Opinion

STATE OF NEW JERSEY VS. COBY T. RICHARDSON STATE OF NEW JERSEY VS. JEFFERY RICHARDSON (12-04-1144, ESSEX COUNTY AND STATEWIDE) (CONSOLIDATED)

Court: New Jersey Superior Court Appellate Division
Filed: Jun 23, 2017
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 3.8%

holding a sentence has both a general and personal specific deterrent effect

How later courts described this case

holding a sentence has both a general and personal specific deterrent effect
holding generally, "remarks will not be deemed prejudicial[,]" if no objection was made at trial
holding juvenile records can be considered when considering the risk of re-offense
discussing minimum standards required by Rule 2:9-9

Written by the judges who cited it.

The opinion

NOT FOR PUBLICATION WITHOUT THE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-4021-14T2

A-4026-14T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

COBY T. RICHARDSON,

a/k/a COLBY RICHARDSON, COLBY

TIMOTHY RICHARDSON,1

Defendant-Appellant.

_______________________________

STATE OF NEW JERSEY,

Plaintiff-Respondent,

JEFFERY RICHARDSON, a/k/a

JEFFERY OSBORNE RICHARDSON,

JEFFREY RICHARDSON, JEFFERY O.

RICHARDSON, JEFFREY RICHRARDSON

Defendant-Appellant.

_______________________________

Submitted May 25, 2017 - Decided June 23, 2017

Co-defendants' names are spelled differently throughout the

transcripts and record on appeal. Although the judgment of

conviction uses "Coby," it was established defendant's birth name

is "Colby." Regarding co-defendant, we use the spelling adopted

in his supplemental pro se brief, "Jeffery."

Before Judges Lihotz, Hoffman and Mawla.

On appeal from Superior Court of New Jersey,

Law Division, Essex County, Indictment No.

12-04-1144.

Joseph E. Krakora, Public Defender, attorney

for appellant Colby T. Richardson (Jack L.

Weinberg, Designated Counsel, on the brief).

Joseph E. Krakora, Public Defender, attorney

for appellant Jeffery Richardson (Louis H.

Miron, Designated Counsel, on the brief).

Carolyn A. Murray, Acting Essex County

Prosecutor, attorney for respondent (Stephen

A. Pogany, Special Deputy Attorney

General/Acting Assistant Prosecutor, of

counsel and on the brief).

PER CURIAM

In these back-to-back appeals we consider the arguments by

co-defendants, who appeal from their respective convictions

following a joint jury trial and the sentences imposed. More

specifically, Colby Richardson appeals from a March 6, 2015

judgment of conviction for these offenses: third-degree receiving

stolen property, N.J.S.A. 2C:20-7 (count two); second-degree

unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count

three); fourth-degree possession of a defaced firearm, N.J.S.A.

2C:39-3(d) (count four); second-degree unlawful possession of an

assault firearm, N.J.S.A. 2C:39-5(f) (count six); fourth-degree

possession of hollow point bullets, N.J.S.A. 2C:39-3(f) (count

seven); fourth-degree possession of an illegal ammunition

2 A-4021-14T2

magazine, N.J.S.A. 2C:39-3(j) (count eight); and fourth-degree

resisting arrest, N.J.S.A. 2C:29-2(a) (count nine). Defendant was

acquitted of eluding police (count one) and possession of hollow

point bullets (count five). On appeal, Colby argues:

POINT I

THE TRIAL COURT ERRED IN RULING ADMISSIBLE THE

9-1-1 TAPE BECAUSE THE STATE FAILED TO

ESTABLISH THAT THE CALLER WAS UNAVAILABLE AND

BECAUSE THE STATEMENTS WERE TESTIMONIAL AND

OFFERED IN VIOLATION OF THE SIXTH AMENDMENT'S

CONFRONTATION CLAUSE. (Raised below.)

POINT II

THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT

REFUSED TO DISMISS JUROR NO. TWO FOR

COMMENTING OUT LOUD ON DEFENSE TACTICS IN THE

JURY ROOM. THE COURT FURTHER ERRED WHEN IT

DENIED THE DEFENSE MOTION FOR A MISTRIAL BASED

ON THE JUROR'S COMMENT. (Raised below.)

POINT III

THE STATE FAILED ITS BURDEN OF PROVING ALL THE

ELEMENTS OF RECEIVING STOLEN PROPERTY. THE

COURT ERRED IN DENYING THE DEFENDANT'S MOTION

FOR A JUDGMENT OF ACQUITTAL AT THE END OF THE

STATE'S CASE PURSUANT TO RULE 3:18-1. THE

COURT FURTHER ERRED IN PERMITTING THE STATE

TO AMEND COUNT TWO OF THE INDICTMENT REGARDING

RECEIVING STOLEN PROPERTY. (Raised below.)

POINT IV

THE PROSECUTOR'S COMMENTS AND ACTIONS DURING

THE COURSE OF THE TRIAL CONSTITUTED

PROSECUTORIAL MISCONDUCT DEPRIVING THE

DEFENDANT OF A FAIR TRIAL. THE COURT'S

FAILURE TO ISSUE CURATIVE INSTRUCTIONS FURTHER

AGGRAVATED THE SITUATION. (Partially raised

below.)

