                                NOT FOR PUBLICATION WITHOUT THE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 NOS. A-0737-16T1
                                                                     A-0861-16T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

MAURICE L. SKILLMAN,

     Defendant-Appellant.
____________________________

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

HYKEEM E. TUCKER,

     Defendant-Appellant.
_____________________________

                    Submitted (A-0737-16) and Argued (A-0861-16)
                    January 29, 2019 – Decided March 7, 2019

                    Before Judges Yannotti, Rothstadt and Gilson.
            On appeal from Superior Court of New Jersey, Law
            Division, Mercer County, Indictment No. 13-09-1150.

            Joseph E. Krakora, Public Defender, attorney for
            appellant in A-0737-16 (Michael J. Confusione,
            Designated Counsel, on the brief).

            Gurbir S. Grewal, Attorney General, attorney for
            respondent in A-0737-16 (Evgeniya Sitnikova, Deputy
            Attorney General, of counsel and on the brief).

            John W. Douard, Assistant Deputy Public Defender,
            argued the cause for appellant in A-0861-16 (Joseph E.
            Krakora, Public Defender, attorney; Joshua D. Sanders,
            Assistant Deputy Public Defender, of counsel and on
            the brief).

            Evgeniya Sitnikova, Deputy Attorney General, argued
            the cause for respondent in A-0861-16 (Gurbir S.
            Grewal, Attorney General, attorney; Evgeniya
            Sitnikova, of counsel and on the brief).

PER CURIAM

      Defendants Maurice Skillman and Hykeem Tucker were tried before a

jury and found guilty of purposeful or knowing murder and other offenses.

Skillman and Tucker appeal from judgments of conviction (JOC) dated August

25, 2016. We address both appeals in this opinion. For the reasons that follow,

we affirm defendants' convictions, but remand for resentencing because it is not

clear from the record whether the judge intended to sentence defendants to terms

of life imprisonment or seventy-five-year prison terms.


                                                                        A-0737-16T1
                                       2
                                       I.

      In September 2013, a Mercer County grand jury returned an indictment

charging defendants with: the purposeful or knowing murder of Carl Batie,

N.J.S.A. 2C:11-3(a)(1) or (2) (count one); second-degree possession of a

weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a), N.J.S.A. 2C:2-6 (count

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

N.J.S.A. 2C:2-6 (count three); and three counts of fourth-degree aggravated

assault with a firearm, N.J.S.A. 2C:12-1(b)(4), N.J.S.A. 2C:2-6 (counts four,

five, and six).

      Defendants filed various pre-trial motions, including a motion to suppress

surveillance videos, and a motion to bar a detective from narrating the videos as

they were played for the jury. On June 25, 2015, the judge entered an order

denying the motions. The motion judge found that the surveillance videos were

sufficiently clear and could be admitted into evidence. The judge also found

that the detective's narration of the videos was permissible as lay opinion under

N.J.R.E. 701 because it was "rationally based upon [the detective's] own

perceptions."

      It appears that at some point, count six was dismissed. Thereafter, on

various dates in January and February 2016, defendants were tried together


                                                                         A-0737-16T1
                                       3
before a jury, with another judge presiding. After the State rested, the judge

dismissed count four. The jury was unable to reach a verdict on the other counts,

and the judge declared a mistrial. In May and June 2016, defendants were

retried.

      At the trial, the State presented evidence which established that on the

evening of November 10, 2012, an event celebrating the re-election of President

Obama was held at the Baldassari Regency (Regency), a club located at the

corner of Morris Avenue and Division Street in Trenton. The Regency hired

two officers employed by the Trenton Police Department (TPD), to assist in

providing security for the event.

      At around 12:30 a.m., a security guard denied an individual entry into the

Regency because he was underage and provided someone else's identification.

Thereafter, the officers on hand confiscated the identification and asked the

individual to leave. The individual became agitated and told the officers, "Fuck

you, I'll be back. I got something for you. I don't give a fuck if you're on -duty

or off-duty, that badge don't mean shit. That badge ain't gonna save you from a

bullet." This individual was later identified as S.R.1


1
  In this opinion, we refer to certain individuals by their first names to avoid
confusion. We also refer to other individuals using initials to protect their
privacy.
                                                                          A-0737-16T1
                                        4
      Marquis Skillman, defendant Skillman's brother, testified that on the

evening of November 10, 2012, he drove his girlfriend's blue Chevrolet Impala

to the Regency. Marquis went to the Regency with his brother and two other

persons. One was known as Tex, and the other as Dower. Marquis identified

Tucker in court as the person known as Tex. According to Marquis, that night,

neither Tucker nor his brother were in possession of a gun.

      At around 11:30 p.m. or midnight, Karshawn Batie and his brother Carl

went to the Regency to attend the celebration. At some point, they went up to

the Regency's exterior balcony, which is on the second floor. Carl began talking

to security guard Alexis Feliciano, with whom he was acquainted. While Carl

was talking to Feliciano, gunshots were fired at the balcony from the Regency's

parking lot.

      Feliciano stated that fifteen to twenty rounds were fired back-to-back.

Feliciano told everyone to get down. He observed Carl gasping for air and saw

that he had been shot in the head. Feliciano testified that he observed a person

wearing a gray hoodie shooting at the balcony. He saw the suspect run into an

alleyway.

