SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0818-15T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v. 

HARRY J. NEHER, a/k/a JOHN NEHER,

Defendant-Appellant.

__________________________________

Submitted December 4, 2017 – Decided

Before Judges Messano and Vernoia. 

On appeal from Superior Court of New Jersey,

Law Division, Gloucester County, Indictment 

No. 13-09-0902.

Joseph E. Krakora, Public Defender, attorney 

for appellant (Jay L. Wilensky, Assistant 

Deputy Public Defender, of counsel and on the 

briefs).

Charles A. Fiore, Acting Gloucester County 

Prosecutor, attorney for respondent (Douglas 

B. Pagenkopf, Special Deputy Attorney General/

Acting Assistant Prosecutor, on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.

June 7, 2018
2 A-0818-15T4

Defendant Harry J. Neher appeals his convictions following a 

jury trial and aggregate forty-year sentence for first-degree 

murder, tampering with evidence, hindering apprehension and 

weapons offenses. Based on our review of the evidence in light 

of the applicable law, we affirm defendant's convictions, vacate 

his sentence and remand for resentencing. 

I.

On December 31, 2012, Sabrina Bullock's lifeless body was 

discovered in a storage shed behind defendant's apartment building 

in Woodbury. Bullock was found with a computer keyboard cord tied 

around her neck, and it was later determined she died as a result 

of blunt force head and neck trauma. 

Defendant, a self-employed electronics technician, was 

subsequently arrested and charged in an indictment with the 

following offenses: knowing or purposeful murder, N.J.S.A. 2C:11-

3(a)(1) (count one); possession of a weapon for an unlawful 

purpose, N.J.S.A. 2C:39-4(d) (count two); tampering with evidence,

N.J.S.A. 2C:28-6(1) (count three); hindering apprehension,

N.J.S.A. 2C:29-3(b)(1) (count four); and unlawful possession of a 

weapon, N.J.S.A. 2C:39-5(d) (count five). 

The evidence presented at defendant's trial showed that on 

December 30, 2012, Bullock was reported missing by her mother,

Maggie Bullock, who last spoke with Bullock at around 5:30 p.m. 
3 A-0818-15T4

the previous day. Maggie Bullock went to defendant's apartment 

to look for her daughter because she had previously seen Bullock 

and defendant together. Later in the day, Maggie Bullock spoke 

with defendant on the phone and defendant asked, "[W]hat do you 

think, I killed [Bullock]?" 

Defendant and his then-girlfriend Kelly Gall lived in an 

apartment building on Broad Street in Woodbury and often bought 

drugs from Bullock. Based on information received from Bullock's 

mother, on December 30, 2012, Woodbury Patrolman Andrew

DiGiambattista went to defendant's apartment seeking information 

concerning Bullock's whereabouts. Defendant said he had seen 

Bullock the previous evening at "[a]pproximately [eight] p.m.,"

and spoke with Bullock about assisting her with her laptop 

computer. 

Police used information obtained from Bullock's cell phone 

carrier to trace Bullock's phone to the parking lot behind 

defendant's apartment. On December 31, 2012, DiGiambattista 

investigated the parking lot, and found Bullock's body inside a 

storage shed. She "appeared to have full rigor mortis and . . . 

was cold to the touch." DiGiambattista also observed "a [keyboard] 

cord wrapped around her neck."

During DiGiambattista's trial testimony, he identified 

photographs depicting the shed as he observed it on December 31,
4 A-0818-15T4

2012. Following an objection by defense counsel, DiGiambattista 

acknowledged he did not take the photographs. In response to 

questions posed by the court, however, he testified he was present 

when some of the photographs were taken and that all of the 

photographs accurately depicted the scene in the shed as he 

observed it. 

Detective Nicholas Schock took the photographs and also 

testified they accurately depicted the scene in the shed. He 

identified photographs showing "footwear impressions that [were]

made in blood" around the victim and "a keyboard that was found 

underneath [Bullock] with the cord" wrapped around her neck. 

Schock also took photographs of defendant's apartment, tested 

areas of the bathroom he believed might contain suspected blood

and swabbed a blood sample from the bathroom sink. A crime scene 

investigator testified he removed a section from the shed's floor 

that appeared to contain evidence of "footwear impressions."

The evidence also showed two trash bags containing clothing 

were recovered during the investigation: one from a dumpster behind 

defendant's apartment, and another from a trash corral located 

near the apartment. The bag recovered from the dumpster contained 

a black hooded jacket, a ski mask, a pair of sneakers, blue knit 

gloves, a green hooded sweatshirt and a black Airwalk T-shirt. 

Schock testified the sneakers were a men's size ten and a half,
5 A-0818-15T4

and had a distinctive "jagged" tread sole pattern. The bag 

recovered from the trash corral contained household garbage, a 

pill bottle prescribed to Gall, and two pairs of sweatpants, one 

of which contained areas with suspected blood. 

The State presented evidence showing comparisons between 

defendant's DNA, Bullock's DNA, and DNA obtained from the clothing 

found in the bags recovered from the dumpster and trash corral. 

Bullock's DNA was obtained through the use of a sexual assault 

evidence collection kit, which in part included the taking of a 

blood sample from Bullock's body. 

An expert in forensic serology and biological stain analysis 

testified that blood was recovered and tested from one of the 

sneakers, and the sweatshirt and jacket recovered from the bag 

found in the trash corral. An expert in DNA testing analysis 

testified that the DNA found on the sweatshirt contained a mixed 

DNA profile, with Bullock as the major contributor and defendant 

as the minor contributor. The expert further explained that the 

DNA found on a second sweatshirt sample also contained a mixed 

profile, and that defendant's DNA was the source of the major DNA 

profile found. 

