                                NOT FOR PUBLICATION WITHOUT THE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-0508-18T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

DONALD WATKINS, a/k/a
MICHAEL WATKINS,

     Defendant-Appellant.
________________________

                    Argued February 10, 2020 – Decided April 30, 2020

                    Before Judges Fasciale and Moynihan.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Camden County, Indictment No. 13-08-2592.

                    Oleg Nekritin, Designated Counsel, argued the cause
                    for appellant (Joseph E. Krakora, Public Defender,
                    attorney; Robert J. De Groot, Designated Counsel, and
                    Oleg Nekritin, on the brief).

                    Daniel A. Finkelstein, Deputy Attorney General,
                    argued the cause for respondent (Gurbir S. Grewal,
                    Attorney General, attorney; Daniel A. Finkelstein, of
                    counsel and on the brief).
PER CURIAM

      Defendant appeals from his conviction by jury and sentence for one count

of third-degree threat to kill, N.J.S.A. 2C:12-3(b) (count one); three counts of

second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (counts two, three and

four); three counts of third-degree aggravated assault with deadly weapon,

N.J.S.A. 2C:12-1(b)(2) (counts five, six and seven); three counts of fourth -

degree aggravated assault with firearm, N.J.S.A. 2C:12-1(b)(4) (counts eight,

nine and ten); one count of second-degree possession of weapon for unlawful

purpose – firearms, N.J.S.A. 2C:39-4(a) (count eleven); one count of second-

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

twelve); and one count of second-degree certain persons not to have weapons,

N.J.S.A. 2C:39-7(b) (count thirteen). Defendant was sentenced to an aggregate

twenty-eight year prison term, subject to an eighty-five percent period of parole

ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.,

including a seventeen-year term on count two. On appeal, he argues:

            POINT I

            THE COURT COMMITTED REVERSIBLE ERROR
            WHEN IT PERMITTED [A DETECTIVE] TO
            TESTIFY THAT . . . A NON-TESTIFYING
            WITNESS[] STATED THAT SHE OBSERVED . . .
            DEFENDANT SHOOTING A FIREARM.


                                                                         A-0508-18T2
                                       2
                   A.    The Court violated Davis1 and . . .
                         [d]efendant's    Federal     and     State
                         confrontation rights when it admitted [the
                         non-testifying    witness's]   testimonial
                         statements.

                   B.    Assuming arguendo that the [a]ppellate
                         [c]ourt concludes that a non-witness's
                         testimonial statement can be admitted as a
                         hearsay exception, the State was unable to
                         demonstrate that the statement was an
                         excited utterance.

             POINT II

             THE COURT COMMITTED REVERSIBLE ERROR
             BY DENYING DEFENDANT'S REQUEST FOR AN
             "ADVERSE     INFERENCE"     INSTRUCTION
             REGARDING THE STATE'S FAILURE TO
             PRODUCE POLICE OFFICER WITNESSES AND
             [THE NON-TESTIFYING WITNESS].

             POINT III

             THE STATE VIOLATED . . . DEFENDANT'S DUE
             PROCESS RIGHTS TO A FAIR TRIAL WHEN IT
             CHARACTERIZED    HIS    DEFENSE  AS    A
             "CONSPIRACY THEORY" AKIN TO THE
             CONSPRIACY THEORIES SURROUNDING JFK'S
             DEATH, AND THEN COMPARED . . .
             [DEFENDANT] TO LEE HARVEY OSWALD AND
             . . . [DEFENDANT'S] ATTORNEY TO A
             CONSPIRACY THEORY PURVEYOR.




1
    Davis v. Washington, 547 U.S. 813 (2006).
                                                                      A-0508-18T2
                                       3
            POINT IV

            THE COURT ABUSED ITS DISCRETION BY
            SENTENCING . . . [DEFENDANT] TO A
            SEVENTEEN-YEAR TERM OF IMPRISONMENT
            [ON] COUNT TWO OF THE INDICTMENT.

We are unpersuaded by these arguments and affirm.

      Following two encounters earlier in the day—one between defendant and

Latonya Damon and another earlier in the day between defendant and Damon's

brother's girlfriend, Camille Walker—Damon, Joseph Hawkins, and Damon's

son were sitting in Damon's car parked in front of her house. We glean these

facts from Damon's testimony. Damon saw defendant "running up" to the car

from "the corner where his house" was located, pulling a mask over his face.

