                                NOT FOR PUBLICATION WITHOUT THE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-1135-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

LAMAR HUNT,

     Defendant-Appellant.
_______________________________

                    Argued January 29, 2020 – Decided April 28, 2020

                    Before Judges Whipple, Gooden Brown, and Mawla.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Essex County, Indictment No. 16-02-0414.

                    Kelly Anderson Smith argued the cause for appellant.

                    Caroline C. Galda, Special Deputy Attorney
                    General/Acting Assistant Prosecutor, argued the cause
                    for respondent (Theodore N. Stephens II, Acting Essex
                    County Prosecutor, attorney; Caroline C. Galda, of
                    counsel and on the brief).

PER CURIAM
      Defendant Lamar Hunt appeals from his July 26, 2017 judgment of

conviction for first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2), and two

second-degree weapons possession offenses, N.J.S.A. 2C:39-5(b) and 4(a),

following a five-day jury trial and the denial of his subsequent motion for a new

trial. We affirm.

      Defendant raises the following arguments on appeal.

            POINT I.

            THE TRIAL COURT ERRED IN FAILING TO
            SUPPRESS DEFENDANT'S STATEMENT. (Raised
            Below)

            POINT II.

            THE TRIAL COURT FAILED TO SUPPRESS
            IMPROPER, HIGHLY PREJUDICIAL [N.J.R.E.]
            404(B) EVIDENCE. (Raised Below)

            A. The Inclusion of Inflammatory Details Regarding an
            Unrelated Incident Served No Purpose But to Prejudice
            Jurors; Denying Defendant a Fair Trial.

            POINT III.

            THE TRIAL COURT'S INSUFFICIENT AND
            IMPROPER INSTRUCTIONS AND JURY CHARGES
            DENIED DEFENDANT A FAIR AND IMPARTIAL
            TRIAL. (Partially Raised Below)

            A. The Court Failed to Charge the Lesser Included
            Offenses of Aggravated Manslaughter and Passion
            Provocation.

                                                                         A-1135-17T4
                                       2
            B. Defendant was further Prejudiced and Suffered
            Irreparable Harm When the Trial Court Failed to
            Provide the Jury with Limiting Instructions or Charge
            Regarding Prior Bad Act Testimony.

            POINT IV.

            THE CUMULATIVE ERRORS COMMITTED BY
            THE TRIAL COURT DENIED DEFENDANT A FAIR
            TRIAL AND RESULTED IN A MANIFEST
            INJUSTICE. (Partially Raised Below)

      We glean the following facts from the trial record. Defendant and H.H. 1

were at a bar in Union Township on June 21, 2015. In a videotaped statement

to police, H.H. stated that while at the bar, defendant saw her talking to a

bouncer and made her leave with him in his vehicle. He then kicked her

repeatedly in the face and stripped her down to her underwear as she tried to

escape the vehicle. 2 H.H. stated that she set off a nearby car alarm which

allowed her to escape as it startled defendant. Defendant drove away with H.H.'s

purse and cell phone. Union Police found H.H., naked and bleeding, running




1
  Because H.H. was a victim of domestic violence we use initials to protect her
privacy. Rule 1:38-3(c)(9).
2
  During the trial, H.H. recanted her prior statement and testified she was drunk
and fell and defendant did not assault her. After a State v. Gross, 121 N.J. 1
(1990) hearing, the judge played H.H.'s videotaped statement to the jury.


                                                                         A-1135-17T4
                                       3
down the street and took her to the hospital where she was sedated and stayed

overnight before giving a report to Union Police the next morning.

      After driving away from H.H. in Union, defendant called Krystal Waller,

another woman he was dating, and asked her to pick him up. Waller drove her

mother's white Lexus, picked up defendant, and they proceeded to the White

Castle in Irvington. H.H.'s phone was used to send numerous texts to lure

Tavaris Payne, a man with whom H.H. had previously exchanged text messages,

to the White Castle in Irvington under the guise that he was meeting H.H. Payne

talked to his girlfriend on his phone while he waited at White Castle. Defendant

arrived in the white Lexus shortly after midnight. Video surveillance of the

scene showed a man exit a white Lexus and approach Payne. Payne was shot in

the leg and throat. Payne then stumbled across the street, collapsed, and died.

