                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-0967-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

MICHAEL J. DOCE,

     Defendant-Appellant.
___________________________

                    Argued November 18, 2019 – Decided May 7, 2020

                    Before Judges Fasciale, Rothstadt, and Mitterhoff.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Middlesex County, Indictment No. 15-07-
                    0801.

                    Eric R. Breslin argued the cause for appellant (Duane
                    Morris, LLP, attorneys; Eric R. Breslin and Melissa S.
                    Geller, of counsel; Sarah Fehm-Stewart, on the briefs).

                    Nancy A. Hulett, Special Deputy Attorney General/
                    Acting Assistant Prosecutor, argued the cause for
                    respondent (Christopher L.C. Kuberiet, Acting
                    Middlesex County Prosecutor, attorney; Nancy A.
                    Hulett, of counsel and on the brief).
PER CURIAM

      Defendant Michael J. Doce appeals from the Law Division's October 5,

2017 judgment of conviction that was entered after a jury found defendant guilty

of conspiracy to commit murder, N.J.S.A. 2C:5-2 and N.J.S.A. 2C11-3(a)(1),

and murder N.J.S.A. 2C:11-3(a)(1), (2). The trial court sentenced defendant to

thirty years imprisonment without parole eligibility.

      On appeal, defendant challenges his conviction by arguing that his

constitutional right to a speedy trial was violated; the trial court improperly

admitted certain photographs into evidence; and he was deprived of a fair trial

as a result of various acts and omissions committed by the prosecutor. He also

contends that the cumulative errors in his trial warrant a reversal. For the

reasons that follow, we remand defendant's speedy trial claims to the trial court

as they were not addressed by that court in the first instance but affirm as to all

other issues.

                                        I.

      The facts established at defendant's trial that lead to his conviction are

summarized as follows. On November 6, 2011, defendant's codefendant, Daniel




                                                                           A-0967-17T4
                                        2
Medaglia murdered K.D.1 As the jury found, Medaglia did so at the direction

of defendant, whom he had met about two years earlier. According to Medaglia,

he committed the murder in an attempt to become involved in and "move up the

ladder" of an established, well-known New Jersey organized crime "family" that

defendant told Medaglia he was a prominent member and could help Medaglia

become a member.2

      At the time Medaglia and defendant met, they were both involved in the

illegal sale of prescription drugs and made purchases from each other. Several

months after they met, defendant told Medaglia that his "Uncle Paulie" was the

head of the crime family, and as an underboss, he was a high-ranking member,



1
   Medaglia and K.D. had been friends. They grew up in the same town and
attended the same high school. They remained friends after high school and
were both evidently involved with selling drugs to each other.
2
   As discussed below, at trial, defendant asserted a defense explaining that his
representations were part of a role-playing activity in which he and his friends
participated. Such activities are akin to "LARPing," (Live Action Role Playing),
"a type of role-playing game in which each participant assumes a particular
character and acts out various scenarios at events which last for a predetermined
time."            LARP,        Collins      English      Dictionary        Online,
https://www.collinsdictionary.com/dictionary/english/larp (last visited Apr. 21,
2020); see also People v. Linton, 302 P.3d 927, 945 (Cal. 2013) (discussing the
testimony about a "leader of a live action role-playing game club" in a murder
trial).



                                                                          A-0967-17T4
                                        3
and he could help Medaglia climb the ladder in the crime family. Defendant

told Medaglia that "Uncle Paulie" could help Medaglia set up his "own loan

sharking and bookie operation."       Medaglia "wanted to get in close with

[defendant] after he said he was a member" of a crime family because Medaglia

was attracted to the "[m]oney, cars, things of that nature."

      During 2010 and early 2011, Medaglia spent almost every day with

defendant and they would discuss the crime family's activities. Defendant also

introduced Medaglia to several individuals who were members of that family or

had connections to the family. Medaglia started receiving text messages from

an unidentified number and an individual who claimed to be one of the crime

family's members.

      By March 2011, Medaglia and defendant's relationship "was escalating"

and Medaglia considered defendant "one of the most important people in [his]

life." Around that time, defendant informed Medaglia that he was going to start

asking Medaglia to do things for him, and Medaglia was willing to do "basically

anything [defendant] said."

      Later, defendant told Medaglia that he would arrange to get him more

involved. Thereafter, Medaglia received a telephone call from someone, who

sounded like an "older Italian guy," who said that he had "heard good things


                                                                       A-0967-17T4
                                        4
about" Medaglia from defendant and that he was "going to set [Medaglia] up in

[his] own thing pretty soon." Defendant promised to help Medaglia get a job as

a bouncer at a strip club that he "had control over," and he would introduce

Medaglia to the managers, who were also members of the family.

      Through his developing relationship with Medaglia, defendant met K.D.,

who sold him drugs when Medaglia was not available. Thereafter, on one

occasion, police officers followed K.D. as he drove to Medaglia's parent's house.

After that incident, Medaglia stopped spending time with K.D. because he was

upset that K.D. "got [them] jammed up in this little . . . run from the police."

However, initially, defendant offered to help K.D. by using the connections he

had to a prosecutor and the police, and stated that he could get the charges

against K.D. dropped if K.D. paid him $500. K.D. told Medaglia that he was

not going to pay defendant because he did not believe defendant had a

connection or was really part of the crime family.

      Defendant started calling K.D. a "snitch" and believed that K.D. told

authorities about his drug sale operation. Medaglia was concerned about getting

caught because he had friends who had recently been arrested for drug sales.

Defendant worried that if Medaglia was arrested as a result of K.D. being a

snitch, then defendant could be arrested as well.


                                                                         A-0967-17T4
                                       5
      Defendant began to frequently discuss with Medaglia the possible solution

to "take [K.D.] out." Starting in March and April 2011, defendant "constant[ly]"

pressured Medaglia to kill K.D., and the pressure continued "basically up until

November 6, 2011," when Medaglia committed the murder.

      When discussing the planned murder, Medaglia became worried that he

also would be killed. He began receiving phone calls from a restricted number

from an individual again claiming to be "Uncle Paulie" who told him that K.D.

"got us all jammed up," "that he was putting a $50,000 hit on [ K.D.'s] head,"

and that it was Medaglia's "job to handle the situation." Similarly, defendant

told Medaglia he would be paid once he completed the hit, and that he could be

"liable" if he did not take care of the situation.

      Several months prior to the murder, when Medaglia was driving with

defendant, he pointed out a terminal to Medaglia, and said it was a "bad place"

where murders happened, and that defendant "had personally killed nine people

and buried [their] bodies there." Defendant said that when the crime family had

to kill people, they did it there and that Medaglia would "have to do it alone

[the] first time." Defendant also told Medaglia that a family member named Phil

or Steve would help with digging holes and ensuring Medaglia was clean

afterwards. Eventually, they began to specifically discuss Medaglia taking K.D.


                                                                        A-0967-17T4
                                          6
to the terminal to kill him there. Medaglia asked defendant what he would use,

and defendant told him he would "give [him] a sharp knife."