Before she left her house and entered the car, she saw defendant standing across

the street wearing the same clothes he wore during the earlier encounters.

Because defendant threatened Damon earlier in the day, she drove off. She saw

defendant "stand there and point" and heard gunshots, although she never saw a

gun. Bullets struck the rear of the car; one struck Hawkins.

      A homicide detective with the Camden County Prosecutor's Office

testified at trial he was on patrol when he heard shots fired in the distance.

Within minutes, at approximately 6:30 p.m., he was dispatched to the location

at which Damon's car was shot on the 200 block of Rand Street.           As he

                                                                        A-0508-18T2
                                       4
approached Damon's house, a woman exited a residence "and was very nervous

and scared and excited." She pointed "catty-corner to her residence." The

detective "was trying to calm her down" and "asked her if everybody was okay

and what was going on." Over defense counsel's objection "as to what she said,"

the detective said the woman "with her excitement was pointing at the residence

and said, ['defendant] just shot. He ran that way.['] And then started to point

down Bank Street towards Boyd" Street. The woman did not testify at trial.

      Defendant argues the admission of the woman's statement violated his

right to confront the non-testifying witness, and the State did not establish her

statement was admissible as an excited utterance exception to the hearsay rule.

      Before addressing defendant's Confrontation Clause argument, we reject

the State's counter that defendant waived his right to challenge the admission of

the statements on Confrontation Clause grounds because that issue was not

raised before the trial court. Defense counsel initially interposed a hearsay

objection when the detective testified that the non-testifying witness was

pointing, which the trial court correctly overruled because the detective had not

repeated any statement made by the non-testifying witness. When the detective

later testified, "through [the non-testifying witness's] excited utterance and her

reaction[,] she informed me that [defendant] just shot[,]" defense counsel


                                                                          A-0508-18T2
                                        5
interjected, "[o]bjection, Your Honor." The trial court sustained the objection

"until proper foundation [was] laid." Defense counsel's objection "to what she

said" was made after the detective described the non-testifying witness's

demeanor and explained his interaction with her, and just prior to saying what

the witness said. The court overruled the objection because it "believe[d] there

[was] a sufficient foundation to bring this within the excited utterance exception

to the hearsay rule."

      The State relies on State v. Williams which held "[t]he right of

confrontation, like other constitutional rights, may be waived by the

accused." 219 N.J. 89, 98 (2014). The Court found a defendant waived his

constitutional right when he raised no objection to testimony about an autopsy

report by a substitute medical examiner who had not completed the postmortem

procedure, id. at 93, holding a "defendant always has the burden of raising his

Confrontation      Clause    objection," id. at    99   (quoting Melendez-Diaz    v.

Massachusetts, 557 U.S. 305, 327 (2009)). "It is the defendant's choice 'to assert

(or      forfeit        by       silence)         his    Confrontation      Clause

right.'" Ibid. (quoting Melendez-Diaz, 557 U.S. at 326).

      A defendant, however, need not precisely use the terms "Confrontation

Clause" or "Sixth Amendment" to preserve a Confrontation Clause claim. See


                                                                           A-0508-18T2
                                            6
State v. Wilson, 227 N.J. 534, 543-44 (2017) (ruling a defendant's Confrontation

Clause claim "was timely and adequate," where counsel objected "and 'alluded

to an inability to cross-examine'" (quoting State v. Wilson, 442 N.J. Super. 224,

235 n.4 (2015))). Considering the manner in which the admissibility of the non-

testifying witness's statement was determined by the trial court, which did not

conduct a N.J.R.E. 104(a) hearing outside the presence of the jury, counsel's

objection "as to what she said" was sufficient to preserve defendant's right to

claim a Confrontation Clause argument on appeal. When defense counsel raised

his last objection, the trial court turned to the assistant prosecutor who argued

in response, "it's excited utterances." The trial court did not ask defense counsel

to reply, and, as we will later elucidate, the trial court's ruling before the jury—

not at sidebar—did not explain how the statement met all three prongs of the

excited utterance hearsay exception. A constitutional discourse in the jury's

presence need not have been presented in order to protect defendant's rights.

