SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5252-18

STATE OF NEW JERSEY, 

Plaintiff-Respondent,

v.

CONRAD R. SIPA,

Defendant-Appellant.

_________________________

Argued April 26, 2021 – Decided August 6, 2021

Before Judges Fasciale and Susswein.

On appeal from the Superior Court of New Jersey, Law 

Division, Ocean County, Indictment No. 17-02-0211.

John Vincent Saykanic argued the cause for appellant.

William Kyle Meighan, Senior Assistant Prosecutor, 

argued the cause for respondent (Bradley D. Billhimer, 

Ocean County Prosecutor, attorney; Samuel 

Marzarella, Chief Appellate Attorney, of counsel; 

William Kyle Meighan, on the 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NOT FOR PUBLICATION WITHOUT THE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.
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Defendant appeals from his jury trial convictions for first-degree murder 

and related weapons offenses, and for hindering prosecution and tampering with 

evidence at the crime scene. Defendant does not dispute that he killed the 

victim, Richard Doody, but claims he was acting in self-defense. Defendant 

raises numerous issues on appeal. He contends the trial court committed plain 

error on several occasions in providing instructions to the jury, abused its 

discretion by excluding testimony from defense expert witnesses and by 

admitting autopsy photos of the victim, and erred in denying defendant's pretrial 

motion to suppress evidence police seized from his home and vehicle pursuant 

to search warrants. Defendant also contends the prosecutor repeatedly 

committed misconduct during her summation. He argues that the cumulative 

effect of these alleged trial errors warrants reversal. After carefully reviewing 

the record in light of the applicable legal principles, we reject these contentions 

and affirm. 

I.

In February 2017, an Ocean County grand jury charged defendant with 

first-degree murder, N.J.S.A. 2C:11-3(a); three counts of third-degree 

possession of a weapon (a knife, a golf club, and a lamp) for an unlawful 

purpose, 2C:39-4(d); fourth-degree unlawful possession of a weapon, the knife, 

N.J.S.A. 2C:39-5(d); third-degree hindering apprehension or prosecution, 
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N.J.S.A. 2C:29-3(b)(1); and fourth-degree tampering with evidence, N.J.S.A. 

2C:28-6(1).

Prior to trial, defendant moved to suppress evidence seized from his home 

and vehicle alleging deficiencies in the search warrants. On February 6, 2018, 

the motion court rendered a sixteen-page written opinion denying defendant's 

suppression motion.

Defendant was tried over the course of five days in March and April 2019. 

The jury found defendant guilty on all counts except the count charging 

possession of the golf club for an unlawful purpose.

On June 14, 2019, the trial court heard and denied defendant's motion for 

a new trial. That same day, the court sentenced defendant to an aggregate term 

of forty-five years in prison subject to the No Early Release Act (NERA), 

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

Because defendant contends the verdict was against the weight of the 

evidence, and because the strength of the State's case is a relevant consideration 

in applying the plain error rule, we recount the proofs elicited at trial in detail. 

In January 2015, Staten Island residents Richard Doody, a retired New York 

City fireman, and his wife of thirty years Virginia Murray, purchased a second 

home in Barnegat Light, the northernmost town on Long Beach Island. In May 

2015, Doody, an avid fisherman and golfer, moved into the second home full-
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time for the summer and fall while Murray continued to live in Staten Island but 

visited on weekends.

At 1:30 p.m. on Saturday, November 21, 2015, Doody texted Murray, who 

was at their primary residence on Staten Island, advising her that defendant, a 

long-time friend, had "invited himself over." Doody and Murray met defendant 

through a scuba club in 2001. By 2004, Doody and defendant had become 

friends, and in 2008 Doody served as best man at defendant's wedding.

Murray received a final message from Doody at 5:15 p.m. He did not 

return her texts on Sunday. Murray found this unusual but assumed he was 

fishing with defendant. When she still had not heard from Doody by noontime 

on Monday, November 23, 2015, Murray grew worried and texted defendant. 

After receiving no response, she texted defendant's wife, Theresa Masone. 

Masone called back but was unable to assuage Murray's concern. Hours later 

Murray again texted Masone but received no response. Murray then called the 

Long Beach Township police department to request a wellness check at the 

Barnegat Light home.

Police arrived at the home just before 5:00 p.m. They found no sign of a 

forced entry. Upon entering the house, they discovered Doody's body wrapped 

in a green blanket on the floor in the living room near an armchair in front of a 

window covered with vertical blinds. Doody had severe trauma to his head, 
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which was covered with blood, and a gaping hole in the front of his neck. There 

were broken ceramic pieces on the victim's blood-stained shirt and on the chair. 

There were bloodstains on the back, seat, and arms of the chair, and blood 

splatter on the wall and the vertical blinds behind the chair.

Police investigators determined that Doody's phone and iPad were missing 

from the home. Police also discovered: (1) a broken, right-handed golf club; 

(2) pieces from the broken ceramic lamp base, some of which were bloody 

including one with a bloody light bulb and cord still attached; (3) a Blue Moon 

beer bottle; (4) a thirteen-inch bloodstained serrated knife with meat prongs on 

the end in the sink; (5) a green and black backpack on the seat of the chair; (6) 

blood-stained paper towels; and (7) other beer bottles and the top to a bottle of 

Patron tequila. The investigators also noted that one of the house's front door 

light fixtures was missing the round glass portion of its lightbulb, although the 

base was still attached to the socket.

Subsequent testing confirmed that Doody's blood was on the blade of the 

knife found in the sink. Two sources of DNA were recovered from the blood on 

the knife handle: the major source was Doody, but the minor source was 

inconclusive. The blood on the light bulb and lamp cord came from two sources: 

defendant was the major source, while Doody was the minor source. Bloody 

finger- and palm-prints found on the indoor lamp light bulb were traced to 
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defendant. No fingerprints were lifted from the broken golf club nor was blood 

testing performed on it, although the other golf clubs in the house were swabbed 

for blood.

Dr. Ian Hood performed an autopsy on November 24, 2015. He noted that 

Doody had a gaping five-inch slash wound across the anterior neck, with a deep 

stab wound on each side, one of which passed through the larynx and across the 

epiglottis. Dr. Hood determined that the sharp object used to cut Doody's neck 

had been sawn back and forth, and that Doody drowned in his own blood. There 

also were several small punctate stab wounds on Doody's chin and neck.

Hood determined Doody also suffered a series of ten lacerations to the 

skull, including two that pushed the bone into the brain. Hood opined that those 

lacerations appeared to be caused by blunt force trauma, and "fit perfectly well 

with the large heavy broken ceramic lamp base." There were no injuries to the 

right side of Doody's head. He did have minor bruising on the inside of his left 

arm, and a few scratches and abrasions on the backs of his hands and bruising 

on his left knuckles.

Hood concluded that Doody died as a result of blunt and sharp injuries to 

his head and neck, and that the neck wound "probably killed him more than any 

other" injury. He classified the death as a homicide. Hood noted that Doody's 

blood alcohol content (BAC) was .252%. He further opined that Doody was 
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upright when he was struck about the head because his blood flowed down his 

head and neck and onto his clothing. He also believed that Doody's body 

remained in an upright seated position for several hours after he died as the body 

developed lividity in the feet, and that the body was subsequently rolled into the 

blanket on the floor.

Detective John Murphy of the Ocean County Prosecutor's Office spoke 

with Murray after the body was discovered and identified defendant as a person 

of interest. During this conversation, Murray told the detective that Doody 

could be "belligerent" when drunk. 

Police determined that defendant purchased Macallan scotch, a Rolling 

Rock twelve-pack, and a Blue Moon Belgium Ale twelve-pack at a liquor store 

in Manahawkin at 2:44 p.m. on Saturday, November 21, 2015. After confirming 

that defendant owned a red Jeep Grand Cherokee, officers reviewed video 

surveillance from traffic cameras on Long Beach Island, as well as EZ Pass 

records and data captured by a police license plate reader. Surveillance video 

showed defendant's Jeep traveling north on Long Beach Island towards Doody's 

residence at around 3:00 p.m. Defendant left Long Beach Island heading north 

on the Garden State Parkway at 12:35 a.m. on Sunday, November 22. He 

returned to Long Beach Island shortly before 8:00 a.m. the same day. Cameras 

captured him traveling north towards Doody's house at 8:34 a.m., then south at 
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10:29 a.m., north again at 11:28 a.m., and finally south at 11:57 a.m. Defendant 

departed Long Beach Island at 12:49 p.m. and did not return.

On November 25, 2015, officers arrested defendant at his home and 

brought him to the police station where he was photographed. Defendant, who 

was right-handed, had a small abrasion on knuckles of his left hand, a small 

laceration covered by a band aid on his left pinky, another laceration on his left 

palm near his thumb, and a healing bruise to his left inner bicep.

While searching defendant's home pursuant to a warrant, police found: 

(1) an open case of Blue Moon in the garage; (2) an empty Patron tequila bottle 

matching the cap found at the crime scene; (3) a watch stained with Doody's 

blood; (4) a photo of defendant's wedding party including Doody; (5) a redstained shower drain strainer in the master bath; and (6) a light bulb that matched 

the broken outdoor fixture found at the crime scene. Police did not find Doody's 

phone or iPad at defendant's home. They found no records indicating that 

defendant and Doody had financial dealings that might have provided a motive 

for murder. A search of defendant's Jeep revealed a Blue Moon bottle cap and 

red stains on the back rear seat, later determined to be defendant's blood.

At trial, Murray testified that Doody was left-handed but a right-handed 

batter at softball. Doody kept golf clubs in the Barnegat Light home and would 

practice his swing in the house. She described Doody as "belligerent" when 
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drunk; she later explained she meant that if she asked him to do something, he 

would do the opposite.

Detective John Garkowski of the Burlington County Prosecutor's Office 

testified as an expert in crime scene reconstruction and bloodstain and blood 

spatter analysis. Garkowski explained that prior to preparing his report, he 

reviewed the police and autopsy reports, the crime scene and autopsy photos, 

and personally examined a portion of the ceramic lamp, the lamp shade, the

serrated two-prong knife, the victim's shirt, and the broken golf club head. 

Garkowski opined that Doody was first beaten with a blunt force object 

numerous times and then slashed and stabbed while sitting upright in the living 

room chair. He further testified that Doody's body remained upright in the chair 

for a period of time before being moved to the floor where it was found.

In reaching these conclusions Garkowski relied upon: (1) the head-height 

blood spatter on the blinds behind the chair; (2) the transfer blood stains on the 

back of the chair; (3) the fact that blood from Doody's head injuries flowed 

straight down his face and head; (4) the fact that the blood flow from Doody's 

head had time to dry and fix in that pattern; and (5) the bit of ceramic found 

stuck to the back of the chair by blood. Garkowski further noted there was fixed 

purple lividity on Doody's right foot from blood settling at the lowest part of the 

body, as well as an area of white on the bottom of the foot. He explained it took 
10 A-5252-18

roughly eight hours for lividity to fix and that the area of white indicated that it 

was in contact with a hard surface—the floor—when lividity set in.

Based on the abrasions on Doody's head, Garkowski determined that the 

blunt force weapon measured four inches by two-and-one-half inches. He 

acknowledged that either the lamp or the broken golf club could have inflicted 

these injuries. However, the damage to the lamp and the blood droplets that 

remained led him to believe that the perpetrator used the lamp to strike Doody.

Garkowski further concluded that the serrated knife—which had a twopronged meat fork at the tip—found in the sink was used to inflict the sharp 

force injuries to Doody. He explained that the puncture wounds and the abrasion 

pattern found in conjunction with the slashes to Doody's body matched the 

surface and end of the knife. Garkowski noted that after the slash to his neck, 

Doody's chin was in contact with his chest, as evidenced by the lack of blood 

under his chin.

Garkowski testified that the impact spatter on the sleeves of Doody's shirt 

indicated he was holding his hands up by his head. Garkowski also testified that 

the blood castoff pattern meant the weapon that caused Doody's head injuries 

was moving from left to right. He further opined that the orientation of bloody 

handprints on the arms of the chair indicated that they were likely made by 
11 A-5252-18

someone other than Doody, although Garkowski acknowledged that Doody 

could have twisted in the seat and placed each hand on the opposite chair arm.