      Karshawn testified that when the shooting began, a woman grabbed him

and pulled him to the ground. After the shooting stopped, Karshawn looked for


                                                                        A-0737-16T1
                                       5
his brother. He saw Carl lying face up. Carl had been shot in the head. Carl

was taken to a hospital, where he was pronounced dead. An autopsy was

performed and it was determined that the cause of death was a gunshot wound

to the head.

      Detective Timothy Long of the TPD testified that he arrived at the

Regency shortly after the shooting, and he observed about 200 people out in the

street. Long described the atmosphere as panicked, with some people engaged

in street fights and arguments. Long observed a black man wearing a black-

hooded sweatshirt and gray pants, who was starting an argument with another

black man.

      Long saw the man with the hooded sweatshirt throw several punches at

the other man. Long ordered the man to stop fighting, but he ignored him. The

man started to walk off and tried to hop a fence at a residence on Division Street.

Long eventually arrested the man, who was later identified as defendant

Skillman.

      Detective Scott Peterson of the TPD investigated the incident. He testified

that on the night of the shooting, the Regency had at least five surveillance

cameras. One camera was inside by the entrance, and other cameras were

outside. The detectives downloaded videos from these surveillance cameras.


                                                                           A-0737-16T1
                                        6
      The jury was shown excerpts of the videotapes, along with screen shots

taken from the videotapes. Peterson identified the videotapes and the screen

shots. He described the locations of surveillance cameras that recorded the

videos. He also identified the areas depicted on the videos and screen shots.

      Peterson explained that a school is located across from the Regency on

Morris Avenue, and on the evening of November 10, 2012, cars parked in the

school's lot for the event. The Regency also has a parking lot where cars parked

for the event.   Peterson pointed out that there are several alleys near the

Regency's parking lot, including Winton Alley and Saco Alley.

      Peterson began his review of the surveillance footage with the video of

the shooting, which he said occurred around 1:15 a.m. Peterson noted that the

timestamp on the videos was fifty minutes ahead of the time recorded. He stated

that the police recovered twenty-two shell casings from the center of the

Regency's parking lot.

      The footage recorded by one of the cameras depicted a portion of the

Regency's parking lot near Saco Alley. It showed two individuals walking

between two cars. Peterson testified that one of the individuals was a black male

wearing a varsity-style jacket, and the other individual was a taller, thin male.




                                                                         A-0737-16T1
                                       7
He noted that at one point, the men are seen entering and exiting a white van in

the parking lot.

       Peterson testified that the video showed that at around 1:13 a.m., the two

men were standing near the van. According to Peterson, it appeared that the tall

man had something in his hand.        Peterson said the video showed the men

entering the alley. At around 1:14 a.m., the taller man walked towards the

middle of the parking lot, and the man in the varsity jacket followed.

       Peterson stated that the video showed the tall man walk back to the van

and then proceed towards Saco Alley. The tall man then ran back from the alley,

heading in the direction of Morris Avenue. Peterson testified that the video

showed what appeared to be a flash of light, extending out from the tall man's

arm. At that point, the man in the varsity jacket was in the middle of the parking

lot.

       Peterson testified that the investigation focused on identifying the two

suspects. He reviewed the surveillance video of S.R.'s altercation with the

police at the entrance to the Regency, but S.R. did not match the persons shown

in the video recorded at the time of the shooting.         Therefore, the police

determined that S.R. was not a suspect. Peterson reviewed other surveillance

videos, and in the videos, the varsity jacket stood out.


                                                                          A-0737-16T1
                                        8
      Another video was played for the jury, and Peterson testified it showed

that around 11:54 p.m., a dark blue or black Chevrolet Impala enter the Regency

parking lot and park near a work van. The investigators determined that the

Impala was owned by Marquis's girlfriend, A.B. Peterson also noted that in the

video, the man in the varsity jacket is seen getting out of the Impala.

      Peterson interviewed Marquis and showed him a screen shot taken from

footage recorded by the Regency's front-door surveillance camera at around

12:15 a.m. The screen shot showed Marquis and the person known as Tex.

Marquis identified Tucker as the person called Tex. Peterson noted that during

the investigation, he interacted several times with both defendants and he was

familiar with them.

      Peterson further testified that based on his investigation and his own

observations of both defendants, Tucker is the person shown in the surveillance

video wearing the varsity jacket, and Skillman is the taller man. Peterson also

said other surveillance videos showed that around midnight, Skillman and

Tucker walked towards the front entrance of the Regency, and several minutes

after midnight, they entered with Marquis. Peterson said a surveillance video

shows defendants leaving the Regency about forty minutes later.




                                                                          A-0737-16T1
                                        9
      Peterson also testified that another video recorded around 1:15 a.m.,

shows Skillman jogging through the parking lot at a fast pace. He stated that

the video shows Skillman's arm down at his side, and there is a black object at

the end of his arm. The video shows Skillman lift his arm and a flash of light

comes from it.    Defendants are then seen fleeing in the direction of the

alleyways.

      The jury found defendants guilty of the purposeful or knowing murder of

Carl Batie, possession of a weapon for an unlawful purpose, unlawful possession

of a handgun, and aggravated assault with a firearm upon Alexis Feliciano. The

trial judge sentenced defendants on August 19, 2016.