Defense counsel's open-court objection was sufficient.

      The Sixth Amendment to the United States Constitution and Article I,

Paragraph 10 of the New Jersey Constitution both provide that the accused in a

criminal trial has the right to confront the witnesses against him. U.S. Const.

amend. VI; N.J. Const. art. I, ¶ 10. "[T]he Confrontation Clause of the United


                                                                            A-0508-18T2
                                         7
States Constitution bars the 'admission of testimonial statements of a witness

who did not appear at trial unless he was unavailable to testify, and the defendant

had had a prior opportunity for cross-examination.'" State v. Slaughter, 219 N.J.

104, 116-17 (2014) (quoting Crawford v. Washington, 541 U.S. 36, 53-54

(2004)). "Statements are nontestimonial when made in the course of police

interrogation under circumstances objectively indicating that the primary

purpose of the interrogation is to enable police assistance to meet an ongoing

emergency." Davis, 547 U.S. at 822. In contrast, statements "are testimonial

when the circumstances objectively indicate that there is no such ongoing

emergency, and that the primary purpose of the interrogation is to establish or

prove past events potentially relevant to later criminal prosecution." Ibid.

      Defendant relies on our Supreme Court's holding in State ex rel. J.A., 195

N.J. 324 (2008), to support his argument that the non-testifying witness's

statements were not made in response to an ongoing emergency because the

gunman had already fled, thus ending any imminent danger. In J.A., a non-

testifying witness's description of the perpetrators and the direction in which

they were walking, given to an officer approximately ten minutes after the crime

was committed, id. at 337, was admitted at trial as a present sense impression

exception to the hearsay rule, N.J.R.E. 803(c)(1), 195 N.J. at 330-31, 337. Our


                                                                           A-0508-18T2
                                        8
Supreme Court deemed the hearsay testimonial "[b]ecause there was no proof

of the eyewitness's unavailability," id. at 351; "[t]here was no ongoing

emergency—no immediate danger," id. at 348; and the questioning of the

witness by the officer met the solemnity requirement for testimonial evidence,

id. at 349-50.

      We distinguish the forcible purse snatching from the victim in J.A. from

the multiple shots fired at the fleeing victims—one of which was shot—in this

case. We also find inapposite State v. Basil, 202 N.J. 570 (2010), another case

cited in defendant's merits brief. There, police were holding defendant when a

non-testifying witness returned to the scene and identified him to police as the

man who pointed a gun at her; she also disclosed where he had secreted the

weapon. Id. at 580, 586-87. Unlike the threat by the perpetrators in J.A. which

ended when they walked away from the purse-snatching victim, and the threat

posed by the gunman in Basil who had discarded the shotgun and was under

police control, the threat posed by the still-armed shooter who ran from the scene

did not end. Defendant does not contend that the victims were in a safe have n

while the gunman was at large. Indeed, they fled, as did the shooter.

      We recognize the United States Supreme Court's rejection of a state

Supreme Court's erroneous interpretation of Davis "as deciding that 'the


                                                                          A-0508-18T2
                                        9
statements made after the defendant stopped assaulting the victim and left the

premises did not occur during an "ongoing emergency."'" Michigan v. Bryant,

562 U.S. 344, 363 (2011) (quoting People v. Bryant, 768 N.W.2d 65, 75 (Mich.

2009)). The Court emphasized that it did not decide in Davis whether the 911

caller's statements made after her attacker stopped his assault and left the

premises were "made for the primary purpose of resolving an ongoing

emergency." Ibid. The Bryant Court held the state Supreme Court's assumption

"that Davis defined the outer bounds of 'ongoing emergency,' . . . failed to

appreciate that whether an emergency exists and is ongoing is a highly context -

dependent inquiry." Ibid. The Court recognized domestic violence cases like

Davis

            often have a narrower zone of potential victims than
            cases involving threats to public safety. An assessment
            of whether an emergency that threatens the police and
            public is ongoing cannot narrowly focus on whether the
            threat solely to the first victim has been neutralized
            because the threat to the first responders and public may
            continue.

            [Ibid.]