Defendant elected not to take the stand but presented Janice Johnson, an 

expert in blood spatter and crime scene reconstruction. In preparation, Johnson 

reviewed photos of the crime scene and the autopsy report. She opined that: (1) 

the perpetrator used the lamp first and then the knife; (2) the round abrasions on 

Doody's head indicated the lamp rod was used as a weapon; (3) the punctate 

wounds were consistent with use of a knife; and (4) there was "pretty obvious" 

evidence of cleanup, such as the wrapping and moving of the body, and that the 

scene appeared "staged" or "altered." Johnson agreed that "[e]verything is 

consistent with the victim being [seated] in the chair during bloodletting."

Johnson stated that she would have liked for the broken golf club and 

Doody's clothes to have been tested for DNA. She believed that the piece of 

ceramic found on the back of the chair was resting on a fold in the fabric, not 

affixed by blood. She opined that the abrasions and contusions on both Doody 

and defendant indicated a bloodless physical altercation occurred prior to 

bloodletting, and that as a result of this altercation, Doody could have been 

thrown into the chair. Johnson agreed with Hood that: (1) Doody swallowed 

blood; (2) there was lividity on the bottom of Doody's right foot and underneath 

his right thigh; (3) defendant's hands could have been cut by shards from the 
12 A-5252-18

lamp; (4) Doody could have been sitting the entire time of the attack; and (5) 

Doody was sitting when he was hit in the head with a blunt instrument.

Defendant raises the following contentions for our consideration:

POINT I

THE TRIAL COURT'S ERRONEOUS 

INSTRUCTION AS TO WHAT THE JURY WAS 

REQUIRED TO FIND IN ORDER TO DISALLOW 

SELF-DEFENSE UNDER N.J.S.A. 2C:3-[4](b)(2) 

(THE COURT'S INCORRECTLY INSTRUCTING 

THAT: "THE DEFENDANT, WITH THE PURPOSE 

OF CAUSING DEATH OR SERIOUS BODILY 

HARM TO ANOTHER PERSON, OR PROVOKED 

OR INCITED THE USE OF FORCE AGAINST 

HIMSELF IN THE SAME ENCOUNTER, THEN THE 

DEFENSE IS NOT AVAILABLE TO HIM") 

CONSTITUTES PLAIN ERROR AND DEPRIVED 

DEFENDANT OF HIS DUE PROCESS RIGHT TO A 

FAIR TRIAL AND IMPROPERLY SHIFTED THE 

BURDEN OF PROOF (U.S. CONST. AMEND[S]. V, 

VI, XIV; N.J. CONST. (1947) ART. I, PARAS. 1, 9, 

10) (not raised below)

POINT II

THE TRIAL COURT COMMITTED PLAIN ERROR 

IN ITS INSTRUCTIONS BY NOT INSTRUCTING 

THE JURY THAT IT NEEDED TO UNANIMOUSLY 

AGREE ON THE FACTORS DISPROVED BY THE 

STATE BEYOND A REASONABLE DOUBT AND 

FAILED TO PROVIDE THE JURY WITH A 

SPECIAL INTERROGATORY REGARDING THE 

THEORY FORMING THE BASIS FOR ITS 

CONVICTION RESULTING IN AN 

UNCONSTITUTIONAL

"PATCHWORK/FRAGMENTED" OR LESS THAN 
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UNANIMOUS VERDICT IN VIOLATION OF 

DEFENDANT'S DUE PROCESS RIGHT TO A FAIR 

TRIAL CONTRARY TO U.S. CONST. [AMENDS.] 

V, VI, XIV; N.J. CONST. (1947) ART. I, PARAS. 1, 

9, 10; AND RULE 1:8-9 (not raised below)

POINT III

THE TRIAL COURT'S FAILURE TO INSTRUCT 

THE JURY THAT SELF-DEFENSE APPLIES NOT 

ONLY TO MURDER BUT TO THE 

MANSLAUGHTER OFFENSES CONSTITUTES 

PLAIN ERROR AND DEPRIVED DEFENDANT OF 

HIS RIGHT TO A FAIR TRIAL (U.S. CONST.

AMEND[S]. V, VI, XIV; N.J. CONST. (1947) ART. I, 

PARAS. 1, 9, 10; AND R[ULE] 1:8-9 (not raised 

below)

POINT IV

THE TRIAL COURT COMMITTED REVERSIBLE 

ERROR AND VIOLATED DEFENDANT'S 

FOURTEENTH AMENDMENT RIGHT TO DUE 

PROCESS BY PRECLUDING DEFENDANT'S SELFDEFENSE DEFENSE BY PRECLUDING DR. 

BRICK'S EXPERT TESTIMONY AS TO: I) THE 

PROPER CONTEXT AS TO WHAT A .252% BAC 

MEANS (I.E., HOW MUCH ALCOHOL DID DOODY 

CONSUME); AND II) WHAT DOES THE HEAVY 

INTOXICATION OF DOODY MEAN IN TERMS OF 

HIS INCREASED AGGRESSION; DR. BRICK'S 

EXPERT TESTIMONY WAS BEYOND THE KEN OF 

THE AVERAGE JUROR AND WAS NOT A "NET 

OPINION" (U.S. CONST. AMEND[S]. V, VI, XIV; 

N.J. CONST. (1947) ART. I, PARAS. 1, 9, 10)
14 A-5252-18

POINT V

THE TRIAL COURT ERRED IN DENYING THE 

MOTION FOR A NEW TRIAL UNDER R[ULE] 3:20-

1 AS JUDGE CUNNINGHAM ERRED IN 

PRECLUDING THE EXPERT TESTIMONY OF DR. 

BRICK IN VIOLATION OF DEFENDANT'S 

FOURTEENTH AMENDMENT RIGHT TO DUE 

PROCESS AND RIGHT TO HAVE COMPULSORY 

PROCESS FOR OBTAINING WITNESSES IN HIS 

FAVOR IN VIOLATION OF THE SIXTH 

AMENDMENT AND ARTICLES 1, 9[,] AND 10 OF 

THE NEW JERSEY CONSTITUTION (U.S. CONST.

AMEND[S]. V, VI, XIV; N.J. CONST. (1947) ART. I, 

PARAS. 1, 9, 10)

POINT VI

THE TRIAL COURT COMMITTED REVERSIBLE 

ERROR BY PRECLUDING DEFENDANT'S SELFDEFENSE DEFENSE BY BARRING DETECTIVE 

EELMAN'S EXPERT TESTIMONY AS DETAILED 

IN HIS SEPTEMBER 13, 2018 REPORT IN 

VIOLATION OF DEFENDANT'S FOURTEENTH 

AMENDMENT RIGHT TO DUE PROCESS AND 

SIXTH AMENDMENT RIGHT TO [PRESENT] A 

DEFENSE AND RIGHT UNDER THE NEW JERSEY 

STATE CONSTITUTION TO OBTAIN WITNESSES 

IN HIS FAVOR (U.S. CONST. AMEND[S]. V, VI, 

XIV; N.J. CONST. (1947) ART. I, PARAS. 1, 9, 10)

POINT VII

THE TRIAL COURT COMMITTED REVERSIBLE 

ERROR BY PERMITTING THE EXPERT OPINION 

OF THE STATE'S EXPERT JOHN GARKOWSKI IN 

VIOLATION OF DEFENDANT'S FOURTEENTH 

AMENDMENT RIGHT TO DUE PROCESS AND 

STATE CONSTITUTIONAL RIGHT TO A FAIR 
15 A-5252-18

TRIAL (U.S. CONST. AMEND[S]. V, VI, XIV; N.J. 

CONST. (1947) ART. I, PARAS. 1, 9, 10)

POINT VIII

THE IMPROPER STATE'S CLOSING STATEMENT 

AND TRIAL COURT'S DENIAL OF THE MISTRIAL 

MOTION DEPRIVED DEFENDANT OF HIS SIXTH 

AMENDMENT RIGHT TO A FAIR TRIAL AND 

FOURTEENTH AMENDMENT DUE PROCESS 

RIGHT AND STATE CONSTITUTIONAL RIGHT TO 

A FAIR TRIAL (U.S. CONST. AMEND[S]. V, VI, 

XIV; N.J. CONST. (1947) ART. I, PARAS. 1, 9, 10)

POINT IX

THE TRIAL COURT ERRED IN DENYING THE 

MOTION FOR A NEW TRIAL UNDER R[ULE] 3:20-

1 DUE TO PROSECUTORIAL MISCONDUCT 

BASED UPON THE STATE'S IMPROPER 

SUMMATION IN VIOLATION OF DEFENDANT'S 

FOURTEENTH AMENDMENT DUE PROCESS 

RIGHT AND STATE CONSTITUTIONAL RIGHT TO 

A FAIR TRIAL (U.S. CONST. AMEND[S]. V, VI, 

XIV; N.J. CONST. (1947) ART. I, PARAS. 1, 9, 10)

POINT X

THE TRIAL COURT ERRED IN DENYING THE 

MOTION TO SUPPRESS BY: I) IMPROPERLY 

DELEGATING TO LAW ENFORCEMENT 

OFFICERS ESSENTIAL DECISIONS ABOUT 

WHEN AND HOW TO EXECUTE THE SEARCH 

WARRANT WITHOUT PROVIDING THE 

JUDICIAL OVERSIGHT REQUIRED BY THE 

UNITED STATES CONSTITUTION AMENDMENTS 

IV AND XIV; THE NEW JERSEY CONSTITUTION 

ARTICLE I, PARAGRAPH 7, R[ULE] 3:5-5[,] AND 

THE PLAIN LANGUAGE OF THE WARRANT 
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FORM AS THE SEARCH WARRANT OF 

DEFENDANT'S HOME AUTHORIZED 

EXECUTION AT "ANYTIME"; II) DETECTIVE 

GARDNER'S AFFIDAVIT FAILED TO ESTABLISH 

PROBABLE CAUSE TO BELIEVE THAT 

PARTICULAR ITEMS SOUGHT AS RECITED ON 

THE FACE OF THE WARRANT WERE 

CONNECTED TO THE CRIMINAL ACTIVITY 

BEING INVESTIGATED; III) THE SEARCH 

WARRANT OF DEFENDANT'S HOME FAILED TO 

ESTABLISH PROBABLE CAUSE TO FACTUALLY 

ESTABLISH THAT THE MATERIALS DESCRIBED 

IN THE WARRANT WERE TO BE FOUND AT THE 

PREMISE TO BE SEARCHED; AND IV) THE 

SEARCH OF THE HOME WAS STALE.

POINT XI

THE TRIAL COURT ERRED IN ADMITTING 

OBJECTIONABLE PHOTOGRAPHS IN 

VIOLATION OF THE DEFENDANT SIPA'S SIXTH 

AMENDMENT AND FOURTEENTH AMENDMENT 

DUE PROCESS RIGHT[S] AND STATE 

CONSTITUTIONAL RIGHT TO A FAIR TRIAL (U.S. 

CONST. AMEND[S]. V, VI, XIV; N.J. CONST. (1947) 

ART. I, PARAS. 1, 9, 10)

POINT XII

THE TRIAL COURT ERRED IN DENYING THE 

MOTION FOR JUDGMENT OF ACQUITTAL ON 

COUNT ONE AS THE STATE DID NOT PROVE 

DEFENDANT'S GUILT BEYOND A REASONABLE 

DOUBT; THE CONVICTION IS CONTRARY TO 

THE FOURTEENTH AMENDMENT OF THE 

UNITED STATES CONSTITUTION AND NEW 

JERSEY STATE CONSTITUTION (U.S. CONST.