      The judge merged count two (possession of a weapon for an unlawful

purpose) with count one (murder). The judge stated that he was sentencing both

defendants on count one to life imprisonment, with an eighty-five percent period

of parole ineligibility and five years of parole supervision, pursuant to the No

Early Release Act (NERA), N.J.S.A. 2C:43-7.2. However, when he sentenced

Skillman, the judge stated, "That means a [seventy-five]-year period of time,

[eighty-five] percent of which must be served without parole." The JOCs for

both defendants state that they were sentenced to seventy-five year prison terms,

with a period of parole ineligibility as prescribed by NERA.


                                                                         A-0737-16T1
                                      10
      On count three (unlawful possession of a handgun), the judge sentenced

defendants to concurrent terms of ten years in prison, each with a five-year

period of parole ineligibility. On count five (aggravated assault with a firearm

upon Feliciano), the judge sentenced defendants to consecutive terms of

eighteen months. In addition, the judge imposed appropriate monetary fines and

penalties, and ordered defendants to pay restitution of $7373.83.

      Defendants appeal from the JOCs dated August 25, 2016. In his appeal,

Skillman raises the following arguments:

            [POINT I
            THE TRIAL COURT ERRED IN DENYING
            DEFENDANT'S MOTION TO SUPPRESS THE
            SURVEILLANCE VIDEO FROM GOING BEFORE
            THE JURY AND PERMITTING DETECTIVE
            PETERSON TO "NARRATE" THE VIDEO FOR THE
            JURY.

            POINT II
            DEFENDANT'S RIGHT TO A FAIR JURY TRIAL
            WAS INFRINGED.

            POINT III
            THE PROSECUTION INFECTED THE FAIRNESS
            OF THE TRIAL BY TELLING THE JURY THAT
            DEFENDANT REFUSED TO SPEAK WITH THE
            POLICE ON ARREST. (NOT RAISED BELOW).

            POINT IV
            THE PROSECUTION SKEWED THE REASONABLE
            DOUBT BURDEN. (NOT RAISED BELOW).


                                                                        A-0737-16T1
                                      11
      POINT V
      DEFENDANT'S SENTENCE IS IMPROPER AND
      EXCESSIVE.]

In his appeal, Tucker raises the following arguments:

      POINT I
      PETERSON'S TESTIMONY NARRATING THE
      SURVEILLANCE WITH HIS OWN OPINIONS AS
      TO WHAT OCCURRED ON THE VIDEO INVADED
      THE PROVINCE OF THE JURY AND USURPED
      THE JURY'S FACTFINDING ROLE IN VIOLATION
      OF N.J.R.E. 701 AND [DEFENDANT]'S RIGHTS TO
      DUE PROCESS AND A FAIR TRIAL.

      POINT II
      THE     JURY    CHARGE       RELATIVE      TO
      [DEFENDANT]'S       STATEMENT             WAS
      INSUFFICIENT TO ADVISE THE JURY OF THE
      NEED TO CRITICALLY AND EFFECTIVELY
      EVALUATE THAT STATEMENT IN LIGHT OF
      THE REALITY THAT JURORS HAVE GREAT
      DIFFICULTY    DISTINGUISHING        BETWEEN
      FALSE CONFESSIONS AND TRUE CONFESSIONS.
      U.S. CONST. AMEND VI; N. J. CONST. ART I, PAR.
      10. (NOT RAISED BELOW).

      POINT III
      THE PROSECUTION SKEWED THE STATE'S
      BURDEN TO PROVE ITS CASE BEYOND A
      REASONABLE DOUBT. (NOT RAISED BELOW)

      POINT IV
      THE TRIAL WAS SO INFECTED WITH ERROR
      THAT EVEN IF EACH INDIVIDUAL ERROR DOES
      NOT REQUIRE REVERSAL, THE AGGREGATE OF
      THE ERRORS DENIED [DEFENDANT] A FAIR
      TRIAL. (NOT RAISED BELOW).

                                                        A-0737-16T1
                               12
            POINT V
            THE     SENTENCING   COURT   ERRED   IN
            DETERMINING THE WEIGHT AFFORDED TO
            AGGRAVATING FACTOR SIX, N.J.S.A. 2C:44-
            1a(6), GIVEN THAT AGGRVATING FACTOR SIX
            STATISTICALLY      HAS   A    NEGATIVE,
            DISPROPORTIONATE       IMPACT     UPON
            MINORITIES.

            POINT VI
            [DEFENDANT]'S SENTENCE IS EXCESSIVE,
            UNDULY PUNITIVE, AND MUST BE REDUCED.

                                        II.

      On appeal, Skillman and Tucker both argue that the trial judge erred by

allowing Peterson to testify as to what was depicted on the surveillance videos

shown to the jury. Defendants argue Peterson's testimony was not admissible

lay opinion testimony under Rule 701, and improperly usurped the jury's fact-

finding role. See N.J.R.E. 701.

