NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2193-08T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MICHAEL ROSS II,
Defendant-Appellant.
________________________________________________
Submitted February 8, 2012 – Decided December 28, 2012
Remanded by Supreme Court July 3, 2014
Resubmitted October 15, 2014 – Decided March 8, 2016
Before Judges Messano, Ostrer and Sumners.
On appeal from the Superior Court of New
Jersey, Law Division, Middlesex County,
Indictment No. 06-10-1640.
Joseph E. Krakora, Public Defender, attorney
for appellant (Jay L. Wilensky, Assistant
Deputy Public Defender, of counsel and on
the brief).
Andrew C. Carey, Middlesex County
Prosecutor, attorney for respondent (Nancy
A. Hulett, Assistant Prosecutor, of counsel
and on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Following a jury trial, defendant Michael Ross II was
convicted of the first-degree murders of Alesky Bautin and
Sergey Barbashov, N.J.S.A. 2C:11-3(a)(1) and (2); second-degree
possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-
4(a); third-degree unlawful possession of a weapon, N.J.S.A.
2C:39-5(b); and third-degree hindering apprehension or
prosecution, N.J.S.A. 2C:29-3(b)(1). The judge sentenced
defendant on the murder counts to two consecutive life terms,
each subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-
7.2, and a consecutive five-year term on the hindering charge.
We reversed defendant's convictions, finding the trial
judge erred in substituting a juror after the jury had announced
it was deadlocked. State v. Ross, No. A-2193-08 (App. Div. Dec.
28, 2012) (Ross I). The Supreme Court reversed and remanded for
us to consider defendant's remaining points on appeal. State v.
Ross, 218 N.J. 130, 155 (2014).
Those contentions are:
POINT II1
THE DEFENDANT'S RIGHT TO A FAIR TRIAL BY
JURY WAS VIOLATED BY THE TRIAL COURT'S
EXCESSIVE AND PREJUDICIAL INTERVENTION IN
THE TRIAL, NECESSITATING REVERSAL. U.S.
CONST., AMENDS. VI, XIV; N.J. CONST. (1947),
ART. 1, PAR 9. (Not Raised Below).
POINT III
1 Defendant's first point on appeal pertained to the juror
substitution issue.
2 A-2193-08T4
THE DEFENDANT WAS PREJUDICED BY MISLEADING
TESTIMONY CONCERNING THE POLYGRAPH
EXAMINATION OF A KEY STATE'S WITNESS, AND
THE TRIAL COURT REFUSED TO ADEQUATELY REMEDY
THE HARM. U.S. CONST., AMENDS. VI, XIV;
N.J. CONST. (1947), ART. 1, PAR 10.
POINT IV
THE STATE COMMITTED PREJUDICIAL MISCONDUCT
BY FORCING DEFENDANT TO CHARACTERIZE STATE'S
WITNESSES AS HAVING "MADE UP" THEIR HIGHLY
INCRIMINATORY TESTIMONY. U.S. CONST.,
AMEND. XIV; N.J. CONST. (1947), ART. 1, PAR
10. (Not Raised Below).
POINT V
THE TRIAL COURT IMPOSED AN EXCESSIVE
SENTENCE, NECESSITATING REDUCTION.
A. The Aggregate Sentence Is Excessive.
B. The Consecutive Sentence for Hindering
Is Improper.
In a pro se supplemental brief, defendant raises the following
points:
POINT ONE
THE STATE'S WITNESS INVESTIGATOR CLEMENTS'
TESTIMONY BEFORE THE JURY, THAT HE KNEW THE
STATEMENT OF ANOTHER STATE'S WITNESS GREG
WAKEFIELD GIV[EN] TO THE POLICE TO BE
TRUTHFUL CONSTITUTED A PROHIBITED ASSESSMENT
OF WAKEFIELD'S CREDIBILITY WHICH DEPRIVED
DEFENDANT OF HIS DUE PROCESS RIGHT TO A FAIR
TRIAL[.] THEREFORE, THE DEFENDANT'S
CONVICTION SHOULD BE REVERSED.
