                        NOT FOR PUBLICATION WITHOUT THE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-0840-16T2

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

SHABAR TAYLOR,

        Defendant-Appellant.


              Submitted March 7, 2018 – Decided June 12, 2018

              Before Judges Alvarez and Currier.

              On appeal from Superior Court of New Jersey,
              Law Division, Middlesex County, Indictment No.
              15-11-1379.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Stephen P. Hunter, Assistant
              Deputy Public Defender, of counsel and on the
              brief).

              Andrew C. Carey, Middlesex County Prosecutor,
              attorney for respondent (Brian D. Gillet,
              Deputy First Assistant Prosecutor, of counsel
              and on the brief).

PER CURIAM

        Tried by a jury, defendant Shabar Taylor was convicted of

second-degree        unlawful      possession      of   a    weapon,     N.J.S.A.
2C:39-5(b), and acquitted of second-degree possession of a weapon

for unlawful purposes, N.J.S.A. 2C:39-4(a).                 The trial judge

sentenced       defendant   on   September     6,   2016,     to    five     years

imprisonment subject to forty-two months of parole ineligibility.

See N.J.S.A. 2C:43-6(c).         We now affirm.

       We glean the following from the trial record.                On July 23,

2015,    A.N.    surreptitiously    let    defendant,   who    was     then     her

boyfriend, into her home.          At the time, A.N. was fifteen years

old.    As the two spoke in the kitchen, defendant pulled gloves and

a face mask out of his sweatshirt pocket while saying "this is

real.    This is what I'm about."         A.N. heard her younger cousin on

the stairs, sent her back upstairs, and turned around.                     She saw

defendant had placed a gun on the table.             He took something out

of the handle, and when he picked it up, the gun went off.

Defendant grabbed it and fled.

       A.N.'s mother awakened and ran downstairs.                   She smelled

gunpowder in the kitchen, and took both girls back into her

bedroom.    The Edison Police Department responded to her 911 call

within five minutes.

       Officer Joseph Palko was first to arrive at the scene.                     He

found a bullet groove on the kitchen table, a bullet hole in the

wall, and a .40 caliber bullet casing on the floor.                 A chair that

had been knocked over and the back had broken off.                 At trial, the

                                      2                                    A-0840-16T2
parties stipulated that defendant did not have a permit to purchase

or carry a firearm.     A.N. identified defendant as the person who

shot the gun.

      The   defense   argued   to   the   jury   that   the   matter   was

inadequately investigated.      This included the State's failure to

take into evidence for fingerprint analysis an empty bottle that

A.N.'s mother told the officers at the scene had been brought

there by the person with the gun.         The police did not obtain the

bullet, which would have matched the empty cartridge.

      A second officer who was at the scene testified on behalf of

the State, as did an evidence technician.        The lead investigative

officer, a Sergeant Abrams,1 did not testify.           Although defense

counsel referred to him during questioning, the court barred any

mention of his absence during closing statements.              The court

sustained the State's objection to the testimony on the basis of

State v. Clawans, 38 N.J. 162 (1962).         The judge found defendant

had not given the prosecutor any prior notice of his intention to

argue that the State's failure to call Abrams was because his

testimony would have been unfavorable.           Defense counsel argued

that his intent was only to argue that the State failed to meet

its burden by not calling that particular officer.             The judge



1
    His full name is not in the record.

                                    3                             A-0840-16T2
interpreted Clawans to mean that "there just can't be an inference

that he would have said something advantageous."            Accordingly, she

prevented defense counsel from mentioning the point further.

     In summation, defendant also argued that A.N. was motivated

by her desire for revenge because defendant had found another

girlfriend.     Trial    counsel     also    attacked       A.N.'s   mother's

truthfulness,   claiming   her   testimony     was    false    regarding     an

apologetic text from defendant, about which she never told police.

     During closing, the prosecutor mistakenly told the jury that

A.N.'s mother was unsure if she had told Abrams about the empty

bottle; in fact, she testified she had told them.             There was some

question as to whether defendant used his own cell phone when he

first called A.N. about visiting her that night, as opposed to a

call he made to her later, after the incident occurred.                      In

response to the argument that the discrepancy corroborated A.N.'s

untrustworthiness, the prosecutor said that it was possible that

defendant   simply   charged   his   phone   on   a   car     charger.     The

prosecutor also said that whether defendant hid the gun in A.N.'s

home or brought it there, was inconsequential because the point

was that he left with it. Additionally, the prosecutor incorrectly

said A.N. testified that defendant reached out for the gun and it

went off, "because when he popped the clip he forgot to take the

shell out of the chamber."

                                     4                                A-0840-16T2
     Defense counsel asked the judge to instruct the jury that

they were not to speculate, but the request was denied.   The court

responded that the prosecutor's comments merely urged the jury to

draw reasonable inferences from the evidence.      In its closing

charge, the trial court did instruct the jury that the attorneys'

comments were not evidence, and that the jury's recollection of

the evidence controlled.