A passerby found Payne and called the police.

      No suspects were arrested at the scene, however, because she feared her

mother's car would appear in surveillance video, Waller called a tip line and

alerted police about their proximity to the crime scene. She later admitted seeing

defendant texting while she drove him to White Castle. Payne was murdered

approximately ninety minutes after H.H. was assaulted.




                                                                          A-1135-17T4
                                        4
       Cell tower records placed H.H.'s phone in the same location as

defendant's. Records revealed the timing was after H.H. was beaten, and en

route to the hospital. H.H.'s description of her attacker matched a man police

saw on video surveillance at the White Castle. The FBI Fugitive Task Force

apprehended defendant on August 5, 2015.

       While being interviewed at the Essex County Prosecutor's office,

defendant was advised of his Miranda3 rights and spoke with police. Detective

Murad Muhammad took defendant's statements regarding the shooting.

Defendant was shown photographs, including still photos of the victim and the

shooter. He was questioned about the photographs and asked to sign and date

them. The following conversation occurred:

             Defendant: Well why, why sign - - what for - - I mean,
             like - -

             Detective: No, no, no, I say you sign - - it's like I'm not
             switching no photographs or nothing like that. It's just
             that these are the photos that I showed you during this
             interview on this date.

             Defendant: Oh, okay.

             Detective: Okay? I want you to sign them.

             Defendant: Well, I don't - - I mean, - -


3
    Miranda v. Arizona, 384 U.S. 436 (1996).
                                                                           A-1135-17T4
                                         5
Detective: If you don't want to sign them, you don't
have to.

Defendant: I don't want to sign them, I don't. I mean, I
believe my lawyer, she probably going to say I
shouldn't have even spoke to you at all because I don't
- - I'd be like I signed some pictures and then - -

Detective: No, okay, all right. Did - - all right. I read
you your constitutional rights.

Defendant: Yes.

Detective: You said you that you wanted to talk to us,
correct?

Defendant: Yeah.

Detective: Okay, and you provided me this statement,
right?

Defendant: Yeah.

Detective: Okay. Voluntarily.

Defendant: Yeah, correct.

Detective: Okay. I, I - -

Defendant: No, I, I - -

Detective: - - you don't break no promises, I didn't
threaten you with prom - -

Defendant: No, no, I'm not saying that. I'm just saying
that - -

Detective: No, I just want to be clear.

                                                            A-1135-17T4
                            6
            Defendant: No, we're good.

            Detective: Okay, all right, all right, that's it. Now I'll
            tell you what I'm going to do. I'm going to show you
            another photograph, okay? I'm going to show you - -
            this is going to be photo number five, okay?

      Following this conversation, during the interview, defendant told the

police he went to the White Castle to purchase Percocet pills from someone, but

denied he was involved in the shooting.

      Defendant moved to suppress his statements, arguing he invoked his right

to remain silent, which police did not honor when they continued questioning.

The court denied defendant's motion, finding defendant was advised of his rights

and signed a waiver. Police did not begin questioning until the waiver was

signed. When defendant referenced his attorney, although he did not ask for his

attorney, police stopped the interview and only reinitiated the questioning after

defendant reiterated his participation in the interview was voluntary. Police

ceased questioning when defendant outright asked for his lawyer.

      The judge also found defendant completed high school and trade school

and understood his rights. Defendant was with police in the interview for forty-

five minutes. Finally, the trial judge found the police did not use threats or

trickery to induce defendant's cooperation.



                                                                         A-1135-17T4
                                        7
      Prior to trial, defendant also moved to exclude H.H.'s testimony regarding

her account of the attack to police. The trial judge denied the motion applying

the four-prong test of State v. Cofield, 127 N.J. 328, 338 (1992).

      At trial, H.H. denied she was assaulted, her earlier videotaped statement

was played for the jury, and defense counsel asked for a limiting instruction to

be given. The judge agreed and gave the jury an instruction to only consider the

evidence of H.H.'s assault as to defendant's motive, not as evidence of his

propensity to act violently. The judge stated:

                   In this case, evidence of the defendant's assault
            upon [H.H.] on the evening of June 21, 2015, can only
            be considered by the jury for the limited purposes of
            demonstrating a motive of jealousy on the part of
            defendant Lamar Hunt to murder Tavaris Payne, as well
            as to determine if the defendant had the opportunity to
            contact the victim by being in possession of [H.H.]'s
            cell phone.