The expert also determined that one of the DNA samples from 

the jacket showed a mixed DNA profile, with the victim as the 

major contributor and defendant as the minor contributor. The 
6 A-0818-15T4

expert explained that the second DNA sample from the jacket 

revealed three contributors, with defendant as the source of the 

major DNA profile. 

An expert in footwear impression analysis testified that she 

conducted test impressions of the sneakers recovered from the bag 

found in the dumpster, and compared them to the impressions 

developed from the shed's flooring. Defendant objected to the 

expert's testimony concerning photographs of the impressions used 

during the analysis because the expert had not taken the 

photographs. The court questioned the expert, and she explained 

that the photographs accurately depicted the impressions and the 

flooring. Defendant's counsel indicated he was satisfied, and 

there was no further objection to the testimony. 

The expert opined that eight of the twenty-two impressions 

from the shed's floor shared a similar "chevron" or "zig[-]zag"

pattern as the soles of the recovered sneakers. She testified 

that eight of the other impressions did not include sufficient 

characteristics to provide a basis for comparison, and 

acknowledged the possibility that other impressions did not come 

from the recovered sneakers. 

The State presented testimony from an expert in forensic 

pathology that Bullock suffered a "half inch fracture in the right 

side and . . . a quarter inch fracture in the left side of the 
7 A-0818-15T4

neck." Bullock also suffered from "compression of the neck or 

blunt trauma to the neck" which indicated her neck "was either 

squeezed" or there was a blow to her neck causing a hemorrhage. 

The expert testified Bullock "died of blunt head and neck trauma 

that caused bleeding around the membranes of the brain and bleeding 

within the brain. Additionally there was hemorrhage in the neck 

organs indicating blunt neck trauma with possible compression."

Defendant testified at trial that he knew Bullock because he 

bought drugs from her. He explained she came to his apartment 

during the morning hours of December 29, 2012, and later he fought 

with Gall because she believed he was "cheating on her" with 

Bullock. He testified that during the day, Gall called Bullock 

and argued with her over the phone. 

Defendant testified he called Bullock at around 7:40 p.m. to 

see if he could buy marijuana, and Bullock came to the apartment 

a short time later. According to defendant, he and Bullock left 

the apartment and went outside to smoke marijuana. He returned 

to the apartment alone to obtain a cellphone for Bullock and while 

he looked around the apartment, he saw Gall in the bathroom wearing 

an "Airwalk t-shirt" washing blood off her hands. He saw blood 

on Gall's forehead, and when he told her he was going outside to 

meet Bullock, Gall pushed him causing him to injure his thumb. 
8 A-0818-15T4

Defendant explained that he prepared to leave the apartment,

put on his jacket and noticed blood on his hand. He said he asked 

Gall to see her hands but did not see any cuts, and that is when 

he "found out that it was [Bullock's] blood and that [Gall] had 

attacked [Bullock]." Defendant did not explain what caused him 

to reach that conclusion. 

Defendant denied killing Bullock, but admitted taking clothes 

Gall placed into the plastic bag and putting the bag in the trash 

corral. He admitted the sneakers had been given to him by Gall,

but said he did not wear them because they were too small. He 

denied wearing the jacket and sweatshirt found in the bag on the 

day of the murder. He admitted he disposed of the bag in the 

trash corral, and Gall cleaned their apartment. 

Defendant testified that Gall placed the other bag in the 

dumpster. He admitted the bag contained clothes that he wore on 

the day Bullock was murdered. He testified he found out Bullock 

was murdered on December 31, 2012, but also stated that on December 

30, 2012, he knew Bullock was in the shed. On cross-examination,

defendant "admit[ed] that [he] tried to cover up a crime, but 

. . . didn't commit the murder." 

Gall testified as a rebuttal witness for the State. She 

explained that she knew Bullock because she and defendant bought 

drugs from her. Gall denied believing defendant was cheating on 
9 A-0818-15T4

her with Bullock, and testified she knew defendant went to 

Bullock's house on occasion to fix her computer. Gall said that 

on the evening of December 29, 2012, defendant returned to their 

apartment and asked for assistance because he "got jumped." She 

saw defendant take off his clothes and put them in a plastic bag. 

He then said he was going to the hospital and left the apartment 

with the plastic bag. Gall denied any involvement in Bullock's 

murder. 

The jury found defendant guilty on each of the charges in the 

indictment. At defendant's sentencing proceeding, the court 

imposed a forty-year sentence with "a parole ineligibility period 

of [thirty] years," for defendant's first-degree murder 

conviction. The court merged defendant's conviction for tampering 

with evidence with his conviction for hindering apprehension, and 

sentenced defendant to a term of eighteen months on those charges.

The court also merged defendant's convictions for the two weapons 

offenses, and sentenced defendant to eighteen months. The court 

ordered that the sentences be served concurrently.

At a subsequent resentencing hearing, the court explained 

that it erred in its imposition of the parole ineligibility period 

for the sentence on the murder conviction. The court stated that 

the sentence imposed for the murder conviction was subject to the 

No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and therefore 
10 A-0818-15T4

modified that sentence to include an eighty-five percent period 

of parole ineligibility and a five-year period of parole 

supervision as required under NERA. 

Defendant appealed from the judgment of conviction and 

presents the following arguments for our consideration:

POINT I

THE TRIAL COURT ERRED PREJUDICIALLY IN 

ADMITTING EVIDENCE OF A RAPE KIT TAKEN OF THE 

VICTIM IN THE ABSENCE OF ANY EVIDENCE OR 

ALLEGATION OF SEXUAL ASSAULT.

