State v. Jahnell Weaver (069185)

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized).

State v. Jahnell Weaver (A-104-11) (069185)

Argued February 4, 2014 -- Decided September 8, 2014

CUFF, P.J.A.D. (temporarily assigned), writing for a unanimous Court.

In this appeal, the Court addresses whether defendant is entitled to a new trial based upon the cumulative
impact of several alleged errors, including the denial of defendant’s application to use “reverse 404(b)” evidence,
the denial of his motion for a separate trial, and the admission of an inadequately redacted statement.

On June 26, 2004, Jahnell Weaver (defendant) and Edward Williams argued outside of a graduation party
in Camden, New Jersey. As the verbal altercation continued, someone drew a gun and fired five shots. Williams
died from three gunshot wounds. Amyr Hill, a friend standing by Williams’s side, was severely injured by two
gunshot wounds. Defendant and his friend, Khalil Bryant, fled from the scene. Based on statements obtained from
victim Hill and several eyewitnesses, police determined that either defendant or Bryant had fired the shots. Both
were subsequently charged with the murder of Williams, the attempted murder of Hill, and other charges.

Roughly five months later, in November 2004, Winslow Township police went to Bryant’s residence to
investigate a different incident and discovered the weapon that had been used in the Camden shooting. Bryant was
arrested for the Winslow Township shooting and subsequently pled guilty. In November 2005, the lead investigator
of the Camden shooting spoke with Bryant about the weapon. Bryant initially stated that he purchased the gun on
the street, but later admitted that he possessed the weapon on the night of the Camden shooting. He stated that
defendant gave him the weapon after the Camden shooting with instructions to hide it.

As part of his defense, defendant contended that Bryant, not he, shot the two victims. To that end, he
sought to introduce evidence of Bryant’s involvement in the Winslow Township shooting in order to prove that
Bryant had the intent to use the murder weapon. Defendant also moved for a separate trial. The trial court, applying
the four-prong Cofield test, ruled that the other-crimes evidence was inadmissible because it was not relevant to any
issue and was unduly prejudicial to Bryant. The court also denied defendant’s motion for a separate trial.

At trial, the sole contested issue was the identity of the shooter. Among other evidence, the State admitted
a redacted portion of Bryant’s 2005 statement in which he stated that he had received the gun from “someone”
immediately after the Camden shooting. Other trial evidence permitted the jury to readily find that defendant was
the “someone” who gave the gun to Bryant. The jury found defendant guilty of all counts and found Bryant guilty
of third-degree unlawful possession of a weapon and two counts of third-degree endangering an injured victim.

On appeal defendant argued that his right to confrontation was violated because the trial court admitted
Bryant’s statements identifying defendant as the shooter, even though Bryant did not testify. Defendant also
contended that the trial court should have permitted him to introduce the other-crimes evidence, namely that Bryant
used the murder weapon in connection with the Winslow Township incident. Defendant explained that the
exclusion of the evidence deprived him of critical evidence supporting his defense that Bryant was the shooter, and
mandated severance of the charges and separate trials for defendant and Bryant. The Appellate Division affirmed
defendant’s conviction and the Court granted his petition for certification. State v. Weaver, 210 N.J. 108 (2012).

HELD: The confluence of defendant’s third-party defense strategy, the erroneous denial of his defensive use of co-
defendant’s subsequent acts with the murder weapon, the denial of his motion to sever the trial, the admission of an
inadequately redacted statement, and the erroneous admission of when co-defendant received the murder weapon
require a new trial. The cumulative impact of these errors was not harmless.
1. From defendant’s many challenges, the Court discerns four central issues: (1) the denial of his application to use
reverse 404(b) evidence against Bryant, (2) the denial of his motion for severance, (3) the admission of an
incriminatory statement from Bryant’s 2005 statement following his arrest for the Winslow Township shooting, and
(4) the cumulative effect of some or all of those errors. (pp. 16)

2. Two or more defendants may be charged and tried jointly “if they are alleged to have participated in the same act
or transaction” constituting the offense. R. 3:7-1; R. 3:15-1. If it appears that a defendant or the State is prejudiced
by a joint trial, the trial court may sever. R. 3:15-2(b). When, as here, a defendant’s defense strategy is antagonistic
at its core to the defense strategy of his co-defendant so that the jury could believe only one of them, severance is
required. Here, the trial court rejected the motion to sever because it also excluded defendant’s other-crimes
evidence. Critically, however, the trial court’s other crimes analysis was in error. (pp. 17-18, 28-29)

3. In analyzing defendant’s other-crimes evidence – specifically, the evidence of Bryant’s participation in the
Winslow Township shooting – the trial court applied the four-prong test established State v. Cofield, 127 N.J. 338
(1992). However, when a person charged with a criminal offense seeks to use other-crimes evidence defensively,
the Cofield standard does not apply. Instead, reverse 404(b) evidence is governed by a simple relevance standard,
and a defendant may use the other-crimes evidence if it tends to negate the defendant’s guilt of the crime charged.
Under this more relaxed standard, courts must still determine that the probative value of the evidence is not
substantially outweighed by any of the Rule 403 factors. Here, Bryant’s involvement in the Winslow Township
shooting was relevant to the Camden shooting, and presentation of the other-crimes evidence would not have
consumed undue time or confused or misled the jury. Thus, the trial court should have permitted defendant to use
Bryant’s involvement in the Winslow Township shooting defensively at trial. Such evidence was a key component
of defendant’s third-party guilt defense. In addition, if the evidence of Bryant’s involvement in the November 2004
Winslow Township shooting was admissible, the trial should have been severed. (pp. 19-20, 29-31).

4. The trial court also erred by permitting the State to enter into evidence a redacted version of Bryant’s statement
that he received the gun immediately after the Camden shooting. Although courts generally permit the use of co-
defendant statements that do not directly incriminate another defendant as long as all references to the defendant are
removed, here, the admission of Bryant’s statement violated defendant’s right to confront a critical witness. A co-
defendant’s incriminatory statement is admissible only where it requires the jury to make an inferential step to link
the statement to the defendant. Simply replacing a defendant’s name with a blank space or the word “deleted” is not
permissible because it “points to the defendant.” Here, the State and defense counsel agreed that Bryant’s 2005
statement would be redacted and the word “someone” would be used in place of defendant’s name. At trial,
however, Bryant’s counsel sought to establish that Bryant received the weapon immediately after the Camden
shooting. Both the prosecutor and defendant’s counsel objected, stating that the additional detail eviscerated any
benefit achieved by substituting “someone” for defendant’s name. Their objections were correct. Considered in the
context of the complete trial record, the jury was not required to make an inferential step to link defendant to the
person referred to in Bryant’s statement. Although the redaction of defendant’s name may have passed muster if
counsel had not asked when Bryant received the weapon, as soon as the jury learned that Bryant received it on the
night of the Camden shooting, the jury had been provided a direct path to defendant. (pp. 21-26, 31-34)

5. In some circumstances, it is difficult to identify a single error that deprives a defendant of a fair trial. This is one
of those cases. Here, we have a collection of errors, one of which involves a violation of defendant’s right to
confront a witness, namely his co-defendant, to contest the accusation that defendant was the shooter. This is a
classic case of several errors, none of which may have independently required a reversal, but which in combination
dictate a new trial. Defendant’s defense strategy of third-party guilt was not farfetched and use of the Winslow
Township shooting evidence would have added some strength to that strategy. It could not, however, be presented
at a joint trial. The cumulative impact of these errors was not harmless, and, therefore, a new trial is required. (pp.
26-27, 34-37)

The judgment of the Appellate Division is REVERSED, and the matter is REMANDED to the trial court
for proceedings consistent with this opinion.

CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, PATTERSON, and FERNANDEZ-
VINA; and JUDGE RODRÍGUEZ (temporarily assigned) join in JUDGE CUFF’s opinion.

2
 SUPREME COURT OF NEW JERSEY
A-104 September Term 2011
069185

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAHNELL WEAVER,

Defendant-Appellant.

Argued February 4, 2014 – Decided September 8, 2014

On certification to the Superior Court,
Appellate Division.

Kevin G. Byrnes, Designated Counsel, argued
the cause for appellant (Joseph E. Krakora,
Public Defender, attorney).

Jason Magid, Assistant Prosecutor, argued
the cause for respondent (Warren W. Faulk,
Camden County Prosecutor, attorney; Nancy P.
Scharff, Assistant Prosecutor, on the letter
briefs).

Alexander R. Shalom argued the cause for
amicus curiae American Civil Liberties Union
of New Jersey (Edward L. Barocas, Legal
Director and Ronald K. Chen, Acting Dean of
Rutgers Constitutional Litigation Clinic
Center for Law & Justice, attorneys; Mr.
Shalom, Mr. Barocas, and Jeanne M. Locicero,
of counsel and on the brief).

Brian J. Uzdavinis, Deputy Attorney General,
argued the cause for amicus curiae Attorney
General of New Jersey John J. Hoffman,
Acting Attorney General, attorney).
 JUDGE CUFF (temporarily assigned) delivered the opinion of

the Court.

On a warm summer evening in late June 2004, approximately

fifty young men and women gathered at the Camden apartment of a

recent high school graduate to celebrate her graduation. Later

in the evening, a verbal argument erupted on the street in front

of the apartment between two young men -- Jahnell Weaver and

Edward Williams. Each had a friend standing by their side. As

the verbal altercation continued, someone drew a gun and fired

five shots. Williams died from three gunshot wounds. His

friend, Amyr Hill, was gravely wounded by two gunshots but

survived. Weaver and his friend fled from the scene.

The police investigation quickly focused on Weaver and

Khalil Bryant. Based on statements obtained from Hill and

several eyewitnesses, police determined that the shots were

fired by either Weaver or Bryant. Both were subsequently

charged with the murder of Williams, the attempted murder of

Hill, and various weapons charges.

The focus of the trial was the identity of the shooter.

Hill initially identified Bryant as the shooter but later

modified his identification, stating that he was not sure

whether Weaver or Bryant fired the shots. An eyewitness

provided similar testimony. Another eyewitness provided a

description of the shooting that suggested Bryant was the

2
shooter. Two other eyewitnesses stated unequivocally that

Weaver shot both young men.

Weaver contended that Bryant, not he, shot the young men.

In support of this defense, Weaver sought to introduce evidence

of Bryant’s involvement in a later shooting in which he used the

murder weapon. Weaver also moved for a separate trial.

Applying the Cofield1 analysis rather than a simple relevancy

analysis, the trial court denied Weaver’s defensive use of the

subsequent other-crimes evidence and denied the severance

motion.

Related to the subsequent shooting event, the State

admitted a redacted portion of Bryant’s statement in which he

stated that he received the gun from someone immediately after

the Camden shooting occurred. Other trial evidence permitted

the jury to readily find that the “someone” who gave the gun to

Bryant on the night of the Camden shooting was none other than

Weaver.

No one error is determinative of this appeal. The

confluence of Weaver’s third-party defense strategy, the

erroneous denial of Weaver’s defensive use of Bryant’s

subsequent acts with the murder weapon, the denial of his motion

to sever the trial, the admission of an inadequately redacted

statement by Bryant, and the erroneous admission, over the

1
State v. Cofield, 127 N.J. 328, 338 (1992).
3
objection of the prosecutor and Weaver’s attorney, of when

Bryant received the murder weapon require a new trial.

I.

A.

This appeal arises from a verbal dispute between two young

men during a high school graduation party in Camden in June 2004

that escalated to shots fired, leaving one young man dead and

another seriously wounded. Either defendant or Bryant shot the

victims. Certain facts are undisputed.

On June 26, 2004, about fifty people between the ages of

sixteen and nineteen assembled at a high school graduation party

for a seventeen-year-old girl. Late in the evening, four young

men gathered outside her apartment. Edward Williams and

defendant Jahnell Weaver became embroiled in a verbal dispute.

Hill stood by Williams’ side. Bryant stood by the side of

defendant. The two groups faced each other only several feet

apart. Some witnesses described Williams as screaming at

defendant, who spoke quietly and laughed at Williams. Williams

asked Hill for his phone and called a friend. Hill did not hear

the entire conversation but thought Williams was requesting aid

from the person with whom he spoke.

At that moment five shots were fired. Williams was struck

by three bullets, Hill by two. Both men tried to flee but

Williams fell in the street; Hill fell closer to the curb.

4
 As onlookers rushed to the aid of Williams and Hill, many

observed defendant and Bryant run from the scene. Lamike

Goffney, the godmother of one eyewitness and the guardian of

another, observed one of the fleeing men transfer a gun to the

other man. Almost a year later, Bryant admitted that sometime

on the night of the shooting he gained possession of the murder

weapon after the shooting.

Someone placed Hill in a car that drove away from the scene

at a high rate of speed. The car was intercepted by an

emergency medical services (EMS) vehicle. Hill was removed from

the car, placed in the EMS vehicle, and taken to the hospital.2

Police and another EMS vehicle soon arrived at the scene of the

shooting. Williams was removed and taken to the hospital where

he was declared dead.3

2
The trauma surgeon who treated Hill testified that Hill arrived
at the hospital “in extremis” from multiple gunshot wounds to
the torso and leg. The gunshot wound to the torso partially
split the liver causing severe blood loss. The wound to the leg
severed the femoral artery and also produced heavy blood loss.
The trauma surgeon repaired the liver and managed respiratory
failure which developed later. A vascular surgeon performed “an
inter-position [vein] graft” to address the severed femoral
artery. Hill remained hospitalized for several weeks.
3
The medical examiner described the three gunshot wounds
suffered by Williams. The first was “a perforating wound that
entered the upper neck on the left, passed left to right, and
exited” the body. It only caused muscle damage. The second and
third gunshots entered the left side of the chest. One passed
through the ribcage and the aorta. The other struck the left
lung. Both wounds caused severe blood loss –- “[the] kind of
blood loss . . . associated with rapid death.”
5
 The central issue, and the only disputed issue at trial,

was who shot Williams and Hill. Even that issue was narrowly

focused because all the evidence pointed to either defendant or

Bryant.