AMEND[S]. V, VI, XIV; N.J. CONST. (1947) ART. I, 

PARAS. 1, 9, 10)
17 A-5252-18

POINT XIII

THE TRIAL COURT ERRED IN DENYING THE 

MOTION FOR A NEW TRIAL UNDER R[ULE] 3:20-

1 AS THE VERDICTS ARE AGAINST THE WEIGHT 

OF THE EVIDENCE (U.S. CONST. AMEND[S]. V, 

VI, XIV; N.J. CONST. (1947) ART. I, PARAS. 1, 9, 

10)

POINT XIV

THE NUMEROUS LEGAL ERRORS COMMITTED 

BY THE TRIAL COURT DEPRIVED DEFENDANT 

OF HIS FIFTH, SIXTH[,] AND FOURTEENTH 

AMENDMENT DUE PROCESS RIGHT[S] TO A 

FAIR TRIAL AND NEW JERSEY 

CONSTITUTIONAL RIGHT TO A FAIR TRIAL (U.S. 

CONST. AMEND[S]. V, VI, XIV; N.J. CONST. (1947) 

ART. I, PARAS. 1, 9, 10) (partially raised below)

II.

Defendant contends for the first time on appeal that the trial court 

committed plain error while instructing the jury on three distinct occasions. We 

begin our analysis by reaffirming certain bedrock principles of our criminal 

justice system. It is axiomatic that "'[a]ppropriate and proper charges to a jury 

are essential for a fair trial.'" State v. Maloney, 216 N.J. 91, 104–05 (2013) 

(alteration in original) (quoting State v. Green, 86 N.J. 281, 287 (1981)). As our 

Supreme Court stressed in Green, proper jury charges are critical in a criminal 

case when a person's liberty is at stake. 86 N.J. at 289. Accordingly, 

"[e]rroneous instructions on matters or issues that are material to the jury's 
18 A-5252-18

deliberation are presumed to be reversible error in criminal prosecutions." State 

v. Jordan, 147 N.J. 409, 422 (1997) (citing State v. Warren, 104 N.J. 571, 579 

(1986)). Thus, for example, "the failure to charge the jury on an element of an 

offense is presumed to be prejudicial error, even in the absence of a request by 

defense counsel." State v. Federico, 103 N.J. 169, 176 (1986) (citing State v. 

Grunow, 102 N.J. 133, 148 (1986); State v. Collier, 90 N.J. 117, 122–23 (1982); 

and State v. Green, 86 N.J. 281, 288 (1981)). 

However, if defense counsel fails to challenge the instructions that are 

given, reversal will only be warranted where the alleged error was "clearly 

capable of producing an unjust result." R. 2:10-2; State v. Torres, 183 N.J. 554, 

564 (2005); Jordan, 147 N.J. at 421–22. Plain error in the context of a jury 

charge requires demonstration of "'[l]egal impropriety of the charge 

prejudicially affecting the substantial rights of the defendant sufficiently 

grievous to justify notice by the reviewing court and to convince the court that 

of itself the error possessed a clear capacity to bring about an unjust result.'" 

State v. Burns, 192 N.J. 312, 341 (2007) (quoting Jordan, 147 N.J. at 422).

In determining whether a charge was erroneous, the charge must be read 

as a whole. Jordan, 147 N.J. at 422 (citing State v. Wilbely, 63 N.J. 420, 422

(1973)). "Portions of a charge alleged to be erroneous cannot be dealt with in 

isolation but the charge should be examined as a whole to determine its overall 
19 A-5252-18

effect." Ibid. The effect of any error, moreover, must be considered "'in light 

of the overall strength of the State's case.'" State v. Walker, 203 N.J. 73, 90 

(2010) (quoting State v. Chapland, 187 N.J. 275, 289 (2006)).

A.

With these general principles in mind, we first address defendant's 

contention the trial court committed plain error by misreading the jury 

instruction on self-defense. The trial court read the self-defense model jury 

charge verbatim until it began describing the limitations on the use of deadly 

force. The transcript shows the court mistakenly inserted the word "or" at one 

point during its oral recitation.1 The relevant portion of the transcript reads:

1

 In relevant part, the self-defense model jury criminal charge reads as follows: 

"If you find that the defendant, with the purpose of causing death or serious 

bodily harm to another person, provoked or incited the use of force against him 

in the same encounter, then the defense is not available to him." Model Jury 

Charges (Criminal), "Justification – Self Defense in Self Protection (N.J.S.A. 

2C:3-4)" (rev. June 13, 2011).

We note that a copy of the written jury instructions was provided to the 

jury. The State argues that the trial court's error in its oral recitation was 

remedied by the fact the jury had the correctly-worded written instructions in 

the jury room when deliberating, but cites no authority for the proposition that 

the written charge given to the jury takes precedence over the instructions given 

orally in open court. We choose not to speculate on whether the jury consulted 

the written charge and relied on it to correct the misstatement. We note also that 

while the State suggests the inclusion of the word "or" may be a transcription 

error, it made no motion to correct the record. We therefore assume for purposes 

of this appeal the trial transcript is accurate and that the oral recitation error 

occurred. 
20 A-5252-18

If you find that the defendant, with the purpose of 

causing death or serious bodily harm to another person,

or provoked or incited the use of force against himself 

in the same encounter, then the defense is not available 

to him. If you find the defendant knew that he could 

avoid the necessity of using deadly force by retreating, 

provided that the defendant knew he could do so with 

complete safety, then the defense is not available to 

him.

[(emphasis added).]

Defendant argues that by mistakenly inserting the word "or," the trial court 

"fatally lessened the [State's] burden of proof." Defendant contends the court's 

misreading of the model jury charge eliminated the availability of this defense 

by instructing the jury, in essence, that "[i]f you find that the defendant [acted], 

with the purpose of causing death or serious bodily harm to another, . . . then 

the defense is not available to him." Defendant argues, in other words, that the 

jurors were instructed that should they find defendant acted with the intent to 

cause death or serious bodily harm, he could not use self-protection as a defense, 

regardless of provocation.

We disagree. Viewed in the context of the entire instruction, we are 

satisfied the court's one-word recitation error did not render the self-defense 

doctrine unavailable to defendant. Nor did it have the capacity to produce an 

unjust result. In reaching this conclusion, we acknowledge the critical 

importance of the self-defense jury instruction in this case as defendant did not 
21 A-5252-18

dispute that his actions resulted in the victim's death. We nonetheless believe 

that defendant reads too much into the mistaken insertion of the word "or." The 

gravamen of the defense strategy was that Doody was the aggressor and 

provoked a responsive use of deadly force. Viewed in its entirety and in the 

context of the evidence and arguments of counsel, we do not believe the jury 

would have interpreted the judge's instruction on self-defense to mean the 

defense fails if defendant used any of the weapons with the purpose to cause 

death or serious bodily injury. We stress the recitation error related to the 

portion of the self-defense instruction regarding whether defendant provoked or 

incited the use of force against himself, not whether Doody was the aggressor 

and provoked defendant to use deadly force in self-defense. 

Notwithstanding the presumption of reversible error recognized in Jordan, 

147 N.J. at 422, the fact that trial counsel failed to object suggests the court's 

fleeting misstatement did not eviscerate the crucial defense theory as defendant 

now posits. Cf. State v. Montalvo, 229 N.J. 300, 320 (2017) (noting that when 

defendant does not object to the jury charge, "there is a presumption the charge 

was not error and was unlikely to prejudice the defendant's case") (citing State 

v. Singleton, 211 N.J. 157, 182 (2012)). If the judge's misstatement had the 

impact defendant now contends, we would expect counsel to have recognized 

the error and sought remediation at that time. Cf. State v. Bueso, 225 N.J. 193, 
22 A-5252-18

203 (2016) (the plain error standard "provides a strong incentive for counsel to 

interpose a timely objection, enabling the trial court to forestall or correct a 

potential error").

In applying the plain error rule to the facts of this case, we also take note 

of the overwhelming trial evidence disproving defendant's claim of self-defense 

beyond a reasonable doubt. See Walker, 203 N.J. at 90. All of the expert 

witnesses, including defendant's expert, Janice Johnson, opined that defendant 

was seated in the chair when he was hit in the head repeatedly with a blunt 

instrument and during the bloodletting. Johnson agreed that the perpetrator used 

the lamp first and then the knife, suggesting Doody suffered serious blunt force 

wounds to his skull and brain before his neck was slashed. Dr. Hood also 

testified that a "sawing" motion was used to cut the victim's neck with the 

serrated knife. These circumstances strongly suggest that such deadly force was 

not "immediately necessary for the purpose of protecting himself against the use 

of unlawful force by such other person on the present occasion." N.J.S.A. 2C:3-

4(a). Considering all relevant circumstances, we conclude the trial court's 

misstatement was not capable of producing an unjust result.

B.

We turn next to defendant's contention the trial court committed plain 

error by failing to administer a specific unanimity charge with respect to the 
23 A-5252-18

three weapons the State alleged were used to kill the victim. We conclude the 

judge did not err in reading the jury instruction that was approved at the charge 

conference. Further, the record clearly shows the jurors were unanimous in 

finding that defendant used the knife and lamp but not the golf club. 

Both the New Jersey Constitution and Court Rules require a unanimous 

jury verdict in criminal cases. N.J. Const. art. I, para. 9; R. 1:8-9. Defendant 

does not dispute that the jury was given the general instruction that their verdict 

had to be unanimous. Defendant argues for the first time on appeal that the 

general unanimity instruction was inadequate and that the trial court was 

required to instruct the jury they must unanimously agree as to which weapon(s) 

were used to cause Doody's death.

Specifically, defendant contends the trial court committed plain error by 

providing the following instruction:

The use of a deadly weapon such as the knife, lamp, 

and/or golf club in itself would permit you to draw an 

inference that the defendant's purpose was to take life 

or cause serious bodily injury resulting in death. A 

deadly weapon is any firearm or other weapon, device, 

instrument, material or substance which, in the manner 

it is used or is intended to be used, is known to be

capable of producing death or serious bodily injury. In 

your deliberations, you may consider the weapon used 

and the manner and circumstances of the killing, and if 

you are satisfied beyond a reasonable doubt that 

defendant inflicted blunt or sharp force trauma and 

killed Richard Doody with a knife, lamp, and/or golf 
24 A-5252-18

club[,] [y]ou may draw an inference from the weapon 

used, that is . . . a knife, lamp and/or golf club, and from 

the manner and circumstances of the killing, as to 

defendant's purpose or knowledge.

We acknowledge that in certain circumstances a general charge on jury 

unanimity will not suffice. In State v. Parker, our Supreme Court explained that 

a more specific unanimity instruction may be needed "where the facts are 

exceptionally complex, or where the allegations in a single count are either 

contradictory or only marginally related to another, or where there is a variance 

between the indictment and the proof at trial, or where there is a tangible 

indication of jury confusion." 124 N.J. 628, 636 (1991) (citations omitted). 

None of those circumstances apply in this case. 

In State v. Scherzer, we applied the Parker factors and held that a general 

unanimity instruction was sufficient where the offenses charged required only 

one type of criminal act—sexual penetration. 301 N.J. Super. 363, 479 (App. 

Div. 1997). The indictment in that case alleged four separate acts of sexual 

penetration involving the use of a bat, a broom, a stick, and fingers. We 

concluded that the alleged acts of penetration were conceptually similar enough 

not to have required a specific unanimity charge. Id. at 479–80. In other words, 

it was not necessary to instruct the jurors they had to unanimously agree as to 

the object(s) used to commit sexual penetration. 
25 A-5252-18

The rationale undergirding our conclusion in Scherzer applies as well in 

the case before us. Here, the criminal act was the use of deadly force as part of 

a single violent episode. The three instrumentalities allegedly used to kill 

Doody—the lamp, the knife, and the golf club—were conceptually similar in 

that they all could be used as weapons to inflict fatal injury. 

Also as in Scherzer, the facts concerning the use of force in this case are 

not exceptionally complex, the allegations in the indictment are neither 

contradictory nor only marginally related to another, there is no variance 

between the indictment and the proof at trial, and there is no tangible indication 

of jury confusion, as might be shown if the jurors had requested a supplement al 

instruction. 

Defendant's reliance on State v. Frisby, 174 N.J. 583, 599–600 (2002), is 

misplaced, as the circumstances of that case are readily distinguishable. In 

Frisby, the State proffered two distinct factual scenarios to prove a single count 

of endangering the welfare of a child: either the defendant injured the minor 

victim, or the defendant abandoned the child in a motel room. Id. at 599. Frisby 

argued that the unanimity aspects of the jury instruction were presented in such 

a way as to "allow a non-unanimous patchwork verdict against her." Ibid. 