      On November 5, 2011, the day prior to the murder, Medaglia was with

K.D. at a motel. Medaglia texted defendant a number of messages stating that

Medaglia wanted "to do this for real." In response, defendant told Medaglia

"[f]ine" but that he was "not getting dirty" and would have someone prepare a

hole to bury K.D.'s body. Medaglia told defendant he did not have a "piece"

(referring to a handgun), and defendant responded to "use a blade. No noise."

      While Medaglia waited for defendant to go to the terminal, Medaglia and

K.D. went to a bank nearby the motel and K.D. withdrew $500 because Medaglia

had told him they were going to purchase drugs. Ultimately, the murder did not

occur that day because defendant did not come to the motel and Medaglia felt

he "needed more direction" because he was not "sure what to do."

      The following afternoon, Medaglia texted defendant that K.D. was

picking him up and that he "want[ed] to handle this now." K.D. picked Medaglia

up from his parent's house, and the two men went to a shopping mall. While

there, Medaglia texted defendant a reference to the terminal, saying he was about

to take K.D. to a "Giants game alone" and wanted defendant to call him. At 3:49

p.m., Medaglia and K.D. were still at the mall "wasting time until [Medaglia]


                                                                         A-0967-17T4
                                       7
received further directions" from defendant.

      Defendant and Medaglia exchanged additional text messages, and then

Medaglia asked if he could bring K.D. to the "game" at 4:23 p.m. Defendant

responded with the following:

            You can, but you have to go alone. In the back is a
            river, my dad's yacht is in the water. Go to the dock.
            We always have rope and concrete blocks . . . there.
            Tie him and put him in the water behind the back of the
            boat. The crabs will eat him in two days. Put the car
            in drive into the river too. I'll . . . have someone go
            there now to make sure you have cover.

      Medaglia also asked defendant for directions on where to go onc e he

arrived at the terminal, defendant told him where to park, and then to "[c]lock

[K.D.] and either take [the] car or put [it] in [the] water." Medaglia told

defendant that he wanted to show defendant that he could "hold it down" and

that he was going to make him proud. Defendant texted in response "'[y]es' with

exclamation points."

      At 4:53 p.m., Medaglia texted defendant with his plan to come up behind

K.D. and hit him. Defendant reminded Medaglia to make sure he deleted every

text message and said, "[s]o help you God if you don't I'll make sure you're

swimming too." Defendant followed up with another text a few minutes later

that read, "Be quick. Clock to the back. Water. Car. Out."


                                                                       A-0967-17T4
                                       8
         Medaglia and K.D. stopped at a gas station, and Medaglia continued to

text defendant updates of his location. K.D. also withdrew money from an ATM

at the gas station for the drug deal K.D. believed was going to occur.

         Defendant texted Medaglia, to make sure he was ready and told Medaglia

he did not "have to prove anything," to "[t]hink about it first," and not "do

something [he would] regret." He also texted: "If you really are ready, you have

to do it alone the first one. . . . We all did. Steve will clean it up. You have to

get the hell out fast. Take the car. "

         Medaglia texted a series of follow-up messages asking what to do with

K.D.'s car, and defendant responded, "Steve will be there, just get to the water.

Lights off. Get out. Do your thing. Water. Car. Out." Medaglia again asked,

"[o]ut in what car [defendant]?" Defendant texted Medaglia, "[t]ake it home

and hide it or drive right into water. You can even keep [him] inside and roll it

in. So what's your plan? What are you going to do?" Medaglia told defendant

that his plan was to drive the car into the water and "have Steve give [him] a

ride."

         When it was "dark enough," Medaglia texted defendant that he was

leaving the gas station. Defendant asked Medaglia to reiterate his plan, and

Medaglia told defendant that he was going to get "out with the pipe," "walk[]


                                                                           A-0967-17T4
                                         9
around [the] back of [the] car and get[] him."

      Defendant reminded Medaglia to delete the messages, asked if he had

gloves, and told him to take K.D.'s "[w]allet, keys, . . . insurance, and

registration." Medaglia told defendant, "Bro, I got this." Defendant answered

with a text message that stated, "Steve is on top of building. First thing once

you're done is he'll check your phone, make sure everything is clear, everything.

Lift your shirt up and then . . . run towards [the convenience store], he'll scoop

you from there." At 5:27 p.m., defendant told Medaglia that Steve was there,

and Steve said that "he's got you."

      On November 6, 2011, Medaglia killed K.D. at the terminal at some point

between 6:32 p.m. and 7:02 p.m. At that time, K.D. and Medaglia got out of the

car, Medaglia hit K.D. "from behind with [a] crowbar," and searched K.D.'s car

for keys so that he could put the car into the water. When he could not locate

the keys, he decided he "should get out of there," leaving K.D.'s body on the

ground.

      After the murder, Medaglia went to the nearby convenience store and

contacted another codefendant, Ryan Morrell. When Morrell arrived, Medaglia

told him that he had killed K.D. The two men went to a department store,

Medaglia changed his clothes and boots, and put his bloody clothes in Morre ll's


                                                                          A-0967-17T4
                                       10
trunk. The two men then went to the strip club because defendant had told

Medaglia that if anything should happen to him, he should go there "since it was

under his control and contact Robert [or] Vinny and let them know something

had happened to him [so that] they [could] handle it."

      Medaglia followed defendant's instructions. He spoke to someone at the

strip club. Afterwards, a "lightbulb went off that this might have been a whole

scam the entire time" because the man he spoke to acted like he did not know

defendant.

      The two men then went to Morrell's house and burned Medaglia's clothes

in the backyard. Medaglia stayed at Morrell's house that night and then Morrell

brought Medaglia back to his parent's home the next day. Medaglia went to a

motel the following night.

      K.D.'s body was discovered by a contractor who arrived at the terminal at

4:15 a.m. on November 7, 2011. In the area of K.D.'s body, there were large

storage containers and two pickaxes. One pickaxe was placed against one of the

storage containers and the second pickaxe was found on top of dense brush and

shrubs and had "a substantial amount of blood" on it.

      The police discovered the car was registered to K.D.'s mother and found

his driver's license in his pocket. Officers discovered three cell phones in K.D.'s


                                                                           A-0967-17T4
                                       11
car. The police also obtained footage from a surveillance camera of the area,

which depicted "a male . . . wearing a jacket, skull cap, jeans, and white

sneakers," walking between K.D.'s Subaru and a dump truck. Officers later

determined that Medaglia was the man in the surveillance video.

      Police later obtained a text message log, which brought the officers'

attention to a second phone number that they eventually learned belonged to

defendant. Police arrested Medaglia and defendant on November 9, 2011.

