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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0256-08T4 STATE OF NEW JERSEY, Plaintiff-Respondent, v. MICHAEL COPPOLA, Defendant-Appellant. Argued March 22, 2010 - Decided September 7, 2010 Before Judges Lisa, Baxter and Alvarez. On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 05-09-1260. John Vincent Saykanic argued the cause for appellant. Marc A. Festa, Senior Assistant Prosecutor, argued the cause for respondent (Camelia M. Valdes, Passaic County Prosecutor, attorney; Mr. Festa, of counsel and on the brief). PER CURIAM Tried by a jury, defendant Michael Coppola was convicted of aggravated manslaughter,

N.J.S.A. 2C:39-4d, (count three), was merged with count one. At Lakes Police Department testified that at approximately 11:00 a.m. on Saturday, of a stabbing Upon March at a 12, 2005, he responded in to Summit a dispatch Falls. trial, Patrolman Jamil Aburomi of the Pompton

condominium

community

arrival, he saw defendant "running . . . into the middle of the

A0256-08T4 2 street." He was "covered in blood" and "collapsed" onto the Officer Jessica Ribitzki

ground "in front of [the] patrol car." was the second officer at the scene. Inside the residence, Aburomi found

the

victim,

Andrew

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Vogel, "on the floor in a pool of blood," with a woman kneeling next to him. woman, Vogel's Vogel had no pulse and was not breathing. girlfriend, A.M., was "screaming and The crying

hysterically." While testifying, Aburomi read his report of the subsequent interview to the jury over defendant's objection, made on the ground that the material was inadmissible hearsay. he repeated A.M.'s accusation that defendant "raped" her while she was sleeping. A.M.'s statement also described how she and In doing so,

Vogel met defendant for the first time the night before at a local bar. At approximately 1:00 a.m., defendant invited them Defendant

back to his apartment, where they continued to drink. invited them to spend the night, and she and Vogel slept in an upstairs bedroom. A.M. awoke between 10:00 and 10:30 a.m. the

following morning and found defendant sitting on her side of the bed. The covers were pulled back and she was not wearing pants Defendant then told A.M. that they had "had sex," She immediately awakened

or underwear.

at which point she became very upset.

Vogel and rushed him to get dressed so they could leave.

A-0256-08T4 3 As A.M. drove away from the condominium, she told Vogel about her conversation with defendant. drive back to defendant's residence. Vogel directed her to Once she pulled up to the

front of the condominium, Vogel "jumped out and started knocking on the door." As A.M. turned the car around and began pulling

into the driveway, she saw defendant stumble out of his home, covered in blood. Bruce Sewell, defendant's next-door neighbor, testified

that on the morning of March 12, 2005, as he was washing his car in the driveway, he saw Vogel and A.M. leave defendant's

residence.

A.M. was sobbing and Sewell thought he may have Approximately five minutes later the

heard her say, "my God."

couple returned, Vogel got out of the car, and he walked past him, "in a hurry," towards defendant's front door. Vogel to tell defendant to move his car because it was blocking Sewell's driveway, but Vogel just said "I'll be out in five minutes." Sewell heard "loud knocking on the door." He next She Sewell asked

heard A.M. "speak softly," trying to get his attention.

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then disappeared into the alley leading to defendant's front door. saying Sewell then noticed defendant standing in the alley, "he didn't kill anybody, he doesn't own a gun."

Defendant was wearing pajama bottoms and no shirt and seemed "very calm" and "under composure." Defendant said to him

A-0256-08T4 4 "Bruce, you know me. Look at me. I'm covered in blood." A few

Sewell silently looked up and continued to wash his Jeep. seconds passed, and defendant asked "[h]ey, dude, why are you still washing your Jeep?" Sewell responded that he was not

becoming "involved in any domestic violence" and bent down to wash his tires. When he stood up, he saw defendant lying in the Defendant was initially quiet, may have cried a little when police

road and heard police sirens. but Sewell thought he

arrived. Lieutenant David Struyk, the third officer on the scene, testified that when he arrived he saw defendant, covered in blood, lying in the middle of the street. While Struyk bandaged

a one-inch-long cut on defendant's wrist, he asked him what happened. Defendant reported that a couple he met while playing

pool in Pompton Lakes had spent the night in his apartment. They left in the morning, but the male came back and tried to break into his residence. inside the house. He then said "[c]heck on the guy

I think he's worse than I am." emergency room of the local

Defendant was taken to the hospital.

He had abrasions on his left shoulder, forehead, left He also had "some bruising to the

flank area, and lower back.

right side of his head," and two lacerations on his left wrist.

A-0256-08T4 5 One was three centimeters and one was one and one-half

centimeters. The tape of the 9-1-1 call defendant made to police was played to the jury. When the 9-1-1 operator asked defendant to

explain the problem, he replied, "suspect came into my house, tried to kill me," "I defended myself with a knife," and said that he thought the man was dead. The operator asked for the

man's name and defendant said, "I, I only know his name dude,

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so."

He also said "[p]lease, I defended myself; I think I'm

going to die." A.M. testified that on Friday, March 11, 2005, at

approximately 6:30 p.m., she and Vogel went to a restaurant bar to celebrate his twenty-second birthday. light beers and Vogel "probably [had] She had about five a few more." At

approximately 1:00 or 1:30 a.m., they drove to a pool hall, which was closing as they arrived. Before they drove away,

however, they encountered defendant, who was also attempting to enter the pool hall, and decided to go on together to a tavern called the Side Bar, although they were meeting for the first time. While there, Vogel and defendant each had a beer; the bar A.M. said defendant to his condominium because "his

did not serve A.M. because of her age. suggested that they return

parents were away."

In actuality, defendant was staying with an

A-0256-08T4 6 aunt. Defendant said he had a bottle of vodka in his car, and After they 2:30 a.m., they

Vogel bought a six-pack of beer for himself and A.M. arrived at the condominium at approximately

continued to drink, including vodka drinks mixed by defendant. He offered to let Vogel and A.M. sleep there, and they accepted. All three spent time in a Jacuzzi near the master bedroom on the second floor, after defendant's aunt left the condominium to catch an early flight to Florida. A.M. wore Vogel's t-shirt

while in the Jacuzzi, which "covered everything," and Vogel and defendant wore their "boxers." They stayed in the Jacuzzi until

approximately 5:30 a.m., got dressed, and defendant showed them to the master bedroom. Defendant "kept trying to have small talk" with A.M. while he "was . . . cleaning the bathroom," but she was too tired to respond. last She told defendant that she was going to sleep and the thing she remembered was "snuggling" with Vogel as

defendant left the room.