In his first interview following discharge from the

hospital, Hill told a defense investigator that Bryant shot him.

At trial, he testified that he was not sure whether defendant or

the person who was standing next to defendant fired the gun.

Bryant DeShields observed part of the verbal altercation

between defendant and Williams. DeShields was a close friend of

Williams and Hill and knew defendant from school and the

neighborhood. In his first statement, given within three or

four hours of the shooting, DeShields told the investigator that

defendant did not shoot Williams or Hill. Four days later,

however, he informed the same investigator that he was not sure

who shot his friends. At trial, he testified that he “saw a

hand,” and stated he did not “know whose hand it was,” but he

had no doubt that the shots were fired by either defendant or

Bryant.

Cherae Frazier testified that she saw defendant lift his

shirt and pull a gun from his pants and shoot Williams and Hill.

Jasmaine Watkins testified that she saw defendant fire a gun

five or six times. Goffney, Frazier’s godmother and Watkins’

guardian, responded to the scene after hearing the gunshots and

6
encountered Frazier. In response to Goffney’s question about

the whereabouts of Watkins, Frazier stated, “[defendant] didn’t

have to kill him. [Defendant] didn’t have to kill him.”

Goffney also saw two young men, one dressed in a white

shirt and blue shorts, running from the site of the shooting.

The young man in the blue shorts “passed the other guy

something.” She explained that “[o]ne had something in his

hand. He passed the other one whatever he had in his hand and

they kept on running.”

DeShields testified that Bryant wore a navy blue hat pulled

low over his eyes and had a white cast or a cast-like object on

one arm. Frazier and Dominique Pratt, another eyewitness,

confirmed that Bryant wore a white cast on his right arm.

Pratt also saw Bryant dancing at the party. As Bryant

danced, Pratt saw a gun fall from his waistband two or three

times. In addition, Pratt observed the verbal dispute between

defendant and Williams. Pratt observed defendant and Bryant

have “a little exchange” of something, but could not identify

what passed between the two young men. Soon thereafter, Pratt

“saw a cast go up and [] an arm under it and [] heard gunshots.”

Pratt could not state whether defendant or Bryant fired the gun.

B.

Following waiver to adult court, a grand jury indicted

seventeen-year-old Jahnell Weaver and Khalil J. Bryant and

7
charged them with the following offenses: first-degree murder,

contrary to N.J.S.A. 2C:11-3(a)(1)(2) (count one); first-degree

attempted murder, contrary to N.J.S.A. 2C:5-1 and 2C:11-3 (count

two); second-degree aggravated assault, contrary to N.J.S.A.

2C:12-1(b)(1) (count three); third-degree aggravated assault

with a deadly weapon, contrary to N.J.S.A. 2C:12-1(b)(2) (count

four); second-degree possession of a weapon for an unlawful

purpose, contrary to N.J.S.A. 2C:39-4(a) (count five); third-

degree unlawful possession of a weapon, contrary to N.J.S.A.

2C:39-5(b) (count six); and two counts of third-degree

endangering an injured victim, contrary to N.J.S.A. 2C:12-1.2

(counts seven and eight).

Defendant filed a motion for severance pursuant to Rule

3:15-2(b). Defendant contended that Bryant, not he, was the

shooter. In support of this defense, defendant sought to

introduce other-crimes evidence that showed that Bryant

threatened to use, and did use, the same firearm used to shoot

Williams and Hill at a later date. Defendant argued that the

other-crimes evidence showed Bryant had the intent to use the

murder weapon. The trial court, applying the four-prong Cofield

test, ruled that the other-crimes evidence was inadmissible

because it was not relevant to any issue and was unduly

prejudicial to Bryant. The court also denied defendant’s motion

for a trial separate from Bryant.

8
 Defendant and Bryant were tried together. The jury found

defendant guilty of all counts. The jury acquitted Bryant of

counts one, two, three, four, and five, but found him guilty of

counts six, seven and eight. Defendant is serving an aggregate

term of sixty-six years’ imprisonment, 51.85 years of which must

be served without parole.

On appeal, defendant argued that his right to confrontation

was violated when the trial court admitted hearsay statements

uttered by Bryant identifying him as the shooter. Bryant did

not testify; therefore, defendant did not have the opportunity

to cross-examine him.

Defendant also contended that the trial court should have

permitted him to introduce other-crimes evidence that Bryant

used the murder weapon during a confrontation with others

several months after the Camden shooting in June 2004. He

argued that this evidence showed Bryant’s intent to use the gun

when involved in a dispute. Defendant maintained that the

other-crimes evidence was relevant and the prejudice to Bryant

could have been resolved by granting defendant’s motion to

sever. Moreover, he urged that the exclusion of the evidence

deprived him of critical evidence supporting his defense that

Bryant, not he, was the shooter, and mandated severance of the

charges and separate trials for defendant and Bryant.

9
 Defendant also contended that the trial court should have

delivered a passion/provocation manslaughter charge as a lesser-

included offense of murder, that the trial court failed to mold

the charge to the facts as developed at trial, that his right to

a speedy trial had been denied, and that the sentence was

excessive.

In an unpublished opinion, the Appellate Division affirmed

defendant’s conviction. The appellate panel held that the trial

court did not abuse or mistakenly exercise its discretion when

it denied defendant’s motion for severance. The panel reasoned

that “[s]everance would have been required if and only if that

evidence was otherwise admissible . . . the only purpose for

which that evidence would be admitted is to establish Bryant’s

propensity to shoot others. It was therefore inadmissible, in

either a joint or individual trial.” The appellate panel

observed that both defendants participated in the episode with

the victims and much of the evidence was the same. In the end,

the panel opined that “defendant lost nothing by being tried

with Bryant.”

The Appellate Division also determined that Bryant’s

redacted statement regarding his possession of the murder weapon

after the night of the Camden shooting did not violate

defendant’s Sixth Amendment right to confrontation. The panel

emphasized that the trial court admitted the redacted statement

10
at defendant’s request and the statement potentially exculpated

defendant and inculpated Bryant. The panel also determined that

the use of the statement by Bryant’s counsel to suggest that

defendant gave the weapon to Bryant was error, but harmless,

because defendant and Bryant were charged with all crimes as

principals and accessories, and defendant gained some benefit

from the testimony because it deflected attention from him.

