STATE OF NEW JERSEY VS. MICHAEL J. DOCE (15-07-0801, MIDDLESEX 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NOT FOR PUBLICATION WITHOUT THE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-0967-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MICHAEL J. DOCE,
Defendant-Appellant.
___________________________
Argued November 18, 2019 – Decided May 7, 2020
Before Judges Fasciale, Rothstadt, and Mitterhoff.
On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Indictment No. 15-07-
0801.
Eric R. Breslin argued the cause for appellant (Duane
Morris, LLP, attorneys; Eric R. Breslin and Melissa S.
Geller, of counsel; Sarah Fehm-Stewart, on the briefs).
Nancy A. Hulett, Special Deputy Attorney General/
Acting Assistant Prosecutor, argued the cause for
respondent (Christopher L.C. Kuberiet, Acting
Middlesex County Prosecutor, attorney; Nancy A.
Hulett, of counsel and on the brief).
PER CURIAM
Defendant Michael J. Doce appeals from the Law Division's October 5,
2017 judgment of conviction that was entered after a jury found defendant guilty
of conspiracy to commit murder, N.J.S.A. 2C:5-2 and N.J.S.A. 2C11-3(a)(1),
and murder N.J.S.A. 2C:11-3(a)(1), (2). The trial court sentenced defendant to
thirty years imprisonment without parole eligibility.
On appeal, defendant challenges his conviction by arguing that his
constitutional right to a speedy trial was violated; the trial court improperly
admitted certain photographs into evidence; and he was deprived of a fair trial
as a result of various acts and omissions committed by the prosecutor. He also
contends that the cumulative errors in his trial warrant a reversal. For the
reasons that follow, we remand defendant's speedy trial claims to the trial court
as they were not addressed by that court in the first instance but affirm as to all
other issues.
I.
The facts established at defendant's trial that lead to his conviction are
summarized as follows. On November 6, 2011, defendant's codefendant, Daniel
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Medaglia murdered K.D.1 As the jury found, Medaglia did so at the direction
of defendant, whom he had met about two years earlier. According to Medaglia,
he committed the murder in an attempt to become involved in and "move up the
ladder" of an established, well-known New Jersey organized crime "family" that
defendant told Medaglia he was a prominent member and could help Medaglia
become a member.2
At the time Medaglia and defendant met, they were both involved in the
illegal sale of prescription drugs and made purchases from each other. Several
months after they met, defendant told Medaglia that his "Uncle Paulie" was the
head of the crime family, and as an underboss, he was a high-ranking member,
1
Medaglia and K.D. had been friends. They grew up in the same town and
attended the same high school. They remained friends after high school and
were both evidently involved with selling drugs to each other.
2
As discussed below, at trial, defendant asserted a defense explaining that his
representations were part of a role-playing activity in which he and his friends
participated. Such activities are akin to "LARPing," (Live Action Role Playing),
"a type of role-playing game in which each participant assumes a particular
character and acts out various scenarios at events which last for a predetermined
time." LARP, Collins English Dictionary Online,
https://www.collinsdictionary.com/dictionary/english/larp (last visited Apr. 21,
2020); see also People v. Linton, 302 P.3d 927, 945 (Cal. 2013) (discussing the
testimony about a "leader of a live action role-playing game club" in a murder
trial).
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and he could help Medaglia climb the ladder in the crime family. Defendant
told Medaglia that "Uncle Paulie" could help Medaglia set up his "own loan
sharking and bookie operation." Medaglia "wanted to get in close with
[defendant] after he said he was a member" of a crime family because Medaglia
was attracted to the "[m]oney, cars, things of that nature."
During 2010 and early 2011, Medaglia spent almost every day with
defendant and they would discuss the crime family's activities. Defendant also
introduced Medaglia to several individuals who were members of that family or
had connections to the family. Medaglia started receiving text messages from
an unidentified number and an individual who claimed to be one of the crime
family's members.
By March 2011, Medaglia and defendant's relationship "was escalating"
and Medaglia considered defendant "one of the most important people in [his]
life." Around that time, defendant informed Medaglia that he was going to start
asking Medaglia to do things for him, and Medaglia was willing to do "basically
anything [defendant] said."
Later, defendant told Medaglia that he would arrange to get him more
involved. Thereafter, Medaglia received a telephone call from someone, who
sounded like an "older Italian guy," who said that he had "heard good things
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about" Medaglia from defendant and that he was "going to set [Medaglia] up in
[his] own thing pretty soon." Defendant promised to help Medaglia get a job as
a bouncer at a strip club that he "had control over," and he would introduce
Medaglia to the managers, who were also members of the family.
Through his developing relationship with Medaglia, defendant met K.D.,
who sold him drugs when Medaglia was not available. Thereafter, on one
occasion, police officers followed K.D. as he drove to Medaglia's parent's house.
After that incident, Medaglia stopped spending time with K.D. because he was
upset that K.D. "got [them] jammed up in this little . . . run from the police."
However, initially, defendant offered to help K.D. by using the connections he
had to a prosecutor and the police, and stated that he could get the charges
against K.D. dropped if K.D. paid him $500. K.D. told Medaglia that he was
not going to pay defendant because he did not believe defendant had a
connection or was really part of the crime family.
Defendant started calling K.D. a "snitch" and believed that K.D. told
authorities about his drug sale operation. Medaglia was concerned about getting
caught because he had friends who had recently been arrested for drug sales.
Defendant worried that if Medaglia was arrested as a result of K.D. being a
snitch, then defendant could be arrested as well.
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Defendant began to frequently discuss with Medaglia the possible solution
to "take [K.D.] out." Starting in March and April 2011, defendant "constant[ly]"
pressured Medaglia to kill K.D., and the pressure continued "basically up until
November 6, 2011," when Medaglia committed the murder.
When discussing the planned murder, Medaglia became worried that he
also would be killed. He began receiving phone calls from a restricted number
from an individual again claiming to be "Uncle Paulie" who told him that K.D.
"got us all jammed up," "that he was putting a $50,000 hit on [ K.D.'s] head,"
and that it was Medaglia's "job to handle the situation." Similarly, defendant
told Medaglia he would be paid once he completed the hit, and that he could be
"liable" if he did not take care of the situation.
Several months prior to the murder, when Medaglia was driving with
defendant, he pointed out a terminal to Medaglia, and said it was a "bad place"
where murders happened, and that defendant "had personally killed nine people
and buried [their] bodies there." Defendant said that when the crime family had
to kill people, they did it there and that Medaglia would "have to do it alone
[the] first time." Defendant also told Medaglia that a family member named Phil
or Steve would help with digging holes and ensuring Medaglia was clean
afterwards. Eventually, they began to specifically discuss Medaglia taking K.D.
