                                NOT FOR PUBLICATION WITHOUT THE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




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NOS. A-3393-14T3
                                                                    A-4789-14T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JOEY J. FOWLER, a/k/a JOEY
WILLIAMS, SHAQUAN WILLIAMS,
SHAQUAN HARRIS, and JOEY
FLOWER; and JAMIL L. HEARNS,
a/k/a KHALIL HEARNS, JAY L. LOVE,
JAYSON LOVE, JAMES HOLMES,
and JAMEEL HEARNS,

          Defendants-Appellants.


                   Argued (A-3393-14) and Submitted (A-4789-14)
                   November 29, 2017 – Decided March 8, 2018.
                   Remanded by Supreme Court July 30, 2019.
                   Resubmitted March 12, 2020 – Decided July 13, 2020

                   Before Judges Alvarez and Suter.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Union County, Indictment No. 11-08-0827.
            Joseph E. Krakora, Public Defender, attorney for
            appellant Joey J. Fowler (Marcia H. Blum, Assistant
            Deputy Public Defender, of counsel and on the briefs).

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

            Lyndsay V. Ruotolo, Acting Union County Prosecutor,
            attorney for respondent (Milton Samuel Leibowitz,
            Special Deputy Attorney General/Acting Assistant
            Prosecutor, of counsel and on the briefs).

            Appellants filed pro se supplemental briefs.

PER CURIAM

      The New Jersey Supreme Court remanded the matter for this court to

address defendants Joey J. Fowler's and Jamil Hearns's remaining issues on

appeal. Our prior reversal and remand to the Law Division for a new trial was

itself reversed by the Court's decision. State v. Fowler, 239 N.J. 171 (2019).

Both defendants raised numerous additional points of error, none of which have

merit. Therefore, we affirm the convictions and sentences.

      Although we consolidate the matters for decision, with two exceptions,

the points are addressed separately.       Those exceptions are the arguments

regarding the testimony of Algere Jones, a witness at the trial, and sentencing.




                                                                         A-3393-14T3
                                       2
                                       I.

      Only Hearns testified. At the time of the shooting, Hearns owed Jones

$5000. Hearns said that on that night, he offered Jones partial repayment, which

Jones rejected. The men were standing outside of a bar with Donnell Johnson,

the victim, who was Jones's cousin. According to Hearns, Johnson tried to

convince Jones to accept the partial payment. Hearns alleged Jones pulled a gun

out of his waistband and pointed it at Hearns; he then struggled with Jones over

control of the gun, and the gun went off with two bullets striking Johnson. He

and Fowler fled. Johnson died two days later from his wounds.

      The State's witnesses testified to the contrary. There was bad blood

between Fowler and Johnson, arising from Johnson's alleged prior assault and

carjacking of Fowler. Fowler had reported the attack to the police.

      Jones testified to the contrary, stating that on the evening of March 4,

2011, he, the victim, and some others went to a nightclub. An hour or two later,

Jones left to visit a friend. He returned to the area and waited for Johnson to

leave the club. As Johnson walked towards Jones's car, Jones pulled alongside,

and as the two men spoke through the open passenger window, Jones noticed a

shadow approaching. The person was wearing a dark-colored hoodie, but Jones




                                                                        A-3393-14T3
                                       3
was able to see the person's face. He recognized Hearns, whom he had known

since childhood.

      Jones heard gunshots, Johnson ran down the street, and Jones followed

him. Johnson eventually got in the car and Jones drove him to the hospital where

he died two days later from his bullet wounds.

      Off-duty officers heard the sounds of shooting, as did uniformed officers

posted nearby. Detective James Malone, Jr., drove to the area and saw a man,

later identified as Hearns, running down the street while wearing a black hooded

sweat jacket and holding something in his right hand. Hearns got into a small

silver Infiniti. Fowler had been standing by the driver's side door, and once

Hearns got into the car, he immediately pulled away from the curb. Malone

drove past and cut off the car, forcing it to stop. As Malone approached the

front of the car, he saw Hearns reaching towards the back with his right hand.

Malone then ran towards the passenger side and saw Hearns place a gun on the

center tray between the two rear passengers. Malone yelled for the occupants

to put their hands up in the air, which they did with the exception of Hearns,

who kept trying to exit the car while Malone held and kicked the door shut.

Other officers who immediately arrived seized the occupants of the vehicle as

well as the gun.


