                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                  SUPERIOR COURT OF NEW JERSEY
                                  APPELLATE DIVISION
                                  DOCKET NO. A-2481-11T4




STATE OF NEW JERSEY,
                                     APPROVED FOR PUBLICATION

     Plaintiff-Respondent,               January 13, 2015

v.                                      APPELLATE DIVISION

JACOB R. GENTRY,

     Defendant-Appellant.


         Argued October 21, 2014 - Decided January 13, 2015

         Before Judges Reisner, Koblitz and Higbee.

         On appeal from the Superior Court of New
         Jersey,   Law   Division,  Sussex County,
         Indictment No. 09-02-0094.

         Stephen W. Kirsch, Assistant Deputy Public
         Defender, argued the cause for appellant
         (Joseph   E.   Krakora,   Public   Defender,
         attorney; Mr. Kirsch, of counsel and on the
         brief).

         Gregory   R.    Mueller,  First    Assistant
         Prosecutor, argued the cause for respondent
         (Francis A. Koch, Sussex County Prosecutor,
         attorney; Mr. Mueller and Daniel Bajger,
         Assistant Prosecutor, of counsel and on the
         brief).

         Appellant filed a pro se supplemental brief.
       The opinion of the court was delivered by

REISNER, P.J.A.D.

       Defendant Jacob R. Gentry appeals from his September 20,

2011    conviction    for     first-degree      aggravated     manslaughter,

N.J.S.A.    2C:11-4a,   and    third-degree      endangering      an    injured

victim,    N.J.S.A.   2C:12-1.2,   and   from    the   sentence    of    thirty

years in prison subject to the No Early Release Act (NERA),

N.J.S.A. 2C:43-7.2.

       On this appeal, defendant raises the following points for

our consideration:

            POINT I
            THE STATE'S USE, OVER DEFENSE OBJECTION, OF
            THE CO-DEFENDANT'S STATEMENT TO POLICE --
            BOTH WHEN CROSS-EXAMINING THE DEFENDANT, AND
            IN THE PROSECUTOR'S SUMMATION -- WAS A
            BLATANT VIOLATION OF DEFENDANT'S RIGHTS TO
            CONFRONT THE WITNESSES AGAINST HIM AND TO
            DUE PROCESS.

            POINT II
            THE TRIAL JUDGE IMPROPERLY PRECLUDED DEFENSE
            COUNSEL FROM OFFERING EVIDENCE ABOUT DAVID
            HAULMARK REGARDING BOTH: (1) HIS REPUTATION
            FOR AGGRESSIVENESS UNDER N.J.R.E. 404(A)(2)
            AND (2) HIS PRIOR BAD ACT OF TRYING TO BITE
            HIS WIFE DURING A FIGHT, PURSUANT TO
            N.J.R.E. 404(B).

            POINT III
            THE JURY INSTRUCTION ON SELF-DEFENSE:    (1)
            IMPROPERLY LIMITED SELF-DEFENSE TO THE CRIME
            OF MURDER; (2) FAILED TO EXPLAIN TO THE JURY
            THAT, IF THE FIGHT WERE, INDEED, "MUTUAL
            COMBAT," SELF-DEFENSE WOULD NEVERTHELESS BE
            AVAILABLE TO DEFENDANT IF DAVID HAULMARK
            ESCALATED   THE  MATTER   BEYOND  A   NORMAL



                                     2                                  A-2481-11T4
         FISTFIGHT; AND (3) FAILED TO EXPLAIN TO THE
         JURY THE EFFECT THAT A "COURSE OF PHYSICAL
         ABUSE" CAN HAVE ON THE DETERMINATION OF
         WHETHER A DEFENDANT ACTED REASONABLY IN
         SELF-DEFENSE. (Not Raised Below).

         POINT IV
         THE JURY INSTRUCTION ON PASSION/PROVOCATION
         MANSLAUGHTER IMPROPERLY FAILED TO ADDRESS
         THE ISSUES OF EITHER "MUTUAL COMBAT" AS A
         SOURCE OF ADEQUATE PROVOCATION, OR THE
         EFFECT THAT A "COURSE OF PHYSICAL ABUSE" CAN
         HAVE ON THE JURY'S DETERMINATION OF WHETHER
         THERE WAS ADEQUATE PROVOCATION. (Not Raised
         Below).

         POINT V
         THE    SENTENCE     IMPOSED     IS      MANIFESTLY
         EXCESSIVE.

    Defendant   presents   the   following    argument   in   a   pro    se

supplemental brief:

         POINT I
         THE TRIAL COURT ERRED BY FAILING TO ACT SUA
         SPONTE IN SUPPRESSING DEFENDANT'S CONFESSION
         AS FRUIT OF A POISONOUS TREE WHERE [THE]
         CONFESSION WAS NOT MADE IN A KNOWING AND
         INTELLIGENT   FASHION   AND    WHERE   [THE]
         CONFESSION WAS OBTAINED BY EXPLOITATION OF
         ILLEGAL SEIZURE OR DETENTION, I.E., ARREST
         WHERE DEFENDANT WAS NOT ADVISED OF HIS TRUE
         TARGET STATUS AS A SUSPECT IN THE MURDER
         INVESTIGATION OF DAVID HAULMARK IN ADDITION
         TO RECEIVING MIRANDA WARNINGS CONSTITUTES
         PLAIN ERROR AND DEFENDANT WAS DENIED OF
         [SIC] A FAIR TRIAL AND DUE PROCESS OF LAW
         (U.S. CONST. IV, V, XIV; N.J. CONST. ART[.]
         I PARAS. 1, 10).