      A grand jury indicted defendant, Medaglia, and Morrell. The indictment

charged defendant with conspiracy to commit murder, murder, and other related

charges. During the ensuing six years before defendant's trial, he filed a variety

of pre-trial motions. Additionally, three years after the original indictment, a

grand jury returned a superseding indictment adding additional charges and an

additional codefendant.3 Thereafter, before defendant's trial, Medaglia pled

guilty to murder, Morrell pled guilty to a disorderly person's offense of

hindering apprehension, and as part of their agreements, the two agreed to testify

for the State against defendant. Further, prior to defendant's trial, the trial court



3
  The superseding indictment added additional charges relating to the unlawful
possession of controlled dangerous substances and theft that occurred between
January 1, 2009 to November 7, 2011. The indictment also amended the
conspiracy charge to have occurred between March 2011 to November 7, 2011.
                                                                             A-0967-17T4
                                        12
severed the charges in the superseding indictment that were unrelated to the two

charges arising from K.D.'s murder.

      At trial, among the other witnesses, Medaglia and Morrell testified to the

events leading to their arrest and indictment as set forth above. Defendant also

testified, telling a different story. Defendant testified that Medaglia introduced

him to K.D. in 2010 and had been in K.D.'s presence only "between five and ten

times." He explained that he did a favor for Medaglia and K.D., when he offered

to reach out to his family lawyer to try to handle the ticket following the

convenient store incident. He denied demanding $500 from K.D. or speaking

with a prosecutor and the police about dropping K.D.'s charges.

      Defendant admitted that he told Medaglia that he was a member of

organized crime, but he denied actually being a part of organized crime. He said

that the story "actually started itself," when early in their friendship, Medaglia

began to question defendant because defendant "had a good job" and had "nice

things." Medaglia asked him whether he was involved with a crime family and

defendant eventually told him that he was.

      Defendant said that it was a "little thing" that "evolved into this elaborate

[crime family] game." He and about six other friends were "in on this [crime

family] game," and they "created many characters." Defendant pretended to be


                                                                           A-0967-17T4
                                       13
one of the "main characters," "Uncle Paulie," and called Medaglia as that

character on more than one occasion. Defendant did not think that Medaglia

actually believed him but said that Medaglia "became very excited."

      Defendant told Medaglia that the crime family had taken "countless

bodies" to the terminal, but denied having any personal knowledge of bodies

being buried there. Defendant said that he never intended any harm to come to

K.D. When defendant learned that K.D. had been killed, he went alone to the

police and gave "a four-and-a-half-hour statement" to two detectives. Defendant

told the detectives that he was "role-playing" and explained the general

parameters of "the game."

      As noted, the jury convicted defendant of the two crimes and the trial court

imposed its sentence. This appeal followed.

      On appeal, defendant argues the following points:

            POINT I

            [DEFENDANT]     WAS      DENIED     HIS
            CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL.

                A.  THE   EXTREME    DELAY FROM
            ARREST TO TRIAL WEIGHS IN FAVOR OF
            VACATING THE CONVICTION.

                B.  THE   2[]050 DAY   DELAY   IS
            ATTRIBUTABLE TO THE STATE AND COURT'S
            CALENDAR.

                                                                          A-0967-17T4
                                      14
           1.  NOVEMBER 9, 2011 – MAY 30,
2012 (203 DAYS; JUST UNDER SEVEN MONTHS).

          2.   MAY 31, 2012 – JUNE 30, 2013
(396 DAYS; 13 MONTHS).

           3.  JULY 1, 2013 – SEPTEMBER 2,
2014 (429 DAYS; FOURTEEN MONTHS).

           4.  SEPTEMBER 3, 2014 – JULY 4,
2015 (305 DAYS; 10 MONTHS).

          5.   JULY 5, 2015 – JANUARY 7, 2016
(187 DAYS; SIX MONTHS).

          6.   JANUARY 8, 2016 – MAY 1, 2017
(480 DAYS; JUST UNDER SIXTEEN MONTHS).

           7.   MAY 2, 2017 – JUNE 20, 2017:
TRIAL.

    C.  [DEFENDANT]          VIGOROUSLY
ASSERTED HIS SPEEDY TRIAL RIGHT.

    D.  [DEFENDANT]            SUFFERED
SUBSTANTIAL PREJUDICE AS A RESULT OF THE
DELAY.

POINT II

THE COURT IMPROPERLY PERMITTED THE
INTRODUCTION OF CRIME SCENE AND
AUTOPSY PHOTOGRAPHS.




                                                A-0967-17T4
                     15
            POINT III

            DISCOVERY VIOLATIONS AND                  IMPROPER
            PROSECUTORIAL COMMENTARY                  DEPRIVED
            [DEFENDANT] OF A FAIR TRIAL.

                    A.  THE    STATE    FAILED                 TO
            PRODUCE A KEY PIECE OF EVIDENCE.

                    B.  THE    STATE              FAILED       TO
            PRODUCE A WITNESS LIST.

                    C.   THE STATE ATTEMPTED TO
            INTRODUCE 404(b) EVIDENCE NOT DISCLOSED
            TO THE DEFENSE AND WHICH HAD BEEN
            EXCLUDED BY PRIOR RULINGS.

                    D.  THE PROSECUTOR ENGAGED IN
            INAPPROPRIATE     COMMENTARY       IN
            SUMMATION.

            POINT IV

            CUMULATIVE ERROR DEPRIVED [DEFENDANT]
            OF A FAIR TRIAL.

                                      II.

                                 Speedy Trial

      We begin our review by addressing defendant's speedy trial claims.

Defendant argues that his constitutional right to a speedy trial was violated

because 2050 days elapsed from the date of his arrest to the date of the jury's

verdict, and that the delay warrants a vacating of his conviction. While we

                                                                       A-0967-17T4
                                     16
acknowledge that the delay here was extensive, we are constrained to remand to

the trial court for consideration of defendant's contentions because the trial court

never specifically addressed the issue.

      From the date of defendant's arrest in November 2011 through the date his

trial commenced in May 2017, defendant remained free on bail until his

conviction. During that time, it appears that many of the delays were the result

of the parties engaging in extensive pretrial litigation. There were numerous

motions that were filed relating to discovery, especially about information

obtained from cell phones. Defendant filed motions to sever, dismiss, and to

exclude certain evidence at trial. He also asked the court to consider his request

to waive his right to a jury trial. Many of the motions were adjourned at the

State's request. In response to some of the motions, the trial court conducted

evidentiary hearings before making any rulings, including one that spanned

several days and related to the State's handling of evidence about the subject cell

phones. The guilty pleas entered by the codefendants and the return of the

superseding indictment also contributed to the delay. Defendant also filed

numerous motions in limine. In a June 23, 2015 e-mail to the court, defense

counsel identified eight pending motions in limine awaiting resolution.

      Despite defendant's filing of numerous motions, he never filed a formal


                                                                            A-0967-17T4
                                        17
motion raising his speedy trial contentions. However, in December 2016 his

counsel sent a letter to the court that stated the following about defendant's right

to a speedy trial.