                    Whether this evidence does in fact demonstrate
            jealousy on the part of the defendant as a motive to
            murder Tavaris Payne, or opportunity to do so by
            utilizing [H.H.]'s cell phone, to arrange a pretextual
            meeting for the purpose of murdering Tavaris Payne, is
            for you to decide. You may decide that the evidence
            does not demonstrate jealousy as a motive for the
            defendant to murder Tavaris Payne, or opportunity to
            arrange a pretextual meeting, and is not helpful to you
            at all in this case. In that case, you must disregard the
            evidence.



                                                                        A-1135-17T4
                                       8
                 On the other hand, you may decide that the
           evidence does demonstrate jealousy on the part of the
           defendant and opportunity to arrange a meeting with the
           victim to use it for those specific purposes.

                 However, you may not use this evidence to
           decide that the defendant has a tendency to commit
           crimes or that he is a bad person. That is, you may not
           decide that just because the defendant has committed
           other crimes, wrongs, or acts, he must be guilty of the
           present crimes.

                 I have admitted the evidence only to help you
           decide the specific question of jealousy and opportunity
           to commit the alleged crimes. You may not consider it
           for any other purpose, and you may not find the
           defendant guilty now simply because the State has
           offered evidence that he committed other crimes,
           wrongs, or acts.

     In his closing argument, the prosecutor emphasized the evidence of the

beating was meant to address defendant's motive. The prosecutor stated:

           [A]fter he had beaten her on the street, they went inside
           of his Jeep. And as he was strangling her where she
           couldn't breathe, her words, he stated admit to me you
           told Omar to call you.

                 ....

           Her knees being ripped up and ended up in a hospital
           bed, black and blue[]. Black eye I believe is what she
           told detective on the statement.

                 ....



                                                                       A-1135-17T4
                                      9
            The Union Police didn't respond to Hillside when they
            saw [H.H.] in her underwear bleeding from her knees,
            bruising all over her face, screaming in the street, "my
            boyfriend Lamar just did this to me."

                  ....

            Then after the police respond to Manor Drive. They
            find [H.H.] naked, beat up and saying that her boyfriend
            did it.

The defendant did not object to these statements at trial. The jury deliberated

and returned a guilty verdict for all charges. Defendant filed a motion for a new

trial which was denied. This appeal followed.

                                       I.

      We reject defendant's argument that his statement should have been

suppressed. Our review of a trial court's decision on a motion to suppress is

limited. State v. Robinson, 200 N.J. 1, 15 (2009). As our Supreme Court held:

            Appellate review of a motion judge's factual findings in
            a suppression hearing is highly deferential. We are
            obliged to uphold the motion judge's factual findings so
            long as sufficient credible evidence in the record
            supports those findings. Those factual findings are
            entitled to deference because the motion judge, unlike
            an appellate court, has the "opportunity to hear and see
            the witnesses and to have the 'feel' of the case, which a
            reviewing court cannot enjoy."

            [State v. Gonzales, 227 N.J. 77, 101 (2016) (internal
            citations omitted) (quoting State v. Johnson, 42 N.J.
            146, 161 (1964)).]

                                                                         A-1135-17T4
                                      10
We will "reverse only when the trial court's determination is 'so clearly mistaken

that the interests of justice demand intervention and correction.'"        State v.

Gamble, 218 N.J. 412, 425 (2014) (quoting State v. Elders, 192 N.J. 224, 244

(2007)). However, we owe no deference to the trial court's legal conclusions or

interpretations of the legal consequences flowing from established facts, and

review questions of law de novo. State v. Watts, 223 N.J 503, 516 (2015).

      "The right against self-incrimination is guaranteed by the Fifth

Amendment of the United States Constitution and this State's common law, now

embodied in statute N.J.S.A. 2A:84A-19, and evidence rule, N.J.R.E. 503."

