                                 NOT FOR PUBLICATION WITHOUT THE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-3140-15T3

STATE OF NEW JERSEY,

           Plaintiff-Respondent,

v.

EWART M. GUILLETTE,

     Defendant-Appellant.
_____________________________

                    Submitted January 9, 2019 – Decided August 5, 2019

                    Before Judges Nugent, Reisner and Mawla.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Union County, Indictment No. 11-02-0188.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Michael James Confusione, Designated
                    Counsel, on the brief).

                    Michael A. Monahan, Acting Union County
                    Prosecutor, attorney for respondent (Meredith L. Balo,
                    Special Deputy Attorney General/Acting Assistant
                    Prosecutor, of counsel and on the brief).

PER CURIAM
      Convicted of first-degree murder, weapons offenses, and other crimes for

shooting and killing his wife in front of their two young children, defendant,

Ewart Guillette, appeals, seeking a new trial or, alternatively, a new sentence.

He argues that the following alleged errors deprived him of a fair trial . First,

pretrial, the court denied his motions to suppress evidence, dismiss the

indictment, and dismiss the jury panel during voir dire. Next, during trial, the

jury allegedly heard improper evidence of other wrongs when a witness testified

about services provided to the victim by the YMCA, and the trial court infringed

on his constitutional right to be present at trial and to testify. Last, in its charge,

the trial judge did not instruct the jury on lesser-included offenses of passion-

provocation and aggravated manslaughter.             Defendant also contends his

sentence is excessive. Finding no merit in defendant's arguments, we affirm.

                                          I.

                                          A.

      A Union County grand jury charged defendant in a nine-count indictment

with first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2) (count one); two counts

of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:

39-4(a) (counts two and three); two counts of second-degree unlawful

possession of a weapon, N.J.S.A. 2C:39-5(b) (counts four and five); two counts


                                                                               A-3140-15T3
                                          2
of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a)

(counts six and seven); fourth-degree false reports to law enforcement

authorities, N.J.S.A. 2C:28-4 (count eight); and fourth-degree contempt,

N.J.S.A. 2C:29-9(b) (count nine). Following the indictment, defendant moved,

unsuccessfully, to suppress information concerning his cellular phone's location

and to dismiss the indictment.

      A jury convicted defendant on the indictment's first eight counts and

thereafter on the ninth count, which had been bifurcated. Two months later,

after merging certain counts, the trial judge sentenced defendant to the following

terms: life in prison, followed by ten years of parole supervision on the first-

degree murder conviction (count one); a consecutive ten-year prison term on

count six and another consecutive ten-year prison term on count seven;

concurrent seven-year prison terms on counts three, four, and five; and

concurrent one-year prison terms on counts eight and nine.           This appeal

followed.

                                       B.

      The State presented the following evidence at trial. When defendant and

his wife, Stacey, separated in the summer of 2010, Stacey and their children, a

son, age eight, and a daughter, age six, moved out of their Hillside home. In


                                                                          A-3140-15T3
                                        3
August, defendant reported to Hillside police officer Gregorio Menza that he

believed Stacey had stolen two of his guns, a Glock Model 22 and a Smith &

Wesson. Four days later, Stacey was shot to death in front of an Elizabeth

YMCA. According to a ballistics expert, shell casings ejected from the Glock

and Smith & Wesson were found at the homicide scene.

      On the day of the homicide, Stacey and the children spent the day with

her sister. Her sister testified that Stacey and the children left at approximately

8:00 p.m. to return to the YMCA on East Jersey Avenue in Elizabeth . The

YMCA's executive director testified the YMCA provides various services to

individuals, including "services to survivors of domestic violence," and

confirmed that Stacey and the children were receiving unspecified "services" in

August 2010.

      Defendant and Stacey's son testified that when he, his mother, and sister

arrived at the YMCA on the evening of August 30, 2010, he and his sister walked

up the stairs, rang the doorbell to be let in, and then waited at the top of the steps

while Stacey parked the car. As Stacey walked toward the YMCA stairs, her

son saw defendant walk toward her from a "dark area" of the sidewalk. The

child said, "Hi, Dad." Defendant grabbed Stacey's arm and said "[g]et in the

fucking car." When Stacey refused, defendant pushed her up the stairs. The


                                                                              A-3140-15T3
                                          4
children "ran down the stairs" because they "didn't want to interfere with the

problem that was coming up" and wanted "to stay away" from their parents.

        The child continued with his testimony. He said defendant shoved Stacey

into a corner at the top of the steps, pulled a gun from his waistband, and began

shooting her, while she screamed and told him to stop. The child heard five

shots, and he and his sister fled down East Jersey Street, fearing they would be

shot.