      We note initially that a trial court's evidentiary rulings are reviewed under

a "deferential standard" and will not be reversed unless shown to be a mistaken

exercise of discretion. State v. Perry, 225 N.J. 222, 233 (2016) (quoting State

v. Brown, 170 N.J. 138, 147 (2001)). An appellate court should not set aside a

trial court's evidentiary ruling unless it "was so wide of the mark" as to result in

"a manifest denial of justice." State v. Marrero, 148 N.J. 469, 484 (1997)

(quoting State v. Kelly, 97 N.J. 178, 216 (1984)).

                                                                            A-0737-16T1
                                        13
      Here, the motion judge found that Peterson's testimony regarding the

videos was admissible under Rule 701. The Rule states that: "If a witness is not

testifying as an expert, the witness' testimony in the form of opinions or

inferences may be admitted if it (a) is rationally based on the perception of the

witness and (b) will assist in understanding the witness' testimony or in

determining a fact in issue." Ibid. To be admissible lay opinion under Rule 701,

the witness' perception must rest on knowledge acquired "through use of [his or

her] sense of touch, taste, sight, smell or hearing." State v. McLean, 205 N.J.

438, 457 (2011) (citing State v. LaBrutto, 114 N.J. 187, 199-200 (1989); Estate

of Nicolas v. Ocean Plaza Condo Ass'n, 388 N.J. Super. 571, 582 (App. Div.

2006)).

      The witness' testimony also must "assist the trier of fact either by helping

to explain the witness's testimony or by shedding light on the determination of

a disputed factual issue." Id. at 458. However, lay opinion testimony is not

admissible under Rule 701 if it pertains to "a matter 'not within [the witness's]

direct ken . . . and as to which the jury is as competent as he to form a

conclusion[.]" Id. at 459 (alterations in original) (quoting Brindley v. Firemen's

Ins. Co., 35 N.J. Super. 1, 8 (App. Div. 1955)).




                                                                          A-0737-16T1
                                       14
      The Court's decision in State v. Lazo, 209 N.J. 9 (2012) is instructive.

There, the Court held that the trial judge erred by allowing a police officer to

testify that he believed defendant closely resembled a composite sketch of the

suspect, and for this reason, included defendant's photo in an array. Id. at 12.

The Court determined that the officer's testimony improperly bolstered the

victim's account and usurped the jury's responsibility to weigh the victim's

credibility. Id. at 13.

      In Lazo, the Court observed that other jurisdictions have permitted law

enforcement officers to offer a lay opinion identifying a defendant from a

photograph. Id. at 22. The Court noted that the Ninth Circuit had held that in a

bank robbery prosecution, a probation officer could testify that he believed

defendant was the person depicted in a surveillance photo in light of the many

prior contacts between the two individuals. Ibid. (citing United States v. Beck,

418 F.3d 1008, 1011, 1015 (9th Cir. 2005)).

      The Lazo Court pointed out that in Beck, the Ninth Circuit stated that

whether such evidence "is 'helpful' . . . depends on various factors[.]" Ibid.

(quoting Beck, 418 F.3d at 1015). Those factors could include "whether the

witness knew the defendant over time and in a variety of circumstances." Ibid.

(quoting Beck, 418 F.3d at 1015).


                                                                        A-0737-16T1
                                      15
      The Court in Lazo noted, however, that in another case, the Ninth Circuit

had determined that it was error for the trial court to allow a police officer to

identify a defendant from a bank surveillance photo because in that case, the

officer did not know the defendant and "had never . . . seen him in person." Id.

at 23 (quoting United States v. LaPierre, 998 F.2d 1460, 1465 (9th Cir. 1993)).

"[T]he officer's knowledge of the defendant's 'appearance was based entirely on

his review of photographs of [defendant] and witnesses' descriptions of him.'"

Ibid. (second alteration in original) (quoting LaPierre, 998 F.2d at 1465).

      The Lazo Court stated that when evaluating whether a law enforcement

officer should be permitted to present lay opinion on the issue of identification,

the trial court should "consider, among other factors, whether there are

additional witnesses available to identify the defendant at trial." Ibid. (citing

United States v. Butcher, 557 F.2d 666, 670 (9th Cir. 1977); State v. Carbone,

180 N.J. Super. 95, 97-100 (Law Div. 1981)).

      In Butcher, the Ninth Circuit noted that while lay opinion testimony by

law enforcement officers should not be encouraged, it can be admissible where

there is no other available adequate identification testimony. Butcher, 557 F.2d

at 670. In Carbone, the trial court admitted lay testimony where there was a lack

of available eyewitness identification testimony, defendant's appearance had


                                                                          A-0737-16T1
                                       16
changed, and the witness was familiar with the defendant's appearance when the

offense was committed. Carbone, 180 N.J. at 100.

        In this case, the motion judge did not err by permitting Peterson to narrate

the surveillance videos and testify that defendants were the persons depicted in

the videos. The videos are of varying quality, and Peterson stated that he had to

watch them several times in order to determine what was occurring.

Furthermore, the State only presented excerpts of the videos, which were

recorded at various times, by different surveillance cameras. Peterson informed

the jury of the locations of the cameras, the locations depicted, and the times the

videos were recorded.

        Peterson noted that during his investigation, he had several interactions

with defendants and he was familiar with them.              Moreover, during the

investigation Peterson interviewed Marquis, who identified Tucker as the man

in the varsity jacket and his brother as the tall man seen with him.