POINT V

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THE TRIAL COURT'S RULINGS AND BEHAVIOR DURING

THE COURSE OF THE TRIAL DEMONSTRATED THAT THE

COURT DID NOT MAINTAIN AN IMPARTIAL DEMEANOR

THEREBY DEPRIVING THE DEFENDANT OF A FAIR

TRIAL. (Raised below.)

POINT VI

THE COURT IMPOSED AN EXCESSIVE SENTENCE WHICH

DID NOT TAKE INTO CONSIDERATION ALL

APPROPRIATE CODE SENTENCING GUIDELINES. THIS

SENTENCE SHOCKS THE JUDICIAL CONSCIENCE.

Jeffery Richardson, Colby's brother, appeals from an amended

February 27, 2015 judgment of conviction for the same criminal

offenses charged in counts two, three, four, six, seven, and eight.

In addition, he was found guilty of fourth-degree resisting arrest,

N.J.S.A. 2C:29-2(a) (count ten). On appeal, Jeffery argues:

POINT I

THE TRIAL COURT ABUSED ITS DISCRETION BY

SEVERELY LIMITING THE SUBSTANCE OF THE OPENING

STATEMENT MADE BY [JEFFERY'S] COUNSEL AND

THESE RULINGS UNDULY PREJUDICED [JEFFERY] BY

INFERRING THAT COUNSEL WAS ACTING IN AN

IMPROPER MANNER.

POINT II

THE TRIAL COURT ABUSED ITS DISCRETION IN NOT

PERMITTING [JEFFERY'S] ATTORNEY TO CROSS-

EXAMINE THE STATE'S KEY WITNESS IN VIOLATION

OF [JEFFERY'S] CONSTITUTIONAL RIGHT TO

CONFRONT WITNESSES.

POINT III

THE TRIAL COURT ABUSED ITS DISCRETION IN

DENYING [JEFFERY'S] MOTION TO DISMISS THE

RECEIVING STOLEN GOODS CHARGE OF THE SECOND

COUNT AT THE CLOSE OF THE STATE'S CASE.

POINT IV

4 A-4021-14T2

[JEFFERY'S] CONVICTION SHOULD BE VACATED AND

THIS COURT SHOULD ORDER A NEW TRIAL BASED UPON

THE CUMULATIVE EFFECT OF THE TRIAL COURT'S

ERRORS THROUGHOUT [JEFFERY'S] TRIAL.

POINT V

THE TRIAL COURT ABUSED ITS DISCRETION IN

SENTENCING [JEFFERY] TO SUCH A DRACONIAN AND

UNJUST SENTENCE BASED UPON THE RECORD AND,

THEREFORE, [JEFFERY'S] SENTENCE SHOULD BE

VACATED.

We have reviewed all arguments raised by each defendant, in

light of the record and applicable law. We affirm.

On July 21, 2011, at approximately 5:20 p.m., Newark Police

received a 9-1-1 call from an unidentified woman, reporting armed

men, wearing gloves, in a red vehicle in the area of 600 Irvine

Turner Boulevard. Detective Jimmy Rios and Officer Steven Maresca

responded to the scene in separate police vehicles. Detective

Rios saw a red Ford Taurus with three occupants and noticed the

driver was wearing gloves. After making a K-turn, he pulled his

patrol car behind the Taurus, which immediately sped off.

After a car chase, involving the two police vehicles and the

suspects, the occupants of the vehicle "bailed out," exiting the

Taurus while it was still moving. The Taurus struck a parked car

and a tree, as the occupants fled on foot. Detective Rios radioed

dispatch, reported the fleeing suspects, and provided their

5 A-4021-14T2

descriptions and the direction each fled.2 He requested back-up

and positioned his vehicle to establish a perimeter to apprehend

the suspects.

Detective Rios saw the rear-seat passenger and began to pursue

him on foot. He trapped the suspect in the rear yards of the 900

block of Belmont Terrace. He arrested the suspect, who was later

identified as co-defendant Jeffery.

Back-up officers, Detective Kevin Wright and Patrolman Walter

Melvin, arrived at the scene within two minutes and participated

in the search for the other two suspects. Detective Wright spotted

a black male "emerge from the side of one house and run across the

street into an alleyway of another house." The officers pursued

the man into an alleyway near Hawthorne Avenue and arrested him

as he attempted to hide behind bushes. This suspect was identified

by Detective Rios and Officer Maresca as the driver of the Taurus,

was determined to be Jeffery's brother, Colby.

Examining the 1998 Taurus, police noted its ignition was

damaged, and they found a .45 caliber handgun, a rifle, a high

In his reply brief, Colby argues defendants' description

provided by testifying police officers was taken from their reports

prepared after defendants were in custody. The argument was not

raised on appeal and will not be addressed. Rule 2:6-2; Drinker

Biddle & Reath LLP v. N.J. Dep't of Law and Pub. Safety, 421 N.J.

Super. 489, 496 n.5 (App. Div. 2011).

6 A-4021-14T2

capacity magazine, and a screwdriver. Police also recovered

gloves, bandanas, cellphones, and a cap at the scene.

At trial, Detective Antonio Badim, the State's ballistics and

firearms expert, testified both guns were operable and their serial

numbers were obliterated. Robert Irizarry, the previous owner of

the Taurus, also testified. Five months earlier, in February

2011, he traded the Taurus for a different car with C & J Auto

Sales.