    After thoroughly reviewing the voluminous record provided

to us, we are constrained to reverse defendant's conviction due




                                  3                               A-2481-11T4
to prejudicial trial errors. We remand this matter for retrial

on both counts.        We summarize our reasons as follows.

       Defendant was charged with murder, aggravated manslaughter

and reckless manslaughter in the death of David Haulmark.                               The

State's theory was that defendant, his girlfriend Emily Henry

(Emily or the girlfriend), and his brother Jarrod Gentry (Jarrod

or    the   brother)     attacked      Haulmark        and    beat   him     to    death.

Defendant claimed self-defense and denied that the brother or

the    girlfriend      participated     in       the   incident.        We   find       that

defendant     was      denied    a    fair       trial    when    the    trial       court

erroneously failed to charge the jury that self-defense was a

complete      justification          for         aggravated      manslaughter           and

manslaughter, in addition to being a defense to murder.                                 The

jury    acquitted       defendant      of    murder       but    convicted        him    of

aggravated manslaughter.             Because the evidence, viewed favorably

to    the   defense,    was     sufficient        to   support   a   claim    of     self-

defense, that error had the clear capacity to produce an unjust

result.      R. 2:10-2.         Consequently, the aggravated manslaughter

conviction must be reversed.

       Other serious trial errors, viewed either separately or in

combination     with     the    charging         error,   also   require     reversal.

Defendant, the brother, and the girlfriend were each indicted in




                                             4                                    A-2481-11T4
Haulmark's death, but defendant was tried separately.1                      Neither

the brother nor the girlfriend testified at his trial.                     However,

during     the   trial,     the    prosecutor2      improperly       cross-examined

defendant about a statement the brother made to the police.                      The

statement was hearsay and clearly inadmissible.

       That error was compounded during summations when defense

counsel    tried     to   ameliorate    the      prejudicial      impact    of   the

prosecutor's        improper      tactic,     and    the     trial     court     then

erroneously permitted the prosecutor to tell the jury that the

brother had made a statement that was kept from the jury due to

the    court's     evidentiary     rulings.      Thus,     the    prosecution     was

first    allowed    to    incriminate   defendant      with      hearsay   evidence

from a co-defendant whom defendant had no opportunity to cross-

examine.     The State was then permitted to imply to the jurors

that defense counsel had misrepresented the evidence and that

the State had incriminating information which the jury had not

been     allowed    to    hear.      Those    errors       violated    fundamental

constitutional principles designed to guarantee every defendant

the right to a fair trial and had a clear capacity to produce a

1
   Defendant's procedural history advised us that the co-
defendants pled guilty to "much lesser offenses"; the State's
brief adopted defendant's procedural history.
2
  The State's case was presented by two prosecutors, one male and
one female. When we refer to a specific prosecutor, we use the
gender-appropriate pronoun.



                                         5                                 A-2481-11T4
miscarriage          of    justice.        See     R.   2:10-2.           Because    defendant

testified       as    to     his    defenses     on     all    issues,      and     the    errors

allowed the State to unfairly impugn his credibility, we are

constrained to reverse the conviction in its entirety and remand

for a retrial.

                                                 I

      We summarize the evidence as it relates to the issues on

appeal.        In particular, because self-defense must be charged if

the   evidence,           viewed    most   favorably          to    the    defendant,        would

support    that       justification,          we     focus     on    "the     evidence        that

provides a rational basis for a self-defense charge."                                 State v.

Rodriguez, 195 N.J. 165, 170 (2008); see also State v. Kelly, 97

N.J. 178, 200 (1984).3

        During        the     spring    and      summer       of    2008,    defendant          and

Haulmark       were        among    several      hundred       workers       employed        on    a

pipeline project in upstate New York.                               Most of the workers,

known     as    "pipeliners,"          were      housed       at     the    Legends        Resort

(Legends), a large hotel complex in Sussex County, New Jersey.

According       to        several    witnesses,         defendant         suffered    repeated

harassment       and        physical    attacks         at    the    hands     of    Haulmark,




3
  Contrary to this principle, the State's brief presents the
evidence in the light most favorable to the prosecution.




                                                 6                                        A-2481-11T4
Haulmark's       friend      Sean    ("Frog")            Taxis4,     and    several       other

pipeliners who were part of Haulmark's social group.                                Frog also

made inappropriate advances to Emily.                         Defendant testified that

complaints       to    the   police       about         the   harassment      met      with   an

unsympathetic response.