POINT TWO
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THE NUMEROUS INFLAMMATORY AUTOPSY AND CRIME
SCENE PHOTOS OF THE VICTIMS REPEATEDLY SHOWN
TO THE JURY, AND THE PLAYING OF THE 911
PHONE CALL TO THE JURY OF ONE OF THE
VICTIM'S MOANING HIS LAST BREATHS DEPRIVED
DEFENDANT OF HIS DUE PROCESS RIGHT TO A FAIR
TRIAL[.] THEREFORE THE CONVICTION SHOULD BE
REVERSED.
We have considered these arguments in light of the record and
applicable legal standards. We affirm the convictions but
remand the matter for resentencing.
I.
We reviewed at length the underlying facts of the case in
our prior opinion. See Ross I, supra, slip op. at 3-12. It
suffices to say that the State contended defendant shot and
killed the victims after mistaking them for Mitchell "Mitch"
Wright, someone who had threatened defendant with a gun nearly
one month earlier on October 1, 2003. On October 1, defendant,
in an attempt to avoid the confrontation, backed his car into
another. He left the scene after parking his damaged vehicle
nearby and without notifying police. On October 2, defendant
voluntarily came to police headquarters and gave a statement
regarding the incident. Without providing any name, defendant
told police that the gun-waving assailant drove a burgundy or
maroon Ford Taurus or Mercury Sable that he had seen many times
before in the neighborhood.
4 A-2193-08T4
The State established that Mitch lived at the nearby Forest
View apartment complex in Woodbridge Township and owned a red
1988 Volkswagen Jetta. Late on the night of October 30, 2003,
both victims were killed while seated in the front seat of a
red, 1999 Volkswagen Passat parked outside Building 12 of the
apartment complex. The murders remained unsolved for years.
The State relied upon a veritable rogue's gallery of
witnesses to prove its case. The only eyewitness to the
homicides who testified was Jamil McKnight. McKnight admitted
that he was with defendant during the October 1, 2003 gun-waving
incident, and that defendant identified Mitch as the person with
the gun.
McKnight, who did not drive because of a condition that
seriously impaired his vision, testified that on October 30, he,
defendant, Sherrill Williams and Ron Huff were driving around
the neighborhood in McKnight's car when defendant said he
spotted the individuals who had threatened him weeks earlier
sitting in a parked car near the apartment complex. Defendant
insisted on returning to McKnight's house to retrieve a handgun
McKnight was holding for defendant. At that point, Huff left
the vehicle and Williams remained at McKnight's home.
McKnight accompanied defendant as he drove back to the
apartment complex past the car, made a u-turn and slowed down as
he approached it again. Defendant fired multiple shots through
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the passenger side window into the car from a distance of
approximately three to four feet. McKnight claimed he and
defendant discarded the gun before visiting a mutual friend,
Greg Wakefield. McKnight admitted retrieving the gun before
dawn on October 31, taking it to work with him in New York City,
and with Williams present, giving the gun to a man in Queens he
knew only as Dante.
Huff testified and corroborated much of McKnight's
testimony. He was not present during the October 1 incident,
however, on the night of the murders, he was driving with
defendant, McKnight and Williams when he heard defendant
repeatedly mention a "red Jetta," and "the same people from
Rahway Avenue," the site of the October 1 incident. Huff heard
defendant ask McKnight, "you still got that at your house," and,
after McKnight answered affirmatively, defendant said, "[l]et's
go get it." At that point, Huff grew concerned and asked to be
let out of the car. Shortly thereafter, as he walked alone in
the neighborhood near the apartment complex, he heard what he
thought were firecrackers and then police sirens. Huff saw a
car with its passenger window blown out. On approaching it, he
saw that the passenger was apparently dead but the driver was
still alive and badly injured. Huff told the man help was on
the way.