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to the terminal to kill him there. Medaglia asked defendant what he would use,
and defendant told him he would "give [him] a sharp knife."
On November 5, 2011, the day prior to the murder, Medaglia was with
K.D. at a motel. Medaglia texted defendant a number of messages stating that
Medaglia wanted "to do this for real." In response, defendant told Medaglia
"[f]ine" but that he was "not getting dirty" and would have someone prepare a
hole to bury K.D.'s body. Medaglia told defendant he did not have a "piece"
(referring to a handgun), and defendant responded to "use a blade. No noise."
While Medaglia waited for defendant to go to the terminal, Medaglia and
K.D. went to a bank nearby the motel and K.D. withdrew $500 because Medaglia
had told him they were going to purchase drugs. Ultimately, the murder did not
occur that day because defendant did not come to the motel and Medaglia felt
he "needed more direction" because he was not "sure what to do."
The following afternoon, Medaglia texted defendant that K.D. was
picking him up and that he "want[ed] to handle this now." K.D. picked Medaglia
up from his parent's house, and the two men went to a shopping mall. While
there, Medaglia texted defendant a reference to the terminal, saying he was about
to take K.D. to a "Giants game alone" and wanted defendant to call him. At 3:49
p.m., Medaglia and K.D. were still at the mall "wasting time until [Medaglia]
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received further directions" from defendant.
Defendant and Medaglia exchanged additional text messages, and then
Medaglia asked if he could bring K.D. to the "game" at 4:23 p.m. Defendant
responded with the following:
You can, but you have to go alone. In the back is a
river, my dad's yacht is in the water. Go to the dock.
We always have rope and concrete blocks . . . there.
Tie him and put him in the water behind the back of the
boat. The crabs will eat him in two days. Put the car
in drive into the river too. I'll . . . have someone go
there now to make sure you have cover.
Medaglia also asked defendant for directions on where to go onc e he
arrived at the terminal, defendant told him where to park, and then to "[c]lock
[K.D.] and either take [the] car or put [it] in [the] water." Medaglia told
defendant that he wanted to show defendant that he could "hold it down" and
that he was going to make him proud. Defendant texted in response "'[y]es' with
exclamation points."
At 4:53 p.m., Medaglia texted defendant with his plan to come up behind
K.D. and hit him. Defendant reminded Medaglia to make sure he deleted every
text message and said, "[s]o help you God if you don't I'll make sure you're
swimming too." Defendant followed up with another text a few minutes later
that read, "Be quick. Clock to the back. Water. Car. Out."
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Medaglia and K.D. stopped at a gas station, and Medaglia continued to
text defendant updates of his location. K.D. also withdrew money from an ATM
at the gas station for the drug deal K.D. believed was going to occur.
Defendant texted Medaglia, to make sure he was ready and told Medaglia
he did not "have to prove anything," to "[t]hink about it first," and not "do
something [he would] regret." He also texted: "If you really are ready, you have
to do it alone the first one. . . . We all did. Steve will clean it up. You have to
get the hell out fast. Take the car. "
Medaglia texted a series of follow-up messages asking what to do with
K.D.'s car, and defendant responded, "Steve will be there, just get to the water.
Lights off. Get out. Do your thing. Water. Car. Out." Medaglia again asked,
"[o]ut in what car [defendant]?" Defendant texted Medaglia, "[t]ake it home
and hide it or drive right into water. You can even keep [him] inside and roll it
in. So what's your plan? What are you going to do?" Medaglia told defendant
that his plan was to drive the car into the water and "have Steve give [him] a
ride."
When it was "dark enough," Medaglia texted defendant that he was
leaving the gas station. Defendant asked Medaglia to reiterate his plan, and
Medaglia told defendant that he was going to get "out with the pipe," "walk[]
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around [the] back of [the] car and get[] him."
Defendant reminded Medaglia to delete the messages, asked if he had
gloves, and told him to take K.D.'s "[w]allet, keys, . . . insurance, and
registration." Medaglia told defendant, "Bro, I got this." Defendant answered
with a text message that stated, "Steve is on top of building. First thing once
you're done is he'll check your phone, make sure everything is clear, everything.
Lift your shirt up and then . . . run towards [the convenience store], he'll scoop
you from there." At 5:27 p.m., defendant told Medaglia that Steve was there,
and Steve said that "he's got you."
On November 6, 2011, Medaglia killed K.D. at the terminal at some point
between 6:32 p.m. and 7:02 p.m. At that time, K.D. and Medaglia got out of the
car, Medaglia hit K.D. "from behind with [a] crowbar," and searched K.D.'s car
for keys so that he could put the car into the water. When he could not locate
the keys, he decided he "should get out of there," leaving K.D.'s body on the
ground.
After the murder, Medaglia went to the nearby convenience store and
contacted another codefendant, Ryan Morrell. When Morrell arrived, Medaglia
told him that he had killed K.D. The two men went to a department store,
Medaglia changed his clothes and boots, and put his bloody clothes in Morre ll's
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trunk. The two men then went to the strip club because defendant had told
Medaglia that if anything should happen to him, he should go there "since it was
under his control and contact Robert [or] Vinny and let them know something
had happened to him [so that] they [could] handle it."
Medaglia followed defendant's instructions. He spoke to someone at the
strip club. Afterwards, a "lightbulb went off that this might have been a whole
scam the entire time" because the man he spoke to acted like he did not know
defendant.
The two men then went to Morrell's house and burned Medaglia's clothes
in the backyard. Medaglia stayed at Morrell's house that night and then Morrell
brought Medaglia back to his parent's home the next day. Medaglia went to a
motel the following night.
K.D.'s body was discovered by a contractor who arrived at the terminal at
4:15 a.m. on November 7, 2011. In the area of K.D.'s body, there were large
storage containers and two pickaxes. One pickaxe was placed against one of the
storage containers and the second pickaxe was found on top of dense brush and
shrubs and had "a substantial amount of blood" on it.
The police discovered the car was registered to K.D.'s mother and found
his driver's license in his pocket. Officers discovered three cell phones in K.D.'s
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car. The police also obtained footage from a surveillance camera of the area,
which depicted "a male . . . wearing a jacket, skull cap, jeans, and white
sneakers," walking between K.D.'s Subaru and a dump truck. Officers later
determined that Medaglia was the man in the surveillance video.
Police later obtained a text message log, which brought the officers'
attention to a second phone number that they eventually learned belonged to
defendant. Police arrested Medaglia and defendant on November 9, 2011.