     From the evidence, it can be inferred that Haulmark and his

friends resented defendant because he was not from the local

area, he was "scrawny" and dressed oddly, but he nonetheless had

a beautiful and flirtatious girlfriend living with him in the

hotel.      According        to   witnesses,            Frog,    a   small,      loudmouthed,

aggressive individual, tended to start fights, and Haulmark, a

235-pound former football linebacker, supplied the "muscle" to

back him up.

     In his statement to the police, and his trial testimony,

defendant described several incidents in which Haulmark, Frog,

and their companions attacked him without provocation.                                  In one

incident,    they       assaulted     him          in    an     elevator.         On   another

occasion, they emerged from the hotel's bar and attacked him.

Since defendant had to pass by the bar in order to reach his

hotel    room,    he    once      asked    a   security          guard     for    an   escort.

Patricia Prince, a former Legends security guard, corroborated


4
  We refer to Taxis by his nickname, because all of the witnesses
did so.



                                               7                                       A-2481-11T4
defendant's statement that in June 2008, defendant asked Prince

to escort him and Emily to their hotel room, because they were

afraid "[t]hat somebody would jump them."

    In July 2008, defendant and Emily moved out of the hotel,

and into a house an hour away from the job site, in order to

avoid further harassment from Haulmark and his friends.         In the

early morning hours of August 17, 2008, defendant, Emily, and

Jarrod stopped by the hotel to drop off a friend who lived

there.   According to defendant, they went into the hotel bar to

have a drink and say hello to the bartenders, with whom they

were friendly.      At some point, they unexpectedly encountered

Haulmark in the bar.        The evidence would support a conclusion

that both defendant and Haulmark had been drinking heavily that

night.    According to defendant, Haulmark challenged him to a

fight.   Believing that he would wind up having to fight Haulmark

whether he accepted the challenge or not, defendant accepted.

The two men, accompanied by Jarrod and later joined by Emily,

walked out of the hotel.       A few minutes later, a bar employee

found    Haulmark   lying     on    the   ground,   severely   injured.

Defendant, Emily, and Jarrod were no longer at the scene.

    According to defendant's trial testimony, Haulmark had been

the aggressor in the fight.        Haulmark advanced toward defendant,

tackled him into a raised flower bed, clamped his teeth down on




                                     8                         A-2481-11T4
defendant's right nipple, and started choking him.                         Defendant

testified that he was "fighting for [his] life" because Haulmark

outweighed   him   by   eighty   pounds     and    had    him    in    a   "strangle

hold."   Defendant testified that he was lying on his back and

fought desperately to escape Haulmark's grip.                   When he finally

got Haulmark off him, defendant kicked him once in the head to

keep him from renewing the attack.          Defendant stated:

          [H]e tackled me into that flower bed.     He
          bit me.   He was choking me.   And I started
          to fight for my life.    And . . . I fought
          with everything that I had. I punched him.
          I elbowed him.   I kneed him.    And when he
          was coming back up, . . . I didn't want him
          to get back up because he was obviously
          going to be very angry.     And, I -- I was
          afraid. And I -- I kicked him.

      Defendant    further   explained      that   he    kicked       Haulmark,    as

Haulmark was getting back up, because "he was a very large man

and I was scared of him and I was afraid of what he would do to

me.   So, yes, I did not want him to get back up."5                        There was

evidence that Haulmark had been sprayed with pepper spray; the

defense version was that Emily sprayed him at the end of the

altercation,   after    which    she,   defendant        and    Jarrod     left   the

scene in her car.


5
  Haulmark eventually died at the scene, as the result of brain
trauma. The State's expert witnesses could not state for certain
that Haulmark was kicked in the head more than once and could
not identify any one blow as the fatal one.



                                        9                                   A-2481-11T4
       An examination of defendant's body the day after the fight

revealed a human bite mark over his nipple, severe enough to

break the skin, and strangulation marks on his neck.                                      There were

also    signs      of   disturbance            in    the       mulch       of   the      flower   bed,

consistent with someone having been pushed into it.

       According        to        defendant,         when           he     accepted       Haulmark's

challenge he thought they would have an ordinary fistfight, and

both   men    would     walk       away    with          no    major       injuries.        Previous

fights between them had not resulted in serious injuries.                                            He

did    not    anticipate           that    Haulmark             would       try     to    kill    him.

Defendant testified that when he left the scene of this fight,

he    did    not   realize         that    Haulmark            was       seriously       injured;   he

expected      Haulmark       to     be    at    work       the       next    day.        Defendant's

statement to the police a day later, made before the police

revealed Haulmark's death, reflected that defendant did not know

Haulmark was either severely injured or dead.