Other witnesses for the State testifying during the nine-day

trial included the dispatch officer, the 9-1-1 operator, and

forensic scientists from the State DNA laboratory, who linked

Colby to a bandana and Jeffery to a glove recovered at the scene.

Also admitted were various documents including transcripts of the

9-1-1 call and radio dispatches, maps, photographs of the crime

crash scene, the damaged Taurus, and its contents.

Co-defendants presented an expert forensic scientist, who

challenged the "outdated" methods and misleading conclusion of a

DNA match drawn by the State's DNA experts. Additionally, each

defendant testified on his own behalf.

Colby testified he worked as a driver for his brother's

roadside assistance company, which responded to service calls for

customers of companies such as AAA and All America. On July 21,

2011, at approximately 3 p.m., Jeffery arrived in a company van

7 A-4021-14T2

to take Colby to work. Colby was to start work at 5 p.m., when

Jeffery's shift ended. Sometime after 4 p.m., the van overheated

so Jeffery took it for repair at a local mechanic shop. While the

two waited, they walked to a nearby neighborhood near Hawthorne

Avenue because Colby wanted to buy marijuana.

At some point, Jeffery separated from Colby because he desired

to purchase Percocet. After his transaction was completed, Colby

emerged from an alleyway and saw police. He became nervous, as

he just purchased marijuana, so he ran. A police officer,

searching on foot, saw Colby hiding behind a bush and arrested

him. Colby stated the officer who placed him in handcuffs hit him

on the side of the head with his gun. Also he admitted he tossed

the marijuana during the chase and lost his bandana. Colby denied

he was driving a red Ford Taurus or that he possessed guns.

Jeffery's testimony mirrored his brother's, as he explained

how he picked up Colby from East Orange to go to work in the

roadside assistance business, and the van overheated. The two

began walking, then separated to purchase drugs. Jeffery testified

as he emerged from where he purchased the painkillers, and as he

walked on the street, a police car pulled alongside of him.

Believing the police watched the drug transaction, he turned and

ran. He tossed the purchased Percocet during the foot chase and

lost his work gloves. Jeffery hid from police for several minutes,

8 A-4021-14T2

but ultimately was cornered and arrested. Jeffery denied owning

or using a Ford Taurus, or possessing weapons.

II.

Co-defendants raise some identical challenges, many that are

similar and others that are dissimilar. We will first consider

the issues the two appeals have in common, then, address the

remaining matters raised individually. In Section III, we examine

the separate challenges advanced to the imposed sentences.

A. Issues Raised by Both Defendants.

Co-defendants argue, in POINT III of their respective merits

briefs, the State's evidence failed to sustain a conviction for

receiving stolen property. Specifically, they assert there was

no proof the red Taurus was stolen; therefore, a judgment of

acquittal should have been granted at the end of the State's case

on that charge. See R. 3:18-1.

When considering a defendant's motion for acquittal at the

close of the State's evidence, the trial judge must determine

whether "viewing the State's evidence in its entirety, be that

evidence direct or circumstantial, and giving the State the benefit

of all its favorable testimony as well as the favorable inferences

which reasonably could be drawn therefrom, a reasonable jury could

find guilt of the charge beyond a reasonable doubt." State v.

9 A-4021-14T2

Reyes, 50 N.J. 454, 459 (1967). In other words, viewing only the

evidence of record at the time of the motion, State v. Moffa, 42

N.J. 258, 263 (1964), could a jury properly convict. State v.

Spivey, 179 N.J. 229, 236 (2004).

Before considering the State's evidence, we review the

charged offense.

A person is guilty of theft if he knowingly

receives or brings into this State movable

property of another knowing that it has been

stolen, or believing that it is probably

stolen. It is an affirmative defense that the

property was received with purpose to restore

it to the owner. "Receiving" means acquiring

possession, control or title, or lending on

the security of the property.

[N.J.S.A. 2C:20-7(a).]

Reduced to its elements, the State must prove knowledge,

possession of the property, if the property is stolen, and the

defendant knew or believed it was stolen at the time of receipt.

See State v. Hodde, 181 N.J. 375, 384-85 (2004).

Co-defendants argue the State failed to prove the Taurus was

actually stolen, highlighting the undisputed fact no one reported

the car stolen. State v. Tindell, 417 N.J. Super. 530, 549-50

(App. Div. 2011) (holding the State's burden requires it establish

the vehicle in the defendant's possession was stolen). Although

the trial evidence contained no direct evidence proving the Taurus

10 A-4021-14T2

was stolen, the circumstantial evidence was sufficient to allow

the jury to reasonably conclude the Taurus was a stolen vehicle.

The State proved: the Taurus's former owner transferred the

car to C & J Auto Sales five months prior to the incident; the car

had a temporary tag in the rear window; C & J Auto Sales had ceased

doing business; a screw driver was found on the front seat of the

vehicle; the ignition was damaged; no car keys were found; Colby

was observed driving the Taurus with Jeffery as its passenger; and

when police attempted a traffic stop, the driver of the Taurus

accelerated, in an attempt to flee. From these facts, the trial

judge denied Colby's motion to dismiss, as joined by Jeffery,

stating:

[T]he testimony of both officers is that the

ignition of that automobile was damaged. That

there was a flathead screwdriver found on the

front seat of that car. And again, certainly,

from that observation, Mr. Colby Richardson

certainly knew or had reason to believe that

that automobile was in fact stolen. . . .