             [Defendant] is not incarcerated. Nevertheless, he
             retains his constitutional right to a speedy trial.
             Whether the speedy trial right is violated depends on
             four non-exclusive factors: [T]he length of the delay,
             the reason for the delay, the assertion of the right by a
             defendant, and prejudice to the defendant. State v.
             Cahill, 213 N.J. 253 (2013). [Defendant] has not, to
             this point, asserted that right. He does so now. We
             object to any further delay of the trial based on the
             State's need to "prepare," or its failure to take the
             currently scheduled trial date into account.

             [(Emphasis added).]

      During a hearing on January 7, 2016, addressing other matters, the trial

court acknowledged that the case was not moving along "as expeditiously as" it

would have liked, that it was "languishing in the system," and that "the only

saving grace" was that defendant was not imprisoned.               The court also

acknowledged that its own schedule required a further delay in the trial date.

The trial court never made any findings with respect to any of the factors that

must be considered when addressing a speedy trial claim. 4 See Barker v. Wingo,


4
  Defendant also raised his right to a speedy trial in a letter on April 21, 2017,
in response to a letter the State sent to the court on April 20, 2017 relating to an


                                                                            A-0967-17T4
                                        18
407 U.S. 514, 530 (1972).

      We disagree with the State's contention on appeal that defendant somehow

waived his right to assert his speedy trial claims because he never filed a motion

asserting them. Contrary to the State's argument, a defendant's failure to move

to dismiss a complaint for unnecessary delay does not constitute waiver of a

speedy trial claim, but rather, it is an element to be considered as to whether the

defendant is entitled to such relief. See State v. Szima, 70 N.J. 196, 201 (1976);

State v. Smith, 131 N.J. Super. 354, 365 (App. Div. 1974) ("[T]he oft[en]-

repeated rule . . . that an accused waives his right to a speedy trial by failing to

demand one, is no longer the law.").

      A defendant's "failure to assert the right [to a speedy trial] will make it

difficult for a defendant to prove that he was denied a fair trial." State v.

Misurella, 421 N.J. Super. 538, 545-46 (App. Div. 2011) (alteration in original)

(quoting State v. Le Furge, 222 N.J. Super. 92, 99 (App. Div. 1988)). But, a

defendant need not make a formal motion to demand a speedy trial; rather,

"Barker clearly implies that an accused's demand for prompt trial can be asserted




upcoming status conference. In the letter to the court, defense counsel pointed
out that "this case has dragged on for a grueling five-and-a-half years, impacting
[defendant]'s right to a speedy trial." The trial court never addressed the speedy
trial issue.
                                                                            A-0967-17T4
                                        19
by objection made to continuance[s] requested by the State, if he otherwise

presents himself as ready, able and willing to proceed." Smith, 131 N.J. Super.

at 364. A defendant's comments that he was "ready for trial" and "wanted it to

occur sooner rather than later," are sufficient to assert his or her right to a speedy

trial. State v. May, 362 N.J. Super. 572, 597 (App. Div. 2003). Courts may also

consider "the frequency and force of the [defendant's] objections" when

determining whether the defendant properly invoked his right. Barker, 407 U.S.

at 529.

      The right to a speedy trial is firmly established in the United States

Constitution's Sixth Amendment. Id. at 515. This right "attaches upon [a]

defendant's arrest." State v. Tsetsekas, 411 N.J. Super. 1, 8 (App. Div. 2009)

(quoting State v. Fulford, 349 N.J. Super. 183, 190 (App. Div. 2002)). A speedy

trial violation claim is analyzed under a four-part test set forth in Barker that

weighs: (1) the "[l]ength of [the] delay"; (2) "the reason[s] for the delay"; (3)

"[w]hether and how [the] defendant assert[ed the] right" to a speedy trial; and

(4) the prejudice the delay caused to the defendant. Barker, 407 U.S. at 530-31.

In Cahill, the New Jersey Supreme Court reaffirmed "that the four-factor

balancing analysis of [Barker] remains the governing standard to evaluate claims

of a denial of the federal and state constitutional right to a speedy trial." 213


                                                                              A-0967-17T4
                                         20
N.J. at 258.

      "None of the Barker factors is determinative, and the absence of one or

some of the factors is not conclusive of the ultimate determination of whether

the right has been violated." Id. at 267 (citing Barker, 407 U.S. at 533). "[T]he

factors are interrelated, and each must be considered in light of the relevant

circumstances of each particular case." Tsetsekas, 411 N.J. Super. at 10 (citing

Barker, 407 U.S. at 533).

      When delay exceeds one year, a court presumptively should analyze all of

the Barker factors. Cahill, 213 N.J. at 265-66. The burden is on the State to

"reasonably explain[] and justif[y]" any delays. State v. Farrell, 320 N.J. Super.

425, 450 (App. Div. 1999) (quoting State v. Detrick, 192 N.J. Super. 424, 426

(App. Div. 1983)). We have previously cautioned, however, against deciding

"how long is too long . . . 'by sole reference to the lapse of a specified amount

of time. . . .'" Detrick, 192 N.J. Super. at 426 (second alteration in original)

(quoting Smith, 131 N.J. Super. at 360). Legitimate delays, "however great,"

will not violate the defendant's right to a speedy trial if it does not specifically

prejudice the defense. Doggett v. United States, 505 US. 647, 656 (1992).

      Additionally, longer delays may "be tolerated for serious offenses or

complex prosecutions." Cahill, 213 N.J. at 265. A defense-caused delay does


                                                                            A-0967-17T4
                                        21
not support a speedy trial violation and such delays are subtracted from the total

calculus. United States v. Claxton, 766 F.3d 280, 294 (3d Cir. 2014) (citing

United States v. Battis, 589 F.3d 673, 680 (3d Cir. 2009)); see also State v. Long,

119 N.J. 439, 470 (1990) ("[A]ny delay that defendant caused or requested

would not weigh in favor of finding a speedy trial violation." (Quoting State v.

Gallegan, 117 N.J. 345, 355 (1989))).       Of course, purposeful delay tactics

"weigh[] heavily against the" State. Barker, 407 U.S. at 531.

      "The only remedy" for a violation of a defendant's right to a speedy trial

"is dismissal of the charge." Cahill, 213 N.J. at 276. On appeal, "we reverse

only if the court's determination is clearly erroneous." Tsetsekas, 411 N.J.

Super. at 10.

      Here, in response to defendant's appeal, we do not have the benefit of a

comprehensive trial court decision that divides the overall delay into discrete

periods and then explains and evaluates the reasons for delay in each of these

time periods. See May, 362 N.J. Super. at 596. There are many circumstances

to consider here, including but not limited to (1) the seriousness of the crimes;

(2) the complexity and logistical challenges of an investigation that requ ired

forensic analysis of cell phone evidence; (3) new information leading to the

superseding indictments; (4) new information obtained as a result of the


                                                                           A-0967-17T4
                                       22
codefendants' guilty pleas; and (5) numerous pretrial motions defendant filed at

all stages of the case.