A.M. woke up approximately five hours

later; Vogel was asleep on one side of the bed and defendant was seated on the other side, naked, staring at her. did not recall removing her pants, they were on the floor. jumped out of bed, grabbed her pants, and ran to the bathroom to get dressed. When A.M. returned, she started shaking Vogel to Although A.M. She

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awaken

him

while

defendant

kept

repeating,

"I

can't

get

in

A-0256-08T4 7 trouble for this, I thought you were awake, I thought you were awake, I can't get in trouble for this." that they had sex, which she denied. Defendant told A.M. Defendant was "yelling and

pacing and pacing and yelling I can't get in trouble for this, I thought you were awake, I thought you were awake." finally immediately. backwards. crying." stirred, she told him that they needed When Vogel to leave

He dressed so quickly that he put his pants on A.M. got into her car, "very upset and . . .

She returned to the condominium unit because Vogel was

still inside talking to defendant and she told Vogel that they needed to leave. As they drove away, Vogel asked her "what had happened," and she responded that defendant "said that he had sex with me." Vogel then said "turn your car around right now, we need to have a talk." When they returned to the condominium, Vogel jumped A.M. pulled up As she He

out of the car and started pounding on the door. in front of the house and turned the car around to park. started to walk towards the townhouse, she saw defendant.

"was already walking out and he was covered in blood and he came this close to my face and he said the police are on their way, your boyfriend is dead, I killed him. anything. He was just proud of what he did." And he had no remorse or A.M. ran into the

A-0256-08T4 8 residence and saw Vogel on his back on the ground trying to breathe. Ribitzki's She stayed beside him until the police arrived. police report was also read to the jury,

including a statement attributed to A.M. that "she was passed out and that [defendant] raped her." to defendant as "the guy who allegedly raped her." stipulated to the admission of the report. testify. During the subsequent sexual assault examination, A.M. said she was "unsure" what sexual contact had occurred. material specimens. was found Testing on did A.M.'s find clothing the or presence on the of No seminal rape amylase, kit a The report also referred Defendant Ribitzki did not

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substance "found in high concentration in . . . saliva," from samples Banaag taken of the from New A.M.'s Jersey external State genital Police DNA area. Laboratory Jennifer Unit

testified that the amount of DNA was inconclusive. genital DNA specimens showed the presence of material from more than one individual, the major contributor being female, the minor contributor being male. contributor. Vogel was excluded as a possible

The external

The DNA was insufficient, however, for conclusive

testing but Banaag nonetheless testified that defendant could "not be excluded as having contributed to this mixture" of DNA and only "one in 682" Caucasians could not be excluded.

A-0256-08T4 9 Zhongxue H. Hua conducted the autopsy on behalf of the Newark Medical Examiner's Office. ten inches tall and weighed 179 pounds.1 He said Vogel was five feet Vogel was clothed in a

pair of blue jeans worn backwards, a belt, a white sweater, and shoes. The cause of death was sharp wounds to the neck, torso, Four injuries were located in the chin area, "three

and face.

of them on the left side and one on the right side"; two wounds were found on the "left side neck"; four in the shoulder and chest area and the left axilla (armpit); and one on the back of Vogel's left hand. Of central importance was the five-inch-deep

stab wound to the left side of the neck that punctured Vogel's lung and aorta. Hua opined at some length that the wounds were inflicted when Vogel was unable to resist or fight back. location of the wounds at shoulder level or above, and the fact that there were no injuries to the back, meant that the victim was "incapacitated or partially incapacitated, [could not] move, [could not] really as of the fight." "the most in Hua probable, the He attributed likely upper body, the the cause" in victim's to terms absence the of of He said that the

incapacitation clustering "reasonable 1

wounds

probabilit[ies]."

considered

The uniform intake form described defendant as five feet eight inches tall and 145 pounds.

A-0256-08T4 10

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wounds

to

other

portions

of

the

body

to

be

extremely

significant, adding that the wounds to the armpit and the back of the hand were probably "defensive" wounds and were the only defensive wounds. Hua's opinion that the majority of Vogel's

wounds were not defensive, and that he was incapacitated when injured, was expressed in terms of "medical certainty." written report made no mention of the question of Hua's whether

Vogel's wounds were defensive or whether Vogel was capable of fighting back. The parties stipulated into evidence the report of Bridget Verdino, the forensic toxicology expert employed by the New

Jersey State Police Laboratory Toxicology Unit. stipulation nor any testimony, nor any comment by the court or counsel explained the results of the testing.

Neither the

The

report

indicated the absence of "date rape" drugs from A.M.'s urine sample because it was insufficient for testing. A narrated police DVD of the scene was played for the jury and introduced via the testimony of Detective Sergeant Stephen Seifried. It depicts the front door of the residence leading to The victim's body

a wood floor entryway and a living room area. was inside at least ten feet left of the front entrance door.

He was lying in a pool of blood "bent over . . . with his knees under his chest, his body resting against a wall, and his head

A-0256-08T4 11 . . . turned toward the right." "[S]everal pieces of furniture"

were "knocked over" and a wicker coffee table-trunk was "moved from its original position." center had been "toppled A speaker on the entertainment over," a shelf was "askew," and

cassette tapes were strewn about the floor. There was a large blood stain on the couch and blood

splattered on a reclining chair. lay on the floor by the wall to the kitchen.

An eight-inch-long knife blade The knife's blood-

stained five-inch-long handle was "underneath [a] dining room chair." kitchen. A trail of blood led from the living room towards the About two feet into the kitchen, the floor had

"numerous blood drops" and "a smear" of blood. blood on the wall" next to the kitchen phone. Outside, "numerous blood drops on the walkway" led to the front door where defendant lay in the road, and "quite a few

"[T]here was

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. . . puddles of blood" were on the concrete area outside the front door. Seifried entered the ambulance where defendant was

being treated, advised him of his Miranda2 rights and attempted to interview him. Defendant "started yelling that he could not

breathe and he did not want to die," at which point Seifried stopped questioning him. 2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

A-0256-08T4 12 Defendant, who had no prior criminal history, testified on his behalf. He said that when he, Vogel, and A.M. returned to

the townhouse, they watched a movie, drank beer, and smoked marijuana. When his aunt left at approximately 4:30 a.m. to go

to the airport, they were watching a movie that continued until approximately 6:00 a.m. He further testified that A.M. removed

all of her clothes "except her bra and her thong underwear" when they went into the Jacuzzi and that Vogel took off all his clothes. Defendant only wore his boxer shorts. He testified

they spent close to three hours in the tub drinking and smoking. When they got out, Vogel "barely dried off" before he went over to the bed and "just passe[d] out." also dried off and went to bed Defendant said that A.M. wearing her bra and thong

underwear.

When he sat next to her, they talked for "[t]he

better part of" an hour and one-half or an hour and forty-five minutes. During this time their conversation became flirtatious A.M. removed her underwear and

and the two "ended up kissing."

defendant began to perform oral sex upon her even though Vogel was sleeping right next to her. When Vogel rolled over,

defendant stopped because he was afraid that Vogel would awaken. He and A.M. began to argue because he stopped, and he became upset because he felt his hospitality was being abused.