And, the Bryant Court found the separation of a gunman from the place of initial

attack "might not have been sufficient to end the emergency." Id. at 364. The

Court concluded the "argument that there was no ongoing emergency because


                                                                        A-0508-18T2
                                      10
'[n]o shots were being fired,' . . . surely construes ongoing emergency too

narrowly. An emergency does not last only for the time between when the

assailant pulls the trigger and the bullet hits the victim."        Id. at 373 (first

alteration in original).

      We should not lose sight that the determination of whether an ongoing

emergency exists

             is relevant to determining the primary purpose of the
             interrogation because an emergency focuses the
             participants on something other than "prov[ing] past
             events potentially relevant to later criminal
             prosecution." Davis, 547 U.S. at 822. Rather, it
             focuses them on "end[ing] a threatening situation." Id.
             at 832. Implicit in Davis is the idea that because the
             prospect of fabrication in statements given for the
             primary purpose of resolving that emergency is
             presumably significantly diminished, the Confrontation
             Clause does not require such statements to be subject to
             the crucible of cross-examination.

             [Bryant, 562 U.S. at 361 (alterations in original).]

      Like the 911 call perpended by the United States Supreme Court in Davis,

the initial questioning by the detective was "not designed primarily to

'establis[h] or prov[e]' some past fact, but to describe current circumstances

requiring police assistance." Davis, 547 U.S. at 827 (alterations in original).

Like that 911 call, the non-testifying witness's obvious purpose was to seek help

related to a gunman who had just opened fire on city streets and who was still at

                                                                             A-0508-18T2
                                       11
large, thus presenting an imminent danger. Ibid. And, like the questioning

during the 911 call in Davis, the purpose of the detective's query of the non-

testifying witness was not to elicit evidence to be used in a later prosecution, but

to ascertain the cause of her palpable alarm. Ibid. The non-testifying witness

was like the "frantic" 911 caller in Davis. Ibid.

      Indeed, the Bryant Court held questions more intrusive than those asked

by the detective here

            were the exact type of questions necessary to allow the
            police to "'assess the situation, the threat to their own
            safety, and possible danger to the potential victim'" and
            to the public, Davis, 547 U.S. at 832, including to allow
            them to ascertain "whether they would be encountering
            a violent felon," [id.] at 827. In other words, they
            solicited the information necessary to enable them "to
            meet an ongoing emergency." Id. at 822.

            [Bryant, 562 U.S. at 376.]

The police in Bryant "responded to a call that a man had been shot." Id. at 375.

"[T]hey did not know why, where, or when the shooting had occurred. Nor did

they know the location of the shooter or anything else about the circumstances

in which the crime occurred."       Id. at 375-76.    "[T]hey asked[,] 'what had

happened, who had shot him, and where the shooting had occurred[.]'" Ibid.

(quoting Bryant, 768 N.W.2d at 71).



                                                                            A-0508-18T2
                                        12
      Guided by the holdings in Davis and Bryant, we conclude the detective's

brief questioning of the non-testifying witness and the witness's brief response

was designed to address the ongoing emergency of an at-large, active shooter

last seen running on the city's streets. The State met its burden of proving the

non-testifying witness's statements were non-testimonial and the Confrontation

Clause did not bar their admission at trial. See Basil, 202 N.J. at 596-97.2

       Although     non-testimonial     statements    are   "exempted     .    .    .

from Confrontation Clause scrutiny," Crawford, 541 U.S. at 68, they remain

limited by the rules of evidence, particularity "traditional limitations upon

hearsay evidence[,]" Davis, 547 U.S. at 821. We thus analyze whether the trial

court properly admitted the non-testifying witness's statements as excited

utterances.

      Defendant argues the State failed to prove that the statements conformed

to the requirements for admission under N.J.R.E. 803(c)(2) which allows the

admission of out-of-court statements offered for the truth of the matter asserted

if the statements: "1) '[relate] to a startling event or condition;' 2) [are] 'made

while the declarant was under the stress of excitement caused by the event or



2
 Defendant does not challenge that the non-testifying witness was unavailable.
On cross-examination at trial, the detective said he did not know where she was.
                                                                           A-0508-18T2
                                       13
condition;' and 3) [are made] 'without opportunity to deliberate or fabricate.'"

State v. Branch, 182 N.J. 338, 365 (2005) (quoting N.J.R.E. 803(c)(2)).