                                                                        A-3393-14T3
                                       4
      The Union County Chief Medical Examiner testified the cause of death

was a gunshot wound to Johnson's back and left thigh. The State's expert in

firearms forensic identification opined that the handgun taken from the vehicle

was operable, and bullets fired from it matched those taken from Johnson's body.

The State also presented surveillance video depicting the victim outside the bar

near Fowler.

      Jones initially denied knowing anything about the shooting, even denying

taking Johnson to the hospital. When he finally came forward, he did so as part

of a plea agreement, hoping it would save him time in prison on his federal

matter.

      While Jones was testifying, he said he and defendant met when they "had

been - we were incar–[.]" The judge immediately interrupted. Defense counsel

made a motion for a mistrial, then immediately withdrew it. The court declined

to grant a mistrial sua sponte, and instructed the jury to totally disregard Jones's

volunteered statement.

      Through its witnesses, the State proffered that there was bad blood

between Johnson and Fowler arising from the carjacking. Fowler's sister was

called by the State, but denied having previously told police that defendant had

said to her that he did not know what he would do if he saw Johnson before the


                                                                            A-3393-14T3
                                         5
police arrested him. To rebut her denial, the prosecution proffered a video of

Fowler's sister making that statement.

      After Hearns testified, the State on rebuttal presented Tywan Cobb. He

said he had spoken to Hearns over a couple of months, during which time,

Hearns admitted he was carrying a weapon that night intending to shoot

someone, and intended to claim that there had been a "tussle" over money, even

though none had occurred.      Cobb also acknowledged that he had charges

pending, and that he testified regarding Hearns's statement as part of his plea

agreement with the State.

      The trial judge did not allow Fowler's attorney to cross-examine Jones

about statements allegedly made by Johnson to Jones that although he and

Fowler had previously had a conflict, that they had seen each other that evening

and "patched things up." Counsel argued it was admissible hearsay under

N.J.R.E. 803(c)(3).

      The jury convicted Fowler and Hearns of first-degree murder, N.J.S.A.

2C:11-3(a)(1) (count one); second-degree unlawful possession of a weapon,

N.J.S.A. 2C:39-5(b) (count two); and second-degree possession of a weapon for

an unlawful purpose, N.J.S.A. 2C:39-4(a) (count three). Additionally, Hearns

was charged in count four of the indictment with hindering, N.J.S.A.


                                                                        A-3393-14T3
                                         6
2C:29-3(b)(4). Both defendants were sentenced on the same date, December 19,

2014.     Fowler, charged as an accomplice, was sentenced to fifty years

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

Hearns was sentenced to forty-five years subject to NERA. The State agrees

with the defendants that their conviction for possession of a weapon for an

unlawful purpose should be merged with the murder count.

                                        II.

        On appeal, Fowler raises the following points in the counseled brief:

              POINT I
              THE COURT ERRED IN REFUSING TO INSTRUCT
              ON SELF-DEFENSE AND ACCIDENT DESPITE ITS
              ACKNOWLEDGMENT          THAT        THE
              CODEFENDANT TESTIFIED THAT THE VICTIM
              WAS SHOT BY ACCIDENT IN THE COURSE OF
              THE CODEFENDANT'S ATTEMPT TO DEFEND
              HIMSELF.

              POINT II
              THE COURT ERRED IN REFUSING TO ALLOW
              DEFENDANT TO CROSS-EXAMINE ALGERE
              JONES IN ORDER TO REBUT THE STATE'S
              MOTIVE EVIDENCE.

              POINT III
              THE COURT ERRED IN FAILING TO GIVE A
              COOPERATING-WITNESS INSTRUCTION WITH
              RESPECT TO ALGERE JONES.




                                                                          A-3393-14T3
                                         7
      POINT IV
      THE COURT ERRED IN DENYING THE MOTION
      FOR A NEW TRIAL AFTER THE JURY HEARD
      TESTIMONY    THAT    DEFENDANT   HAD
      PREVIOUSLY BEEN INCARCERATED.

      POINT V
      THE CONVICTION FOR POSSESSION OF A GUN
      FOR AN UNLAWFUL PURPOSE SHOULD HAVE
      MERGED WITH THE MURDER.