Defendant walked towards the bathroom and when A.M. continued to

A-0256-08T4 13 yell, he threw her out, at which point she began to cry. She

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shook Vogel to try and awaken him as defendant began to clean the cigarettes, bottles, and cups from the bathroom. finally awakened and A.M. told him they had to leave. dressed and defendant followed them down the stairs, where at the landing Vogel turned around, shook defendant's hand, and thanked him. did not respond. Defendant shook hands and accepted his thanks but Meanwhile, A.M. "was . . . pulling [Vogel] They left, and defendant locked the Vogel Vogel

down the stairs" to leave. door behind them. Defendant returned to

the

bathroom

to

continue

cleaning

when he heard a loud knocking, "almost [a] banging," on the door. He had two cups and a cigarette in his hand and noticed a He walked

watch on the nightstand that did not belong to him. down the stairs and set the cups and cigarette on the railing while the banging continued.

Defendant said that although he

could not be absolutely certain, he was "reasonably" sure that either Vogel or A.M. was at the door. As defendant opened the door no more than a foot and onehalf or two feet wide, Vogel punched him in the face. claimed to have lost his balance as he tried to escape because of the force of the initial punch and to have fallen towards the living room. Vogel "came in after" defendant, who bumped into Defendant

A-0256-08T4 14 the entertainment system. Vogel hit defendant again and he fell

into the coffee table-trunk; Vogel pushed him towards the living room couch. There was a knife on the coffee table-trunk that defendant said he used the prior afternoon to cut limes for vodka and tonics. Defendant claimed that as he fell back onto the couch

with Vogel on top of him he initially could not see anything as Vogel kept striking him. had a knife in his right hand. cut him. Defendant could When he looked up, he saw that Vogel He put up his hand and the knife not get Vogel off because Vogel

weighed more than he did. Defendant "ended up" with it. and Vogel struggled for the knife; defendant

As Vogel continued to punch him, defendant

was "just trying to get him off me with the knife and I'm just wildly swinging at him." He claimed that even after he stabbed

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Vogel, Vogel continued to strike him.

Defendant pushed Vogel up

and "finally . . . got him in the neck -- in the side of the neck again and then that's when the knife broke." hand on his neck to remove the knife blade, defendant "freaked out," and "threw the knife handle down." When asked about the 9-1-1 call, defendant explained that he used the word "suspect" because he could not remember Vogel's name. He went outside and asked a neighbor for help, who Vogel put his

A-0256-08T4 15 ignored him and continued to wash his car. When he walked out

into the middle of the street, he became dizzy, "had tunnel vision," and could not breathe. Defendant testified that the bruises on the back of his shoulder came "from either hitting the trunk or . . . the couch" and that the knife scrape along his stomach, depicted in the photographs of his injuries taken five days after the incident, occurred while the two men wrestled for the weapon. He further

stated that he did not know if Vogel's punches had left bruises because there was no mirror in the jail. Defendant acknowledged

that the medical records from that night did not indicate that he had bruising on his face but explained that Vogel attempted to punch him many times, but connected only a few. After defendant testified, the State presented Captain

Charles Tucker, who interviewed defendant at the hospital on the afternoon of March 12, as a rebuttal witness. Tucker said that

defendant explained that he had met up with Vogel and A.M. at a bar and that they were drinking and smoking marijuana throughout the night. When he awoke, the victim and the girl were leaving Defendant reported to Tucker

and he began to clean the house.

that he did not remember what time they left, but only that shortly thereafter there was a banging on the door "like it was being kicked in." When he "opened the door[,] . . . a guy

A-0256-08T4 16 started punching" him. The individual was chasing him as he

retreated into the kitchen, where there was a knife, and they "both went for" the weapon. Defendant claimed not to remember

much after that, other than asking Sewell for help and Sewell

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telling him that he was busy washing his car. The trial judge charged, over defendant's objection, The court

aggravated manslaughter and reckless manslaughter. gave the model jury charge on self-defense against an intruder,

N.J.S.A. 2C:3-4c, at defendant's request, but also instructed the jury, over defendant's objection, as to general self-

defense, N.J.S.A. 2C:3a- and 2C:3b. Defendant moved for acquittal on the murder and weapons charges at the end of the State's case pursuant to Rule 3:18-1. After conviction defendant sought judgment of acquittal, Rule 3:18-2, or in the alternative, a new trial, Rule 3:20-1, as to all charges. All of these motions were denied.

Defendant raises the following points on appeal: POINT I THE COURT BELOW SHOULD HAVE GRANTED THE MOTION FOR JUDGMENT OF ACQUITTAL PURSUANT TO R. 3:182 AS TO COUNT 1 (MURDER) SINCE THERE IS INSUFFICIENT EVIDENCE TO PROVE THAT THE DEFENDANT DID NOT ACT IN SELF-DEFENSE; [JUDGMENTS] OF ACQUITTAL MUST BE ENTERED AS TO THE AGGRAVATED MANSLAUGHTER AND WEAPONS CONVICTIONS AS THEY ARE CONTRARY TO THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND NEW JERSEY STATE CONSTITUTION (U.S. CONST. A-0256-08T4 17 AMEND. XIV; N.J. CONST. (1947) ART. I, PAR. 10 POINT II THE DEFENDANT'S AGGRAVATED MANSLAUGHTER CONVICTION AND WEAPONS CONVICTIONS MUST BE REVERSED IN THE INTEREST OF JUSTICE AND BECAUSE THE CONVICTIONS ARE AGAINST THE WEIGHT OF THE EVIDENCE AS THE STATE DID NOT PROVE BEYOND A REASONABLE DOUBT THAT THE DEFENDANT DID NOT ACT IN SELF-DEFENSE; THE DEFENDANT'S AGGRAVATED MANSLAUGHTER AND WEAPONS CONVICTIONS ARE CONTRARY TO THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND NEW JERSEY STATE CONSTITUTION POINT III THE COURT BELOW ERRED IN DENYING THE MOTION FOR JUDGMENT OF ACQUITTAL AS TO COUNT 3 (POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE) CONTRARY TO THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTON AND NEW JERSEY STATE CONSTITUTION (U.S. CONST. AMEND. XIV; N.J. CONST. (1947) POINT IV THE CONVICTION ON COUNT 3 (POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE) MUST BE REVERSED AS IT IS AGAINST THE WEIGHT OF THE EVIDENCE AND IS CONTRARY TO THE FOURTEENTH