        A woman who had stopped for a red light on East Jersey Avenue testified

she watched as a man wearing a white t-shirt and jeans, who matched defendant's

description, "cornered" a woman on the YMCA landing. The witness heard the

woman scream "no" to defendant and then "go" to two young children standing

on the sidewalk. The witness saw defendant, who had a "blank look on his face,"

shoot the woman several times with a silver handgun, pause, and then resume

shooting. The victim tried to block the shots with a black pocketbook or duffel

bag.

        A second witness who also had stopped at the light on East Jersey Avenue

testified he heard a woman scream and saw a man matching defendant's

description pull a black gun from his waistband, extend his arm, and fire the gun




                                                                         A-3140-15T3
                                        5
at the woman. The second witness heard four gunshots, a "clicking sound" as if

the "gun jammed," and five more gunshots.

       Elizabeth police officer Edward Pinkevicz responded to a call of "shots

fired" at the YMCA.       Upon arrival he observed Stacey, unconscious and

unresponsive, lying at the bottom of the YMCA steps, her clothes bloodstained,

and blood around her body. He called for an ambulance and secured the area.

Stacey was transported to the hospital where she was pronounced dead at 8:56

p.m.

       Elizabeth police officer Roger Alves met with the children inside the

YMCA. He described them as "excited[,] scared, [and] crying." He asked the

children what happened, and Stacey's son said "daddy shot mommy," gesturing

"with his right hand as [if] he was firing a gun." The child described the gun as

silver with a "dragon on it." Alves then asked, "where is daddy," and the child

told him defendant had "left in his Infiniti."

       At approximately the same time, Union County Prosecutor's Detective

Michael Manochio watched a surveillance video from the YMCA. He testified

the video showed the following: 1



1
  The surveillance video was played for the jury, without objection, but has not
been provided to us as part of the appellate record.
                                                                         A-3140-15T3
                                         6
            An individual approaching the victim on the staircase
            with the two children. A brief argument ensued and
            eventually the suspect, described on the video, pulled
            out a weapon, [and] started shooting the victim
            numerous times. As the victim was trying to pull away
            from the suspect, the suspect pulled out a second
            weapon and continued to shoot the victim.

Pinkevicz broadcast a description of defendant and the vehicle registered to him

– a 2010 black Infiniti SUV.

      Detectives searched the shooting scene and found projectiles and spent

shell casings, a black purse with a bullet hole through it and a spent projectile

inside it, and a white shopping bag, which appeared to be spotted with blood

splatter. Other detectives were dispatched to defendant's Hillside home, but

found neither defendant nor his car there.

      Meanwhile, Manochio learned defendant had applied for a permit to

purchase, but not to carry, the Glock and the Smith & Wesson he had previously

reported stolen. Defendant had listed his cellular phone number on the permit

application. Manochio requested an emergent ping order from Verizon for

defendant's cellphone location. Verizon personnel responded that defendant's

cellphone had been located in the area of a specific address on Penrose Avenue

in Philadelphia, Pennsylvania.




                                                                         A-3140-15T3
                                       7
      Union County Prosecutor's detective Kevin Grimmer contacted the

Philadelphia Homicide Unit at approximately 2:55 a.m. and requested assistance

with his investigation. Philadelphia homicide detectives, who were familiar

with the Penrose Avenue area, informed Grimmer a hotel was located in the area

and that it was close to the airport. A Philadelphia Detective, Joseph Bamburski,

drove to the hotel's parking lot and found a black Infiniti with a New Jersey

license plate registered to defendant. Bamburski and his partner entered the

hotel and spoke to the hotel clerk, who informed them defendant had checked in

at 12:56 a.m. and was in room 205. The Detectives relayed the information to

the Union County Prosecutor's Office and set up a surveillance of the hotel exits.

      Meanwhile, another Philadelphia detective, Howard Peterman, obtained a

warrant to search defendant's hotel room. A Philadelphia S.W.A.T. team entered

defendant's room to execute the search warrant, found defendant in bed, and

handcuffed and arrested him.

      Manochio and Grimmer, who had traveled to Philadelphia from New

Jersey, entered defendant's hotel room and found three weapons on the

nightstand, a black suitcase containing clothes, a bag containing $5676 in cash,

a laptop, a cellphone, a white t-shirt with a Polo logo, blue jeans, and tan boots,

appearing to have blood on them. A forensic expert testified the blood on the


                                                                           A-3140-15T3
                                        8
jeans matched a sample of Stacey's blood, and Stacey could not be excluded as

a source for the blood on the right boot.

      The three seized weapons, which contained live ammunition, were a

Glock Model 27 semi-automatic handgun and the two guns defendant had

reported stolen. The Smith & Wesson had a dragon on the handle. Later, law

enforcement officers executed a search warrant for defendant's Infiniti and

found a fourth weapon, a .45 caliber semi-automatic handgun and ammunition.