       In    addition        to    the    evidence             of    the    prior        fights   with

defendant, and the fight that occurred on August 17, 2008, there

was more general testimony that Haulmark had been aggressive and

threatening to others at Legends.                               The Legends bar manager,

Vicki Driemel, testified to an incident about a month before the

killing,      in    which         Haulmark      and        a    companion         told     her    they

belonged to "the pipeline mafia" and threatened to kill her,




                                                    10                                       A-2481-11T4
harm her children, and burn her house down.            Haulmark was banned

from the bar for a month as a result of that incident.                   On the

evening of the killing, at about 2:20 a.m., the security camera

in the bar recorded an incident in which Haulmark appeared to be

physically aggressive toward another man at the bar.                 Defense

witness Gene Cobb testified that Haulmark was hitting the man in

the back of the head and trying to get the man to go outside and

fight him.

       The defense also presented testimony from Jason Ford, a

pipeline worker, that at some point prior to the August 17, 2008

incident, Haulmark told Ford and another employee that he was

going to "break [defendant's] neck" and "f***" his girlfriend.

Ford, who was a friend of defendant, testified that he "relayed

that    information   to   [defendant]."         Defendant    responded    that

Haulmark and his friends were "a bunch of punks" who called

themselves the "pipeline mafia."             Defendant also told Ford that

Haulmark and his friends "don't ever leave him alone."

       Ford   testified    that   as    of   August   2008,   defendant     was

slightly over six feet tall and weighed about 155 pounds.                  That

was    consistent   with   a   police    report,   prepared    shortly    after

defendant's arrest, which described him as weighing 160 pounds.

There was testimony that Haulmark referred to defendant as a




                                        11                           A-2481-11T4
"scrawny little bastard."          As previously noted, Haulmark was six

feet tall, weighed 235 pounds, and was a former linebacker.

                                       II

       In State v. Rodriguez, 195 N.J. 165 (2008), our Supreme

Court "held that a person who acts in self-defense and 'kills in

the honest and reasonable belief that the protection of his own

life requires the use of deadly force' cannot be convicted of

murder,   aggravated        manslaughter,     or   manslaughter."        State   v.

O'Neil, 219 N.J. 598, 601 (2014) (quoting Rodriguez, supra, 195

N.J. at 172).        As recently emphasized in O'Neil, the Court has

"put to rest the 'mistaken assertion' in State v. Moore, 158

N.J. 292, 303 (1999), that a defendant charged with aggravated

manslaughter and manslaughter could not assert self-defense."

Id. at 602.

       Where   the    evidence      could   support     self-defense       as    the

justification for a homicide, the trial court must tell the jury

that   self-defense     is     a   complete      defense   to    aggravated      and

reckless manslaughter as well as to murder.                   Rodriguez, supra,

195 N.J. at 174-75.           And, the trial court must tell the jury

that   the   State    has    the   burden   to     disprove     the   self-defense

justification.       Id. at 175.

                  In considering whether to charge the
             jury   on  self-defense,   a  court   should
             consider the circumstances that might give
             rise   to  that   defense,   including   the



                                       12                                 A-2481-11T4
            defendant's and alleged aggressor's conduct,
            rather than the charges chosen by the
            prosecutor. The reality of the situation
            facing the defendant governs whether he had
            a right to engage in self-defense. As long
            as a self-defense charge is requested and
            supported by some evidence in the record, it
            must be given.

            [Id. at 174.]

     Where    there   is     sufficient      evidence    to    warrant   a   self-

defense charge, failure to instruct the jury that self-defense

is a complete justification for manslaughter offenses as well as

for murder constitutes plain error.             See O'Neil, supra, 219 N.J.

at   617.    In   O'Neil,    the   Court      found     that   the   defendant's

appellate counsel rendered ineffective assistance in failing to

bring Rodriguez to our attention, in a case where "the trial

court   instructed     the     jury    that    self-defense       was    a   valid

justification for murder but not for aggravated manslaughter or

manslaughter."     Id. at 602.        The Court concluded:

            If the jury found that defendant had an
            honest and reasonable belief that the use of
            deadly force was necessary to save his own
            life, that he was not the aggressor, and
            that he could not have safely retreated,
            then self-defense applied not only to the
            murder charge, but also to the aggravated-
            manslaughter and manslaughter charges.    The
            jury   was   instructed   that   self-defense
            applied to the murder charge and acquitted
            defendant of that offense.     The jury was
            instructed   that   self-defense    did   not
            apply to the aggravated-manslaughter and
            manslaughter charges and convicted him of
            those offenses.



                                        13                               A-2481-11T4
                Of course, we cannot know the precise
           reason for the jury's verdict of not guilty
           to murder.   Nevertheless, the trial court's
           failure to charge self-defense on aggravated
           manslaughter and manslaughter leaves open a
           reasonable probability that, if properly
           instructed, the outcome would have been
           different.   The erroneous jury instruction
           necessarily undermines confidence in the
           verdict.

           [Id. at 617.]

    In this case, defendant's primary defense to the killing of

the victim was self-defense.        The judge instructed the jury that

self-defense      was   a   justification      for   murder,    but    did    not

instruct the jury that self-defense was a defense to aggravated

manslaughter or manslaughter.          The jury acquitted defendant of

murder but convicted him of aggravated manslaughter.                  The State

contends   that    if   the   charge    was    erroneous,      the    error   was

harmless because the evidence did not support a claim of self-

defense.   We disagree.