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AMENDMENT OF THE UNITED STATES CONSTITUTION AND NEW JERSEY STATE CONSTITUTION (U.S. CONST. AMEND. XIV; N.J. CONST. (1947) MANDATING A REVERSAL POINT V THE COURT BELOW ERRED IN DENYING THE MOTION FOR JUDGMENT OF ACQUITTAL AS TO COUNT 4 (UNLAWFUL POSSESSION OF A WEAPON) CONTRARY TO THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND NEW JERSEY STATE CONSTITUTION (U.S. CONST. AMEND. XIV; N.J. CONST. (1947)

A-0256-08T4 18 POINT VI THE CONVICTION ON COUNT FOUR (UNLAWFUL POSSESSION OF A WEAPON) IS AGAINST THE WEIGHT OF THE EVIDENCE AND IS CONTRARY TO THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND NEW JERSEY STATE CONSTITUTION (U.S. CONST. AMEND. XIV; N.J. CONST. (1947) MANDATING A REVERSAL OF THE CONVICTION POINT VII THE COURT BELOW ERRED IN DENYING THE MOTION FOR JUDGMENT OF ACQUITTAL AS TO COUNT 5 (ATTEMPTED AGGRAVATED SEXUAL ASSAULT) CONTRARY TO THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND NEW JERSEY STATE CONSTITUTION (U.S. CONST. AMEND. XIV; N.J. CONST. (1947) POINT VIII THE CONVICTION UNDER COUNT 5 (ATTEMPTED [AGGRAVATED] SEXUAL ASSAULT) IS AGAINST THE WEIGHT OF THE EVIDENCE AND IS CONTRARY TO THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND NEW JERSEY STATE CONSTITUTION (U.S. CONST. AMEND. XIV; N.J. CONST. (1947) MANDATING A REVERSAL POINT IX THE CONVICTION UNDER COUNT 5 (ATTEMPTED AGGRAVATED SEXUAL ASSAULT) MUST BE REVERSED DUE TO AN ERRONEOUS JURY INSTRUCTION WHICH DEPRIVED THE DEFENDANT OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL PURSUANT TO THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND NEW JERSEY STATE CONSTITUTION (U.S. CONST. AMEND. XIV; N.J. CONST. (1947) POINT X THE CONVICTION UNDER COUNT 5 (ATTEMPTED AGGRAVATED SEXUAL ASSAULT) MUST BE REVERSED DUE TO THE ADMISSION OF EGREGIOUSLY PREJUDICIAL HEARSAY WHICH DEPRIVED THE DEFENDANT OF HIS SIXTH AMENDMENT CONFRONTATION RIGHT AND OF HIS DUE PROCESS A-0256-08T4 19 RIGHT TO A FAIR TRIAL PURSUANT TO THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND NEW JERSEY STATE CONSTITUTION POINT XI THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A JUDGMENT OF ACQUITTAL REGARDING THE CHARGE OF MURDER IN COUNT ONE, THEREBY NECESSARILY TAINTING THE JURY'S

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VERDICT FINDING THE DEFENDANT GUILTY OF THE LESSER INCLUDED OFFENSE OF AGGRAVATED MANSLAUGHTER; THE OVERCHARGE ON THE MURDER COUNT RESULTED IN A COMPROMISE VERDICT WHICH MUST BE REVERSED [SIC] THE DEFENDANT'S DUE PROCESS RIGHT TO A FAIR TRIAL PURSUANT TO THE FOURTEENTH AMENDMENT AND NEW JERSEY STATE CONSTITUTION WAS VIOLATED POINT XII THE COURT ERRED IN CHARGING, OVER THE DEFENDANT'S OBJECTION, AGGRAVATED MANSLAUGHTER AND RECKLESS MANSLAUGHTER [SIC] THE DEFENDANT'S DUE PROCESS RIGHT TO A FAIR TRIAL PURSUANT TO THE FOURTEENTH AMENDMENT AND NEW JERSEY STATE CONSTITUTION WAS VIOLATED POINT XIII THE TRIAL COURT ERRED BY FAILING TO CHARGE PASSION/PROVOCATION MANSLAUGHTER SUA SPONTE AND DEFENDANT WAS DENIED A FAIR TRIAL AND DUE PROCESS OF LAW (U.S. CONST. VI, XIV; N.J. CONST. ART I, PARAS. 1, 10) POINT XIV THE COURT ERRED IN CHARGING JUSTIFICATION, SELF-DEFENSE AND SELF-PROTECTION OVER THE DEFENDANT'S OBJECTION; DEFENDANT WAS DENIED A FAIR TRIAL AND DUE PROCES OF LAW (U.S. CONST. VI, XIV; N.J. CONST. ART I, PARAS. 1, 10) POINT XV THE TRIAL COURT ERRED IN ITS RE-INSTRUCTION CONCERNING THE BURDEN OF PROOF AS TO SELFA-0256-08T4 20 DEFENSE AND AS TO WHETHER VOGEL WAS AN INTRUDER; DEFENDANT WAS DENIED A FAIR TRIAL AND DUE PROCESS OF LAW (U.S. CONST. VI, XIV; N.J. CONST. ART I, PARAS. 1, 10) POINT XVI THE COURT'S INSTRUCTION ON SELF-DEFENSE CONSTITUTES PLAIN ERROR AND DEPRIVED DEFENDANT OF A FAIR TRIAL AND DUE PROCESS OF LAW (U.S. CONST. AMENDS. VI, XIV; N.J. CONST. (1947) ART. I, PARAS. 1, 10) POINT XVII THE COURT ERRED IN REJECTING DEFENDANT'S REQUEST REGARDING THE JURY'S SECOND REQUEST FOR RE-INSTRUCTIONS AND DEPRIVED DEFENDANT OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL (U.S. CONST. AMENDS. VI, XIV; N.J. CONST. (1947) ART. I, PARAS. 1, 10) POINT XVIII THE DEFENDANT WAS DEPRIVED OF [] HIS DUE PROCESS RIGHT TO A FAIR TRIAL DUE TO THE VERDICT SHEET (U.S. CONST. AMENDS. VI, XIV; N.J. CONST. (1947) ART. I, PARAS. 1, 10) POINT XIX THE PROSECUTOR'S CROSS-EXAMINATION OF DEFENDANT AND HIS SUMMATION DEPRIVED THE DEFENDANT OF HIS SIXTH AMENDMENT RIGHT TO A FAIR TRIAL AND FOURTEENTH AMENDMENT DUE PROCESS RIGHT AND STATE CONSTITUTIONAL RIGHT TO A FAIR TRIAL; THE PROSECUTOR I) IMPROPERLY DENIGRATED THE DEFENDANT AND DEFENSE; II) IMPROPERLY, INTERJECTED HIS PERSONAL BELIEFS [AND] IMPROPERLY VOUCHED FOR STATE'S WITNESSES; III) IMPROPERLY EVOKED SYMPATHY FOR THE STATE'S WITNESS AND ALLEGED ATTEMPTED RAPE VICTIM; IV) MISTATED THE EVIDENCE AND ENGAGED IN IMPROPER