      POINT VI
      THE 50-YEAR TERM IMPOSED ON DEFENDANT,
      WHO WAS CHARGED AS AN ACCOMPLICE, IS
      FIVE YEARS GREATER THAN THE SENTENCE
      IMPOSED ON THE CODEFENDANT, WHO WAS
      THE PRINCIPAL, AND IS EXCESSIVE.

In his uncounseled brief, Fowler states the following:

      POINT I:
      THE    TRIAL  COURT    PREJUDICED    THE
      DEFENDANT BY REFUSING TO INSTRUCT ON
      SELF DEFENSE TO THE JURY. BY SUCH ERROR,
      THE DEFENDANT WAS DEPRIVED OF HIS RIGHT
      OF A FAIR TRIAL, BECAUSE THE RECORD
      REVEALS SEVERAL TESTIMONIES AT TRIAL
      ONLY ATTRIBUTED TO CO-DEFENDANT'S
      LIABILITY OF ACTS IN SELF DEFENSE
      REQUIRING REVERSAL OF THE CONVICTION.

      POINT II:
      APPELLANT MOVES FOR A REMAND TO THE
      TRIAL     COURT,     TESTIMONY     ABOUT
      DEFENDANT'S      PRIOR     INCARCERATION
      PREJUDICED HIS RIGHT TO A FAIR TRIAL.



                                                         A-3393-14T3
                                 8
      POINT III:
      APPELLANT MOVES FOR A REMAND TO THE
      TRIAL COURT, THE TESTIMONY OF TYWAN
      COBB       UNFAIRLY PREJUDICED  THE
      DEFENDANT.

      POINT IV:
      APPELLANT MOVES FOR A REMAND, THE
      TESTIMONY OF ALGERE JONES WAS RES
      GESTAE EVIDENCE IN NATURE, AND SHOULD
      HAVE BEEN ALLOWED UNDER N.J.R.E. 803(c)(3),
      TO DEFEAT THE STATE'S THEORY ON MOTIVE,
      WITH THE FACTS, THEREFORE DEFENDANT AT
      LOWER COURT WAS DEPRIVED OF A FAIR
      TRIAL.

      POINT V:
      APPELLANT MOVES FOR A REMAND TO THE
      TRIAL COURT TO CONDUCT A GROSS HEARING
      SINCE THE CREDIBILITY OF A WITNESS
      CLEARLY AND CONVINCINGLY CONSTITUTES
      A DENIAL OF JUSTICE, MOTIVATED REQUIRES
      [sic] CONVICTION BE OVERTURNED AND
      VACATED DUE TO AN UNFAIR TRIAL WHICH
      VIOLATES           DEFENDANT'S          RIGHTS
      GUARANTEED BY THE U.S. CONST. AMENDS V
      & XIV, § 1; N.J. CONST. ART. I, PAR. 1.

Hearns raises the following points:

      Point 1
      The trial court erred in denying defendant's request to
      charge self-defense, and in failing to sua sponte charge
      aggravated and reckless manslaughter as lesser
      included offenses to murder; the trial court erred in
      denying defendant's motion for a new trial on this
      ground.


                                                                 A-3393-14T3
                                 9
      Point 2
      The trial court erred in denying defendant's motion to
      dismiss the indictment because of violation of his
      speedy trial right.

      Point 3
      The trial court erred in not granting severance during
      trial, sua sponte, or in not granting defendant Hearns a
      new trial on this ground.

      Point 4
      Reference to the co-defendant Fowler's prior
      incarceration caused an unfair trial for both defendants
      during the joint trial below.

      Point 5
      Defendant's right to remain silent was violated.

      Point 6
      The prosecutor placed improper hearsay before the jury
      that violated defendant's state and federal right to
      confront the witnesses against him.

      Point 7
      An unfair trial was caused by the trial judge telling the
      jury that a State witness was incarcerated and being
      brought over from prison to testify.

      Point 8
      Defendant's sentence is improper and excessive.

In his uncounseled brief, Hearns adds the following:

      Point I
      The Incentivized Witnesses/Informants Used In The
      Case At Bar Illegally Contributed To Appellant[']s
      Fundamental Wrongful Conviction Where The Prior
      Inconsistent Statements Exposed The Credibility Of

                                                                  A-3393-14T3
                                10
            These Individuals      Nor      Was   There   Substantive
            Evidence.

            Point II
            The Prosecutor's Failure To Inform The Defense Of
            The Exact Inducement Rewards Amounted To
            Withholding Of Exculpatory Evidence.