      The non-testifying witness's demeanor and the content of her disclosure

to the detective show that she was reacting to a startling event, the shooting.

That disclosure was made minutes after the detective heard the shots and

responded to the scene, and the witness "was very nervous and scared and

excited" to the point where the detective had to calm her. We, therefore, agree

with the trial court that the first two prongs of the hearsay exception were

established by the detective's testimony.

      The trial court did not make any findings as to the third prong. Although

facts that demonstrate the non-testifying witness did not have an opportunity to

deliberate or fabricate may have been better flushed out at a N.J.R.E. 104

hearing, there are sufficient facts in the record to establish that prong. The

Bryant Court, in likening the effect of an ongoing emergency to the focus of a

person's attention to an emergency that results in an excited utterance, observed:

"Statements 'relating to a startling event or condition made while the declarant

was under the stress of excitement caused by the event or condition,' are

considered reliable because the declarant, in the excitement, presumably cannot

form a falsehood." 562 U.S. at 361 (quoting Fed. Rule Evid. 803(2)).


                                                                          A-0508-18T2
                                       14
      In determining whether the non-testifying witness had an opportunity to

deliberate or fabricate, we consider the factors announced by our Supreme

Court: "the shock effect" of the startling event on the declarant; "the time

elapsed between that event and her [or his] statement"; "the continuing influence

of the excitement caused by the" startling event; "the circumstances surrounding

the taking of the statement[;] and whether the statement was in response to

questions." Branch, 182 N.J. at 366.

      As we have noted, the non-testifying witness showed obvious signs of

stress during her encounter with the detective shortly after the shooting. The

non-testifying witness exited her residence soon after the shooting; she had scant

time to think about or fabricate her disclosure that defendant was the shooter

and his direction of flight. There is no evidence she was with another person

who could have provided her with false or inaccurate information. The non-

testifying witness's demeanor and the short time between the event and

disclosure evidence that the witness did not have time to "achieve[] some

physical and emotional distance from the" shooting so as to "undermine[] the

trustworthiness inherent in an admissible excited utterance." State v. Cotto, 182

N.J. 316, 329 (2005) (determining a thirty to forty-five minute delay between a

robbery as the victims traveled to the police station to give statements "served


                                                                          A-0508-18T2
                                       15
as a cooling-off period").      And, the detective's questions were aimed at

disclosing the source of the non-testifying witness's agitation, not any

information about the shooting or defendant.          The admission of the non-

testifying witness's statements was not "a clear error of judgment," or a "ruling

. . . so wide of the mark that a manifest denial of justice resulted," State v. Prall,

231 N.J. 567, 580 (2018) (quoting State v. J.A.C., 210 N.J. 281, 295 (2012)), to

warrant that we set it aside.

      Even if the admission of those statements was error, we do not discern

that it was "clearly capable of producing an unjust result," R. 2:10-2, so at to

require reversal, State v. Scharf, 225 N.J. 547, 572 (2016). We note the non-

testifying witness was not the victim in this case whose testimony was crucial

to the State's case. The victims in this case testified and identified defendant as

the shooter.

      Damon testified that she knew defendant since she was a child—she "grew

up with him"—and had seen him many times, including during an earlier

encounter on the day of the shooting. She saw defendant standing across the

street before she left her house and entered her car just prior to the shooting,

wearing the same clothes he wore during their encounter earlier that day. In an

area she described as brightly lit, she saw him "running up on" the car from "the


                                                                              A-0508-18T2
                                        16
corner where his house" was located, as he pulled a mask over his face. She

said she was sure of her identification of defendant's photograph, shown to her

by police. When asked how she was so sure, she replied, "Because I know him."

She testified she had known him since she was a child, having seen him "[a] lot[

m]ore than ten" times in her life.

      Walker was also familiar with defendant having seen him on "[l]ess than

ten" prior occasions stemming from a "family feud." She testified that she saw

defendant standing "[o]n the corner of Rand and Bank Street" prior to the

shooting, wearing the same orange shirt and black hoody he was wearing earlier

that day when Walker said defendant had threatened her. She also testified she

saw defendant running after the shooting.