A grand jury indicted defendant, Medaglia, and Morrell. The indictment
charged defendant with conspiracy to commit murder, murder, and other related
charges. During the ensuing six years before defendant's trial, he filed a variety
of pre-trial motions. Additionally, three years after the original indictment, a
grand jury returned a superseding indictment adding additional charges and an
additional codefendant.3 Thereafter, before defendant's trial, Medaglia pled
guilty to murder, Morrell pled guilty to a disorderly person's offense of
hindering apprehension, and as part of their agreements, the two agreed to testify
for the State against defendant. Further, prior to defendant's trial, the trial court
3
The superseding indictment added additional charges relating to the unlawful
possession of controlled dangerous substances and theft that occurred between
January 1, 2009 to November 7, 2011. The indictment also amended the
conspiracy charge to have occurred between March 2011 to November 7, 2011.
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severed the charges in the superseding indictment that were unrelated to the two
charges arising from K.D.'s murder.
At trial, among the other witnesses, Medaglia and Morrell testified to the
events leading to their arrest and indictment as set forth above. Defendant also
testified, telling a different story. Defendant testified that Medaglia introduced
him to K.D. in 2010 and had been in K.D.'s presence only "between five and ten
times." He explained that he did a favor for Medaglia and K.D., when he offered
to reach out to his family lawyer to try to handle the ticket following the
convenient store incident. He denied demanding $500 from K.D. or speaking
with a prosecutor and the police about dropping K.D.'s charges.
Defendant admitted that he told Medaglia that he was a member of
organized crime, but he denied actually being a part of organized crime. He said
that the story "actually started itself," when early in their friendship, Medaglia
began to question defendant because defendant "had a good job" and had "nice
things." Medaglia asked him whether he was involved with a crime family and
defendant eventually told him that he was.
Defendant said that it was a "little thing" that "evolved into this elaborate
[crime family] game." He and about six other friends were "in on this [crime
family] game," and they "created many characters." Defendant pretended to be
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one of the "main characters," "Uncle Paulie," and called Medaglia as that
character on more than one occasion. Defendant did not think that Medaglia
actually believed him but said that Medaglia "became very excited."
Defendant told Medaglia that the crime family had taken "countless
bodies" to the terminal, but denied having any personal knowledge of bodies
being buried there. Defendant said that he never intended any harm to come to
K.D. When defendant learned that K.D. had been killed, he went alone to the
police and gave "a four-and-a-half-hour statement" to two detectives. Defendant
told the detectives that he was "role-playing" and explained the general
parameters of "the game."
As noted, the jury convicted defendant of the two crimes and the trial court
imposed its sentence. This appeal followed.
On appeal, defendant argues the following points:
POINT I
[DEFENDANT] WAS DENIED HIS
CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL.
A. THE EXTREME DELAY FROM
ARREST TO TRIAL WEIGHS IN FAVOR OF
VACATING THE CONVICTION.
B. THE 2[]050 DAY DELAY IS
ATTRIBUTABLE TO THE STATE AND COURT'S
CALENDAR.
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1. NOVEMBER 9, 2011 – MAY 30,
2012 (203 DAYS; JUST UNDER SEVEN MONTHS).
2. MAY 31, 2012 – JUNE 30, 2013
(396 DAYS; 13 MONTHS).
3. JULY 1, 2013 – SEPTEMBER 2,
2014 (429 DAYS; FOURTEEN MONTHS).
4. SEPTEMBER 3, 2014 – JULY 4,
2015 (305 DAYS; 10 MONTHS).
5. JULY 5, 2015 – JANUARY 7, 2016
(187 DAYS; SIX MONTHS).
6. JANUARY 8, 2016 – MAY 1, 2017
(480 DAYS; JUST UNDER SIXTEEN MONTHS).
7. MAY 2, 2017 – JUNE 20, 2017:
TRIAL.
C. [DEFENDANT] VIGOROUSLY
ASSERTED HIS SPEEDY TRIAL RIGHT.
D. [DEFENDANT] SUFFERED
SUBSTANTIAL PREJUDICE AS A RESULT OF THE
DELAY.
POINT II
THE COURT IMPROPERLY PERMITTED THE
INTRODUCTION OF CRIME SCENE AND
AUTOPSY PHOTOGRAPHS.
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POINT III
DISCOVERY VIOLATIONS AND IMPROPER
PROSECUTORIAL COMMENTARY DEPRIVED
[DEFENDANT] OF A FAIR TRIAL.
A. THE STATE FAILED TO
PRODUCE A KEY PIECE OF EVIDENCE.
B. THE STATE FAILED TO
PRODUCE A WITNESS LIST.
C. THE STATE ATTEMPTED TO
INTRODUCE 404(b) EVIDENCE NOT DISCLOSED
TO THE DEFENSE AND WHICH HAD BEEN
EXCLUDED BY PRIOR RULINGS.
D. THE PROSECUTOR ENGAGED IN
INAPPROPRIATE COMMENTARY IN
SUMMATION.
POINT IV
CUMULATIVE ERROR DEPRIVED [DEFENDANT]
OF A FAIR TRIAL.
II.
Speedy Trial
We begin our review by addressing defendant's speedy trial claims.
Defendant argues that his constitutional right to a speedy trial was violated
because 2050 days elapsed from the date of his arrest to the date of the jury's
verdict, and that the delay warrants a vacating of his conviction. While we
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acknowledge that the delay here was extensive, we are constrained to remand to
the trial court for consideration of defendant's contentions because the trial court
never specifically addressed the issue.
From the date of defendant's arrest in November 2011 through the date his
trial commenced in May 2017, defendant remained free on bail until his
conviction. During that time, it appears that many of the delays were the result
of the parties engaging in extensive pretrial litigation. There were numerous
motions that were filed relating to discovery, especially about information
obtained from cell phones. Defendant filed motions to sever, dismiss, and to
exclude certain evidence at trial. He also asked the court to consider his request
to waive his right to a jury trial. Many of the motions were adjourned at the
State's request. In response to some of the motions, the trial court conducted
evidentiary hearings before making any rulings, including one that spanned
several days and related to the State's handling of evidence about the subject cell
phones. The guilty pleas entered by the codefendants and the return of the
superseding indictment also contributed to the delay. Defendant also filed
numerous motions in limine. In a June 23, 2015 e-mail to the court, defense
counsel identified eight pending motions in limine awaiting resolution.
Despite defendant's filing of numerous motions, he never filed a formal
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motion raising his speedy trial contentions. However, in December 2016 his
counsel sent a letter to the court that stated the following about defendant's right
to a speedy trial.
[Defendant] is not incarcerated. Nevertheless, he
retains his constitutional right to a speedy trial.
Whether the speedy trial right is violated depends on
four non-exclusive factors: [T]he length of the delay,
the reason for the delay, the assertion of the right by a
defendant, and prejudice to the defendant. State v.