In addition, the appellate panel determined that the trial

court correctly barred evidence that Bryant had been involved in

a later shooting. The panel concluded that the later violent

act by Bryant was relevant only to establish Bryant’s propensity

to commit violent acts, which is expressly precluded by N.J.R.E.

404(b). The appellate court rejected, as without merit,

defendant’s contentions that the trial court should have

instructed the jury on passion/provocation manslaughter because

one of the victims uttered a racial slur, that the trial court

prejudicially erred by failing to mold the prior inconsistent

statement portion of the final charge to the trial evidence, and

that the prosecutor engaged in prosecutorial misconduct. The

panel also concluded that defendant was not entitled to a new

trial due to cumulative error.

Finally, the appellate court determined that the four-year

delay between indictment and trial did not violate defendant’s

right to a speedy trial because he failed to establish that he

11
suffered any prejudice attributable to the delay, that the

prosecutor did not engage in misconduct in the investigation of

the incident and preparation for trial, and that the sentence is

not excessive.

We granted defendant’s petition for certification. State

v. Weaver, 210 N.J. 108 (2012).

II.

A.

Before this Court, defendant reiterates the same arguments

that he presented to the Appellate Division but focuses

particularly on five issues -- the exclusion of the other-crimes

evidence, the failure to sever the trial, the admission of

Bryant’s hearsay statement that defendant passed the gun to him

after the shooting, the omission of the passion/provocation

manslaughter charge, and cumulative error. Defendant emphasizes

that the surviving victim and an eyewitness identified Bryant as

the shooter soon after the shooting, that one witness observed

Bryant with the murder weapon before the shooting, and that

Bryant possessed the gun after the shooting and used it against

others on another occasion. Defendant asserts this evidence

supports the conclusion that the gun belonged to Bryant, not

defendant, and that Bryant was the shooter.

Furthermore, defendant contends that Bryant’s out-of-court

statement that defendant passed the gun to him following the

12
shooting should not be considered a declaration against Bryant’s

penal interest. He contends such an interpretation “belies

common sense.” Defendant acknowledges that Bryant admitted to a

possession of a weapon offense but emphasizes that he also

exculpated himself from the murder charge and the lengthy term

of imprisonment imposed for the offense. In other words, the

statement was not actually against Bryant’s penal interest when

he made the statement.

Finally, defendant urges that the circumstances that

unfolded that evening in Camden created an atmosphere that

required submission of the charge of passion/provocation

manslaughter as a lesser-included offense of murder. Defendant

insists that the victim’s call for backup from his group of

friends and the victim’s use of a derogatory term provided the

factual underpinnings for the lesser-included offense and the

appropriate charge.

B.

The State argues that the trial court properly denied

defendant’s attempt to admit evidence that Bryant used the

murder weapon against others months after the Camden shooting.

It contends that the trial court properly applied the Cofield

analysis to exclude the later incident and properly concluded

that the later incident was not relevant to the charges arising

from the Camden shooting. The State argues that, whether the

13
evidence of the later use of the murder weapon by Bryant is

considered direct other-crimes evidence or reverse other-crimes

evidence, the reason for offering the evidence was for no

purpose other than to establish Bryant’s propensity to commit

violent acts.

The State also maintains that the trial court properly

denied defendant’s motion for severance. It emphasizes that

defendant conditioned the severance motion on his ability to

introduce the reverse other-crimes evidence. Once the trial

judge denied the use of that evidence, the need for a severance

evaporated. Moreover, the State emphasizes that defendant’s

severance argument is premised on the relevance and

admissibility of the reverse other-crimes evidence.

The State also argues that the admission of evidence of a

redacted portion of Bryant’s statement that defendant passed the

weapon to him after defendant shot Williams and Hill did not

violate defendant’s right to confrontation. The State

emphasizes that the contested testimony was elicited by Bryant’s

counsel, not the prosecutor, and defendant did not object or

seek a limiting instruction. Moreover, any error must be

considered harmless due to the overwhelming evidence of guilt

adduced by the State.

Finally, the State contends that the four-year delay

between indictment and trial did not violate defendant’s right

14
to a speedy trial, the prosecutor’s investigator did not engage

in misconduct, the trial court properly denied a

passion/provocation manslaughter charge, and the trial court

imposed a fair and appropriate sentence. Addressing the speedy

trial contention, the State maintains that defendant suffered no

prejudice, and the delay was occasioned by some pretrial

proceedings initiated by defendant.

C.

The Attorney General, appearing as amicus curiae, concedes

that reverse 404(b) or defensive use of other-crimes evidence is

viewed more indulgently than use of such evidence by the State.

It urges, however, that defendant sought to use the evidence for

no other reason than to establish Bryant’s propensity to commit

violent acts. The Attorney General emphasizes that defendant

moved to introduce Bryant’s out-of-court statement in which

Bryant admitted that he possessed the gun “before and after the

shooting.” It contends that the brief and unanticipated

testimony that defendant passed the gun to Bryant after the

shooting does not require a new trial. The Attorney General

insists that the reference to the redacted inculpatory portion

of Bryant’s statement by Bryant’s counsel, not the prosecutor,

does not warrant a new trial.

Amicus American Civil Liberties Union of New Jersey (ACLU)

urges the Court to address the speedy trial issue raised by

15
defendant. It urges the Court to take this opportunity to

define with certainty the length of delay that constitutes

presumptive denial of a defendant’s right to a speedy trial. It

recommends that when a defendant has been incarcerated for more

than 270 days and meets the other prongs of the Barker v. Wingo4

test, the burden must shift to the State to establish that the

defendant has not been prejudiced by the delay.

III.

Defendant has raised several issues. Based on our review

of the record, we discern that four issues -- the denial of

defendant’s application to use reverse 404(b) evidence against

Bryant, the denial of defendant’s motion for severance, the

admission of an incriminatory statement from Bryant’s statement

following his arrest for a later shooting, and the cumulative

effect of some or all of any of those errors -- are the central

issues in this appeal.5 As related in our summary of the

evidence adduced at trial, neither defendant nor Bryant denied

that they attended the graduation party or that they were in the

street outside the residence where the party occurred or that a

4
Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101
(1972).
5
Defendant’s contention that the record required a
passion/provocation manslaughter charge is without merit. It is
well-settled that words alone, even a racial slur, are not
sufficient to warrant this charge. State v. Mauricio, 117 N.J.
402, 413-14 (1990).
16
verbal dispute occurred between defendant and Bryant and two

other young men. The issue was solely the identity of the

person who fired the gun. It is in this context that we review

these closely related issues.

A.

Two or more defendants may be charged and tried jointly “if

they are alleged to have participated in the same act or

transaction” constituting the offense. R. 3:7-1 (indictment);

R. 3:15-1 (trial). Indeed, under those circumstances, a joint

trial is “preferable” because it serves judicial economy, avoids

inconsistent verdicts, and allows for a “more accurate

assessment of relative culpability.” State v. Brown, 118 N.J.