            Point III
            The Informants/Witnesses Was Unreliable As Jail
            House State Agents And Federal Agents Whom The
            Prosecutor Knew Would Hinder Appellant's
            Confrontation And Cross Examination Clause Rights
            Contrary To Appellant's U.S. Const. 14Th [sic] Amend.
            And 6th Amend. Rights, and N.J. Const. Art. I Para. 10
            Rights Being Guarded As Protected.

                                         III.

      We review issues not raised at trial under a plain error standard. R. 2:10-2.

This means we reverse where the error was "clearly capable of producing an

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

      Absent a clear abuse of discretion, we uphold evidentiary decisions of the

trial court. State v. Gorthy, 226 N.J. 516, 539 (2016). We disturb those rulings

only when so wide of the mark as to result in a manifest denial of justice. Griffin

v. City of E. Orange, 225 N.J. 400, 413 (2016) (quoting Green v. N.J. Mfrs. Ins.

Co., 160 N.J. 480, 492 (1999)).




                                                                           A-3393-14T3
                                       11
                          A. JONES'S TESTIMONY

      Hearns contends that unfair prejudice was caused by the jury hearing

Jones testify while wearing jail clothes, and by the judge's reference to the fact

that Jones was being brought over from the jail. In this case, contrary to the

more commonplace situation, Jones was being called, not as a defense witness,

but as a State's witness. If anything, his jail garb and the judge's passing

comment undermined his credibility, to defendants' benefit. We consider the

point to lack such merit as to warrant discussion in a written opinion. R.

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

      Fowler contends that the court erred in refusing to allow counsel to cross-

examine Jones in order to refute the State's motive evidence. N.J.R.E. 803(c)(3)

frames exceptions to the hearsay rule for a declarant's statement about his state

of mind. But:

            [a] deceased victim's then-existing state of mind
            cannot directly prove a defendant's motive; the state-
            of-mind exception to the hearsay rule does not
            permit imputation of a defendant's state of mind out of
            no more than a deceased person's feelings about that
            defendant. That is to say, subject to certain exceptions,
            a fact probative of the victim's state of mind, standing
            alone, does not tend to prove any material fact about a
            defendant's conduct or state of mind.

            [State v. Calleia, 206 N.J. 274, 291-92 (2011).]


                                                                          A-3393-14T3
                                       12
The state of mind exception should be construed narrowly, and the focus is

whether the declarant's state of mind is directly relevant to the issues at trial.

State v. McLaughlin, 205 N.J. 185, 189 (2011).

      In this case, the victim's state of mind was not relevant to any issue.

Counsel argued in support of admission that decedent's state of mind was

relevant in order to explain Johnson's presence at the nightclub where the killing

occurred. However, the judge ruled that the state of mind was not pertinent

because motive was at issue, not presence. Thus, the judge sustained the State's

objection.

      Even if offered to depict the victim's state of mind—the argument now

raised—the alleged statement was not relevant on the issue of whether or not the

killing, as observed by an eyewitness, occurred. Furthermore, even if the victim

thought the conflict had ended, that did not mean that the shooting did not occur

and that Fowler had reconciled with Johnson.          The statement was being

proffered to establish defendant's state of mind without him testifying.

      Fowler's brief also argues that the judge did not give the jury a cooperating

witness instruction. The record does not support the claim, however.

      The judge gave an instruction, which closely followed the model jury

charge, to the effect that the jury should "give[] the testimony of such witness


                                                                           A-3393-14T3
                                       13
careful scrutiny."    See Model Jury Charge (Criminal), "Testimony of a

Cooperating Co-Defendant or Witness" (rev. Feb. 6, 2006). The argument does

not require further discussion. R. 2:11-3(e)(2).

      With regard to Jones's fleeting comment on direct examination, Jones said

he met Fowler when "we were incar[.]" The judge stopped him from completing

the sentence. The judge immediately gave a limiting instruction, directing the

jury that not only should they disregard what they heard, but that "it is stipulated

between the parties in this case that the witness and . . . Fowler knew each other

from the neighborhood." Given the brevity of the comment, and the judge's

prompt curative instruction, no prejudice occurred. No further discussion is

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

                                  B. FOWLER

      In his uncounseled brief, Fowler contends that Cobb's testimony

prejudiced him because the witness used the plural tense, implying that more

than one person was involved in the shooting. Cobb was called as a rebuttal

witness, and testified only as to the statements made to him by Hearns.