POINT II

THE PROSECUTOR COMMITTED PREJUDICIAL 

MISCONDUCT, NECESSITATING REVERSAL, [U.S. 

Const. amend. XIV]; [N.J. Const. art. I, ¶¶ 

9, 10]. (NOT RAISED BELOW)

A. State's Opening Statement

1. The Opening Constituted a 

Repeated Declaration of 

Guilt.

2. The Opening Was Overly 

Inflammatory.

3. The Opening Was Improperly 

Argumentative.

B. State's Summation

C. These Improprieties Constituted 

 Plain Error.

POINT III

THE TRIAL COURT ENGAGED IN EXCESSIVE 

QUESTIONING OF WITNESSES, TO THE DEFENDANT'S 
11 A-0818-15T4

PREJUDICE. [U.S. Const. amend. XIV]; [N.J.

Const. art. I, ¶¶ 9, 10]. (NOT RAISED BELOW).

POINT IV

THE TRIAL COURT IMPOSED AN EXCESSIVE SENTENCE,

NECESSITATING REDUCTION.

In a supplemental pro-se brief, defendant further argues:

POINT I

THE PROSECUTOR COMMITTED PREJUDICIAL 

MISCONDUCT, NECESSITATING REVERSAL. [U.S. 

Const. amend. XIV]; [N.J. Const. art. I, ¶¶ 

9, 10].

POINT II

THE TRIAL COURT ERRED WHILE DELIVERING 

INSTRUCTIONS TO THE JURY.

POINT III

THE CUMULATION OF CERTAIN ERRORS DEPRIVED 

DEFENDANT OF A FAIR TRIAL.

II.

A.

Defendant first argues the court erred by allowing testimony 

that a sexual assault evidence collection kit was utilized to 

collect evidence from Bullock's body, and that the results of the 

testing did not reveal any evidence of a sexual assault.1 

Defendant argues the testimony was irrelevant because there was 

 

1 Defendant does not argue that the evidence obtained from the 

use of the kit, such as Bullock's blood sample and resulting DNA 

profile, was improperly admitted into evidence. 
12 A-0818-15T4

no allegation or evidence Bullock was the victim of a sexual 

assault, and highly prejudicial because it unnecessarily 

introduced the specter of sexual assault into the case, producing 

revulsion toward defendant and sympathy for Bullock. We are not 

persuaded.

"[C]onsiderable latitude is afforded a trial court in 

determining whether to admit evidence, and that determination will 

be reversed only if it constitutes an abuse of discretion." State 

v. Kuropchak, 221 N.J. 368, 385 (2015) (citation omitted). "In 

light of the broad discretion afforded to trial judges, an 

appellate court evaluates a trial court's evidentiary 

determinations with substantial deference." State v. Cole, 229 

N.J. 430, 449 (2017). "Under that standard, an appellate court 

should not substitute its own judgment for that of the trial court,

unless 'the trial court's ruling was so wide of the mark that a 

manifest denial of justice resulted.'" Kuropchak, 221 N.J. at 385 

(citations omitted). We apply those standards here. 

"The fundamental principle guiding the admission of evidence

is relevance." State v. Weaver, 219 N.J. 131, 149 (2014). 

Evidence is relevant if it has "a tendency in reason to prove or

disprove any fact of consequence to the determination of the

action." N.J.R.E. 401. Nevertheless, even "relevant evidence may

be excluded if its probative value is substantially outweighed by
13 A-0818-15T4

the risk of (a) undue prejudice, confusion of issues, or misleading

the jury or (b) undue delay, waste of time, or needless

presentation of cumulative evidence." N.J.R.E. 403.

We find no abuse of discretion in the court's admission of

the experts' testimony about the use of the sexual assault kit and

the results of their findings from the kit, including the absence

of sperm or any other indicia of a sexual assault. The testimony

established facts of consequence: law enforcement's comprehensive

investigation of the potential circumstances surrounding Bullock's

murder and the processes used to obtain the DNA evidence that

inculpated defendant. Defendant and Bullock's mixed DNA profiles

in the blood found on the clothing directly linked defendant to

Bullock's murder. Bullock's DNA was obtained from the use of the

sexual assault kit.

Defendant argues the witnesses' reference to a "sexual

assault kit" and the evidence showing Bullock was tested for

physical evidence of sexual assault was unnecessary, unduly

prejudicial and diverted the jury's attention by introducing

sexual assault into the case. The record does not support this

contention. There was no allegation of sexual assault, defendant

was not charged with sexual assault and the testimony established

there was no evidence of a sexual assault. The only evidence

obtained from the use of the kit was Bullock's blood and the
14 A-0818-15T4

resulting DNA profiles. Indeed, on cross-examination of one of

the State's experts, defense counsel ably obtained an unequivocal

admission that the use of the kit yielded no evidence of a sexual

assault. Defendant makes no showing that the testimony confused 

the jury or diverted its attention from the charges in the 

indictment. We therefore find no basis to depart from the 

"substantial deference" we pay "to the trial court's 'highly 

discretionary determination.'" State v. Cook, 179 N.J. 533, 568 

(2004). 

Moreover, even if it was error to permit the experts to refer

to the "sexual assault kit," the error was harmless. R. 2:10-2. 

The evidence showing defendant's guilt was overwhelming, and based

on our review of the record, we are convinced that admission of

the testimony, even if error, was not clearly capable of producing

an unjust result. R. 2:10-2; State v. R.B., 183 N.J. 308, 328

(2005).

B.

Defendant next argues a reversal is required because the

prosecutor engaged in misconduct in his opening and closing

arguments. More specifically, defendant claims that during the

prosecutor's opening statement, he repeatedly declared defendant's

guilt, used inflammatory language to attack defendant and create

sympathy for Bullock and was improperly argumentative. Defendant
15 A-0818-15T4

further contends that during summation, the prosecutor denigrated

defendant, expressed impermissible personal opinions about

defendant's credibility and the evidence and made misstatements

about the evidentiary record.