595, 605 (1990).

If, for any reason, it appears that a defendant or the

State is prejudiced by the joint trial, the trial court may

sever. R. 3:15-2(b) (governing relief from prejudicial

joinder). One instance in which a defendant is prejudiced by a

joint trial is when a defendant’s and a co-defendant’s defenses

are not simply at odds, but are “antagonistic at their core,”

meaning that they are mutually exclusive and the jury could

believe only one of them. Brown, supra, 118 N.J. at 605-07.

The decision to sever is within the trial court’s discretion,

and it will be reversed only if it constitutes an abuse of

17
discretion. State v. Sanchez, 143 N.J. 273, 283 (1996) (citing

Brown, supra, 118 N.J. at 603).

B.

A trial court ruling on the admissibility of other-crimes

evidence is a discretionary matter that receives “great

deference” and is reversible only if clearly erroneous. State

v. Gillispie, 208 N.J. 59, 84 (2011). But evidentiary rulings

that undermine confidence in the validity of the conviction or

misapply the law are subject to reversal. State v. Fulston, 325

N.J. Super. 184, 192-93 (App. Div. 1999) (reversing conviction

of murder of infant because trial court wrongfully excluded

defendant’s proffered evidence that child’s mother previously

abused child), certif. denied, 163 N.J. 397 (2000).

The fundamental principle guiding the admission of evidence

is relevance. Relevant evidence is “evidence having a tendency

in reason to prove or disprove any fact of consequence to the

determination of the action.” N.J.R.E. 401. Even if evidence

is relevant, evidence of other crimes or bad acts is

inadmissible if offered “to prove the disposition of a person in

order to show that such person acted in conformity therewith” on

another occasion. N.J.R.E. 404(b). In other words, even though

often relevant, parties cannot introduce evidence that suggests

a person is predisposed to commit wrongful acts to argue that

the party committed the wrongful act at issue. State v. Nance,

18
148 N.J. 376, 386 (1997); see also Gillispie, supra, 208 N.J. at

85 (asserting that other-crimes evidence may be both inherently

prejudicial and also “highly relevant to prove a defendant’s

guilt”); State v. G.S., 145 N.J. 460, 468 (1996) (acknowledging

that other-crimes evidence is at “tension” because it is “both

probative and prejudicial”).

But other-crimes evidence is admissible to prove something

other than an individual’s propensity to commit wrongful acts,

“such as proof of motive, opportunity, intent, preparation,

plan, knowledge, identity or absence of mistake or accident” so

long as “such matters are relevant to a material issue in

dispute.” N.J.R.E. 404(b). The Court has developed a rule of

general application to guide the admission of other-crimes

evidence. Cofield, supra, 127 N.J. at 338. Under this test,

other-crimes evidence is admissible only if: (1) relevant to a

material issue; (2) similar in kind and reasonably close in time

to the offense charged; (3) supported by clear and convincing

evidence; and (4) its prejudice does not outweigh its probative

value. Ibid.

When a person charged with a criminal offense seeks to use

other-crimes evidence defensively, the Cofield standard does not

govern because “an accused is entitled to advance in his defense

any evidence which may rationally tend to refute his guilt or

buttress his innocence of the charge made.” State v. Garfole,

19
76 N.J. 445, 453 (1978). A defendant generally may introduce

“similar other–crimes evidence defensively if in reason it

tends, alone or with other evidence, to negate his guilt.”

Ibid. Thus, even though “a fairly rigid standard of similarity

may be required” of the prosecution, when it is the defendant

who “offer[s] that kind of proof exculpatorily, prejudice to the

defendant is no longer a factor, and simple relevance to guilt

or innocence should suffice” as the admissibility standard. Id.

at 452-53; see also State v. Cook, 179 N.J. 533, 566-67 (2004)

(affirming Garfole rule that standard for defendants using

other-crimes evidence defensively is “simple relevance”). The

defensive use of similar other-crimes evidence is sometimes

referred to as “reverse 404(b)” evidence.

Under this more relaxed standard, trial courts must still

determine that the probative value of the evidence is not

substantially outweighed by any of the Rule 403 factors, which

are “undue prejudice, confusion of issues, or misleading the

jury,” and “undue delay, waste of time, or needless presentation

of cumulative evidence.” See Cook, supra, 179 N.J. at 567.

This determination is highly discretionary. Ibid. In Cook, for

example, the Court deferred to the trial court’s determination

that though the other-crimes evidence was relevant, its

probative value was “minimal” because there was “nothing

20
distinctive to tie” the sexual assault with a non-sexual

abduction. Id. at 568-69.

C.

A person charged with a criminal offense has the right to

confront his accusers. U.S. Const. amend. VI. This right is

founded on the belief that subjecting testimony to cross-

examination enhances the truth-discerning process and the

reliability of the information. California v. Green, 399 U.S.

149, 159, 90 S. Ct. 1930, 1935, 26 L. Ed. 2d 489, 497 (1970);

State ex rel. J.A., 195 N.J. 324, 342 (2008). The Confrontation

Clause generally forbids admitting testimony of a witness who

directly or indirectly provides information derived from a non-

testifying witness that incriminates a defendant at trial.

State v. Branch, 182 N.J. 338, 350 (2005).

The Confrontation Clause does not condemn all hearsay.

Crawford v. Washington, 541 U.S. 36, 51, 124 S. Ct. 1354, 1364,

158 L. Ed. 2d 177, 192 (2004); Branch, supra, 182 N.J. at 349.

Hearsay that satisfies a recognized exception to the hearsay

rule and is non-testimonial in nature will not run afoul of the

Confrontation Clause. Branch, supra, 182 N.J. at 349. Hearsay

that is testimonial in nature is inadmissible, even if it

satisfies a recognized exception to the hearsay rule, when the

declarant does not testify. See Davis v. Washington, 547 U.S.

813, 822, 126 S. Ct. 2266, 2273-74, 165 L. Ed. 2d 224, 237

21
(2006); State v. Michaels, ___ N.J. ___, ___ (2014) (slip op. at

30).

The Confrontation Clause is commonly implicated when a

witness refers to specific information from a non-testifying

third party. In Branch, supra, the State’s case against the

defendant rested primarily on the identification of the

defendant by two victims. 182 N.J. at 346-47. A detective

testified that he assembled a photo array based on information

received. Id. at 347. The Court determined that the reference

to “information received” contravened the defendant’s Sixth

Amendment right to confront witnesses with incriminating

evidence because the reasons the detective included a photo in

an array are irrelevant to the identification process and the

officer conveyed that he possessed information unknown to them

but highly relevant to the investigation. Id. at 352-53; accord

State v. Bankston, 63 N.J. 263, 268-69 (1973) (holding that

detective’s recounting of information received from informant to

explain reason for entry to tavern and arrest of defendant

contravened defendant’s Sixth Amendment right to confront

witnesses against him). The “common thread” that renders

testimony about information received from non-testifying third

parties inadmissible “is that a police officer may not imply to

the jury that he possesses superior knowledge, outside the

record, that incriminates the defendant.” Branch, supra, 182

22
N.J. at 351. The Confrontation Clause is violated only when the

hearsay statement is testimonial or meant to establish events

relevant to the current prosecution. Davis, supra, 547 U.S. at

822, 126 S. Ct. at 2273-74, 165 L. Ed. 2d at 237.