[P]eople . . . usually don't go around

starting their own automobiles . . . by a

flathead screwdriver. Again, I refer to the

testimony of Officers Rios and Maresca as to

their observations of the driver of that car,

condition of the car, et cetera, et cetera.

And for those reasons, again, I find that the

State has provided more than ample testimony

upon which a reasonable jury could find Mr.

Colby Richardson guilty of the charge of

receiving stolen property.

11 A-4021-14T2

The judge's factual analysis is solidly grounded in

sufficient credible evidence found in the record, which properly

correlated with the law to support his legal conclusion. "That

the case may be a close one or that the trial court decided all

evidence or inference conflicts in favor of one side has no special

effect." State v. Johnson, 42 N.J. 146, 162 (1964). We have no

basis to interfere with the denial of the jointly made acquittal

motions.

Further, Colby argues the trial judge erred by permitting the

State to amend the indictment charge of receiving stolen property,

to include: "or believing that [the car] was probably stolen."

Conceding Rule 3:7-4 allows the court to amend an indictment to

"correct an error in form," Colby argues permitting the State's

amendment "lowered the State's burden of proof" and "placed an

additional burden on the defense," and asserts the rule states an

amendment to an indictment must be denied if the defendant will

be prejudiced. We are not persuaded.

The trial judge determined the State's request for amendment

"merely adopts or conforms the citation of the offense to the

statutory language contained in the law," and "does not charge any

additional offense." Further, defendants articulated no

prejudice. We agree. The indictment as originally issued provided

defendants notice of the charge. We also reject the suggestion

12 A-4021-14T2

the amendment altered the defense strategy, which attacked that

the vehicle was stolen. The State's case on this issue was

circumstantial and the amendment in no way prejudiced defendant's

position the evidence was insufficient or changed the burden of

proof. We find no error.

Each defendant (Colby in POINT V and Jeffery in POINTS I and

II) asserts the trial judge abused his discretion, depriving co-

defendants of a fair trial, inasmuch as the judge's demeanor and

conduct was not impartial and his "rulings and behavior" placed

limitations on counsels' cross-examination. Colby alleges the

trial judge was zealous in limiting defense counsel's cross-

examination, and interposed, sua sponte, his own objections rather

than ruling upon the State's objections. Jeffery also suggests

the judge's bias "permeated the entire trial" and was prejudicial.

He also suggests this precluded counsel from "presenting a very

important portion of his intended opening statement."

The accusation of prejudicial actions by a

trial judge is properly reviewable by an

appellate court considering the entire

transcript. In reviewing the transcript our

function is to ascertain the validity of the

claim of prejudice, and we are not to reach a

conclusion of harmless error because we may

believe that the defendant in fact was guilty

as charged.

13 A-4021-14T2

[State v. Zwillman, 112 N.J. Super. 6, 20

(App. Div. 1970), certif. denied, 57 N.J. 603

(1971).]

The defense presented by both brothers was they were not

present in the Taurus and Detective Rios falsely accused them.

Colby argues his attempts to challenge the detective's credibility

were thwarted. However, this assertion was unaccompanied by a

specific reference to the record. Absent this, we are unable to

assess the claim, which is therefore rejected.

Next, Colby refers to the judge's "overzealous" limitation

of cross-examination, giving only record citations without a

discussion of the substance of the claimed error. He argues the

judge "specifically instructed defense counsel that he could not

question on cross-examination an area covered by co-counsel,"

prevented examination on areas not raised on redirect, and

repeatedly called counsel to sidebar to repeat the limiting

instructions.

We first note the failure to pinpoint the judge's prejudicial

conduct and explain how it adversely affected defendants' case,

is improper. It is of little value for an appellant's brief to

list transcript citations without articulating the specific

challenge to what occurred at that point in the trial and omit an

explanation of what counsel was prevented from presenting. Cf.

14 A-4021-14T2

Sackman v. N.J. Mfrs. Ins. Co., 445 N.J. Super. 278, 298-99 (App.

Div. 2016) (discussing minimum standards required by Rule 2:9-9).

We have read the transcript sections cited. It is clear the

judge repeated admonishments to defense counsel to avoid

repetitive questions when examining the officers. For example,

Officer Rios's testimony started on September 10, 2014, and

continued with cross-examination by Jeffery's counsel, beginning

the afternoon of September 11. Counsel's cross-examination

continued on the next trial date, several days later on September

16. When counsel began asking the same questions already asked

on the prior trial date, the judge stated: "I think we covered

this last week, counsel." Despite this subtle comment, counsel

proceeded to retrace general testimony already established. The

judge grew firm, stating: "We don't need to rehash testimony that's

been given." As counsel continued to retrace similar substance

already established by the witness, the judge requested a sidebar.

THE COURT: If I give you instruction

follow the instruction. Okay?

[JEFFERY'S COUNSEL]: Judge, I have to disagree

here.

THE COURT: I don't care if you disagree

or not, follow the instructions.

[JEFFERY'S COUNSEL]: I never asked any

questions –

15 A-4021-14T2

THE COURT: Follow the instruction move

onto something else. Let's move on.

[COLBY'S COUNSEL]: Excuse me, Judge, so

because he covers something (indiscernible).

THE COURT: You can't cover the same

thing, yes.