"A prosecutor must 'conscientiously and ethically undertak[e] 

the difficult task of maintaining the precarious balance between 

promoting justice and achieving a conviction,' ensuring that at 

all times his or her 'remarks and actions [are] consistent with 

his or her duty to ensure that justice is achieved.'" State v. 

Jackson, 211 N.J. 394, 408 (2012) (alterations in original) 

(quoting State v. Williams, 113 N.J. 393, 447-48 (1988)). 

"Notwithstanding the high standard to which a prosecutor is 

held as he or she gives an opening statement or summation, 'not 

every deviation from the legal prescriptions governing 

prosecutorial conduct' requires reversal." Id. at 408-09 (quoting 

Williams, 113 N.J. at 452). "Prosecutorial misconduct is a basis 

for reversal of a criminal conviction if the conduct was so 

egregious that it deprived the defendant of the right to a fair 

trial." State v. Gorthy, 226 N.J. 516, 540 (2016) (quoting State 

v. Josephs, 174 N.J. 44, 124 (2002)).

In reviewing a claim of prosecutorial misconduct, a reviewing 

court considers: "whether 'timely and proper objections' were 

raised; whether the offending remarks 'were withdrawn promptly';
16 A-0818-15T4

. . . whether the trial court struck the remarks and provided 

appropriate instructions to the jury . . . [and] whether the 

offending remarks were prompted by comments in the summation of 

defense counsel." State v. Smith, 212 N.J. 365, 403-04 (2012) 

(citations omitted).

Generally, if no objection was made to the 

improper remarks, the remarks will not be 

deemed prejudicial. Failure to make a timely 

objection indicates that defense counsel did 

not believe the remarks were prejudicial at 

the time they were made. Failure to object 

also deprives the court of the opportunity to 

take curative action.

[State v. Timmendequas, 161 N.J. 515, 576 

(1999) (citations omitted).]

Measured against these standards, we find no basis to reverse 

defendant's convictions based on the prosecutor's alleged improper 

statements.

Defendant argues the following comments in the prosecutor's 

opening constituted impermissible statements about defendant's 

guilt: 

Who you will not see in this courtroom is [] 

Bullock. She will not be here to tell you 

what happened on December 29, 2012. And I get 

to introduce to you her, who [] Bullock was 

before this man right here got to her. 

. . . .

Ladies and gentlemen, let me reintroduce you 

to the person who did this. This killer right 

there, take a look at him. 
17 A-0818-15T4

. . . .

[T]he police in this case did locate that 

evidence he attempted to discard, and it was 

found.

And but for that being found he possibly could 

have gotten away with murder.

. . . .

Ladies and gentlemen, this man's a killer,

right here. He is a murderer, and the State 

intends to prove that. 

A prosecutor has great leeway in his or her opening comments. 

See id. at 692. Our review of a prosecutor's opening statement

"is two-fold: whether the prosecutor committed misconduct, and,

if so, 'whether the prosecutor's conduct constitutes grounds for

a new trial.'" State v. Wakefield, 190 N.J. 397, 446 (1994)

(quoting State v. Smith, 167 N.J. 158, 181 (2001)). In order to 

satisfy the second prong of that test, a prosecutor's misconduct 

"must have been 'so egregious that it deprived defendant of a fair 

trial.'" Ibid. To warrant a new trial, the prosecutor's comments 

"must have substantially prejudiced defendant's fundamental right 

to have a jury fairly evaluate the merits of his defense." Ibid.

We reject defendant's contention that the prosecutor's

statements were impermissible or require a reversal. Defendant

relies on select statements but fails to properly consider them

in their context. The prosecutor made each statement as part of
18 A-0818-15T4

a broader and permissible message that the State intended to prove

defendant was a murderer, and not that the prosecutor was declaring

defendant as such.

For example, after calling defendant the "killer right 

there," the prosecutor stated: "Now you may be wondering . . . 

[w]hat proof do you have?" and explained in detail the evidence

the State would present to establish defendant killed Bullock. 

The prosecutor's explanation of how he intended to prove defendant 

was the killer is not only within the bounds of permissible 

conduct, but is also what an opening statement is intended to be.

See State v. Walden, 370 N.J. Super. 549, 558 (App. Div. 2004) ("A

prosecutor's opening statement should provide an outline or

roadmap of the State's case. It should be limited to a general

recital of what the State expects, in good faith, to prove by

competent evidence." (quoting State v. Torres, 328 N.J. Super.

77, 95 (App. Div. 2000))).

At all times during his opening statement, the prosecutor 

reminded the jury of what he intended to prove, using phrases such 

as "You'll be able to see," "You'll hear from those individuals,"

and "the State [] expects to present to you," certain types of 

evidence. The prosecutor also made clear that the State "must 

prove" defendant murdered the victim beyond a reasonable doubt,

and that "it intend[ed] to prove that." Thus, when considered in 
19 A-0818-15T4

context, we discern no intention by the prosecutor to declare 

defendant's guilt. 

Moreover, defendant did not object to any of the prosecutor's 

declarations during the opening statement. To the contrary,

defense counsel began his opening statement by properly reminding 

the jury that, in accordance with the court's preliminary 

instructions, "what is said in an opening statement is not

evidence," and that "[a]nything [the prosecutor] just said [is 

not] evidence."