State v. L.H., 239 N.J. 22, 41 (2019). See also U.S. Const. amend. V ("No

person . . . shall be compelled in any criminal case to be a witness against himself

. . . ."). A defendant maintains this right during custodial interrogations. U.S.

Const. amend. V; see also State v. Sanchez, 129 N.J. 261, 266 (1992). The

privilege against self-incrimination "is fulfilled only when the person is

guaranteed the right 'to remain silent unless he chooses to speak in the unfettered

exercise of his own will.'" Miranda v. Arizona, 384 U.S. 436, 460 (1966)

(quoting Malloy v. Hogan, 378 U.S. 1, 8 (1964)). As such, "a suspect subject to

a custodial interrogation [must] 'be adequately and effectively apprised of his

rights.'" L.H., 239 N.J. at 42 (quoting Miranda, 384 U.S. at 467).

                                                                            A-1135-17T4
                                        11
      Statements provided after appropriate Miranda warnings are admissible if

an individual waives his rights. State v. Knight, 183 N.J. 449, 461 (2005) (citing

Miranda, 384 N.J. at 444); see also State ex rel. A.S., 203 N.J. 131, 146 (2010).

The waiver must be "voluntar[y], knowing[], and intelligent[]." Ibid. It is the

State's burden to prove defendant waived his rights beyond a reasonable doubt.

Id. at 462 (citing State v. Galloway, 133 N.J. 631, 654 (1993)); State v. Adams,

127 N.J. 438, 447 (1992) (citations omitted).

      Determining whether the State met this burden requires the court to

examine the "totality of the circumstances . . . ." Galloway, 133 N.J. at 654; see

also State v. Puchalski, 45 N.J. 97, 106 (1965).             "The voluntariness

determination weighs the coercive psychological pressures brought to bear on

an individual to speak against his power to resist confessing." L.H., 239 N.J. at

43 (citing Dickerson v. United States, 530 U.S. 428, 434 (2000)).

      Fundamentally, what is required is a fact-specific analysis to determine if

the defendant's will was overborne by police coercion, or in other words,

whether the confession was "the product of an essentially free and unconstrained

choice by its maker . . . ." State v. Presha, 163 N.J. 304, 313 (2000); Culombe

v. Connecticut, 367 U.S. 568, 602 (1961). However, where there is no waiver




                                                                          A-1135-17T4
                                       12
and a defendant invokes his right to remain silent, it must be "scrupulously

honored." Michigan v. Mosely, 423 U.S. 96, 104 (1975).

      Defendant argued at trial his statements should have been excluded

because he invoked his Sixth Amendment right to counsel. Now he argues they

should have been excluded based on the invocation of his right to remain silent.

He was in a custodial interrogation while in the police interview with detectives.

These detectives apprised him of his Miranda rights and he signed a waiver of

those rights.

      He then spoke to police, at which point he expressed hesitation when

asked to sign any photographs because his attorney probably would not want

him speaking to the police. The detective ceased the questioning and asked him

to confirm that he received his Miranda rights and was speaking to the police

voluntarily. Defendant then answered in the affirmative and continued the

interview. It was not until after he gave incriminating statements that he halted

the interview and asked for his attorney.

      Because defendant was properly advised of his rights and then signed a

waiver of those rights, the court properly deemed his statements admissible.

Defendant voluntarily continued to talk to police after his rights were read.

Although he did not request to stop talking, the detectives did cease questioning


                                                                          A-1135-17T4
                                       13
regarding the investigation and asked narrow questions to confirm he was

voluntarily talking with them. The trial court applied the proper factors to

determine that defendant's waiver was knowing, intelligent, and voluntary.

                                         II.

      We also reject defendant's argument that the court erred by permitting the

jury to hear details of the assault against H.H.        N.J.R.E. 404(b) prohibits

character evidence of other crimes, wrongs, or acts

             to prove the disposition of a person in order to show
             that such person acted in conformity therewith. Such
             evidence may be admitted for other purposes, such as
             proof of motive, opportunity, intent, preparation, plan,
             knowledge, identity or absence of mistake or accident
             when such matters are relevant to a material issue in
             dispute.