        Furthermore, Peterson's testimony did not usurp the jury's fact-finding

role.    The jury was not bound by Peterson's opinions.           The jurors were

specifically instructed that they had to decide whether defendants were the

persons depicted in the videos.        Peterson's testimony assisted the jury in

understanding the evidence and determining the facts at issue.


                                                                            A-0737-16T1
                                        17
      We also conclude that even if the judge erred by allowing Peterson's

testimony, the error was harmless. As noted, during the investigation, Marquis

identified defendants from a screen shot made from the surveillance video. At

trial, Marquis admitted that during the interview, he identified defendants as the

persons depicted in the screen shot.

      In addition, the trial judge instructed the jury that it was their duty to

determine whether the surveillance videos were reliable and whether they

showed defendants committing the crimes for which they were charged. We

must presume the jury followed the judge's instructions. See State v. Burns, 192

N.J. 312, 335 (2007) (citing State v. Nelson, 155 N.J. 487, 526 (1998)).

      Therefore, even if erroneous, the judge's decision to allow Peterson to

narrate the videos and identify defendants as the person depicted therein, was

not "clearly capable of producing an unjust result." R. 2:10-2.

                                       III.

      Next, Skillman and Tucker argue that during his summation, the assistant

prosecutor made a statement that skewed the State's burden of proof.

Defendants did not object to the comment. Therefore, we consider whether the

comment constituted plain error under Rule 2:10-2.




                                                                           A-0737-16T1
                                       18
      It is well-established that "[p]rosecutors are afforded considerable leeway

in closing arguments as long as their comments are reasonably related to the

scope of the evidence presented." State v. Frost, 158 N.J. 76, 82 (1999) (citing

State v. Harris, 141 N.J. 525, 559 (1995); State v. Williams, 113 N.J. 393, 447

(1988)). "[P]rosecutorial misconduct can be a ground for reversal" if it is "so

egregious that it deprived the defendant of a fair trial." Id. at 83 (citing State v.

Ramseur, 106 N.J. 123, 322 (1987); State v. Siciliano, 21 N.J. 249, 262 (1956)).

      In determining whether a prosecutor's statement deprived the defendant of

a fair trial, we "consider (1) whether defense counsel made timely and proper

objections to the improper remarks; (2) whether the remarks were withdrawn

promptly; and (3) whether the court ordered the remarks stricken from the record

and instructed the jury to disregard them." Ibid. (citing State v. Marshall, 123

N.J. 1, 153 (1991); Ramseur, 106 N.J. at 322-23; State v. G.S., 278 N.J. Super.

151, 173 (App. Div. 1994), rev'd on other grounds, 145 N.J. 460 (1996); State

v. Ribalta, 277 N.J. Super. 277, 294 (App. Div. 1994)). "Prosecutors should not

make inaccurate legal or factual assertions during a trial." Id. at 85 (citing State

v. Engel, 249 N.J. Super. 336, 381 (App. Div. 1991)).

      On appeal, defendants argue that the assistant prosecutor improperly

stated that the State did not have to prove every fact beyond a reasonable doubt.


                                                                             A-0737-16T1
                                        19
However, in a criminal prosecution, the State is only required to prove "every

fact necessary to constitute the crime for which he is charged" beyond a

reasonable doubt. In re Winship, 397 U.S. 358, 364 (1970).

      Thus, the State only has to prove the facts that constitute the elements of

an offense beyond a reasonable doubt. See State v. Martinez, 97 N.J. 567, 572

(1984) (quoting State v. Brown, 80 N.J. 587, 592 (1979)). Therefore, the

assistant prosecutor's comment was a correct statement of the law, and the

prosecutor did not improperly skew the State's burden of proof.

      Moreover, even if the prosecutor's statement was erroneous because the

prosecutor failed to distinguish between facts that are an element of an offense

and other facts, the error was not "clearly capable of producing an unjust result."

R. 2:10-2. In his final instructions to the jury, the judge addressed the State's

burden of proof. The judge stated:

            A defendant on trial is presumed to be innocent and
            unless each and every essential element of an offense
            charged in a count of the indictment is proved against
            the defendant beyond a reasonable doubt, the defendant
            must be found not guilty of that particular count. The
            burden is on the State. It doesn't shift. There's no
            burden or obligation on a defendant to enter or give any
            offer of proof whatsoever during the trial.

We must presume the jurors followed the court's instructions. Burns, 192 N.J.

at 335 (citing Nelson, 155 N.J. at 526).

                                                                           A-0737-16T1
                                       20
                                       IV.

      We next consider Skillman's other contentions. He argues: (1) the motion

judge erred by denying his motion to suppress the surveillance videos; (2) the

trial judge erred by denying the motion to dismiss the panel of prospective

jurors; (3) the State improperly informed the jury that he failed to provide a

statement after he was arrested; and (4) his sentence is excessive.

      A. Admission of the Video Surveillance Tapes

      Skillman argues the motion judge erred by denying his motion to suppress

the surveillance videos because they are "so 'grainy' as to render [them]

untrustworthy[.]" Skillman asserts that the images are too poor to identify

anyone, particularly when the flash from the weapon occurs. He also asserts

that the timestamp on the videos is inaccurate.