      A ballistics expert testified that ballistics tests confirmed the three guns

found in the hotel room and the gun found in defendant's car were operable. He

also testified that ballistic tests confirmed the cartridge casings found at the

scene had been fired from the guns defendant had reported stolen.

      Dr. Junaid Shaikh, the Medical Examiner at the time of trial, testified that

Dr. Zhongxue Hua, former County Medical Examiner, had performed an autopsy

on Stacey. Stacey had sixteen gunshot wounds to her chest, abdomen, back, hip,

forearms and elbow, which resulted in injuries to her lungs, pericardial sac,

aorta, liver, abdomen, and large bowel. Shaikh, who had formed her own

independent conclusion based on her review of the autopsy results, testified the

cause of death was "multiple gunshot wounds through the torso [a]nd

extremities" [a]nd the manner of death was homicide.


                                                                          A-3140-15T3
                                        9
                                     II.

     On appeal, defendant argues the following points:

            Point 1.   The trial court erred in denying defendant's
                       motion to suppress.

            Point 2.   The trial court erred in denying defendant's
                       motion to dismiss the indictment.

            Point 3.   The trial court infringed defendant's right
                       to a fair jury by denying defendant's
                       motion to dismiss the jury panel during
                       voir dire.

            Point 4.   Improper other wrongs evidence infected
                       the jury trial.

            Point 5.   The trial court infringed defendant's right
                       to testify on his own behalf.

            Point 6.   The trial court erred in denying passion-
                       provocation, and aggravated and reckless
                       manslaughter, as lesser offenses for the
                       jury's consideration.

            Point 7.   Defendant's sentence is improper and
                       excessive.

     Except for the comments that follow, we find defendant's arguments in

points two, four, and six devoid of sufficient merit to warrant discussion.

 R. 2:11-3(e)(2).

                                     A.

     Defendant argues in point two that the judge erred in denying his motion

                                                                      A-3140-15T3
                                    10
to dismiss the indictment because: 1) the prosecutor failed to inform the

assignment judge, in accordance with Rule 3:6-3(a), that two grand jurors had

prior knowledge of the case; and 2) the prosecutor expressed personal views and

influenced the grand jurors by reading a proposed form of the indictment.

      The record discloses that two grand jurors raised their hands in response

to the question, "[d]oes anyone recollect reading anything in the newspaper or

seeing anything on television about it?" The prosecutor separately questioned

each juror in the clerk's office. Each had read a newspaper article about the

case. One recalled the article "[n]ot clearly, just vaguely," the other in more

detail. Both said they could be fair and impartial and could make a decision

based on the evidence.

      During argument on the motion to dismiss, the prosecutor explained that

the Assignment Judge was contacted and "obviously then made the

determination that its fine to proceed with those grand jurors. They were not

excused. And that's why we proceeded back [onto] the record[.]" According to

the prosecutor, had the Assignment Judge ordered recusal, the clerk would have

noted the record accordingly.

      Defendant also argues the assistant prosecutor misled the grand jury by

reading to them the proposed indictment before presenting evidence. In denying


                                                                       A-3140-15T3
                                     11
the motion, the trial judge explained, "it's clear from the presentation that the

indictment was being presented for the grand jury's consideration, that it was a

proposed form of indictment, and that ultimately it was the grand jurors' decision

whether to return a true bill or not." The trial judge did not abuse his discretion

in so finding. State v. Hogan, 144 N.J. 228-29 (1996). Moreover,

            the petit jury's subsequent guilty verdict means not only
            that there was probable cause to believe that the
            defendants were guilty as charged, but also that they are
            in fact guilty as charged beyond a reasonable doubt.
            Measured by the petit jury's verdict, then, any error in
            the grand jury proceeding connected with the charging
            decision was harmless beyond a reasonable doubt.

            [United States v. Mechanik, 475 U.S. 66, 70 (1986); see
            also State v. Ball, 268 N.J. Super. 72, 120 (App. Div.
            1993).]

Accordingly, we reject the argument the trial judge erred by denying defendant's

motion to dismiss the indictment.

                                        B.

      In his fourth point, defendant argues he was deprived of a fair trial because

the executive director of the YWCA "mention[ed]" the terms "domestic

violence" and "shelter" on direct examination. When asked to describe the

services the YMCA offered, the director replied, "[w]e provide counseling, case

management, [and] advocacy. We have an attorney there. We provide services


                                                                           A-3140-15T3
                                       12
to survivors of domestic violence." She said she was aware the YMCA was

providing services to defendant's wife, but she did not specify the nature of the

services. The record does not reflect that the director used the term "shelter."

      Even if the director's testimony could be construed as accusing defendant

of other wrongs – and we do not conclude it does – given the overwhelming

evidence of defendant's guilt, any error was harmless. R. 2:10-2.

                                       C.