      It is impracticable for us to review this record and exercise original

jurisdiction pursuant to Rule 2:10-5 to decide the ultimate question of whether

defendant's right to a speedy trial was violated. See Tomaino v. Burman, 364

N.J. Super. 224, 234-35 (App. Div. 2003) (opining that appellate courts should

exercise original jurisdiction "only 'with great frugality'" (quoting In re

Boardwalk Regency Corp. Casino License Application, 180 N.J. Super. 324, 334

(App. Div. 1981))). Moreover, it is conceivable, if not likely, that the current

record is not adequate to permit a fulsome review of the Barker factors. The

circumstances explaining certain periods of delay, for example, may be outside

the current record, in which event further factfinding may be necessary.

Exercise of original jurisdiction is discouraged "if factfinding is involved."

State v. Micelli, 215 N.J. 284, 293 (2013) (quoting State v. Santos, 210 N.J. 129,

142 (2012)).

      We therefore believe review of the Barker factors is best delegated to the

trial court in the first instance. A trial court is better suited than we are to

undertake "the difficult task of balancing all the relevant factors relating to the

respective interests of the State and the defendant[]," and to provide "subjective


                                                                           A-0967-17T4
                                       23
reactions to the particular circumstances [to] arrive[] at a just conclusion." State

v. Merlino, 153 N.J. Super. 12, 17 (App. Div. 1977).

      Accordingly, we remand the matter to the trial court to (1) catalog and

compartmentalize all of the discrete periods of delay; (2) determine and evaluate

the specific reasons for delay; and (3) as to delay attributed to the State,

determine whether the delay was the product of the case's complexity, some

other legitimate justification, was the product of purposeful delay tactics , or

mere inaction. The trial court should apply the Barker factors in light of those

findings.

      This analytical process "necessarily involves subjective reaction to the

balancing of circumstances." Szima, 70 N.J. at 201. We leave it to the sound

discretion of the trial court regarding the conduct of those proceedings,

including whether testimony is necessary.           Should the court conclude

defendant's speedy trial right were violated, it shall vacate defendant's judgment

of conviction and dismiss the superseding indictment.

                               Admission of Photographs

      We turn to defendant's next argument, asserting that the trial court

improperly admitted five photographs taken during the victim's autopsy and one

of his body at the crime scene because they were prejudicial. We conclude that


                                                                            A-0967-17T4
                                        24
the photographs were properly admitted.

      Prior to trial, defendant filed a motion in limine objecting to two hundred

crime scene and autopsy photographs identified by the State because they lacked

relevance, were cumulative in nature, and particularly gruesome, and therefore,

prejudicial. The court rejected defense counsel's request to exclude all of the

photographs. Ultimately the court allowed the State to offer ten photographs,

but the State only asked for the six to be admitted.

      One of the photographs admitted at trial depicted the victim's injuries in a

closeup "of the left side of the victim's face"; another showed the victim's body

taken near the victim's head, depicting the victim's injuries "to the left side of

his face and . . . head"; another depicted the back of the victim's head shaved by

the medical examiner, showing the victim's head injuries; another depicted

injuries to the victim's right ear; another showed the cerebral hemispheres of the

victim's brain, depicting the laceration inflicted upon it; and there was a

photograph of the crime scene which contained the victim's body.

      The record does not contain a specific written order or clear oral decision

elaborating why the trial court admitted the photographs. However, at a status

conference in April 2017, the court discussed the specific photographs of the

victim and crime scene it would allow.           When reviewing the autopsy


                                                                          A-0967-17T4
                                       25
photographs, the court considered whether the photographs showed clear views

of the victim's injuries and weighed the evidential value of photographs against

the prejudice to defendant.

      "We review a trial court's evidentiary rulings for abuse of discretion, but

we review its legal interpretations de novo." State v. Melendez, 454 N.J. Super.

445, 460 (App. Div. 2018) (citing State v. Nantambu, 221 N.J. 390, 402 (2015)),

aff'd and modified, 236 N.J. 52 (2018); see also State v. Mann, 203 N.J. 328,

336-37 (2010). Where the issue relates to the admission of photographs, "[t]o

demonstrate [an] abuse of discretion, the potential for prejudicial information

must significantly outweigh the photos' probative worth, to the extent that the

jurors are diverted 'from a reasonable and fair evaluation of the basic issue of

guilt or innocence.'" State v. McDougald, 120 N.J. 523, 582 (1990) (quoting

State v. Sanchez, 224 N.J. Super. 231, 250-51 (App. Div. 1988)).

      The trial court has discretion to admit photographs of the victim. Ibid. If

the photographs have some probative value, they may be admitted "even where

cumulative and somewhat inflammatory." State v. Moore, 122 N.J. 420, 466-

67 (1991) (quoting State v. Belton, 60 N.J. 103, 109 (1972)); see also State v.

Micheliche, 220 N.J. Super. 532, 545 (App. Div. 1987) ("Although all pictures

of a murdered body are likely to be unpleasant and cause emotional stirring, that


                                                                         A-0967-17T4
                                      26
of itself does not render them inadmissible."); State v. Thompson, 59 N.J. 396,

421 (1971) (holding that autopsy photographs "are likely to cause some

emotional stirring in any case, but that of itself does not render them

incompetent"); State v. Huff, 14 N.J. 240, 251 (1954) ("Photographs of

unpleasant and gruesome aspects of a murder case are not objectionable for t his

reason alone.").

      Courts have allowed autopsy and dead body photographs where those

photographs tended to prove a fact of consequence. See, e.g., State v. Morton,

155 N.J. 383, 455-56 (1998) (finding that autopsy photographs that corroborated

testimony and supported inferences that defendant acted with the requisite

mental state were relevant); State v. Marshall, 123 N.J. 1, 99 (1991) (finding

that crime scene photographs of a victim's body and closeup autopsy

photographs showing views of a victim's wound were not unduly prejudicial or

inflammatory and "were relevant for the purpose of corroborating" a State

witness's testimony about the crime scene's physical evidence, despite having

"limited" probative value), superseded by statute on other grounds, N.J.S.A.

2C:11-3; Moore, 122 N.J. at 468-69 (holding that the court did not abuse its

discretion in admitting autopsy photographs of a victim's "destroyed" head,

where such photographs were relevant to defendant's state of mind); State v.


                                                                        A-0967-17T4
                                      27
Abdullah, 372 N.J. Super. 252, 271 (App. Div. 2004) (holding that the court did

not abuse its discretion in admitting gruesome photographs of victim's body

because they demonstrated the ferocity of the attack), aff'd in part, rev'd in part

on other grounds, 184 N.J. 497 (2005); Sanchez, 224 N.J. Super. at 249-51

(admitting closeup photographs of victim's gunshot wounds because they were

relevant to establishing whether defendant acted with purpose or knowledge);

Micheliche, 220 N.J. Super. at 545 (finding that even though photographs were

"ghastly" and "gruesome" "they were legitimately a part of the State's proof of

defendant's . . . state of mind" and were only admissible after "a careful selection

process   [was     conducted]   during    which    the   judge   excluded    other[

photographs] . . . proffered by the State"); State v. Jordan, 197 N.J. Super. 489,

504 (App. Div. 1984) (finding nothing improper in admitting a photograph of a

victim's wound).