      As we stated previously, a trial court's evidentiary ruling should not be

reversed unless shown to be a mistaken exercise of discretion. Perry, 225 N.J.

at 233 (citing Brown, 170 N.J. at 147). We will not reverse unless the ruling

was "so wide of the mark" that it resulted in "a manifest denial of justice."

Marrero, 148 N.J. at 484 (1997) (quoting Kelly, 97 N.J. at 216).

      We are convinced that the motion judge's decision to deny the motion to

suppress the surveillance videos is supported by the record. In his written


                                                                       A-0737-16T1
                                      21
opinion, the judge noted that "while not perfectly clear," the videos are

"sufficiently intelligible and contain[] probative value as to the identity of the

shooter and possible accomplices." The judge found that the recordings are "not

so grainy as to render [them] untrustworthy." Furthermore, although the record

shows that the timestamp on the recordings was incorrect, Peterson testified that

the timestamp was actually fifty minutes ahead of the actual time. Accordingly,

we conclude the judge did not abuse his discretion by allowing the State to

introduce the videotapes.

      B. Alleged Denial of Right to Fair Trial

      Skillman asserts that during voir dire, the jury was informed that the

Public Defender was representing him at trial. He also contends that the jury

was tainted because during jury selection, certain persons distributed pamphlets

outside the courthouse that discussed a juror's "rights" and "jury nullification."

He contends because some prospective jurors received copies of the pamphlets,

the judge should have declared a mistrial and discharged the panel.

      "Our State and Federal Constitutions guarantee the right to trial by an

impartial jury." State v. Fortin, 178 N.J. 540, 575 (2004) (citing U.S. Const.

amends. VI, XIV; N.J. Const. art. I, ¶ 10). However, the trial judge has broad

discretion in jury selection and "its exercise of [that] discretion will ordinarily


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                                       22
not be disturbed on appeal." State v. Papasavvas, 163 N.J. 565, 595 (quoting

State v. Jackson, 43 N.J. 148, 160 (1964)).

      Here, the record does not support Skillman's assertion that the jury was

informed the Public Defender was representing him at trial. The record shows

that the court clerk referred to an "intern" but the clerk did not mention the

Public Defender. Assuming, however, that the clerk made the alleged statement,

the judge did not abuse his discretion by denying Skillman's motion to discharge

the panel.

      The alleged reference to the Public Defendant was not capable of denying

defendant a fair trial. See State v. Martini, 131 N.J. 176, 265-67 (1993) (finding

that a witness's "inadvertent remark" about the Public Defender's office did not

constitute reversible error), overruled on other grounds by Fortin, 178 N.J. at

646. We conclude that the judge did not err by denying the motion to discharge

the panel.

      Skillman also argues that the trial judge erred by denying his request to

discharge the panel because some jurors were given copies of the

aforementioned pamphlets. The record shows that on the second day of voir

dire, the prosecutor questioned a juror about a bookmark she was using. The




                                                                          A-0737-16T1
                                       23
juror stated that on the previous day, several individuals were outside the

courthouse handing out pamphlets.

      The pamphlets, which have not been included in the record on appeal,

apparently discussed a juror's "rights" and "jury nullification."      The judge

indicated that he would question the prospective jurors about the pamphlets at

sidebar.

      Thereafter, Skillman moved to discharge the entire panel, arguing that

jury pool had been tainted because the pamphlets contained incorrect

information and instructed the jurors to be untruthful when questioned during

jury selection. The judge denied the motion.

       We are convinced the judge's ruling was not a mistaken exercise of

discretion. The judge instructed the jurors that some of the information in the

pamphlets was incorrect, and that they had to follow their oath to be fair and

impartial. The judge apparently was satisfied that the jurors could be fair and

impartial. The record supports that determination.

      C. Alleged Improper Comment

      Skillman asserts that the State impermissibly "told the jury that [he]

refused to speak with the police on arrest." He argues that this alleged statement

"infected the fairness of the jury trial and warrants a new trial."


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                                        24
      A defendant's right against self-incrimination is protected under the

Federal Constitution and New Jersey common law. U.S. Const. amend. V; State

v. Elkwisni, 190 N.J. 169, 176, 180 (2007) (citing State v. Muhammad, 182 N.J.

551, 567 (2005)). Both the United States Supreme Court and our Supreme Court

have "held that the use of a defendant's silence at the time of his arrest and after

receiving Miranda warnings" is impermissible. Elkwisni, 190 N.J. at 177 (citing

Doyle v. Ohio, 426 U.S. 610, 619 (1976)).

      Here, the record shows that the assistant prosecutor questioned Peterson

about Skillman's interview with the police:

            Q     Detective, we'll revisit the surveillance video
            from inside the police station. The early morning hours
            of November 11th of 2012, did there come a time when
            you tried to speak with, is it Maurice Skillman?

            A      Yes.

            Q      And was that interview video-recorded?

            A      Yes.

      In responding to the prosecutor's question, Peterson did not state that

Skillman had refused to speak to the police. However, on cross-examination,

Skillman's attorney asked Peterson, "Now, you said that my client refused to

talk to you?" Peterson responded, "Yes."



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                                        25
      Thus, the statement was elicited by the defense, not the State. There is,

however, no indication that Skillman was prejudiced by Peterson's brief remark.