[COLBY'S COUNSEL]: I can't cover in my cross

the things he covered?

THE COURT: Exactly

[COLBY'S COUNSEL]: How does my client . . .

get representation, then?

[JEFFERY'S COUNSEL]: Exactly.

[COLBY'S COUNSEL]: I should just fold then.

. . . .

THE COURT: I just explained it to you.

You want to argue?

[COLBY'S COUNSEL]: No --

THE COURT: There's no argument. If he

covers something like he did last week he's

not permitted to cover it again, because if

that happens this trial will last until

January. If he covers something, you cannot

cover the same thing again.

[COLBY'S COUNSEL]: Even if he didn't make the

point I want to make, and he missed something,

I can't bring that up?

THE COURT: Then it's not the same thing.

"[A] trial judge has broad discretion in determining the

proper limitations of cross-examination of a witness whose

credibility is in issue." Zwillman, supra, 112 N.J. Super. at 17-

16 A-4021-14T2

18. Further, N.J.R.E. 611(a) requires a trial judge to "exercise

reasonable control over the mode and order of interrogating

witnesses . . . so as to (1) make the interrogation and

presentation effective for the ascertainment of the truth, (2)

avoid needless consumption of time, and (3) protect witnesses from

harassment or undue embarrassment." Indeed, "[c]ross-examination

should be limited to the subject matter of the direct examination

and matters affecting the credibility of the witness[,]" and in

the judge's discretion, "inquiry into additional matters as if on

direct examination." N.J.R.E. 611(b). It is important to allow

wide latitude during cross-examination, which must not be unfairly

cramped by the trial judge. This is especially true where the

witness involved is a principal witness against the defendant.

Zwillman, supra, 112 N.J. Super. at 18.

Having reviewed the transcript references, we cannot agree

the judge abused his discretion by requiring Jeffery's counsel not

repeat questions already posed. There is no argument made in the

brief nor presented during the sidebar conferences showing an area

of inquiry Colby's counsel was precluded from presenting. Unlike

the facts in State v. Bass, 224 N.J. 285 (2016), where counsel was

stopped from asking questions regarding the plea agreement of co-

defendant, turned State's witness, id. at 307, here, counsel was

17 A-4021-14T2

curtailed from engaging in repetitive examination to "avoid

needless consumption of time[.]" N.J.R.E. 611(a).

We also reject the notion the judge's statements reflect

bias. Although the judge's sidebar comments might be read to

suggest impatience, we conclude his reaction was not unexpected,

as counsel ignored suggestions then warnings to move to a new area

of testimony. "[J]udges are not potted plants," In re State ex

rel. A.D., 212 N.J. 200, 231 (2012), nor are they immune from

common causes of frustration. Having reviewed the entirety of the

record, we discern no basis which portrays judicial bias.

We also find no error sustaining the State's objections,

which required narrowing questions posed on recross to topics

covered in redirect. N.J.R.E. 611. Co-defendants admit the judge

imposed similar requirements during each side's examination,

refuting suggestions of bias. Accordingly, we reject as lacking

merit the claim of error because the judge instructed the jury to

disregard questions posed that elicited a sustained objection. We

also cannot agree the judge's rulings "telegraphed" a "personal

belief that he did not believe the defense." R. 2:11-3(e)(2).

Finally, we find unremarkable the judge's basis to sustain

objections during Jeffery's counsel's opening, which attempted to

portray Jeffery's good character. Contrary to the suggestion on

appeal by Jeffery, opening argument is not without limitations.

18 A-4021-14T2

State v. Tilghman, 385 N.J. Super., 45, 56-57 (App. Div. 2006).

"[A]n opening statement should set forth only a succinct statement

of what a party proposes to prove. The jury, having been given an

overview of the State's and defendant's positions, will understand

the nature of the action and be able to follow the evidence more

intelligently." Tilghman, supra, 385 N.J. Super. at 55 (alteration

in original) (quoting State v. Stamberger, 209 N.J. Super. 579,

581 (Law. Div. 1985)). "Counsel is also cautioned that the

'[p]roposed evidence should not be detailed,' and when evidence

is addressed, it should appear as little more than a 'fairly

indefinite' outline." Ibid. (quoting Passaic Valley Sewerage

Comm'rs v. Geo M. Brewster & Son, Inc., 32 N.J. 595, 605 (1960)).

Preventing what amounted to counsel's character testimony was

proper, and the notion the judge "impermissibly prevented counsel

from pursuing a chosen strategy" is specious.3

B. Jeffery's Arguments.

Jeffery separately urges reversal and the grant of a new

trial based on cumulative error (POINT IV). However, our

Jeffery also argues the judge's sidebar warning that

continued disregard of instructions would result in sanctions

displayed prejudice. Not so. The judge very clearly outlined the

parameters he required counsel to abide. He also advised counsel

may disagree and resolution of that disagreement is left to this

court. We do not find the judge erred in outlining his

expectations and demanding counsel meet them.

19 A-4021-14T2

discussion of co-defendants' challenges reveals no error. See

State v. Conway, 193 N.J. Super. 133, 174 (App. Div.) (finding

cumulative error doctrine did not apply as the verdict was

consistent with weight of evidence presented), certif. denied, 97

N.J. 650 (1984).