6 A-2193-08T4
The State also called Sharhi Roberts and Wakefield as
witnesses. Roberts was defendant's girlfriend in October 2003
and testified that on October 31, the day after the shootings,
defendant told her that he shot people at the Forest View
apartment complex. About one year later, she brought up the
shootings in conversation, and defendant again admitted to being
the shooter and explained that at the time of the shooting, he
believed the car he shot into was Mitch's car. Although not
mentioned in her prior statements to police, Roberts testified
that during a subsequent argument with defendant, she threatened
to tell police about the shooting. Defendant then told her that
he made up the story.
Wakefield was a reluctant witness, and the State ultimately
introduced his prior statements to police as substantive
evidence pursuant to State v. Gross, 216 N.J. Super. 98 (App.
Div.), certif. denied, 108 N.J. 194 (1987). Wakefield
acknowledged that defendant and McKnight visited his house on
the night of the shooting. He claimed an inability to recall
details of any conversation with defendant, but the prosecutor
confronted Wakefield with a prior sworn statement in which
Wakefield said that defendant appeared "jumpy" and said that he
was "popping off at Forest View," which Wakefield took to mean
shooting. Wakefield also told investigators that defendant
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owned a 9 mm. gun and had intended to shoot Mitch, but shot the
two victims by mistake.
Before the jury, Wakefield repeatedly disavowed his prior
statements to police. He asserted that police questioned him at
length, subjected him to a polygraph and continued until "they
got the one they wanted to hear." He characterized the
interrogation session as "torture." Wakefield confirmed that he
was present on October 1 during the gun waiving incident and
observed that the man with the gun was driving a red Taurus.
Wakefield knew Mitch drove an old Jetta, not a Taurus.
The defense suggested that McKnight alone, or with the
assistance of Williams, who did not testify, shot the victims.
Each of the above four witnesses was subjected to vigorous
cross-examination that focused on inconsistencies between their
respective accounts of events, inconsistencies between the
multiple statements each had provided to police, the aggressive
investigative techniques employed by police and the motives each
witness had to lie.
Roberts acknowledged that investigators harassed her and
her family. After she provided police with a statement, a
disorderly persons charge against Roberts for making false
public alarms was dismissed. Wakefield gave two statements in
April 2005, when he was facing criminal charges of terroristic
threats, resisting arrest and unlawful possession of a weapon.
8 A-2193-08T4
As part of his plea agreement, Wakefield agreed to give truthful
testimony on behalf of the State against defendant. However, by
the time of trial, Wakefield had served his sentence and
completed his parole. The implication was that Wakefield was
now free to tell the truth.
McKnight avoided prosecution for his role in the homicides
completely. He was charged with obstruction but permitted to
enter the Pre-trial Intervention Program (PTI). Although Huff
faced no charges during the relevant timeframe, defendant
demonstrated that when initially questioned by police, Huff did
not tell them about his car ride with defendant and the others,
nor did he tell them about the statements defendant made in the
car. Huff only provided those details when questioned years
later.
Defendant also asserted alibi through his testimony and
that of another witness. After acknowledging that he had been
convicted in 2006 of a fourth-degree crime for which he was
sentenced to eighteen months' incarceration without parole,2
defendant described the October 1 incident. He denied that
Mitch was involved and described the gun-waving assailant as
exiting a Taurus or Sable, as he told police on October 2, 2003.
2 Defendant was convicted of fourth-degree aggravated assault
with a firearm. The nature of the conviction was sanitized by
the court. See State v. Brunson, 132 N.J. 377, 387-88 (1993).
9 A-2193-08T4
Defendant acknowledged knowing that Mitch drove a 1988 red
Jetta.
Defendant testified that on the night of the murders, he
was driving with McKnight, Williams and Huff when they saw a
Taurus leaving the Forest View complex. McKnight suddenly asked
to return home. When they arrived there, Huff left and McKnight
entered his house, returning to the car with something wrapped
in a bandana. Defendant believed it was a gun. Defendant drove
to the house of a friend, LaToya McPhatter. Leaving McKnight
and Williams in the car, defendant stayed at McPhatter's house
briefly and then walked to Wakefield's house, where McKnight
arrived later. Defendant denied shooting the victims.