      Contradictory evidence was elicited from Damon's son who testified he

had seen defendant approximately twenty minutes before the shooting in front

of a liquor store when he had an altercation with Damon. Damon's son also

identified defendant as the shooter, but testified when he saw defendant standing

on the corner just prior to the shooting, a mask partially covered defendant's

face. Notwithstanding the variance in the testimony of the State's witnesses, this

is not a case where the only identification evidence was produced via hearsay.

Defense counsel ably cross-examined the primary sources of the identification


                                                                          A-0508-18T2
                                       17
evidence—Damon and Walker—who both knew defendant. We do not see that

the hearsay statements of the non-testifying witness were clearly capable of

impacting the verdict to cause an unjust result. R. 2:10-2; see also State v.

Weaver, 219 N.J. 131, 154-55 (2014).

      Defendant also claims the trial court erred by denying his request for an

adverse-inference jury instruction regarding the State's failure to produce at trial

the non-testifying witness and police officers who were at the scene of the

altercation between defendant and Damon earlier on the day of the shooting.

      An adverse inference instruction—commonly known as a Clawans

charge—stems from the principle that the "failure of a party to produce before

a trial tribunal proof which, it appears, would serve to elucidate the facts in

issue, raises a natural inference that the party so failing fears exposure of those

facts would be unfavorable to him." State v. Clawans, 38 N.J. 162, 170 (1962).

The multitude of reasons for choosing not to call a witness requires a trial court

to exercise caution before granting a request for a Clawans charge. State v.

Velasquez, 391 N.J. Super. 291, 306-08 (App. Div. 2007).             Because that

inference may be impacted by the reasons a witness was not called, "the trial

court may determine that the failure to call the witness raises no inference, or an




                                                                            A-0508-18T2
                                        18
unfavorable one, and hence whether any reference in the summation or a charge

is warranted." Clawans, 38 N.J. at 172.

       Thus, before granting a Clawans charge request, the court must evaluate

the party's reason for not calling a witness. State v. Hill, 199 N.J. 545, 562

(2009); Velasquez, 391 N.J. Super. at 308. The trial court must ensure that the

situation calls for the charge, as the potential for prejudice is high where an

erroneous charge is given. Hill, 199 N.J. at 562; Velasquez, 391 N.J. Super. at

312.   The trial court must consider "all relevant circumstances" and make

findings

            (1) that the uncalled witness is peculiarly within the
            control or power of only the one party, or that there is
            a special relationship between the party and the witness
            or the party has superior knowledge of the identity of
            the witness or of the testimony the witness might be
            expected to give; (2) that the witness is available to that
            party both practically and physically; (3) that the
            testimony of the uncalled witness will elucidate
            relevant and critical facts in issue [;] and (4) that such
            testimony appears to be superior to that already utilized
            in respect to the fact to be proven.

            [Hill, 199 N.J. at 561-62 (alteration in original)
            (quoting State v. Hickman, 204 N.J. Super. 409, 414
            (App. Div. 1985)).]

       Through that lens, we agree with the trial court who denied defendant's

request for a Clawans charge as to the non-testifying witness, finding: she was


                                                                          A-0508-18T2
                                       19
not under the State's control; her whereabouts at the time of trial were unknown;

and she did not have knowledge superior to the actual victims of the shooting

who testified at trial. The victims in this case testified and identified defendant

as the shooter. We also observe the non-testifying witness was not the victim

in this case whose testimony was crucial to the State's case.         Further, the

detective testified that he did not know where the non-testifying witness was on

the day he testified. The assistant prosecutor represented to the court that the

last known address the State had for the witness—the address listed in the police

reports—is an abandoned building. The trial court did not stray from the Court's

required analysis in declining defendant's request for failing to give the Clawans

charge as to the non-testifying witness.

      Defendant avers the police witnesses were present during an altercation

described by Damon during her trial testimony. Damon said defendant jumped

in front of her car and yelled obscenities at her and threatened to kill her. Her

brother and others who were in the car behind Damon's "jumped out on"

defendant, whereupon defendant "yelled to the police officers to help him"

claiming Damon's brothers were armed and "trying to shoot" defendant. The

police came over, inquired about the incident and advised Damon "to go home

and that [defendant] was just blowing smoke [and was] not gonna do nothing"


                                                                           A-0508-18T2
                                       20
to Damon; they also told Damon to file a harassment charge against defendant

after the holiday weekend.