The Confrontation Clause is implicated in other contexts

than the Branch/Bankston model. In prosecutions where there are

multiple participants in a crime, the Confrontation Clause’s

“truth finding function” is “uniquely threatened when an

accomplice’s confession is sought to be introduced against a

criminal defendant without the benefit of cross-examination.”

State v. Laboy, 270 N.J. Super. 296, 303 (App. Div. 1994)

(citing Lee v. Illinois, 476 U.S. 530, 541, 106 S. Ct. 2056,

2062, 90 L. Ed. 2d 514, 526 (1986)). In Bruton v. United

States, the United States Supreme Court held that a defendant’s

confrontation right was violated by the admission of his co-

defendant’s incriminatory confession, even if curative jury

instructions were later given. 391 U.S. 123, 126, 88 S. Ct.

1620, 1622, 20 L. Ed. 2d 476, 479 (1968). The Court recognized

that such incriminating statements can be “devastating” to a

defendant whose credibility is “inevitably suspect.” Id. at

136, 88 S. Ct. at 1628, 20 L. Ed. 2d at 485; see also State v.

Young, 46 N.J. 152, 156 (1965) (holding pre-Bruton that co-

defendant’s out-of-court confession is inadmissible against

other defendant).

23
 Bruton’s application is limited, however. The Court has

held that Bruton, which involved a co-defendant’s expressly

incriminatory confession, does not apply to a statement that is

linked to the defendant only through other evidence and is “not

incriminating on its face.” Richardson v. Marsh, 481 U.S. 200,

208, 107 S. Ct. 1702, 1707, 95 L. Ed. 2d 176, 186 (1987). In

Richardson, redacting all references to the defendant in a non-

facially incriminatory statement and giving the jury a limiting

instruction was adequate to protect the defendant’s

confrontation rights. Ibid. However, the ruling was confined

to redacted statements that remove all references to the

defendant. Id. at 211 n.5, 107 S. Ct. at 1709 n.5, 95 L. Ed. 2d

at 188 n.5. Moreover, the Court expressly offered “no opinion

on the admissibility of a confession in which the defendant’s

name has been replaced with a symbol or neutral pronoun.” Ibid.

In Gray v. Maryland, the Court addressed the reserved

question holding that admission of a co-defendant’s confession

violated the defendant’s confrontation right even when the

defendant’s name had been replaced with blank spaces or the word

“deleted.” 523 U.S. 185, 194, 118 S. Ct. 1151, 1156, 140 L. Ed.

2d 294, 302 (1998). The Court reasoned that a blank space in a

redacted document “points to the defendant.” Ibid. The Court

clarified Richardson, declaring that incriminatory statements

were admissible as long as there was an inferential step between

24
the statement and the defendant. Id. at 196, 118 S. Ct. at

1157, 140 L. Ed. 2d at 303. At the same time, the Court

emphasized that a statement directly referring to another is

prohibited by Bruton because it can be assumed that the

referenced person is the defendant. Ibid.

Thus, in a case in which neutral terms, such as “the other

guy,” were used but the detective testified that the co-

defendant identified defendant as the shooter and the

prosecutor’s summation effectively eliminated the redaction, the

appellate court reversed the conviction. Vazquez v. Wilson, 550

F.3d 270, 282 (3d Cir. 2008). The panel noted that the

detective’s testimony and the prosecutor’s argument negated the

otherwise acceptable use of a non-identifying descriptor of a

participant in a criminal act. Ibid. Moreover, one of the

three participants was not on trial and the declarant had not

implicated himself. Id. at 281. The nature of the linkage

between the redacted statement and other evidence directly

identified the defendant as the shooter, rendering the redaction

utterly ineffective. Id. at 280; see also United States v.

Richards, 241 F.3d 335, 341 (3d Cir. 2001) (declaring use of “my

friend” in redacted statement in case with three participants

“sharply incriminated” defendant, violating Bruton as

interpreted in Gray). By contrast, descriptive terms such as

“friend,” “other guy,” or “another guy” that are “bereft of any

25
innuendo that ties them unavoidably to [the defendant]” do not

run afoul of the Sixth Amendment, particularly when there were

fifteen participants in the criminal episode. Priester v.

Vaughn, 382 F.3d 394, 400 (3d Cir. 2004), cert. denied, 543 U.S.

1093, 125 S. Ct. 974, 160 L. Ed. 2d 906 (2005).

When evidence is admitted that contravenes not only the

hearsay rule but also a constitutional right, an appellate court

must determine whether the error impacted the verdict. Chapman

v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828, 17 L. Ed. 2d

705, 710-11 (1965). The standard has been phrased as requiring

a reviewing court “to declare a belief that [the error] was

harmless beyond a reasonable doubt.” Ibid.; see Branch, supra,

182 N.J. at 353 (requiring appellate court to determine whether

erroneously admitted evidence is clearly capable of producing

unjust result in the case of plain error); Bankston, supra, 63

N.J. at 272-73 (applying harmless error standard when timely

objection is lodged at trial and there may have been curative

instruction).

D.

When legal errors cumulatively render a trial unfair, the

Constitution requires a new trial. State v. Orecchio, 16 N.J.

125, 129 (1954). “‘[W]here any one of several errors assigned

would not in itself be sufficient to warrant a reversal, yet if

all of them taken together justify the conclusion that defendant

26
was not accorded a fair trial, it becomes the duty of this court

to reverse.’” Id. at 134 (quoting State v. Dolliver, 184 N.W.

848, 849 (Minn. 1921)). If a defendant alleges multiple trial

errors, the theory of cumulative error will still not apply

where no error was prejudicial and the trial was fair. See

State v. D’Ippolito, 22 N.J. 318, 325-26 (1956) (rejecting

application of Orecchio because none of alleged errors

prejudiced defendant nor impaired fair trial). In assessing

whether a defendant received a fair trial, courts are guided by

the following principle: “‘[D]evised and administered by

imperfect humans, no trial can ever be entirely free of even the

smallest defect. Our goal, nonetheless, must always be

fairness. A defendant is entitled to a fair trial but not a

perfect one.’” State v. Wakefield, 190 N.J. 397, 537 (2007)

(quoting State v. R.B., 183 N.J. 308, 333-34 (2005)).