We conclude Peterson's comment was not "clearly capable of producing an

unjust result." R. 2:10-2.

      D. Sentence

      Skillman argues that his sentence is improper and excessive. He contends

the judge did not adequately explain the basis for his findings of the aggravating

factors or the weight he assigned to them. He also contends the judge did not

explain why the sentence imposed was warranted. He argues that the matter

should be remanded for resentencing.

      Here, the judge found aggravating factors three, six, and nine. N.J.S.A.

2C:44-1(a)(3), (6), and (9). The judge also found mitigating factor eleven,

N.J.S.A. 2C:44-1(b)(11) (defendant's imprisonment will cause excessive

hardship to himself or his dependents). The judge noted that Skillman is not

married, but has a child for whom he pays support.          The judge gave the

mitigating factor little weight.

      The judge also noted that Skillman has a history of arrests and convictions.

As a juvenile, Skillman had four arrests, with two adjudications. As an adult,

Skillman had nine arrests, and two Superior Court convictions. In addition, he


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                                       26
had seven municipal court convictions. The judge observed that Skillman has

"a pattern of constantly not following society's rules and regulations in

accumulating this kind of a record."

      In addition, the judge stated that aggravating factor three was "a very

serious factor in this case." The judge reasoned that the risk of further offense

was serious based on the nature of the offense. The judge stated, "It strikes me

that a person who is capable of committing an act such as this of extreme

violence is capable of other acts."

      The judge also noted that there was a strong need to deter someone like

Skillman.    The judge stated that considering the offense that Skillman

committed, the only way to deter him was incarceration. The judge also stated

that he hoped the sentence would deter others from committing this type of

crime.

      We review a sentence under an abuse of discretion standard. State v.

Jones, 232 N.J. 308, 318 (2018) (citing State v. Robinson, 217 N.J. 594, 603

(2014)). In doing so, we must determine whether: "(1) the sentencing guidelines

were violated; (2) the findings of aggravating and mitigating factors were . . .

'based upon competent credible evidence in the record;' [and] (3) 'the application

of the guidelines to the facts' of the case 'shock[s] the judicial conscience.'"


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                                       27
State v. Bolvito, 217 N.J. 221, 228 (2014) (third alteration in original) (quoting

State v. Roth, 95 N.J. 334, 364-65 (1984)). We will not set aside a sentence

unless "there is a 'clear showing of abuse of discretion.'" Ibid. (quoting State v.

Whitaker, 79 N.J. 503, 512 (1979)).

      We are convinced the judge followed the sentencing guidelines, and there

was sufficient evidence in the record to support the judge's findings of the

aggravating and mitigating factors. We are constrained, however, to remand the

matter for resentencing because it is not clear whether the judge intended to

sentence Skillman to life imprisonment or to a base term of seventy-five years.

      As we noted previously, when he sentenced Skillman, the judge stated that

he was sentencing him to a term of life imprisonment. The judge then stated

that, "That means a [seventy-five]-year period of time, [eighty-five] percent of

which time must be served without parole." Skillman's JOC states that he was

sentenced to a seventy-five year term, and must serve eighty-five percent of that

term before being eligible for parole.

      We note that NERA provides in pertinent part that a person convicted of

a murder under N.J.S.A. 2:11-3 must serve a minimum term of eighty-five

percent of the sentence imposed, before becoming eligible for parole. N.J.S.A.

2C:43-7.2(a) and (d). NERA also provides that, "Solely for the purpose of


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                                         28
calculating the minimum term of parole ineligibility pursuant to subsection a. of

this section, a sentence of life imprisonment shall be deemed to be [seventy-

five] years." N.J.S.A. 2C:43-7.2(b).

      Thus, a life sentence is not the equivalent of a seventy-five-year sentence.

Under NERA, a life sentence is deemed to be a seventy-five-year sentence solely

for purposes of calculating the period of parole ineligibility.

      Thus, it is not clear from this record whether the judge intended to impose

a life term, as he stated at sentencing, or a seventy-five-year term, as indicated

in the JOC. Accordingly, we remand the matter for resentencing.

                                        V.

      We turn to Tucker's other arguments. He argues that: (1) the jury charge

regarding the statement he provided to the police was insufficient; (2) the

cumulative error doctrine requires reversal of his conviction, and (3) his

sentence is excessive.

      A. Jury Instruction

      Tucker argues that the jury charge regarding his statement to the police

was flawed because it failed to provide the jury with sufficient guidance

regarding "the dangers of false confessions." He contends this error requires

reversal of his conviction and a remand for a new trial.


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                                       29
      Here, the trial judge instructed the jury in accordance with the model jury

charge on statements by defendants.        See Model Jury Charges (Criminal),

"Statements of Defendant" (rev. June 14, 2010). The judge told the jury that it

had the duty to determine if Tucker's statement to the police was "reliable." The

judge stated:

            In considering whether or not the statement is credible,
            you should take into consideration the circumstances
            and facts as to how the statement was made, as well as
            all other evidence in this case relating to this issue.

                   As you heard from the testimony of Detective
            Scott Peterson, the defendant, Hykeem Tucker, was
            advised of the charges against him and his Miranda
            rights before he provided any statement to the police.
            You further heard testimony that the defendant,
            Hykeem Tucker, understood his rights and agreed to
            waive his rights and speak to Detective Peterson.