      The court charged the jury, however, that when deliberating the statement

should be used only as to Hearns. A jury is presumed to follow a judge 's




                                                                            A-3393-14T3
                                        14
instructions. State v. Burns, 192 N.J. 312, 335 (2007). The point does not

warrant further discussion. R. 2:11-3(e)(2).

      Fowler also contends that a Gross hearing should have been conducted

before a video of his sister's recorded statement to the police was played for the

jury. She said in a recorded interview with police that Fowler told her he did

not know what he would do if the perpetrators of the carjacking were not found

but unequivocally denied making the statement while testifying during the

trial. However, a Gross hearing is required only when a prior inconsistent

statement is sought to be admitted for its substantive value. See State v. Gross,

121 N.J. 1, 8-9 (1990). In this case, as the trial judge correctly stated, the

purpose of the video was to impeach the sister's credibility as a witness, not for

its substantive value. Therefore, the judge did not err in denying defendant's

motion. The judge instructed the jury before they viewed the video that they

could only consider it for credibility purposes, not for its substance. No further

discussion is warranted. R. 2:11-3(e)(2).

                                  C. HEARNS

      Hearns contends his right to a speedy trial was not honored. A defendant

has a fundamental right to a speedy trial guaranteed both under the United States

Constitution and the New Jersey Constitution. Whether the right to speedy trial


                                                                          A-3393-14T3
                                       15
has been violated is guided by four factors: "the length of the delay, the reasons

for the delay, whether the defendant asserted his right to speedy trial, and any

prejudice to the defendant occasioned by the delay." State v. Farrell, 320 N.J.

Super. 425, 449-450 (App. Div. 1999). As to the length of delay, we consider

whether the delay beyond New Jersey's sixty-day goal was excessive. See State

v. Tsetsekas, 411 N.J. Super. 1, 11 (App. Div. 2009). Delays that are reasonably

explained will be considered less consequential than those without reasonable

justification. See Farrell, 320 N.J. Super. at 449-50. Courts also examine the

timing of a defendant's assertion of his speedy trial rights. See State v. Fulford,

349 N.J. Super. 183, 193 (App. Div. 2002). Finally, prejudice to the defendant

can include a host of considerations, including, for example, loss of

employment. Tsetsekas, 411 N.J. Super. at 13.

      Defendant was arrested March 5, 2011. The trial court denied defendant's

June 11, 2013 speedy trial motion, finding that a two-year delay in a multi-

defendant murder trial was not unusual. When the trial date was set at June 3,

2013, the court was unable to proceed. The next available date was September

20, 2013, but the court again had to reschedule the matter. The trial did not

begin until May 12, 2014. Conference dates were adjourned at the request of

defense counsel on at least three separate occasions, once at the request of the


                                                                           A-3393-14T3
                                       16
State. Significant delays were caused by pretrial motions necessary for the fair

disposition of the matter. Thus, the delay was not caused by the State. Although

prejudice is presumed when there is a delay, defendant did not specifically

identify any resulting prejudice. Thus, the delay did not warrant dismissal of

the complaint because it was reasonable and no specific prejudice resulted from

it.

      A determination by a trial judge on a defendant's application for dismissal

of an indictment due to speedy trial considerations is not overturned unless

clearly erroneous. See State v. Marino, 153 N.J. Super. 12, 17 (App. Div. 1977).

It was not clearly erroneous in this case, or even erroneous at all.

      Next, Hearns contends that the court erred in not sua sponte severing the

trials, and not granting Hearns's motion for a new trial on that basis. A trial

judge's decision denying a motion for a new trial is not reversed unless it clearly

appears that there was a miscarriage of justice under the law. R. 2:10-2. In

deciding whether such a miscarriage occurred, we defer to the trial court with

respect to those "intangible aspects" only the trial court can know such as

credibility, demeanor, and "feel of the case." Carrino v. Novotny, 78 N.J. 355,

360 n.2 (1979).     Otherwise, we make an independent determination as to

whether a miscarriage of justice occurred. Ibid. "The decision on whether to


                                                                           A-3393-14T3
                                       17
grant a severance generally 'rests within the trial court's sound discretion and is

entitled to great deference on appeal.'" State v. Lado, 275 N.J. Super. 140, 149

(App. Div. 1994) (quoting State v. Brown, 118 N.J. 595, 603 (1990)).