     Now on appeal, defendant raises the following arguments:

          POINT I
          THE TRIAL COURT IMPROPERLY PRECLUDED DEFENSE
          COUNSEL UNDER STATE V. CLAWANS, 38 N.J. 162
          (1962), FROM ARGUING REASONABLE DOUBT BASED
          ON A LACK OF EVIDENCE IN SUMMATION.     THIS
          DENIED DEFENDANT HIS CONSTITUTIONAL RIGHT TO
          PRESENT A DEFENSE.    U.S. Const. Amend. VI,
          XIV; N.J. Const. Art. I, ¶¶ 1, 10.

          POINT II
          THE PROSECUTOR'S MISCONDUCT DENIED DEFENDANT
          A FAIR TRIAL. U.S. Const. Amend. XIV; N.J.
          Const. Art. I, ¶ 1.

                                I.

     In State v. Hill, 199 N.J. 545 (2009), the Court addressed a

similar claim to the one made here——that the State had failed to

call an essential witness and, as a result, defense counsel should

be entitled to argue to the jury in closing that it could draw an

adverse inference from the witnesses' absence.     Id. at 560-61.

The Court said a trial judge must make a "dispassionate assessment

of the circumstances to determine whether reference to an inference

                                5                           A-0840-16T2
in summation is warranted and, further, whether a jury instruction

should    be   injected   into    the   mix   of   the    parties'      arguments,

informing the jurors that they may draw such an inference from a

party's failure to call a witness."           Id. at 561 (citing Clawans,

38 N.J. at 172).

     In   order    to   draw   the   inference,     however,      more    must    be

demonstrated than the mere circumstance that a party fails to

"call a witness who has knowledge of relevant facts."                   Ibid.    The

determination requires "caution," and the trial court must decide

whether the absent witness is only within the power of one party,

whether they are available to that party both practically and

physically, that the "testimony of the uncalled witness will

elucidate relevant and critical facts in issue," and that the

testimony is "superior to that already utilized in respect to the

fact to be proven."       Ibid.

     In   this    case,   defendant     wanted     to    argue   that    the    lead

detective was not called because the State did not wish to draw

attention to its failure to investigate or to some other procedural

misconduct.      Additionally, defendant argues that even if he was

not entitled to a Clawans charge, his constitutional right to

present a defense was denied because he was prohibited from making

the point during summation.



                                        6                                  A-0840-16T2
     Defendant was not entitled to a Clawans charge.                    He did not

meet the conditions enunciated in Hill.             The lead detective was

as available to him as he was to the prosecutor.                  His testimony

would have been cumulative.     Defendant had no actual circumstance

he could proffer that was only available to Abrams.               Additionally,

no notice was given to the State that defendant intended to make

the argument.

     However, defendant reiterates on appeal that he did not

request a Clawans charge, but merely wanted to argue to the jury

that the detective may have testified favorably for the defense.

Defendant's contention that he merely wanted to refer to the

absence, and hypothesize from it that Abrams would have testified

favorably to him, is equivalent to asking the jury to draw an

unfavorable inference.      By doing so, defendant would have asked

the jury to speculate based solely on the detective's absence as

opposed   to   drawing   reasonable       inferences   from       the    evidence.

Accordingly, we find the trial judge did not err.

                                     II.

     To   warrant   reversal    of        a   conviction,     a    prosecutor's

statements must constitute a clear infraction and substantially

prejudice the defendant's fundamental right to have the jury fairly

evaluate the merits of his or her defense.          State v. Timmendequas,

161 N.J. 515, 575 (1999).    Furthermore, a prosecutor's remarks may

                                      7                                    A-0840-16T2
be harmless if they are only a response to remarks made by defense

counsel.     State v. Wakefield, 190 N.J. 397, 451, 457 (2007)

(citations omitted).

     There is no question that the prosecutor misspoke about the

bottle.    The point, however, is inconsequential in light of the

testimony of both A.N. and her mother.        Furthermore, the comment

was brief.

     The   prosecutor's   arguments     regarding    the   gun   were   only

intended to drive home the point that no matter where the gun was

located before defendant left, A.N. was not the one who left the

house with a gun.    This was fair comment.      A prosecutor is entitled

in summation to encourage the jury to draw reasonable inferences

from the evidence.     See State v. R.B., 183 N.J. 308, 330 (2005).

     Additionally, defendant objects to the prosecutor having

stated that perhaps defendant called A.N. from his own cell phone

later on because he charged his phone.           Although that certainly

was speculation, it is not so meaningful as to have had an impact

on the jury's decision.       See State v. Morton, 155 N.J. 383, 457

(1998).

     The objected-to statements do not add up to the type of

prosecutorial    misconduct     which    might      have   affected     jury

deliberations and their final verdict.        No prejudicial error was

committed by the State in summation.

                                   8                                A-0840-16T2
Affirmed.




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