                  If you determine that the statement is not
            credible, then you must disregard the statement
            completely. If you find the statement in part or all is
            credible, you may give what weight you think
            appropriate to the portion or the entirety of the
            statement you find to be truthful and credible.

      We note that Tucker did not object to the instruction during the trial court

proceedings. For the first time on appeal, he argues that the model jury charge

should be modified. He contends jurors should be instructed that, "Although

nothing may appear more convincing than a defendant's statement, you must


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                                      30
critically analyze such evidence. Such statements may be false. Therefore,

when analyzing such evidence, be advised that the fact of making a statement,

alone, is not an indication of the reliability of the statement."

      In support of his argument, Tucker relies upon certain articles, which set

forth results of social-science research pertaining to "confessions" by defendants

in criminal matters. Tucker did not, however, present those articles to the trial

court. Therefore, the State did not have an opportunity to dispute the findings

in the articles.

      Moreover, in his statement to the police, Tucker did not admit that he

committed the charged offenses. He acknowledged he was at the Regency on

the night of the shooting, but he repeatedly denied he was the shooter. Tucker's

statement was not a confession. Thus, the social-science research that Tucker

relies upon does not apply in this case.

      In any event, the judge's instruction was a correct statement of the law. It

is well-established that after the trial court determines a defendant's statement is

voluntary and admissible, the jury should consider "whether in view of all the

same circumstances the defendant's confession is true. If [the jurors] find that

[the confession] is not true, then they must treat it as inadmissible and disregard




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                                        31
it . . . ." State v. Hampton, 61 N.J. 250, 271-72 (1972). The instruction provided

in this case is consistent with this principle.

      B. Cumulative Error

      Tucker argues that even if the errors he cites did not individually

constitute reversible error, in the aggregate, they denied him of his constitutional

right to a fair trial. We disagree.

      Our Supreme Court has held that "even when an individual error or series

of errors does not rise to reversible error, when considered in combination, their

cumulative effect can cast sufficient doubt on a verdict to require reversal."

State v. Jenewicz, 193 N.J. 440, 473 (2008) (citing State v. Koskovich, 168 N.J.

448, 540 (2001)). The cumulative error principle does not apply in this case.

As we have explained, there was no error in the trial of this matte r or any series

of errors that, when considered in combination, cast sufficient doubt on the jury's

verdict to require a new trial.

      C. Sentence

      On appeal, Tucker argues that the judge erred when he weighed the

aggravating factors. He contends that the judge erred by giving weight to

aggravating factor six, because that factor allegedly has a statistically disparate

impact on minorities. Tucker further argues that his sentence is excessive and


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                                        32
unduly punitive. He contends his offense can be "adequately punished" with a

lesser sentence. He argues that he should be resentenced.

      When sentencing Tucker, the judge found aggravating factor three.

N.J.S.A. 2C:44-1(a)(3) (risk that defendant will commit another offense). The

judge noted that Tucker was with Skillman "right down the line in everything

that occurred that night." The judge stated the risk that Tucker will commit

further offenses "is extreme." The judge observed that "given the enormity of

the devastating effects of the criminal behavior that he was engaged in, the

further risks are beyond reasonable comprehension."

      The judge also found aggravating factor six.      N.J.S.A. 2C:44-1(a)(6)

(extent of defendant's prior criminal record and the seriousness of the offenses

of which he has been convicted). The record shows that as a juvenile, Tucker

had eight juvenile arrests and four adjudications. As an adult, Tucker had

sixteen arrests, several municipal court convictions, and two prior Superior

Court convictions for drug-related offenses.

      In addition, the judge found aggravating factor nine. N.J.S.A. 2C:44-

1(a)(9) (need to deter defendant and others from violating the law). The judge

stated that "[t]he only way to deter [Tucker was] to incarcerate him[.]" The




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                                      33
judge observed that he hoped the message would go forth and "some lives would

be saved[.]"

      The judge found no mitigating factors and stated that the "aggravating

factors . . . substantially outweigh[ed] the non-existent mitigating factors." On

the JOC, the judge wrote, "The aggravating factors are overwhelming in

significance by any standard."

      We reject Tucker's contention that the judge erred by giving weight to

aggravating factor six. The judge's finding was based on defendant's prior

criminal record, and there is no evidence in the record to support Tucker's

contention that aggravating factor six has a disparate racial impact.

      Tucker's claim of racial disparity is based on articles and research that the

defense did not present to the trial court. The articles and research are not part

of the record on appeal. Moreover, the State did not have the opportunity to

dispute the findings and conclusions set forth therein.

      We are constrained, however, to remand for resentencing. As we stated

with regard to Skillman's sentence, it is unclear whether the judge intended to

sentence Tucker to a life term, as he stated on the record, or a base term of

seventy-five years as stated in the JOC.




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                                       34
      Accordingly, defendant's convictions are affirmed, but the matters are

remanded to the trial court for resentencing in conformance with this opinion.

      In A-0737-16 and A-0861-16, affirmed in part, and remanded for

resentencing in conformance with this opinion. We do not retain jurisdiction.




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                                      35