However, defendant's credibility was severely damaged on
cross-examination. It was revealed that a telephone
conversation defendant had with his father while incarcerated in
in 2006 after being arrested for the homicides was recorded
without defendant's knowledge. Defendant told his father that
he was not in Middlesex County at all on the night of the
murders. He also told his father that Mitch was, in fact,
involved in the October 1, 2003 incident.
Defendant also called LaToya McPhatter's younger sister in
support of his alibi. However, the young girl, only thirteen
years of age in 2003, testified that she thought she saw
defendant on the night of the killings but could not recall
10 A-2193-08T4
speaking with him. On cross-examination, the prosecutor
confronted her with a statement in which she told investigators
that she did not recall defendant visiting that night at all.
After summations and instructions from the judge, the jury
began its deliberations. On the fifth day, the jury indicated
it was unable to reach a unanimous verdict. Ross, supra, 218
N.J. at 136. After the judge provided the instructions approved
in State v. Czachor, 82 N.J. 392, 404-06 (1980), a juror became
ill. Ibid. After dismissing that juror the following day, the
judge substituted an alternate juror and instructed the jury to
begin deliberations anew. Ibid. The jury deliberated for more
than sixteen hours over the course of four additional days
before returning its guilty verdicts. Ibid.
II.
Defendant argues that the trial judge "engaged in an
impermissible amount of questioning of witnesses," which "in its
aggregate [was] highly prejudicial." We acknowledge that the
judge's questions far exceeded what was necessary to clarify
testimony, were in most instances gratuitous and added little to
the presentation of evidence. We do not condone the judge's
conduct.
However, we disagree with defendant and our dissenting
colleague that the judge's questions, none of which raised an
objection from defense counsel, were "clearly capable of
11 A-2193-08T4
producing an unjust result." R. 2:10-2. The judge's conduct,
while a mistaken exercise of discretion, does not "'raise a
reasonable doubt as to whether the error led the jury to a
result it otherwise might not have reached[.]'" State v.
Taffaro, 195 N.J. 442, 454 (2008) (quoting State v. Macon, 57
N.J. 325, 336 (1971)).
A.
We begin by recognizing that a trial judge, "in accordance
with law and subject to the right of a party to make timely
objection, . . . may interrogate any witness." N.J.R.E. 614.
The Rule is intended to promote the trial court's duty to insure
a fair trial. Taffaro, supra, 195 N.J. at 445, 450. A judge
may question a witness if necessary to protect the proceedings
or the rights of any party, clarify testimony, avoid unnecessary
delay or elicit material facts. State v. O'Brien, 200 N.J. 520,
534-35 (2009); Taffaro, supra, 195 N.J. at 445; State v. Guido,
40 N.J. 191, 207 (1963); State v. Medina, 349 N.J. Super. 108,
131 (App. Div.), certif. denied, 174 N.J. 193 (2002).
However, the judge "is an imposing figure," symbolic of
"experience, wisdom, and impartiality." Guido, supra, 40 N.J.
at 208. His or her ability to pose questions to witnesses
during a jury trial, therefore, must be exercised with "great
restraint . . . in order not to influence the jury." Taffaro,
supra, 195 N.J. at 451. The judge must "not telegraph to the
12 A-2193-08T4
jury any partiality to a given party's side." O'Brien, supra,
200 N.J. at 534 (citing Taffaro, supra, 195 N.J. at 451). A
judge may not "take over the cross-examination for the
government to merely emphasize the government's proof or to
question the credibility of the defendant and his witnesses."
Id. at 535 (quoting United States v. Bland, 697 F.2d 262, 265
(8th Cir. 1983)).
We must consider the entire record when deciding whether a
defendant was denied a fair trial as a result of the judge's
intervention. State v. Martinez, 387 N.J. Super. 129, 138 (App.
Div.), certif. denied, 188 N.J. 579 (2006). An appellate court
may assess "[t]he overall length of the questioning[,] . . .
[b]ut it is the impact of the court's questions, and not the
number of minutes they lasted, which matters most." Taffaro,
supra, 195 N.J. at 453-54.