Defendant's reliance on State v. Rivera, 437 N.J. Super. 434 

(App. Div. 2014), is misplaced. In Rivera, the prosecutor 

explicitly declared the defendant's guilt by using a PowerPoint 

presentation in his opening statement that showed "a photograph 

[of the] defendant's face and neck, which [was] displayed with a 

bright red border." Id. at 447. "It also include[d] text, printed 

in the same color and density, 'Defendant GUILTY OF: ATTEMPTED 

MURDER.' The words 'Defendant' and 'GUILTY OF:' appear[ed] on 

separate lines to the right of [the] defendant's photograph, and 

'ATTEMPTED MURDER' appear[ed] below the photograph in much larger 

typeface." Ibid. 

The prosecutor in Rivera explicitly declared the defendant's 

guilt by listing the words "guilty of" next to "attempted murder."

Ibid. In reversing the defendant's convictions, we recognized 
20 A-0818-15T4

that "[o]ur Supreme Court "has consistently condemned conduct that 

invades the exclusive province of the jury to resolve factual 

disputes, assess credibility and decide whether the State's 

evidence establishes guilt." Id. at 449 (citations omitted). We 

found "[i]t is difficult to conclude that a prosecutor's 

declaration of the defendant's guilt before the first witness is 

sworn would not have invaded the province of the jurors." Id. at

450.2

Here, the prosecutor's comments do not rise to the same level 

or degree as those employed by the prosecutor in Rivera. There 

was no declaration of defendant's guilt, and the prosecutor's 

comments were accompanied by an acknowledgment that the State had 

the burden of proving the elements of the offenses charged and a 

description of the evidence which the prosecutor intended to 

introduce to satisfy that burden. See State v. Hipplewith, 33 

N.J. 300, 311 (1960) (explaining it is improper for a prosecutor 

 

2 Our decision in Rivera did not turn exclusively on the

prosecution's use of the PowerPoint presentation during its

opening. The prosecutor also used the PowerPoint presentation in 

summations and "included statements about the law of self-defense 

that were so oversimplified as to be misleading." Id. at 463. 

Thus, we were also concerned with the jury's "capacity to follow 

[the trial judge's] instructions." Id. at 464 (citations omitted). 

We reversed based on the "cumulative impact of the prosecutor's 

misconduct." Id. at 465.
21 A-0818-15T4

to state, explicitly or implicitly, his or her personal belief of 

a defendant's guilt unless it is based on the evidence). 

Moreover, even if the prosecutor's statements were improper,

they did not deprive defendant of a fair trial, Wakefield, 190 

N.J. at 467, and the lack of any objection to the statements may 

be properly viewed as an acknowledgement they were not prejudicial,

See State v. Frost, 158 N.J. 76, 83 (1999) (holding generally,

"remarks will not be deemed prejudicial" if no objection was made 

at trial); see also State v. Abdullah, 372 N.J. Super. 252, 267-

68 (App. Div. 2004) ("Where, as here, the defendant's lawyer fails 

to object at trial, we may legitimately infer that counsel did not 

consider the remarks inappropriate or prejudicial."), aff'd in 

part, rev'd in part on other grounds, 184 N.J. 497 (2005). 

We also reject defendant's assertion that the prosecutor's 

opening statement was overly inflammatory based on his description 

of how Bullock appeared when her body was found:

The [] Bullock that you'll see? She's bloody,

beaten, swollen, with her lifeless body 

propped on a keyboard with its cord wrapped 

around her neck . . . .

[The State] took photographs of [defendant's] 

hands . . . .

I'm going to leave those pictures for you to 

judge. You can evaluate them. You can 

evaluate if they are bruises on his hands and 

if it's consistent with being involved in this 

brutal, vicious murder of [] Bullock. 
22 A-0818-15T4

"A prosecutor may summarize the State's case graphically and 

forcefully." State v. W.L., 292 N.J. Super. 100, 110 (1996). At 

the same time, however, a prosecutor "may not make 'inflammatory 

and highly emotional' appeals which have the capacity to defer the 

jury from a fair consideration of the evidence of guilt." Id. at 

111 (quoting State v. Marshall, 123 N.J. 1, 161 (1991)). 

We have not hesitated to criticize rhetorical excesses by

prosecutors that invite juror sympathy for the victim. See, e.g.,

State v. Roman, 382 N.J. Super. 44, 58-59 (App. Div. 2005)

(criticizing prosecutor's remarks that it was the duty of adults,

including the jurors, to protect the child victim); State v.

Buscham, 360 N.J. Super. 346, 364-65 (App. Div. 2003) (same);

State v. Hawk, 327 N.J. Super. 276, 282 (App. Div.

2000) (suggestions that the jury "send a message" through its

verdict, "were inappropriate, inflammatory and constitute[d]

misconduct"). Contrary to defendant's claim, however, the

prosecutor's comments were not "calculated to arouse sympathy for 

the victim and hate and anger against the defendant," like the 

comments we determined required a reversal in W.L., 292 N.J. Super. 

at 111. In W.L., the prosecutor commented on the innocence of all 

children generally, the effects of the crime on the victim's 

family, and advised the jury that if it found the State has proven 
23 A-0818-15T4

its case it had a "strong duty to find him guilty." Id. at 105-

09.

Here, the prosecutor provided nothing more than a brief and 

accurate description of Bullock's body as it appeared when it was 

discovered, coupled with a preview of the evidence that would be 

presented to establish the body's condition. The prosecutor's 

description was graphic, but there was no objection, and the 

description was neither impermissible, see W.L., 292 N.J. Super. 

at 110-11, nor capable of depriving defendant of a fair trial, see

Wakefield, 190 N.J. at 443.

We similarly reject defendant's contention that the 

prosecutor's opening statement was unduly argumentative. We find 

no support in the record for defendant's reliance on State v. 