Specifically, she asserted that her conviction could have been the result of some 

jurors believing she was at the motel when the minor's injuries were sustained 
26 A-5252-18

while others believed she abandoned the minor for a night on the town. Ibid. 

The Supreme Court agreed, concluding the State's theories were advanced based 

on entirely different acts and evidence. Ibid.

Causing physical injuries to a child is very different from abandoning a 

child, reflecting distinct theories of criminal liability under the endangering 

statute, N.J.S.A. 2C:24-4, which encompasses the wide range of conduct that 

could make a child an abused or neglected child as defined in N.J.S.A. 9:6-3 and 

9:6-8.21. Abuse/neglect by physically injuring a child therefore is conceptually 

distinct from abuse/neglect by abandoning a child.

Here, in contrast, fatally injuring a victim with a knife is not conceptually 

distinct from fatally injuring the victim with a blunt object. In either 

circumstance, physical objects are used as a weapon during an altercation to 

inflict serious injury resulting in death. We believe this situation is closely 

analogous to the circumstances in Scherzer, where multiple objects were alleged 

to have been used to commit sexual penetration. Accordingly, it makes no 

difference for purposes of Parker analysis which combination of the three 

alleged weapons were used to inflict the wounds that resulted in Doody's death.

Defendant nonetheless argues that his claim of self-defense would have 

been substantially stronger if the jury believed he used the lamp to kill Doody, 

rather than the golf club or knife. That argument ignores the fact that none of 
27 A-5252-18

the experts concluded that the lamp was the only weapon used. Indeed, 

defendant's own expert opined the perpetrator used the lamp first and then the 

knife, which had the victim's blood on the blade. 

The gravamen of defendant's plain error argument is that it was incumbent 

on the jury to unanimously agree on which weapon(s) were used. We do not 

agree with that proposition, but in any event the verdict shows that the jury was

unanimous with respect to the weapons that defendant employed during the fatal 

altercation. Defendant was convicted on the two separate counts charging 

unlawful possession of the lamp and the knife for an unlawful purpose. He was 

acquitted on the count charging possession of the golf club for an unlawful 

purpose. Both the guilty and non-guilty verdicts required unanimity. It thus is 

apparent the jury unanimously decided both the lamp and knife were possessed 

for an unlawful purpose, that is, to kill Doody.

Finally, it bears repeating that defense counsel did not request a specific 

unanimity instruction but rather consented to the general unanimity instruction 

after a charge conference. Accordingly, "there is a presumption that the charge 

was not error and was unlikely to prejudice . . . defendant's case." Montalvo, 

229 N.J. at 320. 
28 A-5252-18

C.

The jury in this case was presented with the option to convict for lesser 

forms of homicide than knowing/purposeful murder that was charged in the 

indictment. Specifically, the jury was instructed on the lesser offenses of 

aggravated manslaughter, N.J.S.A. 2C:11-4(c), reckless manslaughter, N.J.S.A. 

11-4(b)(1), and passion/provocation manslaughter, N.J.S.A. 2C:11-4(b)(2). 

Defendant now contends the trial court committed plain error by failing to 

instruct the jury that self-defense could apply to the manslaughter offenses and 

not just to the murder charge. Viewing the jury instructions as a whole, we 

reject defendant's contention. 

In State v. Rodriguez, our Supreme Court made clear that when there is 

sufficient evidence to warrant a self-defense charge, the defense applies to 

aggravated manslaughter and manslaughter as well as murder. 195 N.J. 165, 

172–74 (2008). The trial court in the present case instructed the jury on selfdefense immediately after charging the jury first on murder and then 

manslaughter. In delivering the self-defense instruction, the trial court did not 

specifically mention aggravated manslaughter, reckless manslaughter, or 

passion/provocation manslaughter, nor did the court instruct the jury that selfdefense does not apply to those lesser forms of homicide. 
29 A-5252-18

It bears emphasis this is not a situation where the judge instructed the jury 

on murder and then instructed the jury on self-defense before proceeding to 

instruct the jury on the manslaughter offenses. Even absent an explicit reference 

to manslaughter when explaining the principles of self-defense, the structure and 

sequence of the jury instructions implies that the defense of use of force for selfprotection applies to all of the homicide offenses the jury had been instructed to 

consider. 

The present situation is very different from the one in State v. O'Neil, 219 

N.J. 598 (2014), which resulted in the reversal of that defendant's conviction. 2 

In O'Neil, the trial judge instructed the jury that self-defense is a valid 

justification for murder but expressly told the jury this defense did not apply to 

aggravated manslaughter or manslaughter. Id. at 617. The jury acquitted the 

defendant of murder and convicted him of aggravated manslaughter. The 

Supreme Court concluded that the erroneous jury instruction necessarily 

undermined confidence in the verdict. Ibid. (citing Strickland v. Washington, 

466 U.S. 668, 694 (1984); State v. Fritz, 105 N.J. 42, 52 (1987)). 

2

 O'Neil was a post-conviction relief (PCR) case. Rodriguez was decided after 

O'Neil was tried but before his direct appeal was heard. The trial court had 

relied on prior precedent—which was rejected in Rodriguez—that suggested 

self-defense does not apply to manslaughter. The Court in O'Neil found that 

defendant's appellate counsel rendered ineffective assistance warranting a new 

trial by failing to raise the jury instruction issue on direct appeal.
30 A-5252-18

In the present case, the trial court did not affirmatively instruct the jury 

that self-defense does not apply to manslaughter as in O'Neil. To the contrary, 

the court later in the jury charge noted that self-defense applies to the lesser 

forms of homicide. Specifically, when explaining how self-defense applies to 

the counts charging possession of a weapon for an unlawful purpose, the trial 

court told the jury, 

Earlier in the charge I instructed you on the concept of 

self-defense as it applies to the offenses of murder, 

passion/provocation [manslaughter], aggravated 

manslaughter, and reckless manslaughter. The concept 

of self-defense as it applies to those offenses is different 

than that of [the] protective purpose that applies to . . . 

these counts of the indictment. And when applied to 

those offenses, self-defense requires the defendant to 

have an honest and a reasonable belief in the need to 

use force.

[(emphasis added).]

As we have noted, "[i]n determining whether a charge was erroneous, the 

charge must be read as a whole." Jordan, 147 N.J. at 422. We add that defense 

counsel in his summation stated repeatedly that self-defense applied to all the 

homicide charges. The absence of an objection to the jury charge on selfdefense—which was read verbatim from the written instructions accepted by 

counsel at the charge conference—suggests counsel did not believe the charge 

as given undermined his summation. The plain error standard is demanding and 
31 A-5252-18

aims to "provide[] a strong incentive for counsel to interpose a timely objection, 

enabling the trial court to forestall or correct a potential error." Bueso, 225 N.J. 

at 203. 

Finally, we note the jury found defendant guilty of murder, rejecting his 

self-defense claim. This situation is markedly different from O'Neil, where the 

defendant was acquitted of murder but convicted of manslaughter. 219 N.J. at 

617. Considering all of these circumstances, we conclude the trial court's selfdefense instructions in this case did not have the capacity to produce an unjust 

result.

III.

Defendant contends the trial court erred in precluding the expert testimony 

of John Brick, Ph.D., regarding the measurement, consumption, and 

biobehavioral effects of alcohol. Defendant also contends the trial court erred 

in denying his motion for a new trial based on the exclusion of Dr. Brick's 

testimony. We reject both contentions. 

We begin our analysis by acknowledging the legal principles governing 

the admission of expert testimony. N.J.R.E. 702 provides, "[i]f scientific, 

technical, or other specialized knowledge will assist the trier of fact to 

understand the evidence or to determine a fact in issue, a witness qualified as an 

expert by knowledge, skill, experience, training, or education may testify thereto 
32 A-5252-18

in the form of an opinion or otherwise." There are three prerequisites for the 

admission of expert testimony: first, "the intended testimony must concern a 

subject matter that is beyond the ken of the average juror"; second, "the field 

testified to must be at a state of the art such that an expert's testimony could be 

sufficiently reliable"; and third, "the witness must have sufficient expertise to 

offer the intended testimony." State v. Jenewicz, 193 N.J. 440, 454 (2008).

Furthermore, an expert must "'give the why and wherefore' that supports 

the opinion, 'rather than a mere conclusion.'" Davis v. Brickman Landscaping, 

219 N.J. 395, 410 (2014) (quoting Pomerantz Paper Corp. v. New Comm. Corp., 

207 N.J. 344, 372 (2011)). A conclusion unsupported by facts or reliable data 

is a "net opinion" that must be excluded. Pomerantz, 207 N.J. at 372. An expert 

may not testify to a conclusion devoid of objective support, based on unfounded 

speculation or unquantified possibilities, or which references a standard that is 

personal to the expert. Davis, 219 N.J. at 410; Taylor v. DeLosso, 319 N.J. 

Super. 174, 180 (App. Div. 1999); Grzanka v. Pfeifer, 301 N.J. Super. 563, 580 

(App. Div. 1997). 

The scope of our review on appeal is limited. "Ordinarily, the necessity 

for and admissibility of expert testimony are matters to be determined within the 

sound discretion by the trial court." State v. Berry, 140 N.J. 280, 293 (1995) 

(citing State v. Zola, 112 N.J. 384, 414 (1988)); see also State v. Kelly, 97 N.J. 
33 A-5252-18

178, 216 (1984) (noting generally that "[i]n the context of an appellate review, 

a decision of the trial court [regarding admissibility of expert testimony] must 

stand unless it can be shown that the trial court palpably abused its discretion, 

that is, that its finding was so wide of the mark that a manifest denial of justice 

resulted") (citations omitted).

We next apply these general principles to the proposed expert testimony 

of Dr. Brick. The defense retained Brick, an alcohol-drug expert, for the 

purposes of explaining Doody's .252% BAC and identifying any scientific 

research suggesting a relationship between the consumption of alcohol and 

aggressive behavior. The defense theorized that Doody's elevated BAC was 

relevant in determining whether he was the initial aggressor, and whether 

defendant used appropriate force in response.

In his report, Brick opined that a .252% BAC would likely have made 

Doody "highly intoxicated and impaired" at or about the time of his death. Brick 

then asserted:

Alcohol, more than any other drug, is found in victims 

and perpetrators of assaults and other crimes of 

violence and is the subject of psychosocial research and 

forensic investigations. The causal relationship 

between intoxication and aggression is widely reported 

through qualitative and quantitative research 

demonstrating that intoxication can increase aggression 

escalated [sic] violent behavior. However, the nexus 

between intoxication and aggression (or violence) is 
34 A-5252-18

complex, situational and subject dependent (e.g., most 

people who drink do not become violent)[,] and 

explained by different models of human behavior. 

Nevertheless, high rates of alcohol involvement among 

fight-related homicide victims and a substantial portion 

of perpetrators who are under the influence of alcohol 

are consistent with the hypothesis that alcohol increases 

aggression.

Brick further noted that a number of "models" had "been proposed to 

disentangle the complex web of correlated and causal factors that contribute to 

the alcohol-aggression relationship." He nonetheless acknowledged, "the 

interaction between alcohol intoxication and aggressive/violent behavior is 

complex and influenced by many factors." Brick also acknowledged that 

alcohol did "not directly change the brain to cause violent behavior in the same 

way it causes general signs of intoxication."

Brick ultimately concluded "it is my opinion that Richard Doody 

voluntarily consumed a large quantity of alcohol prior to his death. As a result 

of Mr. Doody's consumption, he became intoxicated and impaired and at 

increased risk for a variety of injuries due to state of intoxication."

Prior to trial the State moved to preclude defendant from arguing a defense 

of "alcohol causation" and to bar defendant from introducing expert evidence 

from Brick consistent with his report. Following oral argument, the trial court 
35 A-5252-18

granted the State's motion, rendering a thorough and detailed oral opinion. The 

trial court found: 

The defense argument does not appear to be grounded 

in known facts in the instant matter. There is no fact 

before the [c]ourt that would suggest that Mr. Doody 

was the initial aggressor in this case. Furthermore, 

there is no discussion at all by Dr. Brick regarding Mr. 