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SPECULATION; AND V) COMMITTED OTHER ERRORS MANDATING A REVERSAL OF EACH OF CONVICTIONS

THE

A-0256-08T4 21 SUBPOINT I THE PROSECUTOR IMPROPERLY DENIGRATED THE DEFENDANT DURING CROSS-EXAMINATION AND IN HIS SUMMATION SUBPOINT II THE PROSECUTOR IMPROPERLY INTERJECTED HIS PERSONAL BELIEFS AND IMPROPERLY VOUCHED FOR THE STATE'S WITNESSES SUBPOINT III THE PROSECUTOR IMPROPERLY EVOKED FOR THE STATE'S WITNESS AND ATTEMPTED RAPE VICTIM SYMPATHY ALLEGED

SUBPOINT IV IMPROPER SPECULATION AND MISSTATEMENTS BY THE PROSECUTOR [WERE] NOT BASED ON THE EVIDENCE ADDUCED AT TRIAL SUBPOINT V OTHER ERRORS COMMITTED DURING SUMMATION BY THE PROSECUTOR

POINT XX THE TESTIMONY OF THE STATE'S EXPERT DR. HUA CONCERNING HIS OPINION DEPRIVED THE DEFENDANT OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL PURSUANT TO THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND NEW JERSEY STATE CONSTITUTION (U.S. CONST. AMEND. XIV; N.J. CONST. (1947) POINT XXI THE ADMISSION OF THE PHOTOGRAPHS OF THE DECEDENT AND THE VIDEO OF THE CRIME SCENE DEPRIVED THE DEFENDANT OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL POINT XXII [THE] JUDGE ERRED IN ADMITTING INTO EVIDENCE THE DEFENDANT'S STATEMENTS TO CAPTAIN TUCKER MADE AT THE HOSPITAL IN VIOLATION OF HIS FIFTH AMENDMENT AND STATE PRIVILEGE AGAINST SELF-INCRIMINATION AND SIXTH AMENDMENT RIGHT TO A FAIR TRIAL A-0256-08T4 22 POINT XXIII THE DEFENDANT SHOULD HAVE BEEN SENTENCED TO A TERM ONE DEGREE LOWER ON COUNT ONE (AGGRAVATED SEXUAL ASSAULT), OR AS A SECOND DEGREE OFFENDER PURSUANT TO 41, 54 (1997) (citations omitted).

151 N.J.

It

has

long

been

recognized that "'[t]he "charge is a road map to guide the jury and without an appropriate charge a jury can take a wrong turn State v. Cuni, 303 N.J. Super. 584, in its deliberations."'" 603 (App. Div. 1997), aff'd, 159 N.J. 584 (1999) (quoting State

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v. Gartland, 149 N.J. 456, 475 (1997)). We further note that where a defendant fails to object to challenged instructions as required under Rule 1:7-2, it will be presumed that the instructions were adequate. Macon, 57 N.J. 325, 333 (1971). The absence of any objection See State v.

also indicates that trial counsel perceived no prejudice would result from the charge. 63 N.J. 420, 422 (1973). Consequently, where no objection is made, we reverse See State v. Wilbely,

only if the error is "clearly capable of producing an unjust R. 2:10-2. result." Plain error, in the context of a jury charge, is "'[l]egal impropriety substantial in rights the of charge the prejudicially defendant sufficiently affecting grievous the to

justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about 151 N.J. an unjust at 54 result.'" Afanador, supra,

(quoting State v. Jordan, 147 N.J. 409, 422 (1997)). Generally,

A-0256-08T4 24 "[e]rroneous instructions are poor candidates for rehabilitation as harmless, and are ordinarily presumed to be reversible

Afanador, supra, 151 N.J. at 54 (citing State v. Brown, error."

138 N.J. 481, 522 (1994)).

We therefore must examine the entire

charge when reviewing the propriety of an instruction, whether it was ambiguous or misleading in the context of the trial, thereby v. Hipplewith, 33 N.J. 300, 317 (1960). b. Bearing defendant's these contention, principles as in mind, in we Point first XII, examine that the resulting in prejudice to defendant. State

addressed

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trial judge erred in charging the lesser-included offenses of aggravated manslaughter and reckless manslaughter Defendant also contends in because it

resulted in a compromise verdict.

Point XIII that the passion-provocation manslaughter instruction should have been given by the court sua sponte. the two unpublished Appellate Division opinions upon which the trial court relied in granting the State's request to charge the lesser-included offenses, actually support the proposition that passion-provocation should have been provided as well. The the lesser trial court correctly stated that it must indicate" offenses 'when the facts "clearly "charge He claims that

appropriateness of that charge,' irrespective of the parties'

A-025608T4 25 wishes." State v. Perry,

124 N.J. 128, 193 (1991) (quoting State v. Choice, 98 N.J. 295, 298 (1985)). This obligation

arises whenever it is clear "that a jury could convict on the lesser while acquitting on the greater." State v. Jenkins, An offense is an

178 N.J. 347, 361 (2004) (citations omitted). included offense when:

(1) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or (2) It consists of an attempt or conspiracy to commit the offense charged or to commit an offense otherwise included therein; or (3) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interest or a lesser kind of culpability suffices to establish its commission. [N.J.S.A. 2C:1-8d.] In this case, there was a substantial rational basis in the evidence to support the lesser-included offense of aggravated manslaughter and reckless manslaughter. the two offenses is that: [t]o be guilty of SBI murder, the defendant must have knowingly or purposely inflicted serious bodily injury with actual knowledge that the injury created a substantial risk of death and that it was "highly probable" that death would result. In aggravated manslaughter, by contrast, the defendant must have caused death with an "awareness The difference between

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and conscious disregard of the probability of death." If, instead, the defendant A-0256-08T4 26 disregarded only a "possibility" of death, the result is reckless manslaughter. [Jenkins, supra, 178 N.J. at 363 (citations omitted).] The State requested the lesser-included offenses be charged given the crime scene circumstances and the brief lapse of time between the start of the confrontation and the killing. state argued that infliction with risk the the of probability a jury of actual the could serious reasonably bodily he conclude injury was rather, The jury was creating that could The that not a he also

defendant's undertaken substantial disregarded

knowledge victim's of death,

death.

rationally find that this sudden confrontation caused defendant to disregard the possibility of the victim's death from his own conduct. The trial court agreed. We also agree that the

lesser-included instructions as to aggravated manslaughter and reckless manslaughter were warranted; on the retrial of the

matter, both should be given. c. Trial counsel did not request that the court instruct the jury on passion-provocation manslaughter, 308 N.J. Super. 1 (App. Div. 1998). In Bilek, the defendant was

an apartment building superintendent who lived in a third-floor unit. Id. at 5-6. The Lapa family resided on the second floor.