Spano, 64 N.J. 566, 567 (1974), where the Court reversed a 

defendant's conviction because the prosecutor interrupted defense 

counsel's opening statement and declared the defendant had an 

opportunity to appear before the grand jury and testify, but did 

not do so. The Court determined the prosecutor's comment 

constituted a declaration that the defendant would have testified 

if he was innocent, but was guilty because he did not. Id. at 

567-68. The prosecutor made no comparable remarks here.
24 A-0818-15T4

C.

Defendant further contends the prosecutor committed 

prosecutorial misconduct by misstating facts in support of his 

argument defendant was not credible and by stating defendant was 

a liar. Although we agree the prosecutor's comments were improper,

we are not convinced they were sufficiently prejudicial to have 

deprived defendant of a fair trial. 

We consider the propriety of a prosecutor's comments during 

summation under a standard similar to that applied in our 

consideration of comments made during opening statements. A 

prosecutor is "entitled to wide latitude in his [or her] summation 

. . . [s]o long as he [or she] stays within the evidence and the 

legitimate inferences therefrom." R.B., 183 N.J. at 330 (quoting 

State v. Mayberry, 52 N.J. 413, 437 (1968)).

In our determination of the propriety of a prosecutor's 

summation, we consider "whether 'timely and proper objections'

were raised; whether the offending remarks 'were withdrawn 

promptly'; and whether the trial court struck the remarks and 

provided appropriate instructions to the jury." Smith, 212 N.J. 

at 403 (internal citation omitted) (quoting Frost, 158 N.J. at 

83). If prosecutorial misconduct occurred and the comments "were 

sufficiently egregious, a new trial is appropriate, even in the 
25 A-0818-15T4

face of overwhelming evidence" of a defendant's guilt. Id. at 

404. 

"Whether particular prosecutorial efforts can be tolerated 

as vigorous advocacy or must be condemned as misconduct is often 

a difficult determination to make. In every instance, the 

performance must be evaluated in the context of the entire trial,

the issues presented, and the general approaches employed." State 

v. Negron, 355 N.J. Super. 556, 576 (App. Div. 2002). "To justify 

reversal, the prosecutor's conduct must have been clearly and 

unmistakably improper, and must have substantially prejudiced 

[the] defendant's fundamental right to have a jury fairly evaluate 

the merits of his [or her] defense." State v. Nelson, 173 N.J. 

417, 460 (2002) (alterations in original) (quoting State v. 

Papasavvas, 163 N.J. 565, 625 (2000)). 

Defendant argues he was improperly denigrated by the 

prosecutor's comments concerning defendant's statements to 

Bullock's mother when she asked if he had seen Bullock after 

Bullock went missing. The prosecutor told the jury:

[W]hat type of ruthless individual will look 

a mother who's looking for her daughter in the 

eye when he knows, he knows she's dead. He 

knows she's dead and he didn't tell her. He 

knows it.

And not only did he not tell her, Taylor 

Bullock was there too, her poor daughter. He 

looked her in the eye too. They're looking 
26 A-0818-15T4

for [the victim] . . . and he knows. Ladies 

and gentlemen, that is not a character trait 

of someone who just covers a crime up. That 

is a character trait of a murderer. That is 

a character trait of someone who kills a 

wom[a]n and tries to take another one down 

while doing it. That's what he is. 

We have criticized a prosecutor's use of derogatory 

statements about a defendant, see, e.g., Wakefield, 190 N.J. at 

467; State v. Pennington, 119 N.J. 547, 576-77 (1990), and the 

prosecutor's references to defendant as "ruthless" and having a 

"character trait of a murderer" were improper comments having no 

place in defendant's trial. However, we must evaluate the 

challenged remarks in the context of the "summation as a whole."

State v. Atwater, 400 N.J. Super. 319, 335 (App. Div. 2008)

(citation omitted). 

Here, the prosecutor's comments were fleeting, and made 

during a summation that otherwise detailed the substantial 

evidence supporting the determination of defendant's guilt. 

"Generally, . . . a 'fleeting and isolated' remark is not grounds 

for reversal." Gorthy, 226 N.J. at 540 (quoting State v. Watson,

224 N.J. Super. 354, 362 (App. Div. 1988)). Moreover, "[w]hen,

as here, the defendant does not object to the prosecutor's 

statement, that statement does not warrant reversal of the 

conviction unless it is 'of such a nature as to have been clearly 

capable of producing an unjust result.'" Ibid. (quoting R. 2:10-
27 A-0818-15T4

2); accord State v. Echols, 199 N.J. 344, 360 (2009). We are 

therefore satisfied that the improper comments did not 

"substantially prejudice[] . . . defendant's fundamental right to 

have a jury fairly evaluate the merits of his . . . defense." 

State v. Ingram, 196 N.J. 23, 43 (2008).

We have carefully considered defendant's remaining 

contentions, including those asserted in defendant's pro se 

supplemental brief, and find they are without sufficient merit to 

warrant discussion in a written opinion. R. 2:11-3(e)(2). We add 

only that the prosecutor's assertions of fact during summation,

when considered in context, were either directly supported by the

evidence or constituted inferences reasonably drawn from the 

evidence. In addition, the court instructed the jurors that they 

were "the sole exclusive judges of the evidence, of the credibility 

of the witnesses, and the weight to be attached to the testimony 

of each witness . . . regardless of what counsel said or may have 

said recalling the evidence in this case." We presume the jury 

followed the court's instructions, Smith, 212 N.J. at 409, and 

therefore accorded no weight to any purported misstatement of fact 

in the prosecutor's summation. The challenged statements 

otherwise did not deprive defendant of a fair trial. 
28 A-0818-15T4

D.