      Defendant contends the officers would have been able to testify about the

altercation, specifically "who threatened whom." He argues the officers, who

did not arrest defendant, were more objective—and thus superior—to witnesses

called by the State, 3 and that the State "had access to tours of duty records,

internal radio communications and other records pertaining to the identity of the

law enforcement witnesses." He asserts "[t]he testimony by the witnesses about

the altercation suggests that the officers did not arrest . . . [d]efendant because,

contrary to the witnesses' claims, the police did not hear . . . [d]efendant make

any threats" and the officers' instruction to "the witnesses and not . . . [d]efendant

to go home supports that the witnesses instigated the altercation."

      The trial court refuted defendant's contention that the police officers were

within the State's control, observing there was no evidence of the officers'

identities because "[t]here is no information that a report was prepared regarding

that incident." We agree. We further note defendant's bald speculation about

the reasoning behind the officers' actions is insufficient to warrant a Clawans


3
   Defendant does not identify the other "witnesses" who testified about the
altercation. We gather from defense counsel's summation that they were Damon
and Walker.
                                                                              A-0508-18T2
                                         21
charge. So too, defendant offers no evidence that the State could ascertain the

officers' identities through technological means. Defendant points to nothing in

the record to establish that he sought the officers' identities in discovery.

Moreover, the evidence about the prior altercation was admitted under N.J.R.E.

404(b) to show "motive, intent or identification." The State was therefore

required to limit the evidence to that necessary to establish those possible

purposes. See State v. Barden, 195 N.J. 375, 390 (2008). We also note that

defense counsel pointed out to the jury that despite defendant's alleged threats

to Damon and Walker, the police did not arrest defendant, asking the jury, "Does

that make sense? Does that add up to you?" He also highlighted that defendant

called out to the police even though Damon claimed he threatened her.

Considering those circumstances, the trial court did not err by refusing

defendant's request for a Clawans charge vis-à-vis the officers.

      We see no merit in defendant's argument that the prosecutor's misconduct

during summation—comparing "[d]efendant to Lee Harvey Oswald, the assassin

of President Kennedy" and by describing his "case as a conspiracy theory and

. . . [d]efendant's lawyer as a purveyor of conspiracies"—deprived him of due

process and a fair trial. Our review of a claim of prosecutorial misconduct




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                                      22
during summation is one of law, thus is plenary. State v. Smith, 212 N.J. 365,

387 (2012).

      "So long as he [or she] stays within the evidence and the legitimate

inferences therefrom the [p]rosecutor is entitled to wide latitude in his [or her]

summation." State v. Mayberry, 52 N.J. 413, 437 (1968). "Prosecutors are

permitted to respond to arguments raised by defense counsel as long as they do

not stray beyond the evidence." State v. Morais, 359 N.J. Super. 123, 131 (App.

Div. 2003).

      The assistant prosecutor told the jury:

                     Ladies and gentlemen, this is not some grand
              conspiracy. The simplest explanation is the correct
              explanation. [Defense counsel] wants you to believe
              that it was some other masked man, it's a bad
              neighborhood, that somebody else shot her because
              people love conspiracy theories. Think about JFK.
              Who shot him. Well, people will say it was CIA, there
              was somebody on the grassy knoll. It was a grand
              conspiracy. There was more than one shooter. That
              bullet took a right turn.

                     Ladies and gentlemen, Lee Harvey Oswald shot
              JFK, a lone shooter. This defendant shot . . . [Damon's]
              car injuring . . . Hawkins. Simple explanation. There's
              nobody on the grassy knoll. There's no secret masked
              man running around Camden who happens to shoot . . .
              Damon's car moments after this defendant threatened
              them. The simplest explanation is the correct one. He
              was seen standing on the corner. He was seen walking


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                                        23
            up the street towards her car. Moments later, that gun
            fire rang out.