Cahill, 213 N.J. 253 (2013). [Defendant] has not, to
this point, asserted that right. He does so now. We
object to any further delay of the trial based on the
State's need to "prepare," or its failure to take the
currently scheduled trial date into account.
[(Emphasis added).]
During a hearing on January 7, 2016, addressing other matters, the trial
court acknowledged that the case was not moving along "as expeditiously as" it
would have liked, that it was "languishing in the system," and that "the only
saving grace" was that defendant was not imprisoned. The court also
acknowledged that its own schedule required a further delay in the trial date.
The trial court never made any findings with respect to any of the factors that
must be considered when addressing a speedy trial claim. 4 See Barker v. Wingo,
4
Defendant also raised his right to a speedy trial in a letter on April 21, 2017,
in response to a letter the State sent to the court on April 20, 2017 relating to an
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407 U.S. 514, 530 (1972).
We disagree with the State's contention on appeal that defendant somehow
waived his right to assert his speedy trial claims because he never filed a motion
asserting them. Contrary to the State's argument, a defendant's failure to move
to dismiss a complaint for unnecessary delay does not constitute waiver of a
speedy trial claim, but rather, it is an element to be considered as to whether the
defendant is entitled to such relief. See State v. Szima, 70 N.J. 196, 201 (1976);
State v. Smith, 131 N.J. Super. 354, 365 (App. Div. 1974) ("[T]he oft[en]-
repeated rule . . . that an accused waives his right to a speedy trial by failing to
demand one, is no longer the law.").
A defendant's "failure to assert the right [to a speedy trial] will make it
difficult for a defendant to prove that he was denied a fair trial." State v.
Misurella, 421 N.J. Super. 538, 545-46 (App. Div. 2011) (alteration in original)
(quoting State v. Le Furge, 222 N.J. Super. 92, 99 (App. Div. 1988)). But, a
defendant need not make a formal motion to demand a speedy trial; rather,
"Barker clearly implies that an accused's demand for prompt trial can be asserted
upcoming status conference. In the letter to the court, defense counsel pointed
out that "this case has dragged on for a grueling five-and-a-half years, impacting
[defendant]'s right to a speedy trial." The trial court never addressed the speedy
trial issue.
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by objection made to continuance[s] requested by the State, if he otherwise
presents himself as ready, able and willing to proceed." Smith, 131 N.J. Super.
at 364. A defendant's comments that he was "ready for trial" and "wanted it to
occur sooner rather than later," are sufficient to assert his or her right to a speedy
trial. State v. May, 362 N.J. Super. 572, 597 (App. Div. 2003). Courts may also
consider "the frequency and force of the [defendant's] objections" when
determining whether the defendant properly invoked his right. Barker, 407 U.S.
at 529.
The right to a speedy trial is firmly established in the United States
Constitution's Sixth Amendment. Id. at 515. This right "attaches upon [a]
defendant's arrest." State v. Tsetsekas, 411 N.J. Super. 1, 8 (App. Div. 2009)
(quoting State v. Fulford, 349 N.J. Super. 183, 190 (App. Div. 2002)). A speedy
trial violation claim is analyzed under a four-part test set forth in Barker that
weighs: (1) the "[l]ength of [the] delay"; (2) "the reason[s] for the delay"; (3)
"[w]hether and how [the] defendant assert[ed the] right" to a speedy trial; and
(4) the prejudice the delay caused to the defendant. Barker, 407 U.S. at 530-31.
In Cahill, the New Jersey Supreme Court reaffirmed "that the four-factor
balancing analysis of [Barker] remains the governing standard to evaluate claims
of a denial of the federal and state constitutional right to a speedy trial." 213
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N.J. at 258.
"None of the Barker factors is determinative, and the absence of one or
some of the factors is not conclusive of the ultimate determination of whether
the right has been violated." Id. at 267 (citing Barker, 407 U.S. at 533). "[T]he
factors are interrelated, and each must be considered in light of the relevant
circumstances of each particular case." Tsetsekas, 411 N.J. Super. at 10 (citing
Barker, 407 U.S. at 533).
When delay exceeds one year, a court presumptively should analyze all of
the Barker factors. Cahill, 213 N.J. at 265-66. The burden is on the State to
"reasonably explain[] and justif[y]" any delays. State v. Farrell, 320 N.J. Super.
425, 450 (App. Div. 1999) (quoting State v. Detrick, 192 N.J. Super. 424, 426
(App. Div. 1983)). We have previously cautioned, however, against deciding
"how long is too long . . . 'by sole reference to the lapse of a specified amount
of time. . . .'" Detrick, 192 N.J. Super. at 426 (second alteration in original)
(quoting Smith, 131 N.J. Super. at 360). Legitimate delays, "however great,"
will not violate the defendant's right to a speedy trial if it does not specifically
prejudice the defense. Doggett v. United States, 505 US. 647, 656 (1992).
Additionally, longer delays may "be tolerated for serious offenses or
complex prosecutions." Cahill, 213 N.J. at 265. A defense-caused delay does
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not support a speedy trial violation and such delays are subtracted from the total
calculus. United States v. Claxton, 766 F.3d 280, 294 (3d Cir. 2014) (citing
United States v. Battis, 589 F.3d 673, 680 (3d Cir. 2009)); see also State v. Long,
119 N.J. 439, 470 (1990) ("[A]ny delay that defendant caused or requested
would not weigh in favor of finding a speedy trial violation." (Quoting State v.
Gallegan, 117 N.J. 345, 355 (1989))). Of course, purposeful delay tactics
"weigh[] heavily against the" State. Barker, 407 U.S. at 531.
"The only remedy" for a violation of a defendant's right to a speedy trial
"is dismissal of the charge." Cahill, 213 N.J. at 276. On appeal, "we reverse
only if the court's determination is clearly erroneous." Tsetsekas, 411 N.J.
Super. at 10.
Here, in response to defendant's appeal, we do not have the benefit of a
comprehensive trial court decision that divides the overall delay into discrete
periods and then explains and evaluates the reasons for delay in each of these
time periods. See May, 362 N.J. Super. at 596. There are many circumstances
to consider here, including but not limited to (1) the seriousness of the crimes;
(2) the complexity and logistical challenges of an investigation that requ ired
forensic analysis of cell phone evidence; (3) new information leading to the
superseding indictments; (4) new information obtained as a result of the
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22
codefendants' guilty pleas; and (5) numerous pretrial motions defendant filed at
all stages of the case.