      Here, the State offered the photographs at trial, arguing they were relevant

because they showed the "sheer brutality of the attack," which related to the

elements of the crime establishing defendant's mental state, the nature of the

injuries, and the cause of death. It also argued that the photographs corroborated

Medaglia's testimony about his and defendant's roles in the conspiracy and

murder.


                                                                            A-0967-17T4
                                         28
      The trial court considered each of the photographs proffered by the State,

heard arguments presented by each of the parties, and limited the number of

photographs that the State could admit. Even though the court's limitation on

the number of admissible photographs does not necessarily justify their

admission, it demonstrates the trial court exercised its discretion after careful

consideration. See Micheliche, 220 N.J. Super. at 545.

      We are not persuaded by the caselaw cited in support of defendant's

argument that the photographs were improperly admitted. For example, unlike

in defendant's case, in State v. Lockett, 249 N.J. Super. 428, 432-33 (App. Div.

1991), a death by automobile and manslaughter case in which we held that the

photographs should have been excluded, the State was not required to prove

intentional conduct.    Here, the photographs were evidence of defendant's

intentional conduct leading to K.D.'s murder. They demonstrated that Medaglia

followed defendant's instructions to kill K.D. using blunt force, the nature of the

attack, and K.D.'s injuries in a way the other proffered evidence, such as

Medaglia's testimony, did not.

      In another case cited by defendant, State v. Walker, 33 N.J. 580, 596

(1960), the Court held that photographs of a victim's brain should not be

admitted during a retrial because the photographs "could only have been


                                                                           A-0967-17T4
                                       29
introduced to establish the cause of death," for which there was already ample

testimony and the cause of death was uncontested. Defendant contends that here

too, because Medaglia confessed to killing K.D., the photographs should not

have been admitted. But here, the indictment charged defendant with the crime

of murder, which required the State to prove that defendant purposely and

knowingly "cause[d the victim's] death or [a] serious bodily injury resulting in

[the victim's] death." N.J.S.A. 2C:11-3(a)(1) to (2). The photographs of the

victim were properly admitted to prove an element of the defendant's charged

crime. See Moore, 122 N.J. at 268 ("Although photographs that tend to establish

cause of death may be unnecessary where cause of death is undisputed, they may

be admitted when relevant to 'the viciousness of the attack.'" (Quoting Sanchez,

224 N.J. Super. at 250)).

      In the other case relied upon by defendant, State v. Johnson, 120 N.J. 263,

298-99 (1990), the trial court excluded "blood-spatter testimony" that involved

a "lengthy presentation" that "extend[ed] over the course of an entire day," and

included "numerous crime-scene photographs depicting the victims' bodies, as

well as forty-two slides depicting blood-spatter exemplars, which [the witness]

used to highlight his expertise in the area." The Supreme Court reasoned that

although the testimony was relevant, it was "largely corroborative of other,


                                                                         A-0967-17T4
                                      30
essentially unchallenged testimony indicating the manner of death," and only

"minimally probative of defendant's guilt." Id. at 298. It further stated that the

testimony "could not help but focus the jury's attention on the gruesome details

of the condition of the victims' bodies, rather than on defendant's guilt." Ibid.

      However, in this case, the challenged evidence is much more limited in

quantity and content.    The five autopsy photographs and one crime scene

photograph, showed violent injuries, but were not analogous to a witness's day-

long presentation that included numerous photographs of the victims' bodies and

blood spatters. Ibid.; see also Sanchez, 224 N.J. Super. at 250. Additionally,

the admitted autopsy photographs of K.D. were taken after he was cleaned of

his blood, and therefore, eliminated any undue gruesomeness even though they

did show serious head injuries.

      We have no cause to disturb defendant's conviction based upon the

admission of the challenged photographs.

                               Prosecutorial Misconduct

      Defendant also asserts he was deprived of a fair trial because the State

failed to comply with its discovery obligations, provided a noncompliant witness

list, elicited improper testimony, and made inappropriate remarks during

summation. Defendant argues that each of these actions requires reversal and


                                                                           A-0967-17T4
                                       31
dismissal of the charges against him, or in the alternative a new trial. We

disagree.

                               Discovery Issues

      At trial, an investigating detective testified for the State about, among

other things, a money clip found inside K.D.'s car at the crime scene. The

detective described the contents of the money clip, which included the ATM

receipt for K.D.'s withdrawal of funds. The State moved to have the money clip

admitted into evidence. Defendant objected and asserted that while defense

counsel had seen photographs of the money clip, the State had neither produced

the money clip in discovery nor provided a photocopy of the ATM receipt.

Counsel noted that it had "asked several times . . . in 2013 or 2014, for account

records" to determine from where K.D. withdrew money, but it was the first time

she was seeing the receipt. The State responded that it had just forgotten to

make a copy of the receipt.

      In response, the trial court recessed to allow the defense to prepare its

response to the receipt. Upon return from the break, and outside the jury's

presence, defense counsel informed the court that a lawyer's business card had

also been in the money clip, which it had not previously seen. Counsel stated

that it was "a little hard for [him] to say what [they] would have done with it,


                                                                         A-0967-17T4
                                      32
what it would have shown [them]," but that "it would have been nice to see it."

Counsel also indicated it may plan to call the attorney whose name was on the

card.

        The court recalled the detective to the stand (still outside the presence of

the jury) and asked whether he knew anything about the lawyer's card. The

detective stated he did not list the business card in his inventory of what he

recovered from the crime scene because he did not find it relevant. The detective

did not contact the attorney and was not aware if anyone else had contacted him.

        The court offered to call the attorney at that time from the courtroom, but

defendant declined and asked the court to just note the objection for the record.

The defense did not request an instruction regarding this evidence, and the State

continued to question the detective about the money clip and its contents.

Defendant never called that attorney to testify during the trial.

        On appeal, defendant argues that the State violated its discovery

obligation by not producing the ATM receipt and the lawyer's business card until

the middle of trial, even though the defense requested evidence related to "the

ATM withdrawal for years."           Defendant explains that this "necessitated

significant revisions to the defense's strategy as it concerned . . . Medaglia." We

find no merit to defendant's contentions.


                                                                            A-0967-17T4
                                        33
      We review a trial court's decision regarding the appropriate remedy for a

discovery violation under an abuse-of-discretion standard. See State v. Utsch,

184 N.J. Super. 575, 580 (App. Div. 1982). We will reverse only if the State's

discovery violation prejudiced a defendant by denying a fair trial. State v.

Blake, 234 N.J. Super. 166, 172-73 (App. Div. 1989).