Id. at 6. The Lapa's seventeen-year-old son became angry when he learned that the defendant had used profane language towards his younger sister. Ibid. He went upstairs to the defendant's

apartment to attempt to confront him, but defendant refused to answer the door. Ibid. During dinner, the son reported the Ibid. They both

incident to his father, who also became irate.

went upstairs to the defendant's apartment and this time, the The discussion "became quite defendant opened the door. Ibid. heated" and as a result the defendant retrieved a gun from his bedroom. Ibid. The Lapas fled when the defendant returned and Ibid.

pointed the gun at them.

The defendant claimed self-defense against an intruder; he was acquitted of possession of a handgun with the purpose to use

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it

against

the

father,

but

was

convicted

of

fourth-degree Although

aggravated assault based on the pointing.

Id. at 3.

there was a significant factual dispute as to which party was the aggressor, and as to the extent of the entry by the Lapa father and son into the apartment, we nonetheless found there was "no reason for inclusion of the quite different general

A-0256-08T4 29 self-defense charge" in light of the language of the defense against an intruder instruction. Id. at 11.

Defendant contends it is undisputed that Vogel gained entry into the apartment; that he was angry and upset as a result of his conversation with A.M. his wish to confront The only reason for his presence was defendant. Hence, in this case, like

Bilek, "[t]he inclusion of the general self-defense charge, not tailored to the defense of one's dwelling, could only have been confusing at best, totally misleading at worst." giving the general self-defense instruction, defendant avers, the judge introduced the jury to concepts relating to Ibid. By

proportionality of force which are inapplicable to the concept of self-defense against an intruder. The State responds that giving See id. at 12. the general self-defense

instruction was not error because Vogel's status was a jury question. The record is scant as to the facts or legal theory

underpinning that position, which succeeded in the trial court, and which the state reiterates on appeal. merely that because Vogel had been a guest in defendant's home for many hours prior to his return, a jury could reasonably find he was not an intruder. But the jury was not provided with a legal basis to The prosecutor argued

determine whether or not Vogel should have been considered an

A-0256-08T4 30 intruder. The jury was told only that an intruder is someone

"who is unlawfully in the dwelling" and "was not licensed or privileged to be in the dwelling." A license is "[a] personal

privilege to do some particular act or series of acts on land without possessing any estate or interest therein." Dictionary 919-20 (6th Ed. 1990). Black's Law

A licensee is "[a] person who

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has a privilege to enter upon land arising from the permission or consent, express or implied, of the possessor of land but who goes on the land for his own purposes rather Id. at 921. purpose or interest of the possessor." "intruder" in the context of self-defense "would exclude someone present on the premises by invitation or with permission." than for any

The word

State v. Felton, 180 N.J. Super. 361, 364 (App. Div. 1981). Yet, the jury was not provided with any guidance as to the definition of the term "intruder." Even if it had been, as a

matter of law, the State could not prove beyond a reasonable doubt that Vogel was not an intruder. The State's argument that defendant lay in wait for Vogel with a knife at the ready was merely that -- the State did not have any facts per se in support of that theory, rather, it suggested to the jury its interpretation of the manner in which the confrontation evolved. The prosecutor took the position

that defendant knew it was likely the victim would return, if

A-0256-08T4 31 for no reason than he saw someone else's watch on the nightstand in the bedroom. The prosecutor also argued that the absence of

any trace of limes meant that the knife could not have been left on the coffee table from the prior afternoon. State was merely proffering a theory, as there was no actual testimony or other proof that defendant intentionally armed But again, the

himself with a knife prior to Vogel's knock. placed the knife on the coffee table intending to use it to

Even if defendant

defend himself, that fact alone does not defeat the claim that Vogel was an intruder, any more than the victims in Bilek were not intruders because the defendant went into his bedroom to grab a gun he then used to scare them off. Furthermore, it is undisputed that Vogel's return to

defendant's home was solely for the purpose of confrontation. He asked to be driven there because his stated intent was to confront defendant. When Sewell asked Vogel to ask defendant to

move his car, Vogel stated merely that he would return in "five minutes," establishing that he intended to discuss the matter with defendant very briefly. A.M., Sewell, and defendant all

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stated

that

Vogel

"bang[ed]"

and

"pound[ed]"

on

the

door.

Neither A.M. nor Sewell heard any argument once Vogel stopped knocking on the door; neither heard loud voices. factual basis for any inference that Vogel intended to politely There is no

A-0256-08T4 32 request permission to enter the home, hear defendant's version of events, or otherwise engage in any kind of discussion by which Vogel a jury into could his home conclude before that the defendant physical actually altercation invited began.

Defendant did not dispute that he was aware that either Vogel or A.M. were at the door and that he willingly opened it. no evidence, however, that he gave Vogel permission to enter his home. To the contrary, the only reasonable inference that can be drawn depicted from on the the testimony, DVD, was and that the Vogel condition acted of the home as once There is

immediately

defendant opened the door. place over very few minutes.

The entire sequence of events took

If Vogel was an intruder, defendant was justified in using deadly force to counter any unlawful force Vogel threatened to See id. at 12. inflict. employed by defendant should not have played a role in the The disproportionality of the force

jury's consideration.

Despite this key difference between the

two theories of self-defense -- that in general self-defense, the proportionality of an actor's response is considered by a jury, and that in self-defense against an intruder, disproportionality is not a consideration -the disproportionality concept was

introduced in the general self-defense instruction.

A-0256-08T4 33 As we said in Bilek, a heated confrontation ensued once the door was opened and although "[w]hat actually occurred and who were the aggressors was disputed . . . it is fairly clear that whatever occurred did so in the entranceway of the apartment, if Id. at 13. not inside." case Vogel's entry to confront defendant makes him an intruder. This made the Lapas intruders; in this

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The jury's sole focus should have been whether the circumstances otherwise met the relevant standards for self-defense against an intruder. in the The jury should have been focused on, as spelled out instruction, whether Vogel's attack was "sudden and

unexpected" and whether defendant's belief that he needed to protect himself was reasonable. See Model Jury Charge Criminal,

"Justification - Use of Force Upon an Intruder." Accordingly, we reverse and remand for a new trial because both instructions were given to the jury. It was error to give

the general self-defense instruction, premised on very different legal concepts not applicable in this case. The giving of the

instruction was at best confusing, and at worst misleading, and resulted in prejudice to defendant. e. In Point XVI, defendant also argues that he was denied a fair trial because the model jury instructions on use of force against an intruder incorrectly state the law and were

A-0256-08T4 34 misleading and confusing. provides a common-law the his Defendant asserts the model charge definition statutory contention definition is misplaced. of "reasonable contained In belief" in that case, that

differs from 97 N.J. 178 (1984), in support of

reasonable belief was defined in the context of general selfprotection rather than defense against an intruder. 197-200. Moreover, that case also stressed See id. at that the

reasonableness of a defendant's belief is a question for the Id. at 204. jury to decide. An objective standard must be