      Under Rule 3:7-7, "[t]wo or more defendants may be charged in the same

indictment . . . if they are alleged to have participated in the same act . . .

constituting an offense or offenses." There is a "preference to try co-defendants

jointly." State v. Robinson, 253 N.J. Super. 346, 364 (App. Div. 1992). Where

"much of the same evidence is needed to prosecute each defendant, a joint trial

is preferable." State v. Sanchez, 143 N.J. 273, 281 (1996) (quoting State v.

Brown, 118 N.J. 595, 605 (1990)). Joint trials foster an efficient judicial system,

spare witnesses and victims the inconvenience and trauma of testifying about

the same events more than once, serve the interests of justice by avoiding the

scandal and inequity of inconsistent verdicts, and allow for a more accurate

assessment of relative culpability, which sometimes operates to a defendant's

benefit. See id. at 282.

      However, the interest in judicial economy is not unchecked as Rule 3:15-2

provides an avenue for separate trials where defendants may be prejudiced by

being tried jointly:

             If for any other reason it appears that a defendant or the
             State is prejudiced by a permissible or mandatory

                                                                           A-3393-14T3
                                        18
            joinder of offenses or of defendants in an indictment or
            accusation the court may order an election or separate
            trials of counts, grant a severance of defendants, or
            direct other appropriate relief.

            [R. 3:15-2(b).]

In determining whether severance is appropriate,

            the trial court must focus on the substance and quality
            of the proffered testimony, and attempt to ascertain the
            testimony's exculpatory value. The court should
            distinguish between credible, substantially exculpatory
            testimony and testimony that is insignificant, subject to
            damaging impeachment, or unduly vague, conclusory,
            or cumulative. Where the testimony rendered
            unavailable by a joint trial is not substantially
            exculpatory, a defendant has not suffered cognizable
            prejudice for the purpose of Rule 3:15-2(b). Where,
            however, the proffered testimony is likely to be
            significantly exculpatory, denying the defendant's
            severance motion could be highly prejudicial to the
            defendant, and potentially could lead to the conviction
            of an innocent person.

            [Sanchez, at 291].

      There was no error committed here by the trial judge in failing to sua

sponte order separate trials. Hearns did not demonstrate specific prejudice

arising from the joint trial. Although Hearns argued that he was not able to

demonstrate his lack of motive to harm the victim in general terms, he did not

and does not advance a single instance where as a matter of strategy or for some



                                                                        A-3393-14T3
                                      19
other reason he could have taken a different approach during the course of a

separate trial.

      Hearns fully cross-examined the State's witnesses, even with regard to the

incident that led to Fowler's complaint to police about the carjacking. That

testimony highlighted that Hearns was uninvolved in the incident. Given that

Hearns cannot identify how he was prejudiced, other than making a general

argument based on speculation, he has not demonstrated that a miscarriage of

justice occurred. No new trial should have been granted on that basis. There

was no miscarriage of justice. The argument lacks merit.

      Issues not raised at trial, as we have said, are reviewed under a plain error

standard. R. 2:10-2. Such decisions are reversed only if the error was clearly

capable of producing an unjust result.

      Now on appeal, Hearns argues that his Fifth Amendment right to remain

silent was violated when the prosecutor asked a detective, after playing the video

of Hearns's interview, "does defendant Hearns invoke his Fifth Amendment

right at that point?" The officer answered "yes," and the prosecutor goes on to

ask, "and you are no longer talking to him?" and he answered "correct." Defense

counsel did not object. No reference was made to the testimony thereafter.




                                                                           A-3393-14T3
                                         20
      Obviously, the tape could have been ended without explanation. But, that

defense counsel did not object at the time demonstrates that the comment was

perceived as fleeting and innocuous. See State v. Timmendequas, 161 N.J. 515,

576 (1999). Had defendant objected, obviously, the court could have provided

a curative instruction, advising the jury to disregard it. This unobjected-to

testimony, in light of the other evidence presented, could not have alone

prejudiced defendant's right to a fair trial. State v. Cain, 224 N.J. 410, 432

(2016). Furthermore, even if error, it was harmless in light of the other proofs

presented, which included eyewitness testimony.

      Next, defendant contends that the court erred by allowing the medical

examiner to testify based on another doctor's autopsy report and accompanying

photographs. This argument is also reviewed employing plain error analysis, as

no objection was made at the time.