      Rule 3:13-3(f) provides that if a party fails to comply with the discovery

rules, the court "may order such party to permit the discovery of materials not

previously disclosed, grant a continuance or delay during trial, . . . prohibit the

party from introducing in evidence the material not disclosed, or it may enter

such other order as it deems appropriate." However, "[a]n adjournment or

continuance is a preferred remedy where circumstances permit."              State v.

Washington, 453 N.J. Super. 164, 190 (App. Div. 2018) (quoting State v. Clark,

347 N.J. Super. 497, 509 (App. Div. 2002)). Dismissal for a discovery violation

is a "drastic remedy [and] is inappropriate where other judicial action will

protect a defendant's fair trial right[]." Clark, 347 N.J. Super. at 508.

      When the evidence within the money clip became an issue, the trial court

took a break in the proceedings to allow the defense to examine the additional

evidence. Defendant argues he had to make significant changes to his strategy,

however, he does not explain the change or how he was prejudiced. Upon return


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                                       34
from the break, the defense was unable to articulate to the court how the lawyer's

card would have been incorporated by the defense, and the defense never called

the attorney indicated on that card as a witness later in the trial. Moreover, there

was no evidence that the State's actions were intentional. Cf. Blake, 234 N.J.

Super. at 170-71 (holding that a defendant was deprived of a fair trial where the

State did not disclose witnesses and their statements regarding the defendant's

inculpatory statements, which would have impacted the defendant's decision to

take the stand).

      Additionally, defendant did not request a mistrial or any other specific

relief at that time. In his brief to us, defendant acknowledges that during trial

he had the option to move for a mistrial or to proceed and adjust the defense

strategy. The defense chose to proceed "[g]iven the length of time that had

passed."

      We conclude that the trial court did not abuse its discretion, especially in

light of defendant choosing not to seek any specific relief or accept the court's

offer to address his concerns and his failure to articulate how the late disclosure

caused him any prejudice. Under the circumstances, to the extent any error

occurred, it was invited, barring defendant's claims on appeal, see State v.

Williams, 219 N.J. 89, 101 (2014) ("The doctrine of invited error does not permit


                                                                            A-0967-17T4
                                        35
a defendant to pursue a strategy . . . and then when the strategy does not work

out as planned, cry foul and win a new trial."), as defendant cannot demonstrate

how "the particular error . . . cut mortally into [his] substantial rights" so that it

"cause[d] a fundamental miscarriage of justice." State v. A.R., 213 N.J. 542,

562 (2013) (first alteration in original) (first quoting State v. Corsano, 107 N.J.

339, 345 (1987); then quoting N.J. Div. of Youth & Family Servs. v. M.C. III,

201 N.J. 328, 342 (2010)).

                                State's Witness List

      Defendant also contends that the State violated its discovery obligation by

producing a list of individuals with potentially relevant information but failing

to designate which of those individuals it would call at trial as witnesses .

Defendant does not argue that the State violated its obligation by failing to

provide the list, but rather, it did so by providing a list of too many potential

witnesses.

      We find this contention to be "without sufficient merit to warrant

discussion in a written opinion."      R. 2:11-3(e)(2). Suffice to say that the

prosecutor complied with Rule 3:13-3(b)(1)(F) that obligated the State to

provide "names, addresses, and birthdates of any persons whom the prosecutor

knows to have relevant evidence or information including a designation by the


                                                                              A-0967-17T4
                                         36
prosecutor as to which of those persons may be called as witnesses." To the

extent the prosecutor did not designate which individuals it would be calling as

witnesses, defendant failed to demonstrate how that failure caused any prejudice

to him.

                      Admission of Rule 404(b) Evidence

      Defendant next asserts that he was prejudiced when the prosecutor

attempted to introduce evidence of prior bad acts that the trial court had

previously excluded or was not previously disclosed. The first objectionable

statement related to Medaglia's testimony that defendant told him that he had to

go to Pennsylvania to pick up guns, but Medaglia never did so. The second

statement was Medaglia's testimony that defendant "kept giving [him] promises

of jobs, different operations and stuff that [defendant] would get [him] in on,"

which had "to do with different types of scams, loan sharking, [and] bookie

operations." Defendant argues that the State improperly elicited testimony from

Medaglia about hacking into police files to erase criminal records. Defendant

additionally cites to Medaglia's testimony that defendant had been stealing pills

from Medaglia, and that "in order to ingratiate [himself] with [defendant] and

his family [he]'d have to kick up proceeds from [his] sale of illegal pills," which

related to one of the charged crimes under the severed indictment.


                                                                           A-0967-17T4
                                       37
      At trial, when defendant raised objections to the specific testimony, or

moved for a mistrial, the trial court responded by admonishing the prosecutor

outside the presence of the jury, and in at least one instance, instructed Medaglia

to refrain from mentioning the impermissible topics in his testimony. In each

instance, the trial court also delivered a curative instruction to the jury telling it

that the objectionable testimony had nothing to do with their consideration of

the case and that it should not be considered at all in the jury's deliberations.

For example, when addressing the testimony about hacking, the trial court stated

the following to the jury:

                   THE COURT: . . . . [W]hat is this case about?
             How many times am I going to have to say, this case is
             about murder, conspiracy to commit murder.

                    So the testimony just now has to do about some
             other acts, bad acts that are not so, not part of this case.
             Right? So, there’s no evidence that he was doctor
             shopping. He said he was doctor shopping. So, there’s
             no information that any pharmaceutical records were
             hacked into. What’s that all about? So, that’s not part
             of this case. You strike that, because that’s not part of
             this case. This case is about murder, conspiracy to
             commit murder. You will see cell phone evidence in
             this case or not in this case. Are we at the same page?

                   THE JURY: Yes.

      We conclude that although the challenged testimony was inadmissible, the

trial court struck the objectionable evidence and delivered appropriate curative

                                                                              A-0967-17T4
                                         38
instructions that were "firm, clear, and accomplished without delay," thereby

"alleviat[ing any] potential prejudice to . . . defendant from [the] inadmissible

evidence that . . . seeped into a trial." State v. Vallejo, 198 N.J. 122, 134-35

(2009). "While we agree that the conduct of the prosecutor complained of by

defendant was improper and unjustifiable, we are also satisfied that any potential

prejudice was avoided by the trial judge's prompt and firm curative instructions."

State v. Hernandez, 334 N.J. Super. 264, 273 (App. Div. 2000), aff'd as

modified, 170 N.J. 106 (2001); see also State v. McKinney, 223 N.J. 475, 497

(2015) (holding that a trial court is "permitted and encouraged to correct errors

that occur during trial" by such means as a curative jury instruction).

      Moreover, although the challenged testimony was inadmissible because it

related to severed counts of the indictment or was previously excluded under

Rule 404(b), the testimony did not prejudice defendant. Medaglia testified over

the course of six days from May 23, 2017 to June 6, 2017, and defendant appeals

four brief passing statements taken from Medaglia's lengthy testimony. There

is also no evidence that suggests the jury was unable to follow the trial court's

curative instructions. See State v. Catlow, 206 N.J. Super. 186, 193 (App. Div.