      Similarly, we reject defendant's argument in his sixth point that the trial

judge erred by not charging the jury on passion-provocation manslaughter,

aggravated manslaughter, or reckless manslaughter. A thorough examination of

the record reveals no rational basis for an instruction on any manslaughter

offense.   See State v. Alexander, 233 N.J. 132, 142 (2018).           Defendant

repeatedly shot the victim at close range, at one point stopping and then

resuming, after she begged him to stop. There is no evidence of provocation

and no evidence to support a manslaughter charge.

                                       III.

      We next address defendant's first point, namely, the trial judge err ed by

denying his suppression motion. Defendant argues that under the New Jersey

Wiretapping and Electronic Surveillance Control Act, N.J.S.A. 2A:156A-1 to -


                                                                          A-3140-15T3
                                       13
37 (the Wiretap Act), absent a cell-phone owner's consent, the police were

required to obtain a court order or warrant before seeking cell-phone location

information (CPLI) for defendant's phone, N.J.S.A. 2A:156A-29, and no exigent

circumstances existed to justify the warrantless search of the CPLI.

      The State concedes it did not obtain a court order or warrant before

obtaining defendant's CPLI. The State does not contend its pursuit of defendant

fell within a statutory exception to the Wiretap Act's requirement of a warrant

or court order. Rather, the State contends exigent circumstances justified the

action taken by detectives. We must thus decide whether an exception to the

warrant requirement justified the police action. We conclude, as did the trial

court, that exigent circumstances justified the police in obtaining defendant's

CPLI without a court order or warrant.

      Article I, Paragraph 7 of the New Jersey Constitution protects an

individual's privacy interest in CPLI. State v. Earls, 214 N.J. 564, 588 (2013). 2

Thus, to obtain CPLI from cell-phone providers, law enforcement officials are



2
   The Fourth Amendment protects one's "legitimate expectation of privacy in
the record of his physical movements as captured through [CPLI]." Carpenter
v. United States, ____ U.S. ____, ____, 138 S. Ct. 2206, 2217 (2018). The
United States Supreme Court has yet to decide whether real-time CPLI or only
records of historic CPLI are protected. 138 S. Ct. at 2220.


                                                                          A-3140-15T3
                                       14
required to obtain "a warrant issued by a neutral magistrate and supported by

probable cause." Id. at 589. However, "no warrant is required in emergency

situations or when some other exception to the warrant requirement applies."

Ibid.

         The Supreme Court applied its holding in Earls to defendant Earls and

future cases only. "For prior cases, the requirement in place at the time an

investigation was conducted remains in effect." Id. at 591. "Starting January

12, 2010, law enforcement officials had to obtain a court order to get cell-site

information under N.J.S.A. 2A:156A-29(e)." Ibid.

         Thus, in August 2010, the month this homicide occurred, the Wiretap Act

required law enforcement officers to obtain consent, a warrant, or a court order

to get CPLI, except when the officers believed in good faith they were faced

with an emergency involving danger of death or serious bodily injury to the

subscriber or customer whose information was sought. N.J.S.A. 2A:156A-

29(c).     The statutory remedy for the failure to obtain a wiretap order for CPLI

was not, however, exclusionary.

         The Wiretap Act provides that "[a]ny aggrieved person in any trial,

hearing, or proceeding . . . may move to suppress the contents of any intercepted

wire, electronic or oral communication, or evidence derived therefrom" on


                                                                          A-3140-15T3
                                        15
grounds specified in the statute. N.J.S.A. 2A:156A-21. As the statute states,

suppression of evidence is a remedy where "intercepted wire, electronic or oral

communication, or evidence derived therefrom," are unlawfully intercepted. Id.

"Location information" or "cellular site information," as defined in N.J.S.A.

2A:156A-2(w), is specifically excluded from coverage as an electronic

communication, N.J.S.A. 2A:156A-2(m)(3), and is not a wire or oral

communication as defined in N.J.S.A. 2A:156A-2(a), (b), or (d), and thus is not

subject to suppression under the statutory provisions of the Wiretap Act.

Nonetheless, "suppression may be an appropriate judicial remedy to prevent the

occurrence of intentional or insolent violations of statutory requirements." State

v. Murphy, 148 N.J. Super. 542, 548 (App. Div. 1977). Here, there is no

evidence that law enforcement officers acted in "intentional or insolent"

disregard of the Wiretap Act.

      Moreover, contrary to defendant's argument, exigent circumstances

existed to justify law enforcement officers obtaining defendant's CPLI.

"[E]xigent circumstances are present when law enforcement officers do not have

sufficient time to obtain any form of warrant, because of the immediate and

urgent circumstances confronting them." State v. Hathaway, 222 N.J. 453, 468

(2015) (alteration in original) (internal quotations and citation omitted).