    At the charge conference on June 16, 2011, the State argued

that the evidence did not support a self-defense charge.                        In

rejecting the State's application to exclude the self-defense

issue, the trial judge cogently explained why the evidence could

support a claim of self-defense.              We agree with his analysis.

We add the following discussion.

    Pursuant to N.J.S.A. 2C:3-4a, "the use of force upon or

toward another person is justifiable when the actor reasonably



                                       14                               A-2481-11T4
believes     that     such       force   is    immediately        necessary      for     the

purpose of protecting himself against the use of unlawful force

by such other person on the present occasion."                           However, deadly

force may not be used "unless the actor reasonably believes that

such force is necessary to protect himself against death or

serious bodily harm."             N.J.S.A. 2C:3-4b(2).            In addition, deadly

force is not "justifiable" in a situation where "[t]he actor,

with   the     purpose      of    causing      death     or     serious    bodily      harm,

provoked       the    use    of      force     against         himself    in    the     same

encounter."          N.J.S.A. 2C:3-4b(2)(a) (emphasis added).                       Nor is

the use of deadly force justifiable where "[t]he actor knows

that   he    can     avoid     the    necessity         of   using   such      force    with

complete safety by retreating."                N.J.S.A. 2C:3-4b(2)(b).

       There    is    little      case   law       in   this    State    construing      the

statute as it applies to the situation presented here.                                  Both

parties cite State v. Scaduto, 74 N.J.L. 289, 294 (Sup. Ct.

1907), as standing for the proposition that if two individuals

engage in mutual combat, neither of them can claim self-defense.

Defendant also invokes Scaduto as standing for the proposition

that if one party escalates the fight by using deadly force, the

other party may respond defensively with deadly force.                                 We do

not find Scaduto particularly helpful with respect to either

proposition.




                                              15                                  A-2481-11T4
    Scaduto did not involve mutual combat that escalated.                      The

defendant there claimed that the victim attacked him first by

drawing a gun and shooting at him.             Id. at 290.        The issue the

court addressed on the self-defense charge was the admissibility

of evidence that the victim made previous threats against the

defendant.     Ibid.     The court held that, even if the defendant

did not know about those threats, they were admissible if there

was an issue as to whether the victim was in fact the aggressor

in the incident.       Id. at 291.

    The language in Scaduto concerning mutual combat precluding

a self-defense claim was dicta and was not directed at self-

defense   to   a   homicide   charge.     It    was   part   of    the   court's

explanation as to why the trial judge erred, albeit harmlessly,

in charging the jury that if the defendant was acquitted of

manslaughter, he could still be convicted of fighting by mutual

agreement.     Id. at 294.     At the time, the statute required that

both combatants be found "jointly" guilty of that offense.                     See

L. 1898, c. 235, § 40; State v. Jordon, 86 N.J. Super. 585, 590

(App. Div. 1965).       The court reasoned that if either party acted

in self-defense and was acquitted of manslaughter on that basis,

that party could not then be convicted of combat by agreement.

Scaduto, supra, 74 N.J.L. at 294.              In that context, the court

also stated that if the parties agreed to mutual combat, neither




                                     16                                  A-2481-11T4
of them could claim self-defense as a defense to the crime of

fighting by mutual combat.                 Ibid.; see Jordon, supra, 86 N.J.

Super. at 590-93 (discussing and applying the dicta in Scaduto

to a charge of fighting under N.J.S.A. 2A:170-27).                       Nor is State

v. Pasterick, 285 N.J. Super. 607, 616-17 (App. Div. 1995),

applicable to this issue, because it addressed mutual combat in

the     context    of    passion-provocation            manslaughter,        not     self-

defense, and the defendant there admitted to being the aggressor

in a fight with his father.

      Defendant      cites      cases      from    other       jurisdictions,       e.g.,

United    States    v.    Lewis,      65   M.J.    85,    88-89      (C.A.A.F.      2007);

People v. Quach, 10 Cal. Rptr. 3d 196, 201-02 (Ct. App. 2004);

Commonwealth v. Barber, 477 N.E.2d 587, 588-89 (Mass. 1985).

Those    cases     are    of   somewhat        limited     utility,     because       they

construe    self-defense         statutes        that    are    different     from     New

Jersey's     statute.          For     example,         the     California         statute

specifically       addresses         "mutual      combat"      and    sets    forth       a

defendant's four-part proof burden to demonstrate self-defense

in that context.          Quach, supra, 10 Cal. Rptr. 3d at 200 n.2.

However, all of the cases generally discuss the concept that,

during mutual combat, a defendant may use deadly force in self-

defense when he has not previously used or threatened deadly

force    against    his    opponent        but    the   opponent      suddenly      begins




                                            17                                   A-2481-11T4
using deadly force.        See also United States v. Stanley, 71 M.J.

60, 68-69 (C.A.A.F.) (Baker, C.J., concurring), cert. denied,

___ U.S. ___, 133 S. Ct. 210, 184 L. Ed. 2d 41 (2012).                       That

approach is consistent with New Jersey's statute.6

     Viewing the evidence in the light most favorable to the

defense, defendant did not provoke the fight and certainly did

not provoke the fight "with the purpose of causing death or

serious   bodily    harm"    to   Haulmark.      N.J.S.A.       2C:3-4b(2)(a).