      We do not countenance the invocation of a reviled assassin by an assistant

prosecutor in an attempt to debunk a defendant's theory of the case, or personal

attacks on defense counsel. But the assistant prosecutor was responding to

defense counsel's summation in which he claimed the State's witnesses'

contradictions and animosity toward defendant evidenced that they were

fabricating the prior incidents and the charges, particularly in light of

defendant's alibi witnesses.     The intemperate reference to the Kennedy

assassination and its aftermath was not as egregious as defendant's present

characterization, and it certainly was not "so egregious that it deprived defendant

of a fair trial," State v. Wakefield, 190 N.J. 397, 442-43 (2007), especially

considering the trial court's jury instruction to "only consider such facts which

in your judgment have been proven by the testimony of witnesses or from

exhibits admitted into evidence by the [c]ourt. . . . Arguments, statements,

remarks, openings and summations of counsel are not evidence and must not be

treated as evidence." The jury is presumed to have followed that instruction.

See State v. Loftin, 146 N.J. 295, 390 (1996) ("That the jury will follow the

instructions given is presumed."); see also State v. Setzer, 268 N.J. Super. 553,


                                                                           A-0508-18T2
                                       24
566 (App. Div. 1993) (holding an isolated improper comment may be

insufficiently prejudicial to warrant reversal, especially where the trial court

instructed the jury that counsel's statements are not evidence). The jury had full

opportunity to apprise the victims' testimony and consider defendant's

misidentification theory, buttressed by his three alibi witnesses. Considering

"the 'fair import' of the State's summation in its entirety," State v. Jackson, 211

N.J. 394, 409 (2012) (quoting Wakefield, 190 N.J. at 457), the assistant

prosecutor's comments were not sufficiently prejudicial to warrant reversal, R.

2:10-2; State v. Macon, 57 N.J. 325, 336 (1971).

      Defendant contends "[t]he trial court abused its discretion by sentencing

. . . [d]efendant to an extended seventeen-year term of imprisonment for [c]ount

two of the [i]ndictment." Defendant's argument that the trial court double-

counted his prior criminal record to find defendant was a persistent offender

under N.J.S.A. 2C:44-3(a)—granting the State's motion to impose a

discretionary extended term sentence—and using the prior record to find

aggravating factors three (risk that defendant will commit another offense), six

(extent of prior criminal record and seriousness of offenses) and nine (need for

deterrence) is sufficiently without merit. N.J.S.A. 2C:44-1(a)(3), (6) and (9).




                                                                           A-0508-18T2
                                       25
      Defendant distorts the trial court's findings. The trial court twice said it

was not counting defendant's two most recent Superior Court convictions in

determining the aggravating factors. Although it listed those convictions in

delineating defendant's entire record—including twelve municipal court

convictions, six other Superior Court convictions, a parole violation, a probation

violation and Family Part contempt conviction for violating a restraining

order—the court did not twice rely on the two convictions used to impose an

extended term as clearly shown by the court's careful and thorough oral

sentencing findings.

      Defendant's contention that the trial "[c]ourt did not conduct a qualitative

inquiry as to . . . [d]efendant's active participation in his children's lives and to

what extent they depended on him, and the effect . . . his prolonged

imprisonment would have on their development" is similarly meritless. The trial

court, in rejecting mitigating factor eleven, N.J.S.A. 2C:44-1(b)(11) (excessive

hardship that imprisonment would bring to defendant or his dependents) , did not

"find the fact that . . . defendant has young children to put him in a different

position than many defendants that come before the [c]ourt. It is not an undue

burden. There's nothing unique about this situation which makes it different

[from] the other situations which the [c]ourt sees."


                                                                             A-0508-18T2
                                        26
      The trial court's finding is well supported. Defendant's presentence report

indicates he: does not have custody of his three minor children; was not under

court-ordered obligation to pay child support; was unemployed at the time of

sentencing; had "a very limited history of gainful employment"; and had no

income or assets.

      "Appellate courts review sentencing determinations in accordance with a

deferential standard. The reviewing court must not substitute its judgment for

that of the sentencing court." State v. Fuentes, 217 N.J. 57, 70 (2014). We will

affirm a sentence unless:

            (1) the sentencing guidelines were violated; (2) the
            aggravating and mitigating factors found by
            the sentencing court were not based upon competent
            and credible evidence in the record; or (3) "the
            application of the guidelines to the facts of [the] case
            makes the sentence clearly unreasonable so as to shock
            the judicial conscience."

            [Ibid. (alteration in original) (quoting State v. Roth, 95
            N.J. 334, 364-65 (1984)).]

None of those factors are here present. Under our deferential standard we see

no reason to disturb the trial court's sentence.

      Affirmed.




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