Defendant further contends the court erred by engaging in 

what he characterizes as excessive questioning of DiGiambattista 

and the State's footwear impressions expert. During 

DiGiambattista's testimony, the court asked questions about 

whether the photographs he was shown accurately depicted the scene 

in the shed and Bullock's body when he found her. The court 

similarly asked the expert questions about whether photographs 

that she did not take accurately depicted the footwear impressions 

found on the shed's flooring. Defendant argues the questioning 

constituted unwarranted judicial intervention and violated his 

right to a fair trial. We disagree.

Defendant did not object to the court's questioning of the 

witnesses. We therefore review for plain error, and "disregard 

any alleged error 'unless it is of such a nature as to have been 

clearly capable of producing an unjust result.'" State v. 

Funderburg, 225 N.J. 66, 79 (2016) (quoting R. 2:10-2). We find 

no plain error here.

In State v. Ross, 229 N.J. 389, 408-09 (2017), the Court 

recently summarized the relevant legal standard: 

The New Jersey Rules of Evidence explicitly

permit trial judges to interrogate witnesses.

Judges are authorized to question witnesses

"in accordance with law and subject to the
29 A-0818-15T4

right of a party to make timely

objection." N.J.R.E. 614.

Indeed, we have recognized that the

discretionary power of a judge to participate

in the development of proof is of "high

value." [State v. Guido, 40 N.J. 191, 207

(1963)]. A trial judge may intervene to

expedite the proceedings and clarify

testimony. [State v. O'Brien, 200 N.J. 520,

534 (2009)]. A trial judge may also pose

questions to help elicit facts from a witness

who is in severe distress. [State v. Taffaro,

195 N.J. 442, 451 (2008)].

Although a trial judge has wide latitude to

question witnesses, a judge must exercise this

authority with "great restraint," especially

during a jury trial. Ibid. A judge must use

considerable care when questioning witnesses

to avoid influencing the jury. Ibid. There

is a grave risk that a trial court may

influence a jury through its questioning by

signaling doubt about a witness's credibility

or suggesting that it favors one side over the

other. See O'Brien, 200 N.J. at 523 (noting

that [a] judge "holds powerful symbolic

position vis-a-vis jurors . . . and must

refrain from any action that would suggest

that he favors one side over the other, or has

a view regarding the credibility of a party

or a witness"). A fine line separates proper

and improper judicial questioning. A trial

court crosses this line when its inquiries

give the jury an impression that it takes one

party's side or that it believes one version

of an event and not another. See Taffaro, 195

N.J. at 451.

In determining whether a trial judge crossed

over this line, we must examine the record as

a whole. See id. at 454. "[I]t is the impact

of the court's questions, and not the number

of minutes they lasted, which matters

most." Ibid.
30 A-0818-15T4

Measured against that standard, we are satisfied the court 

did not abuse its discretion by questioning the witnesses about 

the accuracy of the photographs. The court's questions were 

limited to the witnesses' knowledge concerning the photographs,

and could neither be reasonably interpreted as favoring one side 

of the case nor as expressing an opinion on the credibility of 

either side's version of the events. Cf. O'Brien, 200 N.J. at 537 

(reversing conviction based on judge's questioning of a witness 

"le[ft] the impression that [the judge] did not believe [the]

defendant's claim"). The record simply does not support or permit 

a conclusion that the court's questioning was capable of producing 

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

E.

Defendant challenges his sentence, claiming the court erred 

by imposing an excessive sentence based upon its application of 

aggravating factors one, "[t]he nature and circumstances of the 

offense, and the role of the actor therein, including whether or 

not it was committed in an especially heinous, cruel, or depraved 

manner," N.J.S.A. 2C:44-1(a)(1); three, the risk defendant will 

commit another offense, N.J.S.A. 2C:44-1(a)(3); six, the extent 

and seriousness of defendant's prior record, N.J.S.A. 2C:44-

1(a)(6); and nine, the need to deter defendant and others from 

violating the law, N.J.S.A. 2C:44-1(a)(9).
31 A-0818-15T4

"Appellate review of sentencing is deferential, and appellate 

courts are cautioned not to substitute their judgment for those 

of our sentencing courts." State v. Case, 220 N.J. 49, 65 (2014) 

(citation omitted). Thus, disturbing a sentence is permissible 

in "only three situations: (1) the trial court failed to follow 

the sentencing guidelines, (2) the aggravating and mitigating 

factors found by the trial court are not supported by the record,

or (3) application of the guidelines renders a specific sentence 

clearly unreasonable." State v. Carey, 168 N.J. 413, 430 (2001).

Our Supreme Court has cautioned that a reviewing court should 

not second-guess a trial court's diligent exercise of its 

sentencing discretion that is in accordance with the sentencing 

guidelines. State v. Cassady, 198 N.J. 165, 180-81 (2009); State 

v. Roth, 95 N.J. 334, 365 (1984). Rather, appellate courts must 

abide by a sentence imposed in accordance with the sentencing 

guidelines unless it "shocks the judicial conscience." Cassady,

198 N.J. at 180; see also State v. Tindell, 417 N.J. Super. 530,

570 (App. Div. 2011). We are "empowered – indeed obligated – to 

correct a clearly unreasonable sentence, even if the judge applied 

correctly the statutory sentencing guidelines." Tindell, 417 N.J. 

Super. at 571.

A trial court must not only make findings of aggravating and 

mitigating factors, but must also weigh and balance the factors 
32 A-0818-15T4

in a process that requires more than a quantitative comparison of 

"the number of pertinent aggravating factors with the number of 

applicable mitigating factors." State v. Fuentes, 217 N.J. 57,

72 (2014). The sentencing court must "qualitatively assess[] and 

assign[] appropriate weight in a case-specific balancing process." 