In his pro se reply brief, Jeffery also raises matters

discussed in detail in Colby's merits brief, which are discussed

below. These include the judge's determination not to dismiss

juror two (see section C.2. below), and a claim the prosecutor

improperly bolstered the credibility of witnesses (see section

C.3. below). In part, this latter issue cites what he believes

are factual inaccuracies uttered by Detective Rios, apparently

challenging his credibility, a matter not raised in the merits

brief, which therefore will not be considered. R. 2:6-2(a)(6).

C. Colby's Separate Challenges.

Colby first challenges the admissibility of the 9-1-1 tape,

arguing his rights of confrontation were infringed because the

State never attempted to produce the caller. See U.S. Const.

amend. VI ("In all criminal prosecutions, the accused shall enjoy

the right . . . to be confronted with the witnesses against

him[.]"); N.J. Const. art. I, ¶ 10 ("In all criminal prosecutions

20 A-4021-14T2

the accused shall have the right . . . to be confronted with the

witnesses against him[.]").

Prior to trial, the State moved to admit the audio tape of

the 9-1-1 call, arguing it provided non-testimonial information

to police for the purposes of receiving assistance in an emergency.

The caller described a man standing outside a car putting on

gloves, with a gun in his hand and a gun in the vehicle. The

caller then recounts the vehicle driving away and when asked,

responded with a description of the Taurus and noted its temporary

tags.

Jeffery filed opposition to the State's motion. He argued

any statements that followed the statement the vehicle was driving

away represented past events, not events as they unfolded. Thus,

the testimonial evidence must be excluded because the witness was

not made available for cross-examination. Colby orally joined in

this position and was permitted to argue. The trial judge granted

the State's motion. He concluded the call was non-testimonial,

and, although hearsay, provided the caller's present sense

impression and represented an excited utterance.

We review evidentiary rulings to determine whether the trial

judge abused his discretion. State v. Ates, 426 N.J. Super. 521,

537 (App. Div. 2012), aff'd, 217 N.J. 253 (2014), cert. denied,

__ U.S. __, 135 S. Ct. 377, 190 L. Ed. 2d 254 (2014). The State

21 A-4021-14T2

bears the burden to prove admissibility. State v. Basil, 202 N.J.

570, 596 (2010).

Under both our federal and state constitutions, "[a] criminal

defendant has the right 'to be confronted with the witnesses

against him' and 'to have compulsory process for obtaining

witnesses in his favor.'" State v. Garron, 177 N.J. 147, 168-69

(2003) (quoting U.S. Const. amend. VI; N.J. Const. art. I, ¶ 10),

cert. denied, 540 U.S. 1160, 124 S. Ct. 1169, 157 L. Ed. 2d 1204

(2004). "[T]he Confrontation Clause of the United States

Constitution bars the 'admission of testimonial statements of a

witness who did not appear at trial unless he was unavailable to

testify, and the defendant had had a prior opportunity for cross-

examination.'" State v. Slaughter, 219 N.J. 104, 116-17 (2014)

(quoting Crawford v. Washington, 541 U.S. 36, 53-54, 124 S. Ct.

1354, 1365, 158 L. Ed. 2d 177, 194 (2004)).

An out-of-court testimonial statement is the

equivalent of "bear[ing] testimony" against an

accused. Crawford, supra, 541 U.S. at 51, 124

S. Ct. at 1364, 158 L. Ed. 2d at 192-93

(citation and internal quotation marks

omitted). The Court made clear that the

ultimate goal of the Confrontation Clause is

to test the reliability of testimonial

evidence in "the crucible of cross-

examination." Id. at 61, 124 S. Ct. at 1370,

158 L. Ed. 2d at 199; see also [In re] J.A.,

[] 195 N.J. [324,] 342-43 [(2008)]. The Court

reasoned that the Clause "reflects a judgment,

not only about the desirability of reliable

evidence . . ., but about how reliability can

22 A-4021-14T2

best be determined." Crawford, supra, 541

U.S. at 61, 124 S. Ct. at 1370, 158 L. Ed. 2d

at 199.

[Basil, supra, 202 N.J. at 591 (alteration in

original).]

Importantly, this constitutional guarantee only grants a

criminal defendant "an opportunity for effective cross-

examination, not cross-examination that is effective in whatever

way, and to whatever extent, the defense might wish." State v.

Williams, 184 N.J. 432, 454 (2005) (citing Delaware v. Fensterer,

474 U.S. 15, 20, 106 S. Ct. 292, 294, 88 L. Ed. 2d 15, 19 (1985)).

Therefore, the right to confront witnesses "may, in appropriate

cases, bow to accommodate other legitimate interests in the

criminal trial process, such as established rules of evidence and

procedure designed to ensure the fairness and reliability of

criminal trials." Garron, supra, 177 N.J. at 169 (quotations

omitted).

The crucial issue is whether the statement sought to be

admitted is "testimonial," as "[o]nly statements of this sort

cause the declarant to be a 'witness' within the meaning of the

Confrontation Clause." Davis v. Washington, 547 U.S. 813, 821,

126 S. Ct. 2266, 2273, 165 L. Ed. 2d 224, 237 (2006). Non-

testimonial statements are "exempted . . . from Confrontation

Clause scrutiny," Crawford, supra, 541 U.S. at 68, 124 S. Ct. at

23 A-4021-14T2

1374, 158 L. Ed. 2d at 203, but remain limited by the rules of

evidence, particularity "traditional limitations upon hearsay

evidence," Davis, supra, 547 U.S. at 821, 126 S. Ct. at 2273, 165

L. Ed. 2d at 237.

When examining whether a statement is testimonial, New

Jersey's "confrontation jurisprudence has followed the federal

approach." State v. Roach, 219 N.J. 58, 74 (2014).