                                                                              A-3140-15T3
                                       16
            Although "exigent circumstances" cannot be precisely
            defined or reduced to a neat formula, . . . some factors
            to be considered in determining whether law
            enforcement officials faced such circumstances are the
            urgency of the situation, the time it will take to secure
            a warrant, the seriousness of the crime under
            investigation, and the threat that evidence will be
            destroyed or lost or that the physical well-being of
            people will be endangered unless immediate action is
            taken.

            [State v. Johnson, 193 N.J. 528, 552–53 (2008).]

Other factors include, the possibility that the suspect is armed and the strength

or weakness of the facts establishing probable cause. State v. DeLuca, 325 N.J.

Super. 376, 391 (App. Div. 1999), aff'd as modified, 168 N.J. 626 (2001). "[N]o

one factor is dispositive and exigency must be assessed on a case-by-case basis

under a totality-of-the-circumstances standard." State v. Adkins, 221 N.J. 300,

310 (2015).     The United States Supreme Court has noted that exigent

circumstances include "the need to pursue a fleeing suspect, protect individuals

who are threatened with imminent harm, or prevent the imminent destruction of

evidence." Carpenter, 138 S. Ct. at 2208.

      Here, based on evidence presented at the suppression hearing, the judge

determined the warrantless search of defendant's CPLI was justified under the

exigent circumstances exception to the warrant requirement. The evidence the



                                                                         A-3140-15T3
                                      17
State presented at the suppression hearing supported the court's factual

determinations and legal conclusions.

      The detective who testified at the suppression hearing knew defendant's

son had not only identified defendant, but told police officers defendant told him

and his sister to get into his car immediately following the shooting.

Surveillance video confirmed eyewitness accounts of the shooting as well as

defendant's identity as the shooter. The detective believed the community was

at risk because defendant had fled, armed with two weapons. The detective

believed defendant would try to harm either the children or the victim's oth er

family members. The detective also recounted the events resulting in the police

obtaining defendant's CPLI and eventually arresting him at the Philadelphia

Hotel.

      The trial court made the following findings:

                  This shooting took place on a busy street in the
            center of Elizabeth where there was a heavy traffic
            flow. Defendant was clearly identified as the shooter.
            The area was searched for guns and no guns were
            found. I believe that there was a legitimate concern for
            public safety here and that exigent circumstances exist.

                   The defendant was armed and dangerous. He had
            no qualms about shooting his wife in front of his two
            kids in a heavily traveled area. He tried to lure the kids.
            He left with the weapons. He had weapons that were
            licensed. The police knew he had a history of domestic

                                                                          A-3140-15T3
                                        18
           violence situations. There was a legitimate safety
           concern causing the police to want to apprehend him as
           soon as possible.

                  There was concern for the children which,
           although the police knew were in a safe place, the
           defendant didn't know that and there was concern that
           he might come armed looking for the children. There
           was concern for the victim's family. And there was
           concern for the public at large. What the police knew
           at this point in time is that the defendant was armed,
           dangerous, willing to shoot, and was in a desperate
           situation.

                 The defendant knew the location of the victim's
           family members. There was also some concern that he
           might have been following or stalking the victim. The
           victim was coming from her sister's house in Rahway.
           The defendant knew the victim's family. They didn't
           know how the defendant knew the victim's location. He
           seemed to be waiting for her.

                 Based on all of this, I believe this comes within
           the exception set forth in [State v. Earls, 214 N.J. 564
           (2013),] and, once again, there was legitimate exigent
           circumstances to make this arrest as soon as possible
           based on the public safety concerns.

     The judge's factual determinations were supported by sufficient credible

evidence on the record. State ex rel. J.A., 233 N.J. 432, 445 (2018) (quoting

State v. Gonzales, 227 N.J. 77, 101 (2016)).     Moreover, the judge's legal

conclusions were sound. Accordingly, we reject defendant's argument that the

judge erred by denying defendant's suppression motion.


                                                                      A-3140-15T3
                                     19
                                        IV.

      Defendant contends in his third point that the trial court infringed his right

to a fair trial when it denied his motion to dismiss the jury panel during voir

dire. Specifically, defendant argues the trial judge's inadvertent mention of the

separately-tried contempt charge during voir dire on the other charges denied

him a fair trial. We disagree.

      Jury selection began on September 15, 2015, but the panel was dismissed

on September 22, 2015, after an outburst from defendant. Jury selection began

again on September 24, 2015, during which the trial judge informed the group

of potential jurors, without objection, that:

                    Allegations are not evidence. . . . Allegations are
            what the State hopes or believes that they will be able
            to prove during the course of the trial from the
            evidence. So what I am telling you now is not evidence.
            It is allegations.

                  The allegations are that, on or about October
            30th, 2010, in the City of Elizabeth, the defendant is
            alleged to have committed the following crimes:

                  Murder, possession of a weapon for an unlawful
            purpose, unlawful possession of a weapon, endangering
            the welfare of a child, false reports to Law Enforcement
            Authorities, and contempt.