It is impracticable for us to review this record and exercise original
jurisdiction pursuant to Rule 2:10-5 to decide the ultimate question of whether
defendant's right to a speedy trial was violated. See Tomaino v. Burman, 364
N.J. Super. 224, 234-35 (App. Div. 2003) (opining that appellate courts should
exercise original jurisdiction "only 'with great frugality'" (quoting In re
Boardwalk Regency Corp. Casino License Application, 180 N.J. Super. 324, 334
(App. Div. 1981))). Moreover, it is conceivable, if not likely, that the current
record is not adequate to permit a fulsome review of the Barker factors. The
circumstances explaining certain periods of delay, for example, may be outside
the current record, in which event further factfinding may be necessary.
Exercise of original jurisdiction is discouraged "if factfinding is involved."
State v. Micelli, 215 N.J. 284, 293 (2013) (quoting State v. Santos, 210 N.J. 129,
142 (2012)).
We therefore believe review of the Barker factors is best delegated to the
trial court in the first instance. A trial court is better suited than we are to
undertake "the difficult task of balancing all the relevant factors relating to the
respective interests of the State and the defendant[]," and to provide "subjective
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23
reactions to the particular circumstances [to] arrive[] at a just conclusion." State
v. Merlino, 153 N.J. Super. 12, 17 (App. Div. 1977).
Accordingly, we remand the matter to the trial court to (1) catalog and
compartmentalize all of the discrete periods of delay; (2) determine and evaluate
the specific reasons for delay; and (3) as to delay attributed to the State,
determine whether the delay was the product of the case's complexity, some
other legitimate justification, was the product of purposeful delay tactics , or
mere inaction. The trial court should apply the Barker factors in light of those
findings.
This analytical process "necessarily involves subjective reaction to the
balancing of circumstances." Szima, 70 N.J. at 201. We leave it to the sound
discretion of the trial court regarding the conduct of those proceedings,
including whether testimony is necessary. Should the court conclude
defendant's speedy trial right were violated, it shall vacate defendant's judgment
of conviction and dismiss the superseding indictment.
Admission of Photographs
We turn to defendant's next argument, asserting that the trial court
improperly admitted five photographs taken during the victim's autopsy and one
of his body at the crime scene because they were prejudicial. We conclude that
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the photographs were properly admitted.
Prior to trial, defendant filed a motion in limine objecting to two hundred
crime scene and autopsy photographs identified by the State because they lacked
relevance, were cumulative in nature, and particularly gruesome, and therefore,
prejudicial. The court rejected defense counsel's request to exclude all of the
photographs. Ultimately the court allowed the State to offer ten photographs,
but the State only asked for the six to be admitted.
One of the photographs admitted at trial depicted the victim's injuries in a
closeup "of the left side of the victim's face"; another showed the victim's body
taken near the victim's head, depicting the victim's injuries "to the left side of
his face and . . . head"; another depicted the back of the victim's head shaved by
the medical examiner, showing the victim's head injuries; another depicted
injuries to the victim's right ear; another showed the cerebral hemispheres of the
victim's brain, depicting the laceration inflicted upon it; and there was a
photograph of the crime scene which contained the victim's body.
The record does not contain a specific written order or clear oral decision
elaborating why the trial court admitted the photographs. However, at a status
conference in April 2017, the court discussed the specific photographs of the
victim and crime scene it would allow. When reviewing the autopsy
A-0967-17T4
25
photographs, the court considered whether the photographs showed clear views
of the victim's injuries and weighed the evidential value of photographs against
the prejudice to defendant.
"We review a trial court's evidentiary rulings for abuse of discretion, but
we review its legal interpretations de novo." State v. Melendez, 454 N.J. Super.
445, 460 (App. Div. 2018) (citing State v. Nantambu, 221 N.J. 390, 402 (2015)),
aff'd and modified, 236 N.J. 52 (2018); see also State v. Mann, 203 N.J. 328,
336-37 (2010). Where the issue relates to the admission of photographs, "[t]o
demonstrate [an] abuse of discretion, the potential for prejudicial information
must significantly outweigh the photos' probative worth, to the extent that the
jurors are diverted 'from a reasonable and fair evaluation of the basic issue of
guilt or innocence.'" State v. McDougald, 120 N.J. 523, 582 (1990) (quoting
State v. Sanchez, 224 N.J. Super. 231, 250-51 (App. Div. 1988)).
The trial court has discretion to admit photographs of the victim. Ibid. If
the photographs have some probative value, they may be admitted "even where
cumulative and somewhat inflammatory." State v. Moore, 122 N.J. 420, 466-
67 (1991) (quoting State v. Belton, 60 N.J. 103, 109 (1972)); see also State v.
Micheliche, 220 N.J. Super. 532, 545 (App. Div. 1987) ("Although all pictures
of a murdered body are likely to be unpleasant and cause emotional stirring, that
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26
of itself does not render them inadmissible."); State v. Thompson, 59 N.J. 396,
421 (1971) (holding that autopsy photographs "are likely to cause some
emotional stirring in any case, but that of itself does not render them
incompetent"); State v. Huff, 14 N.J. 240, 251 (1954) ("Photographs of
unpleasant and gruesome aspects of a murder case are not objectionable for t his
reason alone.").
Courts have allowed autopsy and dead body photographs where those
photographs tended to prove a fact of consequence. See, e.g., State v. Morton,
155 N.J. 383, 455-56 (1998) (finding that autopsy photographs that corroborated
testimony and supported inferences that defendant acted with the requisite
mental state were relevant); State v. Marshall, 123 N.J. 1, 99 (1991) (finding
that crime scene photographs of a victim's body and closeup autopsy
photographs showing views of a victim's wound were not unduly prejudicial or
inflammatory and "were relevant for the purpose of corroborating" a State
witness's testimony about the crime scene's physical evidence, despite having
"limited" probative value), superseded by statute on other grounds, N.J.S.A.
2C:11-3; Moore, 122 N.J. at 468-69 (holding that the court did not abuse its
discretion in admitting autopsy photographs of a victim's "destroyed" head,
where such photographs were relevant to defendant's state of mind); State v.
A-0967-17T4
27
Abdullah, 372 N.J. Super. 252, 271 (App. Div. 2004) (holding that the court did
not abuse its discretion in admitting gruesome photographs of victim's body
because they demonstrated the ferocity of the attack), aff'd in part, rev'd in part
on other grounds, 184 N.J. 497 (2005); Sanchez, 224 N.J. Super. at 249-51
(admitting closeup photographs of victim's gunshot wounds because they were
relevant to establishing whether defendant acted with purpose or knowledge);
Micheliche, 220 N.J. Super. at 545 (finding that even though photographs were
"ghastly" and "gruesome" "they were legitimately a part of the State's proof of
defendant's . . . state of mind" and were only admissible after "a careful selection
process [was conducted] during which the judge excluded other[
photographs] . . . proffered by the State"); State v. Jordan, 197 N.J. Super. 489,
504 (App. Div. 1984) (finding nothing improper in admitting a photograph of a
victim's wound).