With these standards in mind, we review the nature and
extent of the judge's intervention, particularly regarding those
instances that defendant claims require reversal.
B.
The judge posed questions to almost every witness called by
the State. The first two witnesses, police officers Vincent
Totka and Michael Ng, investigated the October 1, 2003 incident.
While questioning Ng, the judge asked how police became aware of
defendant's possible involvement, a fact that the prosecutor had
13 A-2193-08T4
not developed on direct. The answers revealed that police found
identifying documents in the damaged car, which engine was still
warm. Police contacted defendant's father who accompanied
defendant to police headquarters on October 2, at which time
defendant voluntarily provided a statement about the previous
night's events. Defendant argues the judge's questions served
to paint him as a lawless individual who failed to report his
involvement in a traffic accident.
The judge also posed limited questions to the industry
witness who authenticated the subscriber information for an
incoming 911 call made on the night of the murders by Barbashov,
the State police lieutenant who answered the call, Bautin's
brother, who heard the fatal shots from a nearby apartment he
shared with the decedent, and Barbashov's former girlfriend.
Christopher Lyons was the first officer to respond to the
scene of the murders. The judge asked some limited questions
about the conditions of the lighting at the time, and what Lyons
did to secure the scene. Lyons also testified about his efforts
after being assigned to investigate the case in late 2004.
Defendant points to some questions the judge asked regarding
Lyons' investigation of a "cold" case, and how law enforcement
never considers a cold case to be closed. Defendant contends
these questions served to justify, in the jurors' minds, the
14 A-2193-08T4
aggressive interrogation of the critical State's witnesses that
followed during the ensuing years leading to defendant's arrest.
The judge extensively questioned the State's ballistics
expert, two medical examiners who performed the autopsies and
the investigator who processed the crime scene. We agree that
the questions did little to clarify the testimony of these
witnesses and, in many respects, seemingly served only to
display the judge's personal knowledge of the subject matters
involved. Defendant contends that the sheer amount of
questioning lent credence to the State's theory of the case.
As to the four witnesses whose testimony we referenced
above, however, it is fair to say that the judge's questioning
was quite limited. The judge asked Huff about the lighting
conditions at the murder scene, something Lyons testified to,
and what Huff and the others were drinking on the night of the
murders. Defendant argues the judge supplied Huff, who knew
McKnight by his street name, "Sagacious," with McKnight's true
name, but that issue was broached during cross-examination.
Defendant posits no specific objection to the judge's
questioning of McKnight because no questions were asked. Nor
did the judge pose questions to Wakefield. However, the judge
intervened during the testimony of Investigator Mark Clements,
who took sworn statements from Wakefield and was the State's
15 A-2193-08T4
predicate witness to establish admissibility of those statements
pursuant to Gross.3
Clements denied that Wakefield was harassed, but
acknowledged that the investigators were aggressive because of
Wakefield's reluctance to cooperate. The judge interrupted
defendant's cross-examination of Clements as it related to how
much time Wakefield was in police custody before providing a
formal statement, and how much time Wakefield spent with the
polygraphist before providing the statement. At sidebar, the
judge indicated that Clements, who was not present during the
polygraph, could not possibly know about the procedures employed
by the polygraphist that night.
The prosecutor followed up on that theme during redirect
and established that Clements did not know how long a
polygraphist would spend explaining the test or administering
preliminary questions before beginning the actual examination.
Following redirect and brief recross, the judge asked if the
polygraph examination was administered in a separate room and
3 Prior inconsistent statements made by a witness may be offered
by the proponent of that witness only after a hearing at which
the judge is required to consider a number of factors. Gross,
supra, 216 N.J. Super. at 109-10. The judge conducted a hearing
outside the presence of the jury pursuant to N.J.R.E. 104.
Clements subsequently testified before the jury regarding the
circumstances under which Wakefield was questioned.
16 A-2193-08T4
established that Clements and Lyons were not present during the
administration of the test.