Doody's level of intoxication as it relates to aggression. 

Dr. Brick does talk about general biobehavioral effects 

of alcohol, for example, impaired cognition, 

perception, and psychomotor performance as well as 

[de]creased inhibition. . . . But when he speaks about 

the links to aggression, he refers to the nexus between 

intoxication and aggression as being "complex, 

situational and subject-dependent, and notes that most 

people who drink do not become violent."

The court continued:

[Dr. Brick] also states that the alcohol does not directly 

change the brain to cause violence in the same way that 

it does to cause what he calls "the general signs of 

intoxication." In other words, aggression, unlike 

impaired cognition, psychomotor skills, inhibitions[,]

or perceptions is not a general effect of intoxication. 

Dr. Brick does not name any definitive way to measure 

alcohol's effect on violent or aggressive behavior or any 

one model that conclusively explains it.

Without any facts to suggest that Mr. Doody was the 

initial aggressor in this case, Dr. Brick's testimony 

would have very limited probative value as to the issue 

of self-defense, would be confusing to the jurors[,] and 

would be highly prejudicial to the State. Likewise, Dr. 

Brick's report would also constitute a net opinion as he 

does not provide the why and the wherefore for 

injecting the alcohol aggression link into the case. In 
36 A-5252-18

fact, he specifically disassociates aggression from the 

other general effects of alcohol by stating that alcohol 

does not directly change the brain to cause violent 

behavior in the same way that it causes general signs of 

intoxication.

It can be inferred then that any discussion of general 

biobehavioral effects of alcohol would not include a 

discussion of aggression . . . .

There is no dispute that Mr. Doody was highly 

intoxicated at the time of his death. His actual BAC 

becomes irrelevant, however, if it cannot be linked to 

specific aggressive behaviors that would have caused 

the defendant to respond with appropriate force. 

Presently there are no facts before the [c]ourt. To allow 

Dr. Brick to discuss the intoxication-aggression link 

without supportive facts . . . would be so inherently 

inflammatory as to have a probable capacity to divert 

the minds of the jurors from a reasonable and fair 

evaluation of the case.

In reaching its decision, the trial court took into account statements 

Murray made to police at the outset of the investigation and later to the 

prosecutor. Specifically, Murray told police that Doody could be "belligerent"

when drunk. She explained that if she told him to do something, he would do 

the opposite. She told the prosecutor that if she told him to stop drinking, he 

would open a beer right in front of her. She later clarified she thought 

"belligerent" meant heavily intoxicated, and that Doody "would never become

hostile or aggressive whether [drunk] or sober."
37 A-5252-18

Murray also told police that Doody had never struck her, although she 

recalled one instance between 1980 and 1985 when Doody grabbed her arm, 

prompting her to strike him in response. She could not remember if he was 

drunk at the time and claimed that there had been no similar incidents since.

Defendant now argues the trial court erred in ruling that Brick's expert 

opinion was a net opinion. Defendant contends he should have been permitted 

to "flesh out that it is more likely that an individual who has consumed an 

excessive amount of alcohol would be the initial aggressor." He maintains that 

Brick's expert opinion testimony would have offered a scientific foundation for 

his self-defense claim and was "essential for the jury to make the self-defense 

determination."

We agree with the trial court that there was no factual support for the claim 

that Doody was the initial aggressor. We also agree with the trial court that 

Brick's report did not set forth a definitive scientific model explaining the 

relationship between alcohol and aggression. Rather, Brick acknowledged that: 

(1) the relationship between alcohol and aggression was "complex, situational 

and subject dependent"; (2) alcohol did not cause brain changes resulting in 

violent behavior, although it did cause changes resulting in the general signs of 

intoxication; and (3) most people who drink did not become aggressive. 
38 A-5252-18

Given that all of the experts agreed that Doody was struck, stabbed, and 

slashed while seated, and Brick was only able to conclude that Doody's 

intoxication put him "at increased risk for a variety of injuries due to state of 

intoxication," we find the trial court did not abuse its discretion in precluding 

Brick from offering speculation that Doody was the initial aggressor because of 

his BAC. We therefore reject defendant's contentions that the trial court erred 

in precluding Brick's testimony and in denying his motion for a new trial on this 

ground. 

IV.

We turn next to defendant's contention the trial court erred in precluding 

Detective Scott Eelman from testifying for the defense as an expert witness in 

accordance with his September 13, 2018 report. In that report, Eelman opined 

that defendant and Doody engaged in a "big fight" in which defendant struck 

Doody with a golf club, Doody subsequently tripped over the coffee table, fell 

on the ceramic lamp causing lacerations to his neck, and then tumbled into the 

recliner.

In November 2018, the State moved to preclude the testimony of Eelman 

based on his report, arguing that Eelman did not have sufficient expertise in 

bloodstain analysis and crime scene reconstruction. The State also argued that 
39 A-5252-18

Eelman's opinions were speculative and founded on inadmissible hearsay 

evidence.

Defense counsel did not file opposition papers. Counsel instead wrote to 

the court advising that he would not be opposing the State's motion to bar 

Eelman's testimony. However, counsel reserved the right to reopen the issue of 

the admissibility of Eelman's testimony if he was unsuccessful in barring the 

testimony of Detective John Garkowski, whom counsel claimed had identical 

credentials to Eelman. The trial court thereupon granted the State's pretrial 

motion to bar Eelman's testimony.

On January 17, 2019, the trial court denied defendant's motion to bar 

Garkowski's testimony. Defense counsel thereafter obtained a new report from 

Eelman dated February 15, 2019. Counsel then filed a motion for 

reconsideration of the order excluding Eelman's testimony and seeking 

permission for Eelman to testify in accordance with his new report.

In this new report, Eelman critiqued Garkowski's findings. He agreed 

with Garkowski that: (1) Doody was seated while being struck in the head; (2) 

Doody remained in the chair long enough for the blood flow patterns to fix; (3) 

a bit of ceramic was affixed to the back of the chair by dried blood; (4) there 

was lividity in the bottom of Doody's foot, and he was seated at the time lividity 

set in and fixed; and (5) Doody was moved afterward. However, Eelman 
40 A-5252-18

maintained that Doody also may have sustained other injuries to the head before 

he was seated in the chair, and that Doody's throat laceration was caused by the 

lamp instead of the knife. He also disagreed with Garkowski that it was possible 

to ascertain the measurements of the blunt force weapon, that Doody was in a 

defensive position, and that the handprints on the chair arms did not come from 

Doody.

The trial court denied defendant's motion for reconsideration regarding 

Eelman's initial report but granted defendant's motion to permit Eelman to 

testify in accordance with his subsequent report.3 The trial court rendered an 

eleven-page written opinion detailing its reasoning for barring testimony based 

upon Eelman's initial report. The court found the credentials of Garkowski and 

Eelman "vastly different," noting that Garkowski held an associate's degree in 

criminal justice and had testified as an expert in five counties in New Jersey. 

Eelman, in contrast, was only a high school graduate and had never testified as 

an expert outside of his local county in Pennsylvania. After reviewing and 

commenting on each of Eelman's opinions, the trial court observed:

It should be noted that Eelman did not inspect or visit 

the crime scene. He did not inspect or photograph the 

evidence. He did not analyze blood patterns, blood 

3

 Defendant chose ultimately not to call Eelman to give testimony based on his 

subsequent report. However, defendant did present crime scene reconstruction 

testimony from Janice Johnson.
41 A-5252-18

spatter, or anything else. He merely summarized 

reports, parroted the opinions of others, and speculated 

as to what occurred after saying all one could do was 

speculate. He did what the jurors themselves can do 

without any expert help or advice. He relied on hearsay 

evidence involving [defendant's] own declarations. No 

scientific methodology whatsoever appears to have 

been applied to any opinions, and none of the opinions 

expressed in his report were to a reasonable degree of 

scientific probability.

We agree with the trial court's comprehensive and well-reasoned analysis. 

Defendant has failed to establish that the trial court abused its discretion in 

making these detailed findings and conclusions with respect to Eelman's initial 

report. See Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002) (an abuse 

of discretion occurs "when a decision is made without a rational explanation, 

inexplicably departed from established policies, or rested on an impermissible 

basis") (internal quotation marks omitted). To the contrary, the record clearly 

shows the trial court properly exercised its discretion in excluding testimony 

concerning Eelman's first report. Moreover, as we have noted, defendant chose 

not to call Eelman to testify at trial in accordance with his second report, and 

instead relied on Janice Johnson's expert testimony

V.

Defendant contends the trial court erred in permitting Detective John 

Garkowski of the Burlington County Prosecutor's Office State to opine that the 
42 A-5252-18

lividity on the bottom of Doody's right foot was consistent with Doody dying 

with this foot on the floor. We reject that contention. 

Garkowski testified as an expert in the fields of bloodstain and blood 

spatter analysis and crime scene reconstruction. Prior to preparing his report, 

Garkowski reviewed the police and autopsy reports, the crime scene and autopsy 

photos, and personally examined a portion of the ceramic lamp, the lamp shade, 

the serrated two-prong knife, the victim's shirt, and the broken golf club head.

Defendant filed a pretrial motion seeking to bar Garkowski's testimony. 

At oral argument, defense counsel told the trial court he was seeking only to 

preclude Garkowski from testifying as to seven of the twelve conclusions set 

forth in his report. The trial court ruled that Garkowski was qualified as an 

expert in bloodstain and blood-spatter analysis and crime scene reconstruction 

and thus denied defendant's motion to bar his testimony in general. The court 

convened an N.J.R.E. 104 hearing to determine the parameters of Garkowski's 

testimony.

At that hearing, defense counsel limited his objections to only two of 

Garkowski's conclusions: (1) that the lividity on Doody's right foot was 

consistent with him dying while his floor was on the floor, and (2) that Doody 

was in a defensive position during a portion of the impact spatter event. 

Garkowski explained that his training as a crime scene investigator taught him 
43 A-5252-18

to look for fixed lividity when establishing a victim's time of death, and that in 

this instance an autopsy photo depicted fixed lividity on the bottom of Doody's 

right foot. Garkowski explained that blood settles in the lowest parts of the body 

after death, and this indicated that Doody was seated with his feet down for a 

period of time. Doody's opinion also was based on the white area, or 

"blanching," on the side of his right foot that indicated it was in contact with a 

hard surface and thus did not become suffused with blood.

Following Garkowski's testimony, the trial court barred his defensive 

position opinion but admitted his lividity opinion. The court thoroughly 

explained the basis for permitting the lividity testimony, finding: (1) Garkowski 

relied upon one of the autopsy photos in reaching this conclusion; (2) no special 

medical training or expertise was needed to identify lividity; (3) Garkowski was 

very precise in his testimony; and (4) his opinion was consistent with his other 

unchallenged opinions that Doody was beaten while seated upright in the chair 

and that he remained in the chair long enough for the blood flow pattern on his 

head to fix.

Defendant now contends Garkowski's lividity opinion was nothing more 

than a bare conclusion lacking factual support. We agree with the trial court 

that Garkowski's opinion had ample factual support. We deem it significant that 

both Dr. Hood, who testified for the State, and Janice Johnson, who testified for 
44 A-5252-18

defendant, agreed there was lividity on the bottom of Doody's right foot. 

Accordingly, the trial court properly exercised its discretion with respect to 

Garkowski's testimony. 

VI.

Defendant contends he was denied a fair trial based upon multiple 

incidents of prosecutorial misconduct during summation and that the trial court 

should have granted his motions for a mistrial and a new trial on this basis.4 

After carefully reviewing the record, we reject these contentions. Viewed both 

individually and collectively, the prosecutor's remarks during summation afford 

no basis to overturn the guilty verdicts rendered by the jury.