            [Emphasis added].



                                                                            A-3140-15T3
                                        20
      On September 29, 2015, the judge gave another group of potential jurors

an almost identical instruction, including the reference to the contempt charge.

On the following day, during voir dire of the prospective jurors, the judge asked

juror number 0438 what her reaction was when she first heard the nature of the

charges. She said she could not hear the charges and that the only word she

"might have heard was shooting[.]" At that point the prosecutor, out of the

presence of the juror, told the judge that she "realized yesterday you were

reading contempt and that [it] would be a bifurcated trial so we should not

reference contempt." The judge agreed and re-read the juror only the eight

charges, not the contempt charge.

      Defendant moved to discharge the panel based on the court's reference to

the bifurcated charge. The judge denied the application, finding that:

            I told [the jury] these are allegations, that they are not
            evidence. I told them that what's in the indictment is
            not evidence and . . . I think it's harmless. You think
            that if anybody thinks that after telling about murder
            and shooting -- allegedly shooting his wife at close
            range numerous times in front of the kids that
            somebody even recalls that I said contempt I think it's
            totally harmless in the context of this case and the
            application is denied.




                                                                         A-3140-15T3
                                       21
      The judge did not mention the contempt charge in addressing the next

panel of prospective jurors on September 30, 2015, or during the preliminary

instructions.

      A trial judge's determination to deny a motion to dismiss the jury panel is

reviewed for an abuse of discretion:

             Ultimately, the trial court is in the best position to
             determine whether the jury has been tainted. That
             determination requires the trial court to consider the
             gravity of the extraneous information in relation to the
             case, the demeanor and credibility of the juror or jurors
             who were exposed to the extraneous information, and
             the overall impact of the matter on the fairness of the
             proceedings.

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

      Here, the trial judge inadvertently referred to the bifurcated charge,

however, that error did not call into question the impartiality of the jury. The

judge's brief reference to the contempt charge, in the context of this case – where

the jury was told that defendant was alleged to have "shot his wife numerous

times at close range in the presence of their two small children" – was harmless.

R. 2:10-2.

                                        V.

      In his last challenge to his trial, defendant argues the court "infringed [his]

right to testify on his own behalf." The record refutes defendant's contention.

                                                                             A-3140-15T3
                                        22
Following the pretrial motions, but prior to trial, a psychiatrist examined

defendant and concluded that he was competent to stand trial, was malingering,

and had engaged in behavior to delay the trial.

      Thereafter, defendant chose not to appear during jury selection on

September 15, 16, and 17, 2015. He appeared at trial for the first time on

September 22, 2015. On that date the court warned defendant, outside the

presence of the jury, not to disrupt the proceedings, and then questioned each of

the fifteen prospective jurors in the jury box individually, as to whether

defendant's presence changed their answers to the jury questionnaire. Despite

the warning, defendant blurted out in the presence of the jury panel that

"[t]hey're kidnapping me. They're holding me against my will. And the judge

he's the Devil. And the prosecutor is . . . part of his army. I just want it on the

record." Defendant claimed that "[a] voice told me to do it." The judge granted

defense counsel's motion to dismiss the panel, and told defendant that he had

forfeited his right to be present in the courtroom.

      Thereafter the court arranged for defendant to listen to the proceedings

live in a separate room in the courthouse via "Court Smart." Defendant chose

to remain in jail and not to listen to portions of the jury selection and the trial.




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      On October 15, 2015, the fourth day of trial, defendant requested that he

be allowed to return to the courtroom. The judge said he was "inclined" to let

[defendant] come back in the courtroom, but warned that "[i]f there's any

violation of those rules or any outbursts or any disruptions in this trial, you will

be precluded from being in the courtroom." Defendant reconsidered and said,

"I don't think at this time that I would be able to control my outbursts because,

you know, I have these voices to talk to. So I'd rather . . . be upstairs".

      On the following day, defendant was "demanding" to be present during

his son's testimony, agreed to follow the court's rules, and said he understood

that if the court had to admonish him "in any form, way or fashion that he forfeits

his right to testify in his own defense," and that the court would not grant a

mistrial. In violation of the court rules, defendant spoke directly to E.G. during

his testimony. The judge allowed defendant to remain in the courtroom during

the remainder of E.G.'s testimony, but after the jury was dismissed, defendan t

again spoke directly to E.G.

      Defendant subsequently represented that he wanted to testify on his own

behalf. In response to the court's questions, defendant said that he understood

that he would be held in contempt of court if he failed to follow the court's

instructions, acted inappropriately, or engaged in any outbursts. Defendant was


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                                        24
then escorted to the witness stand. As the jury entered the room, defendant

addressed one of the jurors by name:

            THE DEFENDANT: – how you doing? You from
            – from Hillside, right?