Statements are nontestimonial when made in the

course of police interrogation under

circumstances objectively indicating that the

primary purpose of the interrogation is to

enable police assistance to meet an ongoing

emergency. They are testimonial when the

circumstances objectively indicate that there

is no such ongoing emergency, and that the

primary purpose of the interrogation is to

establish or prove past events potentially

relevant to later criminal prosecution.

[Davis, supra, 547 U.S. at 822, 126 S. Ct. at

2273-274, 165 L. Ed. 2d at 237.]

More specifically, "interrogations by law enforcement

officers fall squarely within [the] class of testimonial

evidence[,]" Crawford, supra, 541 U.S. at 53, 124 S. Ct. at 1365,

158 L. Ed. 2d at 194; however, the United States Supreme Court has

concluded 9-1-1 calls, although statements to police or their

agents, are generally "not designed primarily to 'establis[h] or

prov[e]' some past fact, but intended to describe current

circumstances requiring police assistance." Davis, supra, 547

24 A-4021-14T2

U.S. at 827, 126 S. Ct. 2276, 165 L. Ed. 2d 240 (alterations in

original) (quoting Crawford, supra, 541 U.S. at 53, 124 S. Ct.

1354, 158 L. Ed. 2d 177). The Court in Davis concluded the 911

call was not testimonial, and the information was not presented

to evade confrontation. Id. at 840, 126 S. Ct. at 2284, 165 L.

Ed. 2d 248.

As in Davis, here, the 9-1-1 caller reported events as they

actually happened; she was not recounting past events. The facts

were necessary to "resolve the present emergency." Davis, supra,

547 U.S. at 827, 126 S. Ct. at 2276, 165 L. Ed. 2d at 240. Also,

the call was introduced to show why and how police action was

initiated. The statements were not a "weaker substitute for live

testimony." United States v. Inadi, 475 U.S. 387, 394, 106 S. Ct.

1121, 1126, 89 L. Ed. 2d 390, 398 (1986).

Defendant also argues the vehicle's description was a

testimonial statement. Davis also rejected a similar argument,

stating, "even the operator's effort to establish the identity of

the assailant, so that the dispatch officers might know whether

they would be encountering a violent felon" was non-testimonial.

Davis, supra, 547 U.S. at 827, 126 S. Ct. at 2276, 165 L. Ed. 2d

at 240 (citing Hiibel v. Sixth Judicial Dist. Court, 542 U.S. 177,

186, 124 S. Ct. 2451, 2457, 159 L. Ed. 2d 292, 302 (2004)).

25 A-4021-14T2

Accordingly, guided by Davis, we conclude the statements at

issue were nontestimonial and not governed by the Confrontation

Clause. We therefore reject Colby's insistence the tape's

admission was dependent on the State's efforts to locate the

caller.

Here, as mentioned by the trial judge, "there is no indication

that the statement is being offered by the State for the truth of

the contents contained in that statement," but rather to explain

why the police went to the area in question. We conclude the

judge properly admitted the tape, citing N.J.R.E. 803(c)(1).4 We

defer to the trial judge's findings the caller "made statements

while the declarant was perceiving the events . . . to the 9-1-1

operator."5 "Trial judges are entrusted with broad discretion in

making evidence rulings[,]" State v. Muhammad, 359 N.J. Super.

361, 388 (App. Div.) certif. denied, 178 N.J. 36 (2003), and since

an appellate court "should overrule a trial court's evidentiary

ruling only where a clear error of judgment is established[,]" we

determine no compelling reason is presented by any of these

N.J.R.E. 803(c)(1) defines a present sense impression as: "A

statement of observation, description or explanation of an event

or condition made while or immediately after the declarant was

perceiving the event or condition and without opportunity to

deliberate or fabricate."

The transcript of the tape has not been included in the record

by either co-defendant, or the State.

26 A-4021-14T2

arguments to disturb the trial judge's ruling. State v. Loftin,

146 N.J. 295, 357 (1996).

Colby argues the judge erred by denying his motion for a

mistrial when he learned of a juror's comment. Specifically, when

the defense requested to move a television away from the jury to

aid defendants' view, juror two commented, "[t]he defendants

didn't look at the screen so I don't know why they had to move the

screen away from us[,]" as she re-entered the jury room. Knowledge

of the statement surfaced when juror eleven mentioned he overheard

juror two, during his voir dire regarding a different allegation

of trial discussions in the jury room. Juror two had already been

examined and never mentioned her comment about the television.

When she was re-questioned, she advised she spoke aloud, but was

not talking to anyone but herself.

We reject Colby's contention attempting to infer bias by

juror two. We conclude juror two's comment, even if overheard by

another, suggested neither impartiality nor bias and lacked the

capacity to prejudice defendant's right to a fair trial. Further,

the trial judge acted properly to immediately follow up when he

learned of the comment. He considered the testimony of juror two

and juror eleven, and satisfied himself the statement complained

27 A-4021-14T2

about an inconvenience and did not discuss the trial or expose

other jurors to extraneous information that might impact

deliberations. The judge also rejected Colby's suggestion juror

two was rolling her eyes and gesturing. Finally, he determined

juror two could remain fair and impartial and evaluate the

evidence.