A-025608T4 35 employed, and the issue must be decided by the jury, because to do otherwise would make any honest belief reasonable -- a result not intended by the statute. objective basis for a jury's The Legislature provided a more consideration of reasonableness

when it expanded a defendant's right to use deadly force when confronted with an intruder in his home. 176 N.J. 306, 316 (2003). See

Whether the error warrants reversal depends upon

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the extent to which it is possible the claimed error "led to an Macon, supra, 57 N.J. at 335. unjust verdict." As the trial court stated in denying the motion for a new trial, it is true that "the fact that [expert opinion testimony] that may embrace the ultimate fact issue in dispute does not render it inadmissible." There are explicit guidelines,

however, as to the appropriate use of hypothetical questions intended to "embrace the ultimate fact issue in dispute," and,

A-0256-08T4 37 generally, these rulings have arisen in the area of narcotics cases. See State v. Odom,

116 N.J. 65, 81-82 (1989) (citation omitted). Certainly the medical examiner can testify that the He can testify as to the See State v. Baluch, 341 N.J. absence of defensive wounds. Super. 141, 185 (App. Div. 2001). But, although the medical

manner of death was a homicide.

examiner's testimony did not explicitly state that defendant was guilty, he clearly stated that the victim was incapacitated when attacked. equivalent. prosecutor an In this See important weapon to add to his arsenal of case, id. at the 85. testimony was the it functional gave the

Additionally,

inappropriate closing arguments, which we shall discuss shortly. The questions put to the medical examiner were specific, not general and hypothetical in nature. He was asked to opine,

for example, whether, "within a reasonable degree of medical probability . . . Vogel was able to defend himself when these life threatening wounds were inflicted[.]" question was no. His response to the

Moreover, his expertise did not warrant his

conclusions about the conduct of the victim when the wounds were inflicted. His testimony should have been limited to the nature

of the wounds on the victim's body and the absence of wounds. By going one step further, he intruded into the jury's province. The probative value of his testimony was substantially

A-0256-08T4 38

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outweighed by the risk of prejudice in this case. supra, 176 N.J. at 312 (citing State v. Berry, 140 N.J. 280, 298 (1995)) (stating that expert opinions must be excluded in such situations). The medical examiner acknowledged not having seen

See Summers,

the video of the crime scene, and having only engaged in a conversation with the prosecutor about the matter. His

speculation that Vogel was incapable of resistance cut mortally into the heart of defendant's theory of the case. The defendant prosecutor was lying in when summation he said argued that to he the and jury the that victim As the

struggled until defendant inflicted the fatal wounds. prosecutor said, quoting the medical examiner, "if this was a fight between two combatants . . . [y]ou would expect to see a bunch of defensive injuries." The prosecutor went on to say:

in [the medical examiner's] opinion, within a reasonable degree of medical certainty, this is not how it happened. It did not happen the way that [defendant] sat here under oath and told you it happened. If you accept [the medical examiner's] testimony, the testimony of an expert in this field, you know that [defendant] was lying to you about how this happened because [the medical examiner] said to you, "Within a reasonable degree of medical certainty, at the time that the majority of these injuries were inflicted on . . . Vogel, he was incapacitated, not standing up repeatedly punching [defendant]. He was incapacitated, not capable of defending himself."

A-0256-08T4 39 The prosecutor then went on to describe a hypothetical, detailed scenario in which defendant sat astride the victim

while he stabbed him repeatedly, cutting his own wrist in the process. It is noteworthy that in denying defendant's motion

for a new trial, the court relied upon an opinion the expert did not express, namely, that the victim's level of intoxication rendered him incapable of resistance. that statement. of the This mistaken medical The expert never made recollection was a natural

consequence however.

examiner's

overbroad

testimony,

We are satisfied that the prejudice created by the

expert testimony regarding the victim's ability to resist was highly prejudicial and warrants reversal as an independent

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ground. III. Defendant raises multiple instances in Point XIX of alleged misconduct examination by of the prosecutor in summation and during crosswarrants

defendant.

Prosecutorial

misconduct

reversal when it deprives a defendant of his right to a fair trial. State v. Nelson,

173 N.J. 417, 460 (2002) (citations omitted). In assessing whether the instances of misconduct are

sufficiently egregious to warrant reversal, we "must consider (1) whether defense counsel made timely and proper objections to the improper remarks; (2) whether the remarks were withdrawn

A-0256-08T4 40 promptly; and (3) whether the court ordered the remarks [to be] stricken from the record and instructed the jury to disregard

158 N.J. them." omitted).

76, 83 State

(1999) (citations v. Frost,

In assessing separate claims of prosecutorial misconduct, we first determine "whether the prosecutor's legal [and] factual assertions were accurate," and "whether the comments were

confined to the evidence revealed [to the jury] during the trial and [the] reasonable inferences to be drawn" therefrom. v. Smith, 167 N.J. 158, 182 (2001). In this instance, defense State

counsel did not object to several of the improper statements at trial. In combination, the statements to which objection was

made and those to which no objection was made, clearly had the See R. 2:10-2. capacity to cause an unjust result. only address those claims of error which may be relevant to a retrial. Prosecutors are expected to forcefully and vigorously argue the State's case to the jury, and they are afforded considerable leeway in doing so. 141 N.J. 525, 559 (1995). Their argument, however, must be "reasonably Frost, supra, related to the State v. Harris, We will

scope of the evidence presented." 158 N.J. at 82

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(citation omitted). legal or factual

Prosecutors simply cannot "make inaccurate at assertions during a trial." Id. 85

A-0256-08T4 41 (citation omitted). It is improper for a prosecutor to inject

his or her own conclusions regarding a witness's beliefs or See State v. thoughts when there is no basis in the record. Moore, 122 N.J. 420, 462 (1991). The prosecutor opened his closing remarks by stating it was pointless for him to observe that, for example, A.M. "had a very credible demeanor," and defendant had an "incredible demeanor" because he was an advocate for the State. He went on to opine

that defendant's statements to police about the incident were "an absolute lie, an absolute lie." The prosecutor next argued that defendant's conduct after the stabbing was carefully calculated, nothing more than

dramatics intended to misdirect the police. to A.M.'s statement that defendant looked at her "very coldly" when he told her response that to he the had killed her

He made reference

boyfriend, to

that become

defendant's

neighbor's

refusal

involved in the incident was moderate, but that when the police arrived, defendant put on a "show for the cops." prosecutor said, as an example of defendant's "selective shock" after the incident, that "suddenly, he's laying in the middle of the road, you know, crying, yelling. For what? It's a show for In fact, the

the cops; the 9-1-1 call, his actions upon the arrival of the police. It's a show for the cops."