Here, the State offered the photographs at trial, arguing they were relevant
because they showed the "sheer brutality of the attack," which related to the
elements of the crime establishing defendant's mental state, the nature of the
injuries, and the cause of death. It also argued that the photographs corroborated
Medaglia's testimony about his and defendant's roles in the conspiracy and
murder.
A-0967-17T4
28
The trial court considered each of the photographs proffered by the State,
heard arguments presented by each of the parties, and limited the number of
photographs that the State could admit. Even though the court's limitation on
the number of admissible photographs does not necessarily justify their
admission, it demonstrates the trial court exercised its discretion after careful
consideration. See Micheliche, 220 N.J. Super. at 545.
We are not persuaded by the caselaw cited in support of defendant's
argument that the photographs were improperly admitted. For example, unlike
in defendant's case, in State v. Lockett, 249 N.J. Super. 428, 432-33 (App. Div.
1991), a death by automobile and manslaughter case in which we held that the
photographs should have been excluded, the State was not required to prove
intentional conduct. Here, the photographs were evidence of defendant's
intentional conduct leading to K.D.'s murder. They demonstrated that Medaglia
followed defendant's instructions to kill K.D. using blunt force, the nature of the
attack, and K.D.'s injuries in a way the other proffered evidence, such as
Medaglia's testimony, did not.
In another case cited by defendant, State v. Walker, 33 N.J. 580, 596
(1960), the Court held that photographs of a victim's brain should not be
admitted during a retrial because the photographs "could only have been
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29
introduced to establish the cause of death," for which there was already ample
testimony and the cause of death was uncontested. Defendant contends that here
too, because Medaglia confessed to killing K.D., the photographs should not
have been admitted. But here, the indictment charged defendant with the crime
of murder, which required the State to prove that defendant purposely and
knowingly "cause[d the victim's] death or [a] serious bodily injury resulting in
[the victim's] death." N.J.S.A. 2C:11-3(a)(1) to (2). The photographs of the
victim were properly admitted to prove an element of the defendant's charged
crime. See Moore, 122 N.J. at 268 ("Although photographs that tend to establish
cause of death may be unnecessary where cause of death is undisputed, they may
be admitted when relevant to 'the viciousness of the attack.'" (Quoting Sanchez,
224 N.J. Super. at 250)).
In the other case relied upon by defendant, State v. Johnson, 120 N.J. 263,
298-99 (1990), the trial court excluded "blood-spatter testimony" that involved
a "lengthy presentation" that "extend[ed] over the course of an entire day," and
included "numerous crime-scene photographs depicting the victims' bodies, as
well as forty-two slides depicting blood-spatter exemplars, which [the witness]
used to highlight his expertise in the area." The Supreme Court reasoned that
although the testimony was relevant, it was "largely corroborative of other,
A-0967-17T4
30
essentially unchallenged testimony indicating the manner of death," and only
"minimally probative of defendant's guilt." Id. at 298. It further stated that the
testimony "could not help but focus the jury's attention on the gruesome details
of the condition of the victims' bodies, rather than on defendant's guilt." Ibid.
However, in this case, the challenged evidence is much more limited in
quantity and content. The five autopsy photographs and one crime scene
photograph, showed violent injuries, but were not analogous to a witness's day-
long presentation that included numerous photographs of the victims' bodies and
blood spatters. Ibid.; see also Sanchez, 224 N.J. Super. at 250. Additionally,
the admitted autopsy photographs of K.D. were taken after he was cleaned of
his blood, and therefore, eliminated any undue gruesomeness even though they
did show serious head injuries.
We have no cause to disturb defendant's conviction based upon the
admission of the challenged photographs.
Prosecutorial Misconduct
Defendant also asserts he was deprived of a fair trial because the State
failed to comply with its discovery obligations, provided a noncompliant witness
list, elicited improper testimony, and made inappropriate remarks during
summation. Defendant argues that each of these actions requires reversal and
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31
dismissal of the charges against him, or in the alternative a new trial. We
disagree.
Discovery Issues
At trial, an investigating detective testified for the State about, among
other things, a money clip found inside K.D.'s car at the crime scene. The
detective described the contents of the money clip, which included the ATM
receipt for K.D.'s withdrawal of funds. The State moved to have the money clip
admitted into evidence. Defendant objected and asserted that while defense
counsel had seen photographs of the money clip, the State had neither produced
the money clip in discovery nor provided a photocopy of the ATM receipt.
Counsel noted that it had "asked several times . . . in 2013 or 2014, for account
records" to determine from where K.D. withdrew money, but it was the first time
she was seeing the receipt. The State responded that it had just forgotten to
make a copy of the receipt.
In response, the trial court recessed to allow the defense to prepare its
response to the receipt. Upon return from the break, and outside the jury's
presence, defense counsel informed the court that a lawyer's business card had
also been in the money clip, which it had not previously seen. Counsel stated
that it was "a little hard for [him] to say what [they] would have done with it,
A-0967-17T4
32
what it would have shown [them]," but that "it would have been nice to see it."
Counsel also indicated it may plan to call the attorney whose name was on the
card.
The court recalled the detective to the stand (still outside the presence of
the jury) and asked whether he knew anything about the lawyer's card. The
detective stated he did not list the business card in his inventory of what he
recovered from the crime scene because he did not find it relevant. The detective
did not contact the attorney and was not aware if anyone else had contacted him.
The court offered to call the attorney at that time from the courtroom, but
defendant declined and asked the court to just note the objection for the record.
The defense did not request an instruction regarding this evidence, and the State
continued to question the detective about the money clip and its contents.
Defendant never called that attorney to testify during the trial.
On appeal, defendant argues that the State violated its discovery
obligation by not producing the ATM receipt and the lawyer's business card until
the middle of trial, even though the defense requested evidence related to "the
ATM withdrawal for years." Defendant explains that this "necessitated
significant revisions to the defense's strategy as it concerned . . . Medaglia." We
find no merit to defendant's contentions.
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We review a trial court's decision regarding the appropriate remedy for a
discovery violation under an abuse-of-discretion standard. See State v. Utsch,
184 N.J. Super. 575, 580 (App. Div. 1982). We will reverse only if the State's
discovery violation prejudiced a defendant by denying a fair trial. State v.
Blake, 234 N.J. Super. 166, 172-73 (App. Div. 1989).
Rule 3:13-3(f) provides that if a party fails to comply with the discovery
rules, the court "may order such party to permit the discovery of materials not
previously disclosed, grant a continuance or delay during trial, . . . prohibit the
party from introducing in evidence the material not disclosed, or it may enter
such other order as it deems appropriate." However, "[a]n adjournment or
continuance is a preferred remedy where circumstances permit." State v.