"The underlying danger of admitting other-crime evidence is that the jury may

convict the defendant because he is a bad person in general." Cofield, 127 N.J.

at 336 (internal quotations omitted) (quoting State v. Gibbons, 105 N.J. 67, 77

(1987)); see also State v. G.S., 145 N.J. 460, 468 (1966) (finding evidence of

other crimes are dangerous because "it will distract a jury from an independent

consideration of the evidence that bears directly on guilt itself.").

      "The admissibility of other-crime evidence is left to the discretion of the

trial court . . . 'because of its intimate knowledge of the case, [it] is in the best


                                                                             A-1135-17T4
                                        14
position to engage in this balancing process.'" State v. Covell, 157 N.J. 554,

564 (1999). To determine if the wrong or act warrants an exception to N.J.R.E.

404(b) and should be admissible, the court must employ a four -part test.

Cofield, 127 N.J. at 338. The act is admissible if: (1) the evidence of the act is

relevant to a material issue; (2) it is similar in kind and reasonably close in time

to the offense; (3) it is clear and convincing; and (4) the probative value of the

evidence is not outweighed by its apparent prejudice. Ibid. (citation omitted).

       Under the first prong, "evidence is relevant if it tends 'to prove or disprove

any fact of consequence to the determination of the action.'" Covell 157 N.J. at

565.   "[T]he inquiry should focus on the 'logical connection between the

proffered evidence and a fact in issue.'"       Covell, 157 N.J. at 565 (citation

omitted). Moreover, "the material issue must be genuinely disputed." Cofield,

127 N.J. at 338; see also Covell, 157 N.J. at 564-65; State v. Stevens, 115 N.J.

289, 301 (1989). Evidence included in this prong could be that which "'tend[s]

to shed light' on a defendant's motive and intent or which 'tend[s] fairly to

explain his actions,' even though they may have occurred before the commission

of the offense." Covell, 157 N.J. at 565 (quoting State v. Rodgers, 19 N.J. 218,

228 (1955)).




                                                                             A-1135-17T4
                                        15
      "[T]he second prong . . . may be eliminated where it serves no beneficial

purpose." State v. Gillispie, 208 N.J. 59, 89 (2011) (quoting State v. Barden,

195 N.J. 375, 389 (2008)). Courts are required to use the second prong of

Cofield only in limited cases such as when evidence of drug possession occurred

subsequent to the drug incident that was the subject of prosecution. Id. at 88-

89.

      Regarding the third prong, "the trial court must determine that proof of

the other-crimes evidence is established clearly and convincingly." Id. at 89.

Evidence is "clear and convincing" when it

            "produce[s] in the mind of the trier of fact a firm belief
            or conviction as to the truth of the allegations sought to
            be established," evidence "so clear, direct and weighty
            and convincing as to enable [the factfinder] to come to
            a clear conviction, without hesitancy, of the truth of the
            precise facts in issue."

            [State v. Hodge, 95 N.J. 369, 376 (1984) (quoting In re
            Boardwalk Regency Casino License Application, 180
            N.J. Super 324, 339 (App. Div. 1981)).]

      Finally, under the fourth prong of the Cofield test, the court must apply

the balancing test of N.J.R.E. 403, which "excludes evidence if 'its probative

value is substantially outweighed by the risk of . . . undue prejudice.'" Covell,

157 N.J. at 568. "[T]he admissibility of such evidence falls largely within a

judge's discretion and '[h]is discretion is a broad one.'" Id. at 568-69 (second

                                                                         A-1135-17T4
                                       16
alteration in original) (quoting State v. Sands, 76 N.J. 127, 144 (1978)). "[T]he

party seeking to admit other-crimes evidence bears the burden of establishing

that the probative value of the evidence is not outweighed by its apparent

prejudice." State v. Reddish, 181 N.J. 553, 608-09 (citing State v. Long, 173

N.J. 138, 162 (2002)). The more attenuated or remote the act, the less likely it

is probative.    See Covell, 157 N.J. at 569.      Finally, "[p]robative value is

enhanced by the absence of any other evidence that can prove the same point."

Ibid.

        The evidence of H.H.'s assault was prejudicial evidence of another crime.

However, it was admitted as evidence of motive and opportunity. The judge

advised the jury in his limiting instruction that the evidence of the assault could

only be used as evidence of jealousy and motive or opportunity and not as

evidence of his propensity to be violent or for any other purpose.