            THE COURT: Mr. Guillette.

            THE DEFENDANT: You don't remember me?

            THE COURT: Mr. Guillette.

            THE DEFENDANT: Oh, long time no see. I've
            been locked up the past five years.

The judge dismissed the jurors.        As the jury was exiting the courtroom,

defendant claimed that he knew the juror "from Hillside."

      The judge allowed the jury to be brought back in so that defendant could

start his testimony, but stated for the record that everyone had bent "over

backwards to accommodate" defendant's "whims," and that defendant has "come

and gone as he pleased," and engaged in conduct to "create appellate issues,

delay the trial, and make it as difficult as possible to complete what . . . we're

all trying to do here." The judge again instructed defendant:

            I'm going to tell you again you are not to say anything
            to anyone in this courtroom, not the jurors, not me, not
            the attorneys, not anybody in the audience, you are to
            just answer the questions that are put to you by the
            attorneys unless I sustain the objection. If there is any
            other conduct that violates any of my rules I will ban

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                                        25
            you from the courtroom and we will continue the trial
            without your testimony. Do you understand?

            THE DEFENDANT: Yes, Your Honor.

      However, after spelling his name for the record, and before defense

counsel asked a single question, defendant, for the second time, directly

addressed the jury and said:

            THE DEFENDANT: Before we begin I would like to
            let the jury know –

            THE COURT: No.

            THE DEFENDANT: – that I've been locked up for five
            years –

            THE COURT: Take the jury out, please.

      Defense counsel argued that defendant should be allowed "to continue to

exercise his constitutional right and assist in his defense." The judge noted that

defendant had, within seconds of the jury entering the courtroom, directly

addressed the jury in direct violation of the court's instructions. Nonetheless,

after getting assurances that defendant would not speak to the jury, the judge

once again allowed him to testify.

      When trial resumed, defense counsel asked defendant one question before

the following transpired:

            Q. Mr. Guillette, did you shoot your wife?

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                                       26
            A. Before we begin I would like to tell the jury to vote
            –

            [PROSECUTOR]: Your Honor –

            THE COURT: I can't hear you.

            [PROSECUTOR]: – he's now saying before we begin
            –

            THE DEFENDANT: – not guilty – before we begin,
            the jury –

            [PROSECUTOR]: – he wants to give a speech.

            THE DEFENDANT: – the jury not – not – to vote not
            guilty.

            THE COURT: Speak into the microphone please.

            THE DEFENDANT: I said before we begin I would
            [sic] to tell the jury to vote not guilty –

            THE COURT: All right. Stop. Take the jury out.

The judge ruled that defendant had waived his right to testify, but could remain

in the courtroom.

      The judge instructed the jurors that "[a]nything the defendant may have

said in open court that you heard is struck from the record and you are not to

consider it in any way, shape or form." The judge then asked the jurors whether

there was "anything that happened this morning that would interfere with your



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                                      27
ability to be fair and impartial in this case and decide the case solely upon the

evidence that you heard in this courtroom." No hands were raised.

      On the following day, defendant blurted out, "I'd like to let the jury know

. . . [h]e's denying me my right to testify[,]" and that "[t]hey're denying me my

constitutional right . . . to testify." The judge ruled that defendant had waived

his right to be present in the courtroom.

      Defendant returned to the courtroom for sentencing, but after a profanity-

laced confrontation with one of Stacey's family members, was briefly escorted

to a separate room to watch a portion of the proceedings on Court Smart, and

was then allowed to re-enter the courtroom.

      An accused's Sixth Amendment rights to be present at every stage of the

trial and to confront the accusers is not absolute. State v. Luna, 193 N.J. 202,

210 (2007).

              [A] defendant can lose his right to be present at trial if,
              after he has been warned by the judge that he will be
              removed if he continues his disruptive behavior, he
              nevertheless insists on conducting himself in a manner
              so disorderly, disruptive, and disrespectful of the court
              that his trial cannot be carried on with him in the
              courtroom.

              [Illinois v. Allen, 397 U.S. 337, 343 (1970)].

Moreover,


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                                         28
               [i]t is essential to the proper administration of criminal
               justice that dignity, order, and decorum be the
               hallmarks of all court proceedings in our country. The
               flagrant disregard in the courtroom of elementary
               standards of proper conduct should not and cannot be
               tolerated. We believe trial judges confronted with
               disruptive,      contumacious,      stubbornly      defiant
               defendants must be given sufficient discretion to meet
               the circumstances of each case. No one formula for
               maintaining the appropriate courtroom atmosphere will
               be best in all situations. We think there are at least three
               constitutionally permissible ways for a trial judge to
               handle an obstreperous defendant . . . . : (1) bind and
               gag him, thereby keeping him present; (2) cite him for
               contempt; (3) take him out of the courtroom until he
               promises to conduct himself properly.