Rather,   the    235-pound    Haulmark     escalated   a   proposed    garden-

variety fistfight into a deadly assault on the much smaller

defendant, and defendant justifiably resorted to extreme force

to save himself from death or serious bodily injury.

      Essentially,     defendant     testified    that     Haulmark   came    at

him, tackled him, and was then on top of him, biting his nipple

and choking him.      Defendant described his desperate attempts to

get Haulmark to stop choking him.            Defendant's efforts included

repeatedly      elbowing    and   punching    Haulmark     in   the   head    as

Haulmark was clamping his teeth down on defendant's nipple and

strangling him.       We agree with the trial judge's conclusion

6
  The State's reliance on Commonwealth v. Toon, 773 N.E.2d 993
(Mass. App. Ct. 2002), is misplaced.        In that case, the
defendant threatened to stab the victim with a knife before the
fight began, and there was insufficient evidence that the victim
used deadly force or that the defendant believed he was in
imminent danger of death or serious bodily harm.    Id. at 1001-
02.



                                      18                              A-2481-11T4
that, if the jury accepted defendant's version of the incident,

defendant reasonably believed that he needed to employ the force

he used "to protect himself against death or serious bodily

injury,"    and        defendant     neither       provoked     the      incident    nor

provoked it "for the purpose of causing death or serious bodily

injury" to Haulmark.           N.J.S.A. 2C:3-4b(2)(a).

    Next, we turn to the requirement that the actor retreat,

provided it can be done "with complete safety," N.J.S.A. 2C:3-

4b(2)(b).         If    defendant     was   being     bitten     and     choked,    with

Haulmark on top of him, he certainly had no ability to retreat

from that situation.              See Lewis, supra, 65 M.J. at 89.                  Once

defendant    succeeded         in   getting      Haulmark     off   him,    reasonable

jurors could conclude defendant was also justified in kicking

the large, aggressive Haulmark once as he was getting up, so

that defendant and his companions could safely withdraw from the

area.

    The trial evidence by no means compelled a conclusion that

defendant    acted        in   self-defense,       but   if    defendant      and    the

several witnesses who testified favorably to him were deemed

credible,    a    jury     could    find    that    he   acted      in   self-defense.

Because     the        evidence     could     support    self-defense,        we     are




                                            19                                A-2481-11T4
constrained   to     reverse   defendant's    conviction      for   aggravated

manslaughter.7

      Moreover, bearing in mind that the trial judge in this case

did   not   tailor    the   charge   with    reference   to    the    evidence

presented by either side, we remind the trial court on remand

that it is often important to mold jury instructions so that the

jury clearly understands how the evidence in this particular

case relates to the legal concepts addressed in the charge.                 See

State v. Gartland, 149 N.J. 456, 476 (1997).

                 Model jury charges are often helpful to
            trial   courts   performing  this  important
            function.   However, it is not always enough
            simply to read the applicable provision of
            the Criminal Code, define the terminology,
            and set forth the elements of the crime. An
            instruction that is appropriate in one case
            may not be sufficient for another case.
            Ordinarily, the better practice is to mold
            the instruction in a manner that explains
            the law to the jury in the context of the
            material facts of the case.

                 In this regard, it is "well settled in
            our State that the trial judge has the
            right, and oftentimes the duty, to review
            the testimony and comment upon it, so long
            as he clearly leaves to the jury * * * the
            ultimate determination of the facts and the
            rendering of a just and true verdict on the

7
  In arguing for reversal on this point, defendant has raised
several additional contentions that were not presented to the
trial court. We decline to address them for the first time on
appeal. If they are relevant at the retrial they may be raised
on remand.




                                     20                               A-2481-11T4
            facts as it finds them."        Incorporating
            specific evidentiary facts into a jury
            charge is especially helpful in a protracted
            trial with conflicting testimony.

            [State v. Concepcion, 111 N.J. 373, 379-80
            (1988) (citations omitted).]

In particular, in this case, it would be helpful to mold the

instructions to explain how the self-defense statute applies to

the participants in a fight.

                                      III

    We   next    address    the    prosecutor's          use   of     the    brother's

incriminating statement to the police.                   It is well-established

that the prosecution cannot introduce the confession of a non-

testifying co-defendant as evidence against a defendant.                        Bruton

v. United States, 391 U.S. 123, 126, 88 S. Ct. 1620, 1622, 20 L.

Ed. 2d 476, 479 (1968); State v. Haskell, 100 N.J. 469, 478-79

(1985); State v. Laboy, 270 N.J. Super. 296, 303 (App. Div.

