court to determine if the
elements of offense have been double counted. Ibid. "[A]
sentencing court may justify the application of aggravating factor
one, without double[]counting, by reference to the extraordinary
brutality involved in an offense" or where the "defendant's
behavior extended to the extreme reaches of the prohibited
behavior." Id. at 75 (citation omitted).
33 A-0818-15T4
Here, the sentencing court could not properly find
aggravating factor one simply because "a death resulted from
defendant's conduct," id. at 76 (quoting State v. Briggs, 349 N.J.
Super. 496, 505 (2002)), but instead was required to determine if
defendant's conduct "was 'especially heinous, cruel, [or]
depraved'" based on the information in the record, id. at 77
(alteration in original) (quoting N.J.S.A. 2C:44-1(a)(1)). The
court, however, did not adequately explain the basis for its
application of aggravating factor one. It "neither discussed in
detail the circumstances of the offense nor identified the facts
in the record – distinct from the facts necessary to prove the
elements of [murder] – that supported its finding." Ibid. We are
therefore constrained to vacate defendant's sentences and remand
for resentencing. The court shall determine "if there is credible
evidence in the record to support" its finding of aggravating
factor one and "provide a detailed explanation of its findings
with respect to this and any other factor applied." Id. at 78.
We do not find merit in defendant's contention the court
erred by relying on his prior offense history as a basis for
finding aggravating factors three and nine. Defendant contends
the court also erred in weighing those factors because it failed
to consider the lack of severity of his previous offenses.
34 A-0818-15T4
The law is well-settled that a court may properly consider
defendant's prior history of criminality to support findings of
aggravating factors three, six and nine. State v. Dalziel, 182
N.J. 494, 502 (2005). The record supports the court's
determination because it shows defendant had 1999 convictions for
two counts of third-degree burglary, N.J.S.A. 2C:18-2, and one
count of third-degree arson, N.J.S.A. 2C:17-1(b)(2), under two
indictments. He was sentenced to serve a jail term as a condition
of probation. In 2001, the Family Court entered a domestic
violence temporary restraining order against him that was
subsequently withdrawn. In 2002, 2005, 2008, and 2009, he was
found guilty of offenses in municipal court. In 2010, he was
found guilty in municipal court of abuse, abandonment, or cruelty
of children, N.J.S.A. 9:6-1. In 2010, he was found guilty in
municipal court of three separate offenses. In 2012, he was
convicted of fourth-degree unlawful possession of a stun gun,
N.J.S.A. 2C:39-3(h), and received a probationary sentence. Less
than one year later, he committed the murder and other offenses
for which the court imposed the sentence under review.
A sentencing court may consider the length of a defendant's
criminal record, irrespective of whether each offense resulted in
a conviction, State v. Tanksley, 245 N.J. Super. 390, 397 (App.
Div. 1991), and may consider convictions for relatively minor
35 A-0818-15T4
offenses. State v. T.C., 347 N.J. Super. 219, 244 (App. Div.
2003). Defendant's record demonstrates a lengthy and consistent
history of violating the law and provided sufficient credible
evidence supporting the court's finding of aggravating factors
three, six and nine. See State v. O'Donnell, 117 N.J. 210, 216
(1989) ("[A]n appellate court should not second-guess a trial
court's finding of sufficient facts to support an aggravating or
mitigating factor if that finding is supported by substantial
evidence in the record."). We further discern no basis to "second-
guess" the court's weighing any of those aggravating factors. See
Cassady, 198 N.J. at 180-81.
Defendant's remaining arguments are without merit sufficient
to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Defendant's convictions are affirmed. We vacate defendant's
sentence and remand for further proceedings in accordance with
this opinion. We do not retain jurisdiction.
36 A-0818-15T4