1985) ("The record reveals no reason to believe that the jury was unable to

follow the court's sharp and complete curative instruction.").       Under these


                                                                          A-0967-17T4
                                       39
circumstances, we discern no prejudice to defendant, and therefore, no reason to

disturb his conviction.

             Prosecutor's Improper Comments During Summation

      Defendant further argues that the prosecutor made improper remarks

during summation that deprived defendant of a fair trial: (1) Medaglia "sent a

text message saying that he wanted to kill himself instead of killing [K.D.]"; (2)

Medaglia testified K.D. was a "snitch" and that the Drug Enforcement Agency

was involved in the investigation; (3) since K.D. did not believe defendant was

in organized crime, defendant wanted K.D. dead in fear that K.D. would tell

Medaglia the truth; (4) the prosecutor made statements that mischaracterized

defendant's testimony regarding his use of drugs; and (5) the prosecutor made

comments about defendant's confession to a priest.

      In our review, we "must assess the prosecutor's comments in the context

of the entire trial record," State v. Nelson, 173 N.J. 417, 472 (2002), including

whether the trial was lengthy and the prosecutor's remarks short or "errant ,"

State v. Engel, 249 N.J. Super. 336, 382 (App. Div. 1991). Further, where a

prosecutor's comments are "only slightly improper," a jury charge to the effect

that statements during summation are not evidence and should be disregarded if

they conflict with jurors' recollection of events "may serve to ameliorate


                                                                          A-0967-17T4
                                       40
potential prejudice." State v. Frost, 158 N.J. 76, 86-87 (1999); State v. Ramseur,

106 N.J. 123, 323 (1987), superseded by statute on other grounds, N.J.S.A.

2C:11-3.

      When the alleged misconduct involves a particular remark, a court should

consider whether: (1) defense counsel objected in a "timely and proper" fashion

to the remark; (2) the "remark was withdrawn promptly"; and (3) "the court gave

the jury a curative instruction." State v. Smith, 212 N.J. 365, 403-04 (2012)

(quoting Frost, 158 N.J. at 403); State v. Zola, 112 N.J. 384, 426 (1988).

      "Prosecutors are afforded considerable leeway in closing arguments as

long as their comments are reasonably related to the scope of the evidence

presented," and they are "expected to make vigorous and forceful closing

arguments to juries." Frost, 158 N.J. at 82. However, a prosecutor's wide

latitude is not unfettered and the prosecutor's "remarks and actions must at all

times be consistent with his or her duty to ensure that justice is achieved." State

v. Williams, 113 N.J. 393, 447-48 (1988). Accordingly, "a prosecutor must

refrain from improper methods that result in a wrongful conviction." State v.

Smith, 167 N.J. 158, 177 (2001).

      For example, a prosecutor commits misconduct if he or she "implies to the

jury that he [or she] possesses knowledge beyond that contained in the evidence


                                                                           A-0967-17T4
                                       41
presented, or if he [or she] reveals that knowledge to the jury." State v. Feaster,

156 N.J. 1, 59 (1998). A prosecutor similarly may not "declare his [or her]

personal belief of a defendant's guilt" in a way that suggests such knowledge.

State v. Farrell, 61 N.J. 99, 103 (1972). He or she also may not denigrate the

defense. State v. Lazo, 209 N.J. 9, 29 (2012).

      Even if a prosecutor is found to have made improper statements, it "does

not end a reviewing court's inquiry; in order to merit reversal, the misconduct

must have deprived the defendant of a fair trial." State v. Hawk, 327 N.J. Super.

276, 281 (App. Div. 2000). A reviewing court need only be concerned with

whether "the remarks, if improper, substantially prejudiced the defendant['s]

fundamental right to have the jury fairly evaluate the merits of [his or her]

defense, and thus had a clear capacity to bring about an unjust result." State v.

Johnson, 31 N.J. 489, 510 (1960).

      The court should be "mindful that criminal trials create a 'charged

atmosphere . . . [that] frequently makes it arduous for the prosecuting attorney

to stay within the orbit of strict propriety.'" Ramseur, 106 N.J. at 320 (alterations

in original) (quoting State v. Bucanis, 26 N.J. 45, 56 (1958)). As such, the

prosecutor's conduct must have been "so egregious," id. at 322, that it

"substantially prejudiced [the] defendant's fundamental right to have a jury


                                                                             A-0967-17T4
                                        42
fairly evaluate the merits of his defense." State v. Timmendequas, 161 N.J. 515,

575 (1999). Even remarks not based on trial evidence may not require reversal

if they have "no direct bearing on the determination of [the] defendant's guilt."

Feaster, 156 N.J. at 61.

      With these guiding principles in mind, we turn to the challenged

comments. At the outset, we note that during the prosecutor's summation and

in response to defendant's objections, the trial court instructed the jury, as it did

at the beginning of the case, that what the attorneys stated to them is not

evidence. In one instance, the trial court specifically instructed as follows:

                    So I told you in the beginning, I'll tell you again,
             this instruction that what they say during their opening
             statement and closing arguments is what?               Not
             evidence. Right? It's your recollection of the evidence
             that controls. You're the ones who are listening because
             you're the judges of the facts, nobody else. Let's get
             that straight, right?

The court repeated a similar instruction during its final charge in accordance

with the model jury charges. See Model Jury Charges (Criminal), "Criminal

Final Charge" (rev. May 12, 2014).

      We conclude that the prosecutor's challenged statements were either

supported by the evidence, see Frost, 158 N.J. at 82, or if improper, were not so

egregious as to substantially prejudice defendant, Johnson, 31 N.J. at 510.


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While the statements were made to challenge defendant's credibility, they did

not directly bear on the determination of defendant's guilt and his role in K.D.'s

death. See Feaster, 156 N.J. at 61. Moreover, to the extent any of the comments

were objectionable, the trial court's repeated instruction to the jury that its

recollection of the facts controlled, as requested by defense counsel when he

objected to the prosecutor's remarks, cured any harm. See Verdicchio v. Ricca,

179 N.J. 1, 36 (2004) (finding a new trial was not warranted where a prosec utor

made three improper statements during summation but the court "immediately

identified" them as such and instructed the jury not to consider the statements

during deliberations); see also Frost, 158 N.J. at 86-87.

      Here, again, we have no cause to believe that the jury did not follow the

trial court's instructions. See State v. Montgomery, 427 N.J. Super. 403, 410

(App. Div. 2012) ("Jurors are presumed to have followed the court's instructions

in the absence of evidence demonstrating otherwise.").

                               Cumulative Errors

      We find defendant's remaining argument that he did not receive a fair trial

because of the court's cumulative errors to be without any basis as we have

determined that no errors were committed, other than the failure to address his

speedy trial claims, which will be addressed by the trial court on remand.


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                                       44
      Affirmed in part; remanded in part for further proceedings consistent with

this opinion. We do not retain jurisdiction.




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