               [Id. at 343–44.]

      "Once lost, the right to be present can, of course, be reclaimed as soon as

the defendant is willing to conduct himself consistently with the decorum and

respect inherent in the concept of courts and judicial proceedings." Id. at 343.

Trial judges are afforded "sufficient discretion to meet the circumstances of each

case." Ibid.

      In State v. Reddy, 137 N.J. Super. 32, 36 (App. Div. 1975), we found no

abuse of discretion where the trial judge removed defendant from the courtroom

after he engaged in unruly behavior in an effort to disrupt and delay the

proceedings and was told that he could return "whenever he was willing to

comport himself with courtroom decorum."

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                                          29
      The facts in this case are even more compelling. Here, there was ample

evidence of defendant's disruptive and disrespectful conduct. The trial judge,

who displayed exceptional patience in dealing with defendant, conducted the

proceedings properly and in accord with Allen, 397 U.S. at 337. The judge gave

defendant every opportunity to be present. The judge gave defendant at least

seven explicit warnings that he would be removed from the courtroom if he

engaged in disruptive behavior, and permitted him to return to the courtroom on

at least four occasions after defendant agreed to comport himself properly.

Despite the numerous warnings, defendant continually engaged in disruptive

behavior resulting in the dismissal of the first jury panel, and ultimately resulting

in a loss of his right to be present in the courtroom. The judge did not abuse his

discretion; rather, he exercised it soundly.

                                        VI.

      In his final argument, defendant contends his sentence is excessive. We

find no merit in his argument.

      We review the sentence the trial judge has imposed under an abuse-of-

discretion standard. State v. Miller, 237 N.J. 15, 28 (2019). "[A]ppellate courts

are cautioned not to substitute their judgment for those of our sentencing courts."

Ibid. (alteration in original) (quoting State v. Case, 220 N.J. 49, 65 (2014)). For


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                                        30
that reason, appellate courts must affirm the sentence unless a trial court has

violated the sentencing guidelines, found aggravating or mitigating factors not

based on competent and credible evidence in the record, or has applied the

guidelines in such a manner as to "make[] the sentence clearly unreasonable so

as to shock the judicial conscience." Ibid. (quoting State v. Fuentes, 217 N.J.

57, 70 (2014)).

      The judge who sentenced defendant explained, in part:

                You found out where your wife was staying, where
            your children were staying, and you just set an ambush
            for them.

               In preparation, you gathered your guns, your
            ammunition, cash, packed a suitcase, and brought them
            with you to facilitate this massacre, this murder, and
            then you escaped from it.

                You approached your wife and two small children,
            armed to kill. You trapped her against this door and
            this banister and then, in the most brutal, cowardly,
            merciless way, you just continually shot her, over and
            over and over again.

               It's clear from the video, which is, you know,
            traumatizing to watch, you pulled out your first gun and
            while your terrified – terrified children were running
            for their lives, at close range, you fired bullet after
            bullet into this woman.

                The shots were fired were so close range you could
            see the poor woman's body just shaking from the force
            of the impact of the bullets, and you just kept doing it

                                                                       A-3140-15T3
                                      31
            over and over and over again, firing bullet after bullet
            into this poor, defenseless woman, until the gun was
            empty.

               And somehow she manages to stand up. Where she
            got the strength to do that after that, I don't know, but
            she managed to stand up and falls down the steps, and
            you calmly walk down the steps, stand over her, stand
            over the dying Stacey Ann, and pull out a gun and start
            shooting into this poor, defenseless woman over and
            over and over again. And then you calmly just walk
            down the street on your way.

                The brutality, the viciousness, the cold-bloodedness
            of this act, it's almost impossible to imagine or accept.
            It's hard even to come up with the words to describe the
            level of brutality and intensiveness of this.

                And all this done in – in front of your two small
            young children, with absolutely no regard for their
            well-being. These children are separate victims of
            separate criminal acts. This is something that they will
            have to deal with and will suffer from the rest of their
            lives.

      The record demonstrates the trial judge followed the sentencing guidelines

and based his decision concerning aggravating and mitigating factors on

competent and credible evidence in the record.       The judge also based his

imposition of consecutive sentences on adequate evidence on the record. State

v. Yarbough, 100 N.J. 627, 640-44 (1985).         The sentence falls within the

sentencing guidelines, is not clearly unreasonable, and does not shock the

judicial conscience. Accordingly, we affirm it.

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                                      32
      In short, the judge "exercise[d] discretion in accordance with the

principles set forth in [New Jersey's Code of Criminal Justice] and defined by

[the Supreme Court]," so we may not second-guess-[his] decision. State v.

Bieniek, 200 N.J. 601, 607-08 (2010) (internal quotations and citations).

      Affirmed.




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