1994).      "[T]he   out-of-court        statement       of    a    co-defendant      is

inadmissible against another defendant because admission of the

statement     violates     the    rule        prohibiting      hearsay       and    the

defendant's fundamental right to confront witnesses."                         Haskell,

supra, 100 N.J. at 478.

    More     generally,     absent    exceptions         not       present    here,    a

witness's     statement    resulting          from   a    police      interrogation

constitutes    testimonial       hearsay.      Crawford       v.    Washington,     541




                                         21                                   A-2481-11T4
U.S. 36, 52, 124 S. Ct. 1354, 1364, 158 L. Ed. 2d 177, 193

(2004); see Michigan v. Bryant, 562 U.S. 344, ___, 131 S. Ct.

1143,     1150,    179     L.    Ed.    2d    93,       101-02    (2011);     Davis     v.

Washington, 547 U.S. 813, 822, 126 S. Ct. 2266, 2273, 165 L. Ed.

2d 224, 237 (2006).             Unless the witness is unavailable and the

defendant    had    a    prior    opportunity       to     cross-examine      him,     the

statement cannot be admitted as evidence against the defendant

without     violating      his    Sixth       Amendment        confrontation     right.

Crawford, supra, 541 U.S. at 59, 124 S. Ct. at 1369, 158 L. Ed.

2d at 197; State v. Weaver, 219 N.J. 131, 151 (2014).8                            It is

also improper for the prosecution to imply to the jury, through

argument or witness testimony, that the State has additional

incriminating evidence that the jury has not heard.                             Weaver,

supra, 219 N.J. at 152-53; State v. Branch, 182 N.J. 338, 351-52

(2005); State v. Johnson, 421 N.J. Super. 511, 519 (App. Div.

2011).

    In      cross-examining            defendant,        the     prosecutor     clearly

transgressed those fundamental constitutional principles.                             This

impropriety       was    compounded      when     the    judge    later   allowed      the

prosecutor to tell the jury that the brother's statement was

8
  We agree with defendant that Jarrod's statement to the police
was not the statement of a co-conspirator made during the course
of and in furtherance of a conspiracy. See N.J.R.E. 803(b)(5).
Nor, in a criminal trial, was it admissible against defendant as
a statement against interest. N.J.R.E. 803(c)(25).



                                             22                                A-2481-11T4
kept from them by the court's evidentiary rulings.                  Johnson,

supra, 421 N.J. Super. at 518-20.

       To put the errors in context, defendant's cross-examination

was not the first time the prosecutor made improper use of the

statement of an absent witness.            During the prosecutor's opening

statement, he informed the jury that Emily Henry told the police

that she had told defendant that Haulmark made crude gestures

and comments to her on the night Haulmark was killed.              Thus, the

prosecutor argued, defendant was motivated to kill Haulmark due

to   his   rage   over   the   way   he    believed   Haulmark   treated   the

girlfriend.       The prosecutor then told the jury that Emily's

statement to the police was untrue.

       Out of the jury's presence, defense counsel vociferously

objected and requested a mistrial, because Emily was not going

to be a witness at the trial and her out-of-court statement,

that   she   allegedly    told   defendant      certain    information,    was

inadmissible hearsay.          The judge denied the mistrial motion;

however, he ruled that the State was to make no further comment

to the jury about Emily's alleged statement.              That ruling should

have enlightened the prosecutor as to the inadmissibility of

hearsay statements by absent co-defendants.            But it did not.

       In response to the prosecutor's opening statement, defense

counsel's opening statement reminded the jury that neither his




                                      23                             A-2481-11T4
comments nor those of the prosecutor were evidence, and that

"[t]he only evidence you will hear is going to come from this

[witness] box, and from exhibits that come from witnesses who

are in that box."           Defense counsel would repeat that theme in

his summation.

       During defendant's cross-examination, the prosecutor asked

defendant about Emily's "statement."                 Defense counsel objected

and the judge sustained the objection.                    Soon thereafter, the

prosecutor asked defendant a series of questions about whether

his brother participated in the fight.                   Defendant denied that

his brother participated.           The prosecutor then asked: "Is what

you're   telling     us    here   today    consistent     with        your   brother's

statement?"        Defense counsel objected and told the judge that

this    question    might    be   grounds      for   a   mistrial.           The   judge

sustained the objection.           However, on the next trial day, the

prosecutor renewed his request to use the brother's statement to

cross-examine defendant, over defense counsel's objection.                           The

judge ruled that "the State can pursue this line of inquiry."

       During the subsequent cross-examination of defendant, one

of the prosecutors asked defendant another series of questions

about    whether     his    brother   participated         in    the     fight     with

Haulmark,    allegedly       by   elbowing,      hitting,       and    kicking     him.

Defendant denied it.         She then asked, "isn't it true that Jarrod




                                          24                                   A-2481-11T4
said that he did?"        Defense counsel objected and, at sidebar,

the judge asked the prosecutor to withdraw the question.                  She

agreed, but clearly, the information was presented to the jury

through her questions, and no curative instruction was given.