Id. at 72-73. "When the aggravating and mitigating factors are 

identified, supported by competent, credible evidence in the 

record, and properly balanced," an appellate court must affirm the 

sentence provided it does not shock our judicial conscience. Case,

220 N.J. at 65. If the sentencing court "forgoes a qualitative 

analysis" of the aggravating and mitigating factors "or provides 

little 'insight into the sentencing decision,' then the 

deferential standard of appellate review of a sentence does not 

apply. Ibid.

In a sentencing court's application of aggravating factors,

"sentencing courts are cautioned to avoid 'double counting'

circumstances that the Legislature has already incorporated as an 

element of the offense." State v. Lawless, 214 N.J. 594, 608 

(2013). Thus, relying on factors that support an element of a 

crime, such as the victim's death which underlies the murder 

offense, may not be used as aggravating factors for sentencing of 

that particular crime. Ibid.
33 A-0818-15T4

Here, defendant argues the court engaged in impermissible 

double counting by finding aggravating factor one based on the 

injuries resulting in Bullock's death. The court gave substantial 

weight to aggravating factor one, and found the factor because 

Bullock "died of blunt head and neck trauma" that "caused bleeding 

around the membrane of the brain and bleeding within the brain,"

as well as "hemorrhage within the neck organs indicating blunt 

neck trauma with possible compression." The court also noted that 

a "cord was used" that was "wrapped around her neck." 

Where the defendant is charged with a purposeful and knowing 

murder, "the sentencing court's application of aggravating factor 

one must be based on factors other than the death of the victim 

and the circumstances essential to support a finding" that the 

defendant knowingly and purposely caused the victim's death. 

Fuentes, 217 N.J. at 76. The sentencing court must engage in a 

"nuanced analysis of the defendant's offense," and provide a clear 

explanation to permit an appellate court to determine if the 

elements of offense have been double counted. Ibid. "[A] 

sentencing court may justify the application of aggravating factor 

one, without double[]counting, by reference to the extraordinary 

brutality involved in an offense" or where the "defendant's 

behavior extended to the extreme reaches of the prohibited 

behavior." Id. at 75 (citation omitted).
34 A-0818-15T4

Here, the sentencing court could not properly find 

aggravating factor one simply because "a death resulted from 

defendant's conduct," id. at 76 (quoting State v. Briggs, 349 N.J. 

Super. 496, 505 (2002)), but instead was required to determine if 

defendant's conduct "was 'especially heinous, cruel, [or] 

depraved'" based on the information in the record, id. at 77 

(alteration in original) (quoting N.J.S.A. 2C:44-1(a)(1)). The 

court, however, did not adequately explain the basis for its 

application of aggravating factor one. It "neither discussed in 

detail the circumstances of the offense nor identified the facts 

in the record – distinct from the facts necessary to prove the 

elements of [murder] – that supported its finding." Ibid. We are 

therefore constrained to vacate defendant's sentences and remand 

for resentencing. The court shall determine "if there is credible 

evidence in the record to support" its finding of aggravating 

factor one and "provide a detailed explanation of its findings 

with respect to this and any other factor applied." Id. at 78.

We do not find merit in defendant's contention the court 

erred by relying on his prior offense history as a basis for 

finding aggravating factors three and nine. Defendant contends 

the court also erred in weighing those factors because it failed 

to consider the lack of severity of his previous offenses.
35 A-0818-15T4

The law is well-settled that a court may properly consider 

defendant's prior history of criminality to support findings of 

aggravating factors three, six and nine. State v. Dalziel, 182 

N.J. 494, 502 (2005). The record supports the court's 

determination because it shows defendant had 1999 convictions for 

two counts of third-degree burglary, N.J.S.A. 2C:18-2, and one 

count of third-degree arson, N.J.S.A. 2C:17-1(b)(2), under two 

indictments. He was sentenced to serve a jail term as a condition 

of probation. In 2001, the Family Court entered a domestic 

violence temporary restraining order against him that was 

subsequently withdrawn. In 2002, 2005, 2008, and 2009, he was 

found guilty of offenses in municipal court. In 2010, he was 

found guilty in municipal court of abuse, abandonment, or cruelty 

of children, N.J.S.A. 9:6-1. In 2010, he was found guilty in 

municipal court of three separate offenses. In 2012, he was 

convicted of fourth-degree unlawful possession of a stun gun,

N.J.S.A. 2C:39-3(h), and received a probationary sentence. Less 

than one year later, he committed the murder and other offenses 

for which the court imposed the sentence under review.

A sentencing court may consider the length of a defendant's 

criminal record, irrespective of whether each offense resulted in 

a conviction, State v. Tanksley, 245 N.J. Super. 390, 397 (App. 

Div. 1991), and may consider convictions for relatively minor 
36 A-0818-15T4

offenses. State v. T.C., 347 N.J. Super. 219, 244 (App. Div.

2003). Defendant's record demonstrates a lengthy and consistent 

history of violating the law and provided sufficient credible 

evidence supporting the court's finding of aggravating factors 

three, six and nine. See State v. O'Donnell, 117 N.J. 210, 216 

(1989) ("[A]n appellate court should not second-guess a trial 

court's finding of sufficient facts to support an aggravating or 

mitigating factor if that finding is supported by substantial 

evidence in the record."). We further discern no basis to "secondguess" the court's weighing any of those aggravating factors. See

Cassady, 198 N.J. at 180-81. 

Defendant's remaining arguments are without merit sufficient 

to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Defendant's convictions are affirmed. We vacate defendant's 

sentence and remand for further proceedings in accordance with 

this opinion. We do not retain jurisdiction.