Before addressing each alleged incident of misconduct, we acknowledge 

the general legal principles that guide our review. "[A] motion for a mistrial 

should be granted only in those situations which would otherwise result in 

manifest injustice." State v. DiRienzo, 53 N.J. 360, 383 (1969). The decision 

to deny a motion for a mistrial is within the sound discretion of the trial judge 

4

 Defendant in his appeal brief alleges five incidents of prosecutorial 

misconduct during summation. In his reply brief, defendant for the first time 

asserts two additional incidents of prosecutorial misconduct during closing 

arguments. We choose to address these additional claims, notwithstanding the 

general rule that a defendant is not permitted to make new arguments in a reply 

brief. See State v. Smith, 55 N.J. 476, 488 (1970) (a party is not permitted to 

use a reply brief to enlarge his or her main argument).
45 A-5252-18

and will only be reversed on appeal for abuse of this discretion. State v. Winter, 

96 N.J. 640, 647 (1984).

A conviction may be reversed based on prosecutorial misconduct only 

where the misconduct is so egregious in the context of the trial as a whole as to 

deprive the defendant of a fair trial. State v. Wakefield, 190 N.J. 397, 435–38 

(2007). Although a single instance of prosecutorial misconduct may not be so 

prejudicial as to warrant reversal, the cumulative effect of several such instances 

may create such prejudice. State v. Rodriguez, 365 N.J. Super. 38, 49 (App. 

Div. 2003).

When the alleged misconduct involves a particular remark, a court should 

consider whether: (1) defense counsel objected in a timely and proper fashion 

to the remark; (2) the remark was withdrawn promptly; and (3) the court gave 

the jury a curative instruction. State v. Smith, 212 N.J. 365, 403 (2012); State 

v. Zola, 112 N.J. 384, 426 (1988). 

As a general proposition, if no objection is made to a prosecutor's remarks, 

those remarks will not be deemed prejudicial. State v. Ramseur, 106 N.J. 123, 

323 (1987). The failure to make a timely objection indicates that defense 

counsel did not believe the remarks were prejudicial within the atmosphere of 

the trial. State v. Irving, 114 N.J. 427, 444 (1989). Failure to object also 

deprives the trial court the opportunity to take corrective action. Ibid. When 
46 A-5252-18

prosecutorial misconduct is being raised for the first time on appeal, a reviewing 

court need only be concerned with whether "the remarks, if improper, 

substantially prejudiced the defendant['s] fundamental right to have the jury 

fairly evaluate the merits of [his or her] defense, and thus had a clear capacity 

to bring about an unjust result." State v. Johnson, 31 N.J. 489, 510 (1960).

A prosecutor is expected to make a "'vigorous and forceful'" closing 

argument to the jury. State v. Lazo, 209 N.J. 9, 29 (2012) (quoting State v. 

Smith, 167 N.J. 158, 177 (2001)). A prosecutor may make remarks that 

constitute legitimate inferences from the facts, provided he or she does not go 

beyond the facts before the jury. State v. R.B., 183 N.J. 308, 330 (2005). A 

prosecutor may also respond to arguments raised by defense counsel during his 

or her own summation. Smith, 212 N.J. at 404; State v. Munoz, 340 N.J. Super. 

204, 216 (App. Div. 2001).

A prosecutor may not, however, make arguments contrary to the material 

known facts in the case, regardless of whether that information has been 

presented to the jury. State v. Sexton, 311 N.J. Super. 70, 81 (App. Div. 1999). 

Additionally, a prosecutor may not, through his or her remarks, shift the burden 

of proof to the defense. See State v. Loftin, 146 N.J. 295, 389 (1996). Nor may 

a prosecutor draw attention to a defendant's failure to testify. State v. Engel, 
47 A-5252-18

249 N.J. Super. 336, 382 (App. Div. 1991) ("A prosecutor should not either in 

subtle or obvious fashion draw attention to a defendant's failure to testify."). 

A.

Defendant contends the prosecutor improperly shifted the burden of proof 

to the defense when she commented on the absence of evidence. The particular 

portions of the prosecutor's summation to which defendant objected5read as 

follows:

Jan Johnson told you, that backpack, that was in the 

chair during the event. How can we know that? How 

can she say that? But what do we have? That BlueStar, 

that Luminol. She called this a smear. But we know 

that the victim was in this chair for six to eight hours, 

and then the victim was dragged out of the chair and 

placed on the floor. Isn't this evidence more consistent 

with the victim being in the chair? And then when 

[defendant] comes back the next day, he drags him out 

of the chair and places him on the floor.

And then the backpack was put there at some point 

during the cleanup. How can we know? Does it matter? 

I submit, not a lot. But what is the evidence showing 

you?

The prosecutor later stated:

5

 Defense counsel did not object during the prosecutor's summation. Rather, 

counsel moved for a mistrial following the prosecutor's summation. For 

purposes of this appeal, we deem the objection to be timely. Defendant's motion 

for a mistrial based on alleged prosecutorial misconduct afforded the trial court 

the opportunity to issue a curative instruction if deemed necessary and 

appropriate. 
48 A-5252-18

Those prongs [on the knife] matching up to those 

marks, is that from a struggle? Or from standing over 

the chair and inflicting those wounds? The drag marks 

match up. Did you hear any evidence to contradict this? 

John Garkowski told you the victim was beaten with a 

blunt force object numerous times while seated in the 

chair. Jan Johnson agreed.

In response to defense counsel's objection, the court ruled that it 

understood that the prosecutor was referring to a lack of physical evidence and 

that it was entirely appropriate for her to make fair comment on the evidence. 

The court disagreed that defendant was prejudiced by a shifting of the burden of 

proof.

When defendant renewed this argument as part of his new trial motion, 

the court ruled that, when considered in context, the prosecutor did not shift the 

burden of proof but was simply discussing the testimony of the two crime scene 

experts and noting where they disagreed.

We agree with the trial court that the prosecutor made fair comments on 

the evidence when discussing the testimony of Garkowski and Johnson. See

Loftin, 146 N.J. at 389 (noting "[a]lthough [the prosecutor's] comment could be 

interpreted as shifting the burden to the defense to disprove the State's 

allegation, it seems more likely to have been intended as an observation of the 

strength of the State's case"). We add that the jury was properly instructed that 
49 A-5252-18

the burden of proof rests on the State and never shifts to the defendant. 6 See

ibid. ("Given the trial court's comprehensive charge explaining the presumption 

of innocence, that the presumption remains until the State has proven guilt 

beyond a reasonable doubt, that defendant 'has no burden to come forward with 

one scintilla of evidence,' and that the burden is on the State 'and that burden 

never, ever shifts,' we do not find that statement to have denied defendant a fair 

trial.").

B.

Defendant contends the prosecutor improperly commented upon his 

failure to take the stand when she argued:

There must be adequate provocation. What? What is 

the provocation? We didn't hear anyone testify there 

was yelling and screaming. Because there were knives 

in a home where a retired man was by himself most the 

time, fishing, cooking? The cats weren't even there 

anymore. Who cares if there were a kitchen knife here 

or there. What was the provocation? What evidence 

have you heard, actual evidence of any provocation that 

it actually impassioned the defendant? It seemed like 

6

 The trial court instructed the jury as follows:

The burden of proving each element of a charge beyond 

a reasonable doubt rests upon the State and that burden 

never shifts to the defendant. The defendant in a 

criminal case has no obligation or duty to prove his 

innocence or offer any proof relating to his innocence 

. . . . The State has the burden of proving the defendant 

guilty beyond a reasonable doubt.
50 A-5252-18

he was angry. But how do you know that? What 

evidence have you heard to demonstrate that element?

[(emphasis added).]

The trial court found that the prosecutor was pointing out no neighbors 

testified they heard yelling or screaming at the time the homicide was occurring. 

The court did not interpret the prosecutor's remarks as a reference to defendant's 

decision not to testify. 

When defendant renewed this argument as part of his new trial motion, 

the court found that the prosecutor's remark "was not meant to highlight a lack 

of evidence from the defendant himself, but rather from witnesses who might 

have heard yelling and screaming." The court noted the prosecutor's comment 

was made while she was discussing the offense of passion-provocation 

manslaughter, and that testimony regarding screaming and yelling is often 

proffered in passion-provocation cases. Because the State bore the burden to 

disprove passion-provocation, the trial court concluded the prosecutor's remarks 

were fair comment on the evidence.

We are satisfied the trial court did not abuse its discretion when it found 

that the prosecutor's comment pertained to the lack of testimony from neighbors 

and not to defendant's election not to testify. We afford deference to the trial 

court's feel for the case and in this instance, the trial court's understanding of the 
51 A-5252-18

import of the prosecutor's argument as it was being made. We therefore 

conclude the prosecutor's remarks did not improperly draw attention to 

defendant's decision not to testify. Engel, 249 N.J. Super. 336 at 382.

C.

Defendant contends the prosecutor impermissibly shifted the burden of 

proof when she argued to the jury:

Tampering with physical evidence; that the defendant 

believed that an official proceeding was about to be 

instituted. The judge will tell you we can't know what's 

in a person's head. That knowledge element is often 

circumstantial. But I submit to you, the actions of this 

defendant between November 21st and November 25th

demonstrate nothing but the fact that he knew this was 

coming. We've shown that. We can know that. It's 

inherent in his behavior. This was not the behavior of 

someone who, in the heat of the moment, created this 

horrible accident. It was purposeful conduct. And he 

purposely destroyed, concealed, or removed multiple 

objects or things from 2204 Central Avenue. The light

bulb. The beer bottle. The magnets. 

Where is the cellphone? Where is the victim's iPad? 

We know he removed those physical things. What else 

did he take? And that his purpose in destroying or 

concealing them was to impair their availability in the 

investigation. Again, I point to the victim's phone, the 

victim's iPad. Wouldn't you like to know? You heard 

that from the defense. Wouldn't you like to know what 

was on the victim's phone? What was on the victim's 

iPad? Me, too. It was taken from the crime scene, I 

submit to you, the circumstantial evidence 

overwhelmingly demonstrates, by this defendant. So 
52 A-5252-18

that we couldn't know. So that we couldn't see. So that 

it couldn't be used against him.

[(emphasis added).]

The trial court ruled that the prosecutor's remarks were fair comment on 

the evidence given that defendant was charged with tampering with evidence 

and hindering apprehension or prosecution. When defendant renewed this 

argument as part of his new trial motion, the court again deemed these remarks 

fair comment on the evidence as they were made in the context of the evidence 

tampering charge. The trial court reasoned: (1) defendant's cell phone and iPad 

were missing from the scene of the crime; (2) some other items missing from 

Doody's home were recovered at defendant's home; and (3) there was evidence 

that defendant traveled up and down Long Beach Island on November 22, 2015, 

thus giving him access to a large wildlife preserve at the southern end of the 

island.

We agree with the trial court that when interpreted in context, the 

prosecutor was discussing the evidence in support of the tampering charge, not

commenting on defendant's failure to testify. Nor did the prosecutor's argument 

and rhetorical questions somehow shift the burden of proof. We nonetheless 

note the prosecutor's remark "me too" was inappropriate to the extent she

expressed her personal desire to know what information might have been 
53 A-5252-18

contained in the victim's missing cell phone and iPad. That fleeting comment, 

however, affords no basis upon which to overturn defendant's convictions for 

tampering or for murder. See Ramseur, 106 N.J. at 322–23 ("The prosecutor's 

misconduct must be viewed in the context of [the entire fourteen-day protracted]

trial."); see also Engel, 249 N.J. Super. at 382 ("Viewing the summation as a 

whole, we cannot fairly say that the prosecutor's errant remark was so egregious 

as to deny defendants a fair trial.").

D.

Defendant contends the prosecutor misled the jury by improperly 

commenting on the absence of evidence indicating that Doody was violent, when 

in fact such evidence had been precluded from trial by the parties' mutual 

consent. See Sexton, 311 N.J. Super. at 79–81 (precluding a prosecutor from 

making arguments contrary to the known facts regardless of whether those facts 

have been presented to the jury). 

Specifically, Murray had told police and the prosecutor that sometime 

between 1980 and 1985, Doody had once grabbed her arm, prompting her to 

strike him. She claimed there had been no domestic violence incidents since. 