A-0256-08T4 42 The neighbor, in fact, never heard defendant either yell or raise his voice. Aburomi, the first officer on the scene,

testified only that he saw defendant "making his way out to the street" and that "[h]e was covered in blood and kind of like collapsed the in front of" the patrol car. Essentially,

prosecutor argued that defendant's conduct after the killing was part of a deliberate scheme to cover up his crime -- but in doing

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so

he

relied

upon

mischaracterizations

of

defendant's

statements. We agree with defendant that the prosecutor's closing

statement was unfounded that there was "zero" possibility that the "wildly victim's wounds a could knife. have been The inflicted prosecutor's by a person

swinging"

hypothetical

scenario of defendant astride a helpless victim, that should have been presented to the jury as nothing more than a theory, became hard fact when he supported the image with the improper expert's opinion. Even these characterizations were

overstatements, as the medical examiner never went as far as to specifically say that there was no possibility that the wounds were inflicted by someone wielding a knife wildly. Furthermore, to A.M. by acting like a "rape victim" during his closing, the prosecutor also improperly referred

implication making defendant a "rapist."

These remarks went

A-025608T4 43 outside the record because no expert testified as to how rape victims act, and the State's proofs did not support a claim that State 195 N.J. 493, 510 A.M. was raped. (2008). See v. Bradshaw,

The remarks were not objected to during trial, although In

they were quoted in defendant's motion for a new trial. denying the motion for a new trial, the court found that the remarks were "fair comment." We do not agree. These comments

were designed to improperly inflame the jury against defendant. Similarly, during his closing the prosecutor referred to A.M. as having woken up "while [defendant] was in the middle of doing something to her." That too was inaccurate; A.M.

consistently said defendant was sitting next to her, naked and looking at her when she awakened, as opposed to actively

engaging in some inappropriate sexual contact at that moment. See State v. Smith, supra, 167 N.J. at 178 (prosecutor's

comments must be limited to evidence and reasonable inferences which may be drawn from the evidence). prosecutor's characterization of defendant's conduct as having When joined with the

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been

"illegal,

something references to

disgusting, A.M. as a

and rape

something victim,

morally and the

bankrupt,"

incorrect statement that when she awakened defendant was in the midst of some sexual offense, the prosecutor's summation was These instances of prosecutorial misconduct highly prejudicial.

A-0256-08T4 44 warrant reversal and retrial on the charge of attempted

aggravated sexual assault in addition to the other offenses. IV. Defendant also argues in Point X that the trial court erred by permitting Aburomi to read to the jury verbatim his police report summary of A.M.'s at-the-scene statement, admitted on the basis that it was an excited utterance, an exception to the hearsay rule. See N.J.R.E. 803(c)(2). Defendant contends that

the reading of the nearly 400-word police report was not only error but highly prejudicial, as it included A.M.'s accusation that defendant "raped" her. Aburomi read his report to the jury

after the completion of a Rule 104(a) hearing outside their presence. An excited utterance is one "relating to a startling

event or condition made while the declarant was under the stress of excitement caused by the event or condition and without

N.J.R.E. 803(c)(2). opportunity to deliberate or fabricate." See also State v. Cotto, 182 N.J. 316, 327-28 (2005) (citation omitted). Aburomi's couched in testimony general terms. during Prior the Rule to 104(a) the hearing was

hearing,

Aburomi

testified that he physically lifted A.M. away from the victim and could not elicit any explanation from her until some

unspecified time elapsed because she was "screaming and crying."

A-0256-08T4 45 He then spoke with her outside the crime scene over the course of half an hour or forty minutes, "not long." During the Rule

104(a) hearing, Aburomi said it took her "several minutes to compose herself" before he could "get[] any logical information out of her." He said she "was still very excited, but she was

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able to at least give me the story of what transpired." bulk of his Rule 104(a) testimony was the reading of his report, repeated later to the jury.

The

It is puzzling that his description

of A.M.'s level of agitation sharply contrasts with the extent of detail included in her statement. Aburomi did not explain

whether she provided specifics spontaneously or as the result of questioning, or whether there was any lapse in time between when he began to speak to her and when the statement was completed. We do not know if he was provided a general outline by A.M., which he then reviewed with her. We do not know if the succinct

chronology of events contained in his summary of her statement was the product of his editing, as opposed to the manner in which she presented the information. The trial judge's findings after the Rule 104(a) hearing were limited, basically an iteration of the language of the rule. He did not articulate any analysis of the reason why

Aburomi's testimony warranted admission of his report: THE COURT: All right. I'm going to allow the testimony as an excited utterance, A-0256-08T4 46 the reason being . . . what she stated is related to a very startling event. The proximity in time is within one half hour. Is that correct, Officer? THE WITNESS: Yes, Your Honor.

THE COURT: All right. She's still under the stress of the event, even after she's calmed down, and I find it's admissible under . . . an excited utterance, exception under Rule 8032, and I'll permit the testimony. Thank you. A trial judge is accorded great discretion in making

decisions relating to the admissibility of excited utterances. Truchan v. Sayreville Bar, 323 N.J. Super. 40, 50 (App. Div. 1999) (citations omitted). Generally, decisions regarding the

admission of evidence are reviewed under an abuse of discretion standard. State v. Buda, In order

195 N.J. 278, 294 (2008).

for adequate appellate review, however, there must be adequate findings of fact. The State See R. 1:7-4. failed to establish the necessary evidentiary

foundation for the admission of A.M.'s account as an excited utterance, therefore the judge erred in his admission of the

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statement. attempted to

It

is

not

clear

from

the A.M.'s

foundation narrative

the was

State an

establish

whether

"uncontrolled response from shock before reflection would allow the statement to be fabricated or influenced by self-interest." Negron v. Melchiorre, Inc., 389 N.J. Super. 70, 87 (App. Div.

A-0256-08T4 47 2006) (citation omitted). The factual question left unanswered

by the State and ignored by the judge was whether "the declarant [] the had the opportunity Ibid. the nature Cotto, supra, On this of to deliberate prong the of statement the or excited is a fabricate

testimony." utterance exception, critical consideration.

182 N.J. at 330-31 (citing State v. Branch, 182 N.J. 338, 366 (2005)). Statements consisting of

narratives of past events in response to police questioning are generally and not considered statements exclamatory of Ibid.

coincident with the happening of the startling event. The State may be able to establish, should it attempt to introduce A.M.'s statement during the course of the retrial, that the statement was made "under the stress of excitement caused by the event" -- namely, the unforeseen stabbing of her boyfriend. may of indeed See N.J.R.E. 803(c)(2). have "'suspend[ed] The agitation of the moment the declarant's

powers

reflection and fabrication,' and consequently minimize[ed] the possibility selfthat the utterance will be influenced State v. Long, by

interest and therefore rendered unreliable." 173 N.J. 138, 158 (2002) (quoting 2 McCormick on Evidence

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