        The trial court properly applied the Cofield elements and found the

evidence admissible. Under the first prong, the evidence is relevant because it

revealed the intense jealousy that could have motivated defendant to murder the

victim. Under the second prong, the temporal proximity was met because the

assault and the murder were within two hours of each other. Third, the trial

court determined the evidence was clear and convincing because H.H.'s account


                                                                           A-1135-17T4
                                       17
of the beating placed the phone in defendant's car, making it impossible for her

to be the one texting Payne to meet up that night. Finally, the evidence's

probative value outweighed the prejudice because the abandoned cell phone was

the only connection linking defendant to the victim, a fact which is a genuine

dispute of the case.

      Similarly, we reject defendant's assertion that the prosecutor's comments

about H.H.'s assault during summation constituted misconduct. "[P]rosecutorial

misconduct can be a ground for reversal where the prosecutor's misconduct was

so egregious that it deprived the defendant of a fair trial." State v. Frost, 158

N.J. 76, 83 (1999) (citing State v. Ramseur, 106 N.J. 123, 322 (1987)).

Prosecutors have a "duty to refrain from improper methods calculated to produce

a wrongful conviction . . . ." Berger v. United States, 295 U.S. 78, 88 (1935).

      However, "it is well-established that prosecuting attorneys, within

reasonable limitations, are afforded considerable leeway in making opening

statements and summations." State v. Wakefield, 190 N.J. 397, 443 (2007)

(quoting State v. DiFrisco, 137 N.J. 434, 474 (1994)). There is no error so long

as the prosecutor confines himself to comments about "'facts shown by or

reasonably to be inferred from the evidence.'" State v. R.B., 183 N.J. 308, 330

(2005) (quoting State v. Carter, 91 N.J. 86, 125 (1982)). "Prosecutors can sum


                                                                         A-1135-17T4
                                      18
up cases with force and vigor, . . . so long as their comments are 'reasonably

related to the scope of the evidence presented.'" State v. Pressley, 232 N.J. 587,

593 (2018) (quoting State v. Timmendequas, 161 N.J. 515, 587 (1999)).

"'Ultimately, it [is] for the jury to decide whether to draw the inferences the

prosecutor urged.'" R.B., 183 N.J. at 330 (quoting Carter, 91 N.J. at 125).

      "A finding of prosecutorial misconduct does not end a reviewing court's

inquiry because, in order to justify reversal, the misconduct must have been 'so

egregious that it deprived the defendant of a fair trial.'" State v. Smith, 167 N.J.

158, 181 (2001) (quoting Frost, 158 N.J. at 83). "[A]n appellate court must

consider (1) whether defense counsel made timely and proper objections to the

improper remarks; (2) whether the remarks were withdrawn promptly; and (3)

whether the court ordered the remarks stricken from the record and instructed

the jury to disregard them." Frost, 158 N.J. at 83 (citations omitted).

      "Generally, if no objection was made to the improper remarks, the remarks

will not be deemed prejudicial." Id. at 83-84 (citing Ramseur, 106 N.J. at 323);

see also State v. Atkins, 405 N.J. Super. 392, 401 (App. Div. 2009); State v.

W.L., 292 N.J. Super. 100, 110 (App. Div. 1996). "[W]hen counsel does not

make a timely objection at trial, it is a sign 'that defense counsel did not believe




                                                                            A-1135-17T4
                                        19
the remarks were prejudicial' when they were made." Pressley, 232 N.J. at 594

(quoting State v. Echols, 199 N.J. 344, 360 (2009)).

      In this case, defendant did not object to the prosecutor's remarks during

summation. Moreover, in his closing argument, the prosecutor reiterated the

appropriate use for the remarks relating to the assault on H.H. and presented

facts which were already in the record.         Since prosecutors "are afforded

considerable leeway" during summations, we do not consider the comments so

egregious as to deprive the defendant of a fair trial.

                                        III.