During summation, the prosecutor argued:

Belligerent. What did Virginia Murray tell you she 

meant when she used that word? Don't people often use 

words in not precisely the same way? She said, ["]when 
54 A-5252-18

I told him to do something he would do the opposite.["] 

That came out in her cross as well. She told you that's 

what she meant. Remember her tone and her demeanor 

when she testified. Was she hiding something from 

you? Did she somehow fabricate an explanation three 

and a half years later? Or is that what she meant? Not 

that he was violent. What other testimony do we have 

of that? Why did this defendant bring such a violent, 

aggressive friend two [twelve-]packs of beer and a 

bottle of scotch if he was so violent when he was drunk? 

No. Ginny said, ["]he didn't listen to me when he was 

drinking. He would do the opposite.["] When did she 

give that statement. The morning after she learned her 

husband's body was found. Forgive her if she didn't use 

the exact, precise words. But what makes more sense 

here? What is more reasonable?

[(emphasis added).]

The trial court denied defense counsel's objection, ruling that the 

prosecutor's comment did not have the capacity to mislead the jury. When 

defendant renewed this objection as part of his new trial motion, the trial court 

acknowledged that while Murray stated her husband had once "put his hands on 

her" sometime between 1980 and 1985, she maintained he had never struck her 

during their marriage. The court concluded that the prosecutor's remarks were 

fair comments since the parties had agreed prior to trial that there was just one 

physical altercation involving Doody and his wife. The trial court further found 

that even if the prosecutor's comment was inappropriate, "the slim value of Ms. 
55 A-5252-18

Murray's other statement [regarding the 1980–1985 arm-grabbing incident] 

bel[ies] any contention that defendant was deprived of a fair trial." 

We believe the trial court did not abuse its discretion in assessing the 

impact of the prosecutor's remark regarding the lack of evidence of Doody's 

violence. We agree the prosecutor's fleeting rhetorical question, "[w]hat other 

testimony do we have of that," referring to Doody's predisposition to violence 

when intoxicated, did not deprive defendant of a fair trial. Cf. Ramseur, 106 

N.J. at 323 (a prosecutor's misconduct must be viewed in the context of the entire

trial).

E.

Defendant next contends, for the first time on appeal, the prosecutor 

improperly argued Doody sustained "more than" ten blows to the head. 

Defendant now claims there is no supporting evidence that defendant sustained 

more than ten blows. The record reflects Dr. Hood testified Doody suffered ten 

"irregular abraded lacerations to the side of the head." However, the prosecutor 

took care to tell the jurors that their recollection on this point would control. 7 

The failure to object, moreover, clearly indicates to us that this comment was of 

7

 We add that the jury was properly instructed that statements made by the 

attorneys were not to be considered as evidence. See Ramseur, 106 N.J. at 323

(that instruction obviated any lingering potential for undue prejudice). 
56 A-5252-18

no moment. Irving, 114 N.J. at 444. We are satisfied the prosecutor's remark 

lacked the capacity to produce an unjust result when viewed in the context of 

the entire trial. See Ramseur, 106 N.J. at 323.

F.

The defendant's remaining two allegations of prosecutorial misconduct 

during summation—not raised below and only raised for the first time in 

defendant's reply brief, see supra note 4, lack sufficient merit to warrant all but 

brief discussion in this opinion. R. 2:11-3(e)(2). Defendant contends the 

prosecutor committed misconduct when she argued there was another avenue of 

escape for defendant to retreat before employing deadly force in self-protection. 

The prosecutor remarked, "what is just off-screen from this photo? What is just 

within reach of, I submit to you, this avenue of exit? A sliding glass door." 

Defendant now argues, without citation to the record, this sliding door opened 

to a balcony fifteen feet above the ground and thus was not a safe exit for 

purposes of the duty to retreat before employing deadly force, N.J.S.A. 2C:3-

4(b)(2)(b). Even accepting for the sake of argument that defendant is correct as 

to the balcony, we believe the prosecutor's remarks regarding the sliding glass 

door, viewed in the context of all the evidence, did not substantially prejudice 

defendant's fundamental right to have the jury fairly evaluate the merits of his 

self-defense claim, and thus did not have a clear capacity to bring about an unjust 
57 A-5252-18

result. Johnson, 31 N.J. at 510. Moreover, the trial court's charge to the jury 

that statements made by the attorneys were not to be considered as evidence 

obviated any potential for undue prejudice. See Ramseur, 106 N.J. at 323.

So too we reject defendant's new contention that the prosecutor 

improperly argued in summation that defendant knew about Doody's "terrible" 

behavior when Doody was intoxicated, yet brought him alcohol nonetheless. 

Defendant argues there was no evidence at trial that defendant had any prior 

knowledge as to Doody's "terrible" behavior and that the prosecutor thus 

"improperly shifted blame to defendant for bringing alcohol to an individual 

which he purportedly knew would become 'terrible' (i.e., violent)." Defendant 

contends the prosecutor's statement was improper because defendant had no 

such knowledge.

Defendant's argument fundamentally misconstrues the prosecutor's point. 

The prosecutor was not suggesting that defendant knew that Doody had a history 

of terrible behavior while intoxicated. Rather, the true gist of the prosecutor's 

argument was that there was no evidence that Doody became physically 

aggressive when drinking. We believe it was a fair argument that it was 

defendant who brought alcohol to Doody's residence and that he would not have

done so if he believed it would cause Doody to become violent. It was a fair 

inference that defendant knew Doody well, including his social and drinking 
58 A-5252-18

habits; Doody was, after all, the best man at defendant's wedding. In these 

circumstances, we reject defendant's argument that the prosecutor sought to shift 

blame to defendant for bringing alcohol to someone he knew would become 

violent. 

Finally, with respect to the prosecutor's summation, we reject defendant's 

contention that the "numerous improprieties by the prosecutor during closing 

argument violated defendant's due process right to a fair trial." We further 

address defendant's cumulative error argument in section X of this opinion.

VII.

Defendant next contends the motion court erred in denying his motion to 

suppress evidence seized from his home and car pursuant to search warrants. 8 

We derive the following facts from the affidavit in support of the search warrants 

and the motion court's sixteen-page, single-spaced written opinion.

On November 25, 2015, Detective Raymond Gardner of the Ocean County 

Prosecutor's Office submitted affidavits in support of an application for warrants 

to search defendant's home and Jeep. Gardner's affidavit detailed the police 

investigation of the homicide. That same day, a Superior Court judge issued the 

warrants, authorizing police to search defendant's home and car for documents 

8

 The suppression motion was heard by a different judge than the one assigned 

to conduct the trial.
59 A-5252-18

relating to financial transactions and cell phones and other personal 

communications devices. The warrant provided that police could execute the 

searches "anytime." Police executed the warrants between 7:00 p.m. and 8:00 

p.m. that night.

Defendant contends: (1) the authorization permitting execution of the 

search warrant for defendant's home at "anytime" violated Rule 3:5-5; (2) the 

warrant for the search of defendant's home was overly broad with respect to the 

authorization to seize financial documents; and (3) the affidavit submitted in 

support of the warrants did not establish probable cause because it failed to show 

a sufficient nexus between the crime and defendant's home and car.

Because we affirm substantially for the reasons explained in the motion 

court's thorough and thoughtful written opinion, we need not readdress 

defendant's arguments at length. We add the following comments. Rule 3:5-

3(a) provides in pertinent part:

An applicant for a search warrant shall appear 

personally before the judge, who must take the 

applicant's affidavit or testimony before issuing the 

warrant. . . If the judge is satisfied that grounds for

granting the application exist or that there is probable 

cause to believe they exist, the judge shall date and 

issue the warrant identifying the property to be seized, 

naming or describing the person or place to be searched 

and specifying the hours when it may be executed . . . .
60 A-5252-18

Rule 3:5-5(a) further provides that "a search warrant . . . must be executed within 

[ten] days after its issuance and within the hours fixed therein by the judge 

issuing it, unless for good cause shown the warrant provides for its execution at 

any time of day or night. . . ."

To be valid, a search warrant "must be based on sufficient specific 

information to enable a prudent, neutral judicial officer to make an independent 

determination that there is probable cause to believe that a search would yield 

evidence of past or present criminal activity." State v. Keyes, 184 N.J. 541, 553 

(2005). Probable cause exists where there is "a reasonable ground for belief of 

guilt" based on facts of which the officers had knowledge and reasonably 

trustworthy sources. State v. Marshall, 199 N.J. 602, 610 (2009) (quoting State 

v. O'Neal, 190 N.J. 601, 612 (2007)). Probable cause is a "'common-sense, 

practical standard' dealing with 'probabilities' and the 'practical considerations 

of everyday life,'" and is generally understood to mean "'less than legal evidence 

necessary to convict though more than mere naked suspicion.'" State v. Evers, 

175 N.J 355, 381 (2003) (first quoting State v. Sullivan, 169 N.J. 204, 211 

(2001), then State v. Mark, 46 N.J. 262, 271 (1966)). In evaluating the 

sufficiency of the probable cause supporting a search warrant, we review the

four corners of the supporting affidavit and the totality of the circumstances 
61 A-5252-18

presented therein. Id. at 380. Hearsay alone can provide a sufficient basis for a 

warrant. State v. Novembrino, 105 N.J. 95, 110 (1987).

"Once issued, '[a] search warrant is presumed to be valid, and defendant 

bears the burden of demonstrating that the warrant was issued without probable 

cause or that the search was otherwise unreasonable.'" State v. Chippero, 201 

N.J. 14, 26 (2009) (quoting Evers, 175 N.J. at 381). A reviewing court should 

"'accord substantial deference to the discretionary determination resulting in the 

issuance of the [search] warrant." Sullivan, 169 N.J. at 211–12 (alteration in 

original) (quoting State v. Marshall, 123 N.J. 1, 72 (1991). Accordingly, if a 

reviewing court has any "[d]oubt as to the validity of the warrant," such doubt 

"should ordinarily be resolved by sustaining the search." Keyes, 184 N.J. at 554 

(quoting State v. Jones, 179 N.J. 377, 389 (2004)). Moreover, pursuant to Rule

3:5-7(g), "[i]n the absence of bad faith, no search or seizure made with a search 

warrant shall be deemed unlawful because of technical insufficiencies or 

irregularities in the warrant or in the papers or proceedings to obtain it, or in its 

execution." 

The motion court concluded,

With regard to the use of the "anytime language," the 

court finds that nothing in the language of R[ule] 3:5-5 

seems to indicate that the "good cause reason" for 

permitting the warrant to be executed at "anytime" 

needed to be specified in the warrant itself. The State 
62 A-5252-18

suggested that the "good cause" reason the warrants 

needed to be executed at "anytime" in this case was 

because this was a homicide investigation with no 

identified motive. The court agrees with the State that 

even if [this reason is insufficient], at most, the 

"anytime" language would constitute a technical defect 

which does not necessitate the suppression of evidence. 

The court finds that pursuant to R[ule] 3:5-7[(g)], 

[d]efendant . . . has failed to establish or even allude to 

any bad faith on the part of Detective Gardner or [the 

warrant judge]. As such, any technical insufficiencies 

or irregularities in the warrants in this case, including 

the "anytime" language, do not permit this court to 

suppress the evidence uncovered as a result of those 

warrants.

We agree with the motion court's analysis and conclusion. As the motion 

court further noted, the warrants were executed between 7:00 p.m. and 8:00 p.m. 

on November 25, 2015, shortly after defendant's arrest. It was reasonable to 

execute the house search at the same time that defendant was taken into custody. 

We also agree with the motion court that the warrants were not overbroad. 

There was probable cause to believe the financial records sought in the warrant 

might establish a motive for homicide. We add that in any event, no such records 

were introduced at trial, rendering the exclusionary remedy superfluous.

Relatedly, there was ample probable cause to seize electronic devices that 

may have had stored communications between defendant and Doody. We also 

reject defendant's contention that police exceeded the scope of the warrant by 

taking a wedding photograph off the wall of defendant's home. That photo 
63 A-5252-18

confirmed that defendant and Doody were close friends. We add that defendant 

at trial did not dispute that Doody served as best man at his wedding.