IV.

Three of the legal issues which are the focus of this

appeal –- severance of the trial of defendant and Bryant,

defensive use of other-crimes evidence, and the Confrontation

Clause implications of a statement provided by Bryant to the

lead investigator –- are founded on Bryant’s November 2004

arrest for a shooting in Winslow Township and his 2005 statement

about when and how he gained possession of the weapon. The

27
application of the law governing these discrete issues requires

a review of those subsequent events.

In November 2004, five months after the Camden shooting,

Winslow Township police went to Bryant’s residence to

investigate a shooting. Bryant was a suspect in that shooting.

Police found a weapon and a magazine behind the residence and

obtained a statement from Bryant. He admitted that he had

hidden the gun in the place police found it. A firearms

examiner testified that the gun found behind Bryant’s Winslow

Township home was the same gun that killed Williams and injured

Hill. Bryant was arrested for the Winslow Township shooting and

subsequently pled guilty. It is this charge that defendant

sought to introduce as other-crimes evidence at trial.

In November 2005, the lead investigator of the Camden

shooting spoke with Bryant about the weapon. Initially, Bryant

stated that he purchased the gun on the street in Camden. When

confronted with the fact of his presence at the June 2004

shooting, Bryant admitted that he possessed the weapon on the

night of the Camden shooting. He stated that defendant gave him

the weapon after the shooting with instructions to hide it.

Prior to trial, in consultation with defense counsel for

defendant and Bryant, Bryant’s November 2005 statement was

redacted. In place of defendant’s name, the word “someone” was

inserted. The investigator testified that Bryant admitted he

28
had the gun on the night of the Camden shooting but someone gave

it to him after the shooting and he hid it.

The November 2004 Winslow Township shooting was one

element, albeit a critical element, of defendant’s defense

strategy of third-party guilt. Defendant sought to prove that

Bryant was the shooter, and his subsequent use of the same

weapon that killed Williams and injured Hill supported

defendant’s position that Bryant was the shooter.

A joint trial is preferable because it fosters the goal of

judicial economy and prevents inconsistent verdicts. Brown,

supra, 118 N.J. at 605. When, as here, defendant’s defense

strategy is antagonistic at its core to the defense strategy of

his co-defendant so that the jury could believe only one of

them, severance is in order.

Here, the trial court rejected the motion to sever because

he also excluded the other-crimes evidence proffered by

defendant. In doing so, the trial court applied the Cofield

four-prong analysis and found the evidence of the November 2004

Winslow shooting and Bryant’s subsequent guilty plea to charges

arising from that episode irrelevant to the charges arising from

the June 2004 Camden shooting and highly prejudicial to Bryant.

The trial court applied the wrong analysis.

A defendant may use other-crimes evidence in support of his

defense “if in reason it tends, alone or with other evidence, to

29
negate his guilt of the crime charged against him.” Garfole,

supra, 76 N.J. at 453. Admissibility of this evidence is

governed by N.J.R.E. 401, not N.J.R.E. 404(b). “[T]he question

. . . is not relevance as such, but the degree of relevance

balanced against the counter considerations expressed in

[N.J.R.E. 403] of undue consumption of time, confusion of the

issues and the misleading of the jury.” Id. at 451.

Here, the relevance of the evidence of Bryant’s involvement

in the November 2004 Winslow Township shooting to the June 2004

Camden shooting is clear. The sole contested issue at trial was

who shot Williams and Hill. The gun used by Bryant in November

2004 was the same gun used to kill Williams and to injure Hill.

This is the type of evidence, standing alone or in combination

with other evidence, which may establish the guilt of another.

In this case, there was evidence presented at trial that Bryant

possessed the gun before the shooting and that Bryant, not

defendant, shot Williams and Hill in June 2004.

The State also presented evidence that the gun used in the

November 2004 Winslow Township shooting was the same weapon used

against Williams and Hill in the June 2004 Camden shooting.

Moreover, Bryant pled guilty to charges arising from the later

shooting. Thus, presentation of the proffered November 2004

other-crimes evidence would not have consumed undue time or

confused or misled the jury.

30
 Evaluated in accordance with N.J.R.E. 401, the trial court

should have permitted defendant to use Bryant’s involvement in

the November 2004 Winslow Township shooting defensively at

trial. To be sure, such evidence would have been highly

prejudicial to Bryant but that was its purpose. Such evidence

was a key component, but not the only component, of defendant’s

third-party guilt defense. Moreover, as recognized by the trial

court, if the evidence of Bryant’s involvement in the November

2004 Winslow Township shooting was admissible, the trial should

have been severed.

The improper disposition of defendant’s application to use

Bryant’s involvement in the Winslow Township shooting and the

failure to try defendant separately from Bryant are not the only

trial errors. The State also admitted Bryant’s redacted

admission that he received the gun used in both shootings after

the Camden shooting. Cross-examination by Bryant’s attorney

established that Bryant received the gun the night of the Camden

shooting. Defendant contends that this admission, although

redacted to omit defendant’s name, violated his right to

confront a critical witness against him. We agree.

As a preliminary matter, we reject the argument advanced by

defendant that Bryant’s 2005 statement cannot be considered an

admission against his penal interest and admissible pursuant to

N.J.R.E. 803(c)(25). To be sure, Bryant attempted to exculpate

31
himself from and incriminate defendant in the June 2004 Camden

shooting. On the other hand, he also incriminated himself of

several weapons offenses. We know of no rule that eviscerates

the character of a statement against penal interest and denies

admission of the statement because it is a mixture of

exculpatory and incriminatory statements. See N.J.R.E.

803(c)(25); cf. State v. White, 158 N.J. 230, 241-44 (1999)

(discussing N.J.R.E. 803(c)(25) and applicable case law). On

the other hand, even though Bryant’s statement may be admissible

pursuant to N.J.R.E. 803(c)(25), that does not end the analysis.

As a testimonial statement, its use must protect defendant’s

right to confrontation. Crawford, supra, 541 U.S. at 59, 124 S.

Ct. at 1369, 158 L. Ed. 2d at 197.

We recognize that the United States Supreme Court permits

use of a co-defendant’s statement that does not directly

incriminate another defendant as long as all references to the

defendant are removed. Richardson, supra, 481 U.S. at 211 n.5,

197 S. Ct. at 1709 n.5, 95 L. Ed. 2d at 188 n.5. If the co-

defendant’s incriminatory statement requires the jury to make an

inferential step to link the statement to the defendant, the

statement is admissible. Gray, supra, 523 U.S. at 196, 118 S.