      We are also not persuaded by defendant's argument that the judge's charge

to the jury was insufficient and improper. Under Rule 1:7-2, "a defendant is

required to challenge instructions at the time of trial or else waives the right to

contest the instructions on appeal." State v. Belliard, 415 N.J. Super. 51, 66

(App. Div. 2010) (citing State v. Adams, 194 N.J. 186, 206-07 (2008)). "Where

there is a failure to object, it may be presumed that the instructions were

adequate." Ibid. The burden of demonstrating legal impropriety in jury charges

rests on the defendant. State v. Koskovich, 168 N.J. 448, 529 (2001).

      "A trial court's decision to charge on a lesser-included offense is governed

by N.J.S.A. 2C:1-8(e)." State v. Alexander, 233 N.J. 132, 142 (2018). The


                                                                           A-1135-17T4
                                       20
statute states, "[t]he court shall not charge the jury with respect to an included

offense unless there is a rational basis for a verdict convicting the defendant of

the included offense."     N.J.S.A. 2C:1-8(e).     The inquiry is "'whether the

evidence presents a rational basis on which the jury could acquit the defendant

of the greater charge and convict the defendant of the lesser.'" Alexander, 233

N.J. at 142 (citation omitted); see also State v. Jenkins, 178 N.J. 347, 361 (2004);

State v. Choice, 98 N.J. 395, 299 (1985); State v. Powell, 84 N.J. 305, 413-14

(1980).

      The lesser-included offense of murder is aggravated manslaughter. See

N.J.S.A. 2C:11-4(a).       N.J.S.A. 2C:11-4(a) states "[c]riminal homicide

constitutes aggravated manslaughter when . . . [t]he actor recklessly causes death

under circumstances manifesting extreme indifference to human life            . . . ."

To be guilty of murder, "the defendant must have knowingly or purposefully

inflicted serious bodily injury with actual knowledge that the injury created a

substantial risk of death and it was 'highly probable' that death would result."

Jenkins, 178 N.J. at 363 (citation omitted). "In aggravated manslaughter, by

contrast, the defendant must have caused death with an 'awareness and conscious

disregard of the probability of death.'" Ibid. (citations omitted).




                                                                            A-1135-17T4
                                        21
      Here, defendant shot Payne in the leg and throat, killing him. Defendant

intentionally shot the victim with knowledge that this serious bodily injury was

likely to lead to death.    A reasonable jury would not find that defendant

intentionally shot the victim without knowledge that it was likely to result in a

substantial risk of death. The trial court was not required to instruct the jury on

the lesser-included charge of manslaughter because the record supports the

conclusion that the facts of this case could not lead a reasonable jury to convict

on aggravated manslaughter and acquit on murder.

      Moreover, we reject the argument the court should have instructed the jury

on the lesser-included offense of passion/provocation manslaughter. N.J.S.A.

2C:11-4(b)(2). N.J.S.A. 2C:11-4(b)(2) states "[c]riminal homicide constitutes

manslaughter when . . . committed in the heat of passion resulting from a

reasonable provocation." It is "[a] homicide which would otherwise be murder

. . . committed in the heat of passion resulting from reasonable provocation."

State v. Mauricio, 117 N.J. 402, 411 (1990) (alteration in original). There are

four elements to this crime: (1) provocation was adequate; (2) the defendant did

not have time to cool off between the provocation and homicide; (3) the

provocation actually impassioned the defendant; and (4) defendant did not cool




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off.   Ibid.   "The first two criteria are objective, [and] the other two are

subjective." Ibid.

       Here, defendant was not adequately provoked because a reasonable person

would not be provoked by witnessing a girlfriend talking to a bouncer at a bar

and then shoot a third person. Moreover, there was a reasonable cooling off

period of nearly two hours between when defendant saw H.H. speaking with the

bouncer and when the slaying occurred.

                                       IV.

       Defendant's final argument that he was denied an unfair trial because the

errors he raises on appeal cumulatively amounted to a manifest injustice also

fails. Our Supreme Court "recognized that the cumulative effect of small errors

may be so great as to work prejudice, and we have not hesitated to afford the

party suffering that prejudice relief where it has been warranted." Pellicer ex

rel. Pellicer v. St. Barnabas Hosp., 200 N.J. 22, 53 (2009).

       Here, we discern no errors, as discussed above. As such, defendant's

cumulative error argument is without merit. R. 2:11-3(e)(2).

       Affirmed.




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