Finally, we reject defendant's argument the warrants lacked probable 

cause because there was an insufficient nexus between the homicide at Doody's 

residence on Long Beach Island and defendant's home and vehicle. The affidavit 

in support of the warrant application referenced Doody's text message to his 

wife stating that defendant had invited himself over. The affidavit related that 

defendant visited Doody on November 21, 2015, and also included information 

that defendant's Jeep was observed on Long Beach Island that day. We agree 

with the motion court that it was reasonable to believe the perpetrator of the 

murder could have transported evidence from the crime scene, and that such 

evidence might thus be found in the perpetrator's vehicle and residence. Indeed, 

having established that defendant was staying as a guest at the victim's residence 

at the time of the homicide, the nexus between the crime and defendant, his 

vehicle, and his residence is self-evident.

We also reject defendant's contention the probable cause was stale. As a 

general proposition, the determination whether probable cause is stale depends 

more on the nature of the unlawful activity alleged in the affidavit than in the 

date and times specified therein. See State v. Blaurock, 143 N.J. Super. 476, 

479 (App. Div. 1976). Although the homicide was an isolated incident for which 
64 A-5252-18

probable cause might dwindle rapidly, ibid., the search warrants were obtained 

less than forty-eight hours after Doody's body was discovered. The police and 

prosecutor's office were diligent, thorough, and prompt in conducting a laborintensive homicide investigation that cast suspicion on defendant. That 

investigation entailed forensic examination of the crime scene, identifying the 

victim, speaking to the victim's wife, reviewing video footage of defendant's 

vehicle going to and leaving the victim's residence, surveilling defendant at his 

residence, and obtaining records for defendant's home and vehicle. While it 

certainly was possible the perpetrator could have discarded or destroyed 

inculpatory evidence in the time between the homicide and the issuance of the 

search warrants, applying the "common sense approach" we embraced in 

Blaurock, id. at 479–80, probable cause still existed to believe that evidence 

relevant to the offense, including evidence of motive, would be found in 

defendant's house and vehicle. The evidence sought in the warrant was not of a 

type that would dissipate quickly on its own, and we do not view the possibility 

that the perpetrator might discard or destroy evidence as diminishing the 

probable cause to believe that defendant was involved in the brutal killing and 

that evidence of the crime and its aftermath would be found in his possession.
65 A-5252-18

VIII.

Defendant next contends the trial court erred in admitting three autopsy 

photos. We disagree. In State v. Thompson, our Supreme Court explained, "[i]t 

has long been the rule in this State that admissibility of photographs of the victim 

of a crime rests in the discretion of the trial court, and the exercise of its 

discretion will not be reversed in the absence of a palpable abuse thereof." 59 

N.J. 396, 420 (1971); see also State v. Kuropchak, 221 N.J. 368, 385 (2015); 

State v. Rose, 206 N.J. 141, 157 (2011). Relevant evidence may be excluded if 

its probative value is substantially outweighed by the risk of undue prejudice or 

needless presentation of cumulative evidence. N.J.R.E. 403; State v. Feaster, 

156 N.J. 1, 83 (1998). In this instance, the trial court carefully considered the 

probative value of the autopsy photos in relation to the risk of undue prejudice 

or needless presentation of cumulative evidence.

Prior to Dr. Hood's testimony, the prosecutor advised the trial court there 

were 187 autopsy photos. The State proposed to show only sixteen of the photos 

to the jury. Defendant objected to the admission of five of those sixteen. 

Specifically, defense counsel argued that either photos S-177 or S-178 should 

be admitted, but not both, as they were cumulative. Counsel argued that S-183 

should be excluded as it was too gruesome, and that that either S-184 or S-185 
66 A-5252-18

should be admitted but not both, as they were cumulative and S-185 was 

particularly gruesome.

The prosecutor maintained that the photos now at issue should be admitted 

because the first two offered different views of the injuries to the left side of 

Doody's head, the third depicted an injury that alone could have caused Doody's 

death (i.e., the injury to his neck and larynx), and the last two offered different 

views of two distinct injuries to Doody's skull. 

After reviewing the photos, the trial court found that S-177 and S-178 

were not cumulative even though they showed the same injury because they 

provided two distinct views of the injuries to the left side of Doody's head. The 

court reasoned that S-178 "gives a unique depiction of the injury to the ears, to 

the left ear rather, which you cannot see in S-177." The court found that S-183, 

which showed the injury to Doody's larynx, was highly relevant since the nature, 

depth, and severity of that wound, and the weapon used to make it, were 

contested. The court also found that S-184 and S-185, which showed the 

indentations in defendant's skull and damage caused to the brain, were not 

cumulative as they also were taken from two different angles and were relevant 

to the issue of the nature, depth, and severity of the blunt force head injuries that 

were inflicted. In view of the trial court's careful, thorough, and well-articulated 
67 A-5252-18

analysis, we conclude the court properly exercised its discretion in admitting the 

autopsy photos. 

IX.

Defendant contends the trial court erred in denying his motion for a 

judgment of acquittal (JOA) on the charge of murder. He also contends in a 

separate point that the trial court erred in denying his motion for a new trial 

because the verdict was against the weight of the evidence. We reject both 

contentions. 

The well-established test for challenging the sufficiency of evidence for a 

defendant's conviction(s) was articulated in State v. Reyes: 

The question the trial judge must determine is whether, 

viewing the State's evidence in its entirety, be that 

evidence direct or circumstantial, and giving the State 

the benefit of all its favorable testimony as well as all 

of the favorable inferences which reasonably could be 

drawn therefrom, a reasonable jury could find guilt of 

the charge beyond a reasonable doubt. 

[50 N.J. 454, 458–59 (1967).]

See also State v. Martin, 119 N.J. 2, 8 (1990) (quoting State v. Brown, 80 N.J. 

587, 592 (1979)) ("In assessing the sufficiency of the evidence, the relevant 

inquiry is whether 'any rational trier of fact could have found the essential 

elements of the crime beyond a reasonable doubt.'") (emphasis in original). The 
68 A-5252-18

same standard applies to a motion for a judgment of acquittal notwithstanding 

the verdict. State v. Kluber, 130 N.J. Super. 336, 341–42 (App. Div. 1974).

An appellate court will not reverse a trial court's decision on a motion for 

a new trial "unless it clearly appears that there was a miscarriage of justice under 

the law." R. 2:10-1; State v. Labrutto, 114 N.J. 187, 207 (1989). To this end, 

the appellate court must make its own determinations, deferring to the trial court 

only with respect to those intangible aspects of the case such as credibility, 

witness demeanor, and the general "feel of the case." State v. Brown, 118 N.J. 

595, 604 (1990) (quoting State v. Sims, 65 N.J. 359, 373 (1974)).

After the State rested its case, defendant moved for a JOA on the murder 

charge, arguing that the State had not met its burden of proof. The trial court 

denied the motion, finding that there was sufficient evidence for the case to go 

to the jury, emphasizing in particular the testimony of Garkowski and Dr. Hood, 

as well as the "inordinate number of injuries sustained" by Doody.

Prior to sentencing, defendant moved for a new trial, arguing: (1) there 

were no witnesses to the fatal incident; (2) he and Doody were friends; (3) 

Doody had a BAC of .252% and had been described as "belligerent" when drunk; 

and (4) the absence of defendant's DNA on the handle of the knife "rais[ed] a 

reasonable doubt as to whether or not defendant maintained control over the 

subject weapon."
69 A-5252-18

The trial court rejected these arguments, finding that defendant's decision 

to bring an assortment of alcoholic beverages to Doody's house indicated that 

he did not believe that Doody was belligerent. The court also found the State 

had proven beyond a reasonable doubt that defendant controlled the knife and 

had not acted in self-defense. The court noted that the knife was found partially 

washed in the sink. The court also stressed that Doody was seated during and 

after the attack, Doody sustained brutal wounds, and the knife was the second 

weapon used to inflict injury. 

Defendant now contends the State did not disprove his claim of selfdefense, that Garkowski was biased in favor of the prosecution, that the police 

erroneously identified defendant's car a few times from traffic camera footage, 

and that the absence of defendant's DNA on the knife handle was definitive proof 

that defendant did not attack Doody. With the exception of the self-defense 

claim, these contentions lack sufficient merit to warrant discussion in this 

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

Based on our own review of the record, we agree with the trial court there 

was a wealth of evidence that defendant—who did not deny killing Doody—was 

the aggressor. We note in particular the expert testimony that Doody was seated 

when he was beaten and then slashed across the neck; the severity of Doody's 

injuries and the fact that they were inflicted successively with two different 
70 A-5252-18

weapons; and the evidence that defendant sustained only minor injuries during 

the violent confrontation. In view of this overwhelming evidence, a reasonable 

jury could find beyond a reasonable doubt that defendant had not acted in selfdefense when he killed Doody. 

X.

Finally, we address defendant's contention the alleged trial errors, when 

considered cumulatively, warrant a reversal of his convictions and a remand for 

a new trial. In State v. Reddish, our Supreme Court acknowledged that 

"although an error or series of errors might not individually amount to plain 

error, in combination they can cast sufficient doubt upon the verdict to warrant 

reversal." 181 N.J. 553, 615 (2004). In State v. Weaver, the Supreme Court 

granted a new trial after concluding that it was "a classic case of several errors, 

none of which may have independently required a reversal and new trial, but 

which in combination dictate[d] a new trial." 219 N.J. 131, 162 (2014); see also

Jenewicz, 193 N.J. at 473–74 (recognizing that even when individual errors do 

not amount to reversible error, their cumulative effect can require reversal if 

they "prejudice the fairness of [the] defendant's trial and, therefore, cast[] doubt 

on the propriety of the jury verdict that was the product of that trial" ).

In State v. Orecchio, the Court stressed that "the incidental legal errors, 

which creep into the trial but do not prejudice the rights of the accused or make 
71 A-5252-18

the proceedings unfair, may [not] be invoked to upset an otherwise valid 

conviction." 16 N.J. 125, 129 (1954). Moreover, it is well-settled that "[a] 

defendant is entitled to a fair trial but not a perfect one." Marshall, 123 N.J. at 

170 (quoting Lutwak v. United States, 344 U.S. 604, 619 (1953)).

In addition to the alleged errors we have already addressed, defendant in 

his cumulative-error point heading identifies two additional issues not raised 

before the trial court. We need only briefly address these two additional alleged 

errors.

During her testimony, Murray made two comments indicating that 

Doody—a retired New York City firefighter—suffered adverse effects from the 

terrorist attack on September 11, 2001. Specifically, Murray related that Doody 

needed a CAT scan of his lungs because of ground glass opacity related to 9/11. 

During re-direct examination, Murray related that after maintaining his sobriety 

for a number of years, Doody "started drinking after 9/11." These two comments 

were inadvertently elicited by the prosecutor, who had instructed Murray not to 

mention Doody's service on 9/11. After Murray left the stand, defense counsel 

noted that she had been instructed by the court not to speak of 9/11, and that her 

testimony came "very close to [violating] the judge's instruction." Defense 

counsel declined to seek a curative jury instruction but did ask that the 

prosecutor avoid the topic in her closing. The prosecutor noted that her 
72 A-5252-18

questions were not designed to elicit this testimony, and stated that she did not 

intend to mention 9/11 in her summation. There was no further mention of 9/11 

at trial.

Defendant also notes a partial statement Dr. Hood made that 

decomposition of a body "can produce some ethanol as well, but not a whole lot, 

so it is likely that [Doody's] blood ethanol level at the time of—." Defense 

counsel's timely objection prevented Hood from completing his thought, and the 

court accordingly instructed the jury to disregard that statement and focus only 

on Hood's testimony that Doody's BAC was .252%.

After carefully considering all of the trial errors defendant alleges on 

appeal, we conclude that defendant received a fair trial and that none of 

defendant's contentions, viewed individually or collectively, cast doubt upon the 

verdict. Reddish, 181 N.J. at 615. We stress that while defendant may not have 

received a perfect trial, he received a fair one. Marshall, 123 N.J. at 170. We 

add the State presented overwhelming evidence to disprove beyond a reasonable 

doubt that defendant was justified in using deadly force in self-defense. 

To the extent we have not addressed them, any remaining arguments 

raised by defendant on appeal lack sufficient merit to warrant discussion in this 

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

Affirmed.