      An expert need not personally examine the subject matter before

providing an opinion.     See State v. D.R.H., 127 N.J. 249, 264 (1992).

Additionally, the New Jersey Supreme Court has recently determined that a

substitute medical examiner can testify as an expert regarding the results of an

autopsy. State v. Bass, 224 N.J. 285, 291-92 (2016).




                                                                        A-3393-14T3
                                      21
      The testifying expert witness here reached an independent opinion within

a reasonable degree of medical certainty regarding the cause of death. He

explained his findings, providing information about the wounds caused by the

bullet, as well as his basis for the conclusion. His analysis was based on the

work of another, yet his ultimate opinion was founded on his independent

examination of the evidence.

      Thus, as established in Bass:

            [T]he State may present the testimony of a qualified
            expert who has conducted independent observation and
            analysis regarding an autopsy conducted by a medical
            examiner who is unavailable to testify at trial, without
            violating the defendant's confrontation rights under
            the Sixth Amendment of the United States
            Constitution and Article I, Paragraph 10 of the New
            Jersey Constitution.

            [Ibid.]

Hearns's right to confrontation was not violated.

      In his uncounseled brief, Hearns contends that both Cobb's and Jones's

testimony should have been excluded because the testimony was "incentivized."

Defense counsel was not informed "of the exact inducement rewards" which

meant exculpatory evidence was withheld, and that the inherent unreliability of

the testimony because these were informants meant their testimony should have

been excluded. The arguments have no support in the law. Overall, we consider

                                                                       A-3393-14T3
                                      22
them to be so lacking in merit as to not warrant discussion in a written opinion.

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

               D. SENTENCING AS TO BOTH DEFENDANTS

      We review criminal sentences with an eye towards whether there is a clear

showing that an abuse of discretion has occurred. State v. Bolvito, 217 N.J. 221,

228 (2014). We affirm the sentence of a trial court unless "(1) the sentencing

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

were not 'based upon competent credible evidence in the record;' or (3) 'the

application of the guidelines to the facts' of the case 'shock[s] the judicial

conscience.'" Ibid. (alteration in original).

      Furthermore, a sentencing court is required to weigh aggravating and

mitigating factors as set forth in the statute. See N.J.S.A. 2C:44-1(a) and (b).

Trial judges must explain how they arrive at a particular sentence employing

that analysis. State v. Case, 220 N.J. 49, 65 (2014). This trial judge qualitatively

assessed the statutory factors. See State v. Fuentes, 217 N.J. 57, 72 (2014).

      As to Fowler, the judge found aggravating factor three, defendant's risk of

reoffense; six, the seriousness and extent of his prior criminal record; and nine,

the need to deter him and others. N.J.S.A. 2C:44-1(a)(3), (6), and (9). The

judge found no mitigating factors. He anchored his conclusions on Fowler's


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extensive prior criminal history, including an aggravated arson, aggravated

assault, disarming a law enforcement officer, contempt, certain persons not to

possess a handgun, drug charges, and a history of violations of parole.

Additionally, he said, "This was basically the ordering of an execution over a

beef over a car."    The trial judge carefully analyzed the statutory factors,

assessing the weight of each in a manner supported by the record. Given

Fowler's prior criminal history and the nature of this offense, his sentence to

fifty years subject to NERA does not shock our conscience. Nor given his role

in the homicide, does it appear unfairly disproportionate when compare d with

Hearns's forty-five-year sentence.

      In similar fashion, the judge carefully reviewed Hearns's prior criminal

history. He found in that case aggravating factor three, defendant's risk of re-

offense; aggravating factor six, the seriousness of his prior criminal history; and

aggravating factor nine, the need to deter him and others, and no mitigating

factors. N.J.S.A. 2C:44-1(a)(3), (6), and (9). Hearns was the shooter. The judge

supported his findings based on his prior criminal history of three counts of

robbery, weapons offenses, a burglary, drug distribution, and resisting arrest.

Although Hearns had family, and requested that mitigating factor eleven be

found, there was nothing about the circumstances that made his situation any


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different from that of any other defendant who has children. All suffer a tragic

loss because of the imprisonment of a loved one. The judge carefully and

thoughtfully analyzed the relevant factors as to this defendant as well. Our

conscience is not shocked by the sentence.

      Affirmed.




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