    On June 16, 2011, defense counsel moved for a mistrial

based on the prosecutor's conduct.         Defense counsel pointed out

that during her cross-examination of defendant, the prosecutor

had been reading from a transcript of the brother's statement,

and the jury would have received the impression that the brother

had made a statement which contained the information on which

the prosecutor's questions were based.            The judge denied the

motion,   stating   his   belief   that   the   jury   had   not   seen   the

transcript.

    During his summation, defense counsel attempted to address

and defuse the potential prejudice posed by the prosecutor's

improper effort to place Jarrod's statement before the jury.                He

began by arguing to the jury that the minimal bloodstains on

Jarrod's pants did not establish that Jarrod participated in the

fight with Haulmark.        Defense counsel then pointed out that

there was no testimony that Jarrod participated in the incident:

                Now, that's the bloodstains that Jarrod
           had on him.    You saw how much blood there
           was on Jacob Gentry's knee, you saw how much
           blood there was on Jacob Gentry's boot.   Do
           you think for a minute that Jarrod Gentry
           was involved in the fight – and remember,



                                    25                              A-2481-11T4
               ladies and gentlemen, when we started this
               case, the judge has already told you, and
               he's probably going to instruct you as to
               this again, instructed you at the beginning
               of the case, . . . what the lawyers say
               isn't evidence.   The only evidence actually
               comes from this box and from that screen or
               from the mouth of a witness as they tell you
               what happened. And did you hear anyone from
               that witness stand say Jarrod Gentry was
               involved in this fight, that this was a two
               on one?    You didn't.     The State has an
               obligation to prove their case beyond a
               reasonable doubt, and you heard nothing
               about that, not once.    Not from a witness,
               that's for sure.

       Before beginning her summation, the prosecutor objected to

that statement and argued that "[defense counsel] commented on

the    State    not    presenting     evidence   of   Jarrod's      testimony    and

basically said we failed . . . [w]hen, in reality, your Honor

precluded us from using it."              (Emphasis added).        Defense counsel

responded "that what I said was they heard no competent evidence

from a witness who testified about Jarrod's involvement.                         And

they    didn't."            Apparently    misconstruing,     or     misremembering

defense counsel's summation argument as telling the jury that

the State failed to introduce Jarrod's statement in evidence,

the judge admonished defense counsel that "this should not have

been    brought       up"   because   the    court   had   ruled    that   Jarrod's

statement was inadmissible.              He granted the prosecutor's request

that she be allowed to tell the jury that Jarrod's statement had

been excluded by the court.



                                            26                             A-2481-11T4
       The prosecutor took full advantage of this ruling, not only

telling the jury repeatedly that Jarrod had made a statement,

but    clearly      implying      to   the    jury   that   the    State   possessed

incriminating evidence that the jury had not been allowed to

hear:

              [Defense counsel] made a reference to you,
              he said the State failed to prove their case
              . . . because we didn't bring in Jarrod's
              statement.   Well, we did not fail to bring
              in Jarrod's statement.    That was a judicial
              ruling, the judge made the decision.      You
              heard throughout this whole trial there's
              stuff   that's   admissible,   there's  stuff
              that's inadmissible. . . . [I]t's up to the
              judge and all those books that sit up there
              to decide what is relevant for you to hear
              and what is not relevant. The State did not
              fail to do anything and you may not . . .
              infer, that we neglected to prove our case
              from failure to give you Jarrod's statement.

       We conclude that the prosecutor's questions and summation

comments, and the trial court's ruling permitting the comments,

were     clearly       improper,          violated       bedrock     constitutional

principles, and constituted prejudicial error.                        Defendant did

not    open   the     door   to    this      evidence,   and   its   admission     was

plainly erroneous.           See State v. Vandeweaghe, 177 N.J. 229, 237-

38 (2003); Johnson, supra, 421 N.J. Super. at 519-20; State v.

Rucki, 367 N.J. Super. 200, 207-09 (App. Div. 2004).

       The    State    argues     that    Jarrod's    statement      was   admissible

because it only incriminated him.                    Putting aside the obvious




                                             27                              A-2481-11T4
Crawford issue, which the State does not address, we find the

State's argument unpersuasive.             Given the issues in this case,

if Jarrod admitted participating in the fight, that evidence

clearly incriminated defendant.              The evidence was admitted in

error, and the error went to the heart of the dispute between

the defense and the State – whether Haulmark's death occurred as

the result of a one-on-one fight or a three-against-one attack.

See State v. Smith, 167 N.J. 158, 188 (2001).

    The   trial     errors    not   only     unfairly    undercut    defendant's

credibility   but     the    prosecutor's       summation     undermined      the

credibility   of     defendant's        attorney    in    implying     that    he

misrepresented      the     evidence.         Further,     because    defendant

testified as to all issues, errors that impugned his credibility

require that his conviction be reversed as to both counts.                    See

Rucki, supra, 367 N.J. Super. at 208-09.

          [At the direction of the court, Part IV,
          which is not deemed to warrant publication,
          see R. 1:36-2(d), is omitted from the
          published version.]


    Reversed and remanded.




                                        28                              A-2481-11T4