The trial court is in the best position to

determine whether the jury has been tainted.

That determination requires the trial court

to consider the gravity of the extraneous

information in relation to the case, the

demeanor and credibility of the juror or

jurors who were exposed to the extraneous

information, and the overall impact of the

matter on the fairness of the proceedings.

[State v. R.D., 169 N.J. 551, 559 (2001).]

When the record is reviewed in total, it is clear the trial

judge understood his obligations "to safeguard the rights of the

accused and vindicate societal interests in the fair and efficient

administration of the criminal justice system." State v. Bey, 112

N.J. 45 89-90 (1988). The judge properly reacted to possible

juror discussions, and took appropriate action.6 There is no abuse

of discretion.

Juror five was removed after voir dire when he asked a court

officer to speak to the judge and asked the jurors whether a

document was entered into evidence. This comment directly went

to the nature of the trial and violated the juror's oath not to

discuss the trial until deliberations.

28 A-4021-14T2

Next, Colby cites six comments by the prosecutor alleged to

rise to prosecutorial misconduct, which were not met with a

necessary curative instruction. He seeks reversal claiming these

missteps deprived him of a fair trial.

The guarantee of a fair trial before an impartial jury, see

U.S. Const. amends. VI, XIV; N.J. Const. art. 1, ¶ 10, "includes

the right to have the jury decide the case based solely on the

evidence presented at trial, free from the taint of outside

influences and extraneous matters." R.D., supra, 169 N.J. 551,

557 (citing Bey, supra, 112 N.J. at 75). Indeed, "securing and

preservation of an impartial jury goes to the very essence of a

fair trial." Bey, supra, 112 N.J. at 75 (quoting State v.

Williams, 93 N.J. 39, 60 (1983)).

In presenting a case to a jury, the State is "not to obtain

convictions but to see that justice is done." State v. Ramseur,

106 N.J. 123, 320 (1987); see also Berger v. United States, 295

U.S. 78, 88, 55 S. Ct. 629, 633, 79 L. Ed. 1314, 1321 (1935) ("[A

prosecutor] may prosecute with earnestness and vigor -- indeed,

he should do so. But, while he may strike hard blows, he is not

at liberty to strike foul ones. It is as much his duty to refrain

from improper methods calculated to produce a wrongful conviction

as it is to use every legitimate means to bring about a just

29 A-4021-14T2

one."). The prosecutor may not impassion a jury or incite a

verdict based on emotions, but may only comment on the evidence

presented. State v. Black, 380 N.J. Super. 581, 594-95 (App. Div.

2005), certif. denied, 186 N.J. 244 (2006).

In pursuing this role, a prosecutor has great leeway in his

or her opening comments, and he or she is allowed to be forceful.

See State v. Wakefield, 190 N.J. 397, 443 (2007) (quoting State

v. DiFrisco, 137 N.J. 434, 474 (1994)), cert. denied, 552 U.S.

1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008). During an opening

statement, a prosecutor may reference facts she or "he intends in

good faith to prove by competent evidence." Id. at 442 (quoting

State v. Hipplewith, 33 N.J. 300, 309 (1960)).

A similar standard guides the State's presentation in

summation.

Prosecutors are expected to make a vigorous

and forceful closing argument to the jury, and

are afforded considerable leeway in that

endeavor. Nevertheless, there is a fine line

that separates forceful from impermissible

closing argument. Thus, a prosecutor must

refrain from improper methods that result in

wrongful conviction, and is obligated to use

legitimate means to bring about a just

conviction.

[State v. Ingram, 196 N.J. 23, 43 (2006)

(quoting State v. Jenewicz, 193 N.J. 440, 471

(2008)).]

30 A-4021-14T2

"[N]ot every suspected deviation from perfection on the part

of a prosecutor will justify a reversal of a conviction." State

v. Bozeyowski, 77 N.J. Super. 49, 63 (App. Div. 1962) (quoting

State v. Bucanis, 26 N.J. 45, 56, cert. denied, 357 U.S. 910, 78

S. Ct. 1157, 2 L. Ed. 2d 1160 (1958)). "[The] infraction must be

clear and unmistakable and must substantially prejudice the

defendant's fundamental right to have the jury fairly evaluate the

merits of his defense." Ibid. Accordingly, in our review of a

prosecutor's statements, we evaluate the alleged improper comments

to determine "the severity of [any] misconduct and its prejudicial

effect on the defendant's right to a fair trial." Wakefield,

supra, 190 N.J. at 437.

"[P]rosecutorial misconduct is not grounds for reversal of a

criminal conviction unless the conduct was so egregious as to

deprive defendant of a fair trial." Ibid. Claimed errors are not

considered in isolation, but viewed in the context of the entire

trial. State v. Negron, 355 N.J. Super. 556, 576-77 (App. Div.

2002). To warrant reversal, the remarks must be "clearly and

unmistakably improper" and "substantially prejudiced the

defendant's fundamental right to have a jury fairly evaluate the

merits of his [or her] defense." State v. Papasavvas, 163 N.J.

565, 625 (2000) (quoting Wakefield, supra, 190 N.J. at 576-77);