Ct. at 1157, 140 L. Ed. 2d at 303; see also Priester, supra, 382

F.3d at 400 (approving use of neutral terms that do not

unavoidably tie reference to defendant). On the other hand, a

32
blank space or use of the word “deleted” in place of a

defendant’s name is not permissible because it “points to the

defendant.” Gray, supra, 523 U.S. at 194, 118 S. Ct. at 1156,

140 L. Ed. 2d at 302.

The prosecutor recognized that Bruton prohibited admission

of Bryant’s November 2005 statement in which he named defendant

as the person who gave him the murder weapon after the Camden

shooting. This statement unequivocally incriminated defendant

as the shooter. Therefore, the prosecutor proposed, and defense

counsel agreed, that the reference to defendant would be

redacted and the word “someone” would be used in its stead. The

prosecutor, counsel, and the trial court also discussed the need

to phrase questions in a manner to avoid running afoul of

Bruton. When counsel for Bryant sought to establish that Bryant

received the weapon in the evening immediately after the Camden

shooting, the prosecutor and defendant’s counsel objected. Both

stated that this additional detail eviscerated any benefit

achieved by substituting “someone” for defendant’s name.

The prosecutor and defendant’s counsel had reason for

concern. The simple deletion of defendant’s name and insertion

of “someone” did not obscure the reference to defendant.

Indeed, the prosecutor remarked that she “didn’t ask any

question about the gun being given to [Bryant] because I was

concerned that even though we were not using the name Jahnell

33
Weaver, that it would be easily detectable who we were talking

about, so I stayed away from that question completely.”

Furthermore, Bryant’s statement cannot be considered in a

vacuum. Considered in the context of the complete trial record,

including Goffney’s testimony that she saw one of the fleeing

men pass something to the other man, the jury was not required

to make an inferential step to link defendant to the person

referred to in Bryant’s statement. As in Vazquez and Richards,

there were only four young men involved in this shooting. Two

of them were shot and two fled. All of the eyewitnesses

identified defendant and Bryant as the two men involved in the

verbal altercation with Williams and Hill, and defendant and

Bryant were the two young men who fled following the shooting.

While the redaction of defendant’s name may have passed muster

if counsel had not asked when Bryant received the weapon, as

soon as the jury learned that Bryant received it from someone

that night, the jury had been provided a direct path to

defendant.

A defendant is not entitled to a perfect trial. Wakefield,

supra, 190 N.J. at 537. A defendant is entitled to a fair

trial. Ibid. In some circumstances, it is difficult to

identify a single error that deprives a defendant of a fair

trial. This is one of those cases. Here, we have a collection

of errors, one of which involves a violation of defendant’s

34
right to confront a witness, namely his co-defendant, to contest

the accusation that defendant was the shooter.

The State contends that the admission of Bryant’s November

2005 statement did not violate Bruton. In the alternative, it

asserts that if the jury could readily find that the “someone”

who gave Bryant the gun was defendant, the error should be

reviewed as plain error because the added detail was provided by

defense counsel and defendant’s counsel did not object. The

record belies that assertion. Bryant’s attorney, not

defendant’s attorney, introduced the added detail about the

timing of Bryant’s receipt of the gun. Furthermore, the

prosecutor and defendant’s attorney both objected and sought to

prevent the introduction of the evidence regarding when Bryant

received the gun.

The Attorney General argues that any Bruton violation must

be considered de minimis due to the overwhelming evidence of

defendant’s guilt. According to the Attorney General, the

weight of the evidence permits this Court to conclude that the

error was harmless beyond a reasonable doubt. That argument

requires this Court to conclude that no other error, singly or

collectively, contributed to the verdict of guilt. The record

does not permit us to do so.

The evidence marshalled by the State to support a finding

by the jury that defendant shot and killed Williams and shot and

35
severely wounded Hill was strong, but it was not overwhelming.

As we have noted throughout this opinion, the universe of

possible shooters was small. Either defendant or Bryant shot

Williams and Hill, and there was evidence that would have

permitted a jury to find that Bryant shot the two young men.

Hill, one of the victims, identified Bryant as the shooter

soon after his discharge from the hospital. According to the

defense investigator who interviewed him, Hill identified Bryant

without any hesitation or equivocation. When he recanted, Hill

did not name defendant as the person who shot him. He

maintained that he was not sure who shot him. Similarly,

DeShields, an eyewitness who knew the four participants,

identified Bryant as the shooter four or five hours after the

shooting. Later, DeShields explained he was drunk and not sure

what he observed that evening; however, the investigator who

took his statement detected no signs of intoxication. He, too,

never identified defendant as the shooter. Pratt did not

expressly identify Bryant by name but testified that Bryant

possessed the gun earlier in the evening, described seeing a

casted arm rise, and then hearing gunshots. No witness disputed

that Bryant wore a white cast on his right arm.

Viewed against this evidence, Bryant’s statement that he

received the murder weapon from defendant immediately following

the shooting directly incriminates defendant, corroborates

36
Goffney’s testimony that she saw the men exchange an object as

they fled, and strengthened the State’s case against defendant.

Still, this was not the only error.

Defendant’s defense strategy was that Bryant was the

shooter. While all of the evidence identifies defendant as the

person engaged in a heated verbal exchange with Williams,

defendant always maintained that Bryant carried the gun that

evening and that he shot Williams and Hill. To establish

Bryant’s involvement, he sought to introduce evidence that

Bryant not only had the murder weapon in his possession after

the June 2004 Camden shooting but also used it in another

shooting five months later. As previously discussed, the trial

judge applied the Cofield analysis rather than the N.J.R.E. 401

analysis to consider defendant’s defensive 404(b) other-crimes

evidence. Furthermore, the use of the erroneous analytical

framework informed not only his decision to exclude relevant and

unrefuted other-crimes evidence but also informed the decision

to deny defendant’s application for severance.

This is a classic case of several errors, none of which may

have independently required a reversal and new trial, but which

in combination dictate a new trial. Defendant’s defense

strategy of third-party guilt was not farfetched. Use of the

November 2004 Winslow Township shooting evidence would have

added some strength to that strategy but could not be presented

37
at a joint trial. The combined impact of these errors does not

permit us to conclude that the cumulative error was harmless

beyond a reasonable doubt, therefore, a new trial is required.

V.

The judgment of the Appellate Division is reversed and the

matter is remanded for a new trial.

CHIEF JUSTICE RABNER, and JUSTICES LaVECCHIA, ALBIN,
PATTERSON, and FERNANDEZ-VINA, and JUDGE RODRÍGUEZ (temporarily
assigned) join in JUDGE CUFF’s opinion.

38
 SUPREME COURT OF NEW JERSEY

NO. A-104 SEPTEMBER TERM 2011

ON CERTIFICATION TO Appellate Division, Superior Court

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAHNELL WEAVER,

Defendant-Appellant.

DECIDED September 8, 2014
Chief Justice Rabner PRESIDING
OPINION BY Judge Cuff
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY

REVERSE AND
CHECKLIST
REMAND
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA X
JUDGE RODRIGUEZ (t/a) X
JUDGE CUFF (t/a) X
TOTALS 7