Washington, 453 N.J. Super. 164, 190 (App. Div. 2018) (quoting State v. Clark,
347 N.J. Super. 497, 509 (App. Div. 2002)). Dismissal for a discovery violation
is a "drastic remedy [and] is inappropriate where other judicial action will
protect a defendant's fair trial right[]." Clark, 347 N.J. Super. at 508.
When the evidence within the money clip became an issue, the trial court
took a break in the proceedings to allow the defense to examine the additional
evidence. Defendant argues he had to make significant changes to his strategy,
however, he does not explain the change or how he was prejudiced. Upon return
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34
from the break, the defense was unable to articulate to the court how the lawyer's
card would have been incorporated by the defense, and the defense never called
the attorney indicated on that card as a witness later in the trial. Moreover, there
was no evidence that the State's actions were intentional. Cf. Blake, 234 N.J.
Super. at 170-71 (holding that a defendant was deprived of a fair trial where the
State did not disclose witnesses and their statements regarding the defendant's
inculpatory statements, which would have impacted the defendant's decision to
take the stand).
Additionally, defendant did not request a mistrial or any other specific
relief at that time. In his brief to us, defendant acknowledges that during trial
he had the option to move for a mistrial or to proceed and adjust the defense
strategy. The defense chose to proceed "[g]iven the length of time that had
passed."
We conclude that the trial court did not abuse its discretion, especially in
light of defendant choosing not to seek any specific relief or accept the court's
offer to address his concerns and his failure to articulate how the late disclosure
caused him any prejudice. Under the circumstances, to the extent any error
occurred, it was invited, barring defendant's claims on appeal, see State v.
Williams, 219 N.J. 89, 101 (2014) ("The doctrine of invited error does not permit
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35
a defendant to pursue a strategy . . . and then when the strategy does not work
out as planned, cry foul and win a new trial."), as defendant cannot demonstrate
how "the particular error . . . cut mortally into [his] substantial rights" so that it
"cause[d] a fundamental miscarriage of justice." State v. A.R., 213 N.J. 542,
562 (2013) (first alteration in original) (first quoting State v. Corsano, 107 N.J.
339, 345 (1987); then quoting N.J. Div. of Youth & Family Servs. v. M.C. III,
201 N.J. 328, 342 (2010)).
State's Witness List
Defendant also contends that the State violated its discovery obligation by
producing a list of individuals with potentially relevant information but failing
to designate which of those individuals it would call at trial as witnesses .
Defendant does not argue that the State violated its obligation by failing to
provide the list, but rather, it did so by providing a list of too many potential
witnesses.
We find this contention to be "without sufficient merit to warrant
discussion in a written opinion." R. 2:11-3(e)(2). Suffice to say that the
prosecutor complied with Rule 3:13-3(b)(1)(F) that obligated the State to
provide "names, addresses, and birthdates of any persons whom the prosecutor
knows to have relevant evidence or information including a designation by the
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36
prosecutor as to which of those persons may be called as witnesses." To the
extent the prosecutor did not designate which individuals it would be calling as
witnesses, defendant failed to demonstrate how that failure caused any prejudice
to him.
Admission of Rule 404(b) Evidence
Defendant next asserts that he was prejudiced when the prosecutor
attempted to introduce evidence of prior bad acts that the trial court had
previously excluded or was not previously disclosed. The first objectionable
statement related to Medaglia's testimony that defendant told him that he had to
go to Pennsylvania to pick up guns, but Medaglia never did so. The second
statement was Medaglia's testimony that defendant "kept giving [him] promises
of jobs, different operations and stuff that [defendant] would get [him] in on,"
which had "to do with different types of scams, loan sharking, [and] bookie
operations." Defendant argues that the State improperly elicited testimony from
Medaglia about hacking into police files to erase criminal records. Defendant
additionally cites to Medaglia's testimony that defendant had been stealing pills
from Medaglia, and that "in order to ingratiate [himself] with [defendant] and
his family [he]'d have to kick up proceeds from [his] sale of illegal pills," which
related to one of the charged crimes under the severed indictment.
A-0967-17T4
37
At trial, when defendant raised objections to the specific testimony, or
moved for a mistrial, the trial court responded by admonishing the prosecutor
outside the presence of the jury, and in at least one instance, instructed Medaglia
to refrain from mentioning the impermissible topics in his testimony. In each
instance, the trial court also delivered a curative instruction to the jury telling it
that the objectionable testimony had nothing to do with their consideration of
the case and that it should not be considered at all in the jury's deliberations.
For example, when addressing the testimony about hacking, the trial court stated
the following to the jury:
THE COURT: . . . . [W]hat is this case about?
How many times am I going to have to say, this case is
about murder, conspiracy to commit murder.
So the testimony just now has to do about some
other acts, bad acts that are not so, not part of this case.
Right? So, there’s no evidence that he was doctor
shopping. He said he was doctor shopping. So, there’s
no information that any pharmaceutical records were
hacked into. What’s that all about? So, that’s not part
of this case. You strike that, because that’s not part of
this case. This case is about murder, conspiracy to
commit murder. You will see cell phone evidence in
this case or not in this case. Are we at the same page?
THE JURY: Yes.
We conclude that although the challenged testimony was inadmissible, the
trial court struck the objectionable evidence and delivered appropriate curative
A-0967-17T4
38
instructions that were "firm, clear, and accomplished without delay," thereby
"alleviat[ing any] potential prejudice to . . . defendant from [the] inadmissible
evidence that . . . seeped into a trial." State v. Vallejo, 198 N.J. 122, 134-35
(2009). "While we agree that the conduct of the prosecutor complained of by
defendant was improper and unjustifiable, we are also satisfied that any potential
prejudice was avoided by the trial judge's prompt and firm curative instructions."
State v. Hernandez, 334 N.J. Super. 264, 273 (App. Div. 2000), aff'd as
modified, 170 N.J. 106 (2001); see also State v. McKinney, 223 N.J. 475, 497
(2015) (holding that a trial court is "permitted and encouraged to correct errors
that occur during trial" by such means as a curative jury instruction).
Moreover, although the challenged testimony was inadmissible because it
related to severed counts of the indictment or was previously excluded under
Rule 404(b), the testimony did not prejudice defendant. Medaglia testified over
the course of six days from May 23, 2017 to June 6, 2017, and defendant appeals
four brief passing statements taken from Medaglia's lengthy testimony. There
is also no evidence that suggests the jury was unable to follow the trial court's
curative instructions. See State v. Catlow, 206 N.J. Super. 186, 193 (App. Div.
1985) ("The record reveals no reason to believe that the jury was unable to
follow the court's sharp and complete curative instruction."). Under these
A-0967-17T4
39
circumstances, we discern no prejudice to defendant, and therefore, no reason to
disturb his conviction.
Prosecutor's Improper Comments During Summation
Defendant further argues that the prosecutor made improper remarks
during summation that deprived defendant of a fair trial: (1) Medaglia "sent a
text message saying that he wanted to kill himself instead of killing [K.D.]"; (2)
Medaglia testified K.D. was a "snitch" and that the Drug Enforcement Agency
was involved in the investigation; (3) since K.D. did not believe defendant was
in organized crime, defendant wanted K.D. dead in fear that K.D. would tell
Medaglia the truth; (4) the prosecutor made statements that mischaracterized
defendant's testimony regarding his use of drugs; and (5) the prosecutor made
comments about defendant's confession to a priest.
In our review, we "must assess the prosecutor's comments in the context
of the entire trial record," State v. Nelson, 173 N.J. 417, 472 (2002), including
whether the trial was lengthy and the prosecutor's remarks short or "errant ,"
State v. Engel, 249 N.J. Super. 336, 382 (App. Div. 1991). Further, where a
prosecutor's comments are "only slightly improper," a jury charge to the effect
that statements during summation are not evidence and should be disregarded if
they conflict with jurors' recollection of events "may serve to ameliorate
A-0967-17T4
40
potential prejudice." State v. Frost, 158 N.J. 76, 86-87 (1999); State v. Ramseur,
106 N.J. 123, 323 (1987), superseded by statute on other grounds, N.J.S.A.
2C:11-3.
When the alleged misconduct involves a particular remark, a court should
consider whether: (1) defense counsel objected in a "timely and proper" fashion
to the remark; (2) the "remark was withdrawn promptly"; and (3) "the court gave
the jury a curative instruction." State v. Smith, 212 N.J. 365, 403-04 (2012)
(quoting Frost, 158 N.J. at 403); State v. Zola, 112 N.J. 384, 426 (1988).
"Prosecutors are afforded considerable leeway in closing arguments as
long as their comments are reasonably related to the scope of the evidence
presented," and they are "expected to make vigorous and forceful closing
arguments to juries." Frost, 158 N.J. at 82. However, a prosecutor's wide
latitude is not unfettered and the prosecutor's "remarks and actions must at all
times be consistent with his or her duty to ensure that justice is achieved." State
v. Williams, 113 N.J. 393, 447-48 (1988). Accordingly, "a prosecutor must
refrain from improper methods that result in a wrongful conviction." State v.
Smith, 167 N.J. 158, 177 (2001).
For example, a prosecutor commits misconduct if he or she "implies to the
jury that he [or she] possesses knowledge beyond that contained in the evidence
A-0967-17T4
41
presented, or if he [or she] reveals that knowledge to the jury." State v. Feaster,
156 N.J. 1, 59 (1998). A prosecutor similarly may not "declare his [or her]
personal belief of a defendant's guilt" in a way that suggests such knowledge.
State v. Farrell, 61 N.J. 99, 103 (1972). He or she also may not denigrate the
defense. State v. Lazo, 209 N.J. 9, 29 (2012).
Even if a prosecutor is found to have made improper statements, it "does
not end a reviewing court's inquiry; in order to merit reversal, the misconduct
must have deprived the defendant of a fair trial." State v. Hawk, 327 N.J. Super.
276, 281 (App. Div. 2000). A reviewing court need only be concerned with
whether "the remarks, if improper, substantially prejudiced the defendant['s]
fundamental right to have the jury fairly evaluate the merits of [his or her]
defense, and thus had a clear capacity to bring about an unjust result." State v.
Johnson, 31 N.J. 489, 510 (1960).
The court should be "mindful that criminal trials create a 'charged
atmosphere . . . [that] frequently makes it arduous for the prosecuting attorney
to stay within the orbit of strict propriety.'" Ramseur, 106 N.J. at 320 (alterations
in original) (quoting State v. Bucanis, 26 N.J. 45, 56 (1958)). As such, the
prosecutor's conduct must have been "so egregious," id. at 322, that it
"substantially prejudiced [the] defendant's fundamental right to have a jury
A-0967-17T4
42
fairly evaluate the merits of his defense." State v. Timmendequas, 161 N.J. 515,
575 (1999). Even remarks not based on trial evidence may not require reversal
if they have "no direct bearing on the determination of [the] defendant's guilt."
Feaster, 156 N.J. at 61.
With these guiding principles in mind, we turn to the challenged
comments. At the outset, we note that during the prosecutor's summation and
in response to defendant's objections, the trial court instructed the jury, as it did
at the beginning of the case, that what the attorneys stated to them is not
evidence. In one instance, the trial court specifically instructed as follows:
So I told you in the beginning, I'll tell you again,
this instruction that what they say during their opening
statement and closing arguments is what? Not
evidence. Right? It's your recollection of the evidence
that controls. You're the ones who are listening because
you're the judges of the facts, nobody else. Let's get
that straight, right?
The court repeated a similar instruction during its final charge in accordance
with the model jury charges. See Model Jury Charges (Criminal), "Criminal
Final Charge" (rev. May 12, 2014).
We conclude that the prosecutor's challenged statements were either
supported by the evidence, see Frost, 158 N.J. at 82, or if improper, were not so
egregious as to substantially prejudice defendant, Johnson, 31 N.J. at 510.
A-0967-17T4
43
While the statements were made to challenge defendant's credibility, they did
not directly bear on the determination of defendant's guilt and his role in K.D.'s
death. See Feaster, 156 N.J. at 61. Moreover, to the extent any of the comments
were objectionable, the trial court's repeated instruction to the jury that its
recollection of the facts controlled, as requested by defense counsel when he
objected to the prosecutor's remarks, cured any harm. See Verdicchio v. Ricca,
179 N.J. 1, 36 (2004) (finding a new trial was not warranted where a prosec utor
made three improper statements during summation but the court "immediately
identified" them as such and instructed the jury not to consider the statements
during deliberations); see also Frost, 158 N.J. at 86-87.
Here, again, we have no cause to believe that the jury did not follow the
trial court's instructions. See State v. Montgomery, 427 N.J. Super. 403, 410
(App. Div. 2012) ("Jurors are presumed to have followed the court's instructions
in the absence of evidence demonstrating otherwise.").
Cumulative Errors
We find defendant's remaining argument that he did not receive a fair trial
because of the court's cumulative errors to be without any basis as we have
determined that no errors were committed, other than the failure to address his
speedy trial claims, which will be addressed by the trial court on remand.
A-0967-17T4
44
Affirmed in part; remanded in part for further proceedings consistent with
this opinion. We do not retain jurisdiction.
A-0967-17T4
45