As our dissenting colleague notes, the judge's decision to
sua sponte call for a sidebar during cross-examination of
Clements was improper, and it served to disrupt development of
the timeline of Wakefield's questioning. However, the point of
defendant's line of questioning was on full display for the
jury, i.e., Wakefield was in police custody for an extensive
period of time, despite Clements' assertion that he was not, and
any inculpatory information Wakefield provided differed
significantly from what he initially told police, and its
disclosure only followed aggressive, repeated interrogation.
Defendant points to a testy exchange that occurred during
Roberts's testimony. Only days before the trial, Roberts told
defense counsel's investigator that defendant told her he
fabricated his involvement in the murders. During direct
examination, the prosecutor asked why Roberts had not divulged
that information in any of her statements to officers
investigating the crime. Roberts responded that she was
harassed by investigators and was telling them what they wanted
to hear.
Defense counsel asked Roberts to "describe for the jury the
manner in which [the investigators] harassed you with as much
specificity as you can." Roberts provided a rambling answer, in
17 A-2193-08T4
which she claimed to have been evicted as a result of
investigators constantly questioning her and other family
members. She reiterated that she had tried to tell
investigators that defendant told her he fabricated his earlier
confession, but they did not want to hear that information.
At a sidebar discussion that followed the prosecutor's
objection, the judge asked defense counsel how the eviction
claim was relevant. The judge directed counsel to carefully
structure his questions to elicit the chronology of the
investigator's alleged conduct. After the sidebar, the judge
gave the following directions to Roberts:
JUDGE: All right. Now, Miss Roberts, you
have to listen to the questions of [defense
counsel] very carefully. All right?
WITNESS: Okay.
JUDGE: You listen to the question and you
think and you only answer his question.
WITNESS: Okay.
JUDGE: Try to focus on his question and then
try to give a specific answer to that
question. Right? Could you do that?
WITNESS: Yes.
JUDGE: I appreciate it. Thank you very
much.
It suffices to say, however, that the judge grew impatient with
Roberts's continued failure to provide direct answers regarding
the circumstances of her eviction.
18 A-2193-08T4
Defendant argues that the judge's impatience telegraphed
his doubt regarding Roberts's claims of harassment by
investigators. However, our review of the record reveals that
the judge repeatedly overruled the prosecutor's objection to
this line of inquiry in an attempt to permit its full
development.
C.
Defendant relies extensively upon Taffaro and O'Brien,
although he concedes that the judge's questioning here "was not
as unabashedly partisan . . . ." Indeed, in both Taffaro and
O'Brien, the Court concluded that the judicial questioning was
partisan and effectively tilted the evidence in the State's
favor, thereby denying the defendants a fair trial.
In Taffaro, supra, 195 N.J. at 448, the judge posed a
relatively extensive amount of questions to the defendant. The
questions "did not help clarify [the] defendant's under-
standable testimony; instead, they underscored the weaknesses in
his defense." Id. at 452. The Court summarized:
[T]he questions had the effect of suggesting
to the jury that the court doubted
defendant's account in a case that rested
heavily on defendant's credibility. The
questions also covered, in part, terrain
that had already been crossed. Rather than
clarify points in a witness's testimony, the
court's questions had the capacity to signal
disbelief.
[Id. at 453.]
19 A-2193-08T4
In O'Brien, supra, 200 N.J. at 525, the defendant asserted
a diminished capacity defense to charges that he murdered his
parents. The Court cited the questions posed by the judge to
the defendant and the judge's extensive questioning of the
defense psychiatrist. Id. at 526-27. The Court also cited the
judicial questioning of one of the State's investigators, which
it characterized as "effectively hammer[ing] nails into defense
counsel's ongoing cross-examination and bolster[ing] the State's
witness." Id. at 539. The Court summarized the prejudicial
effect of the judge's questioning this way:
[T]he defense was made up of three prongs:
defendant's own testimony about his drug-
and depression-induced condition on the
night of the murder and at the time of the
confession; his expert's testimony regarding
the effects of defendant's condition; and
the neutralization of witnesses who saw
defendant and opined that he was not under
the influence of drugs. The judge intervened
on each of those prongs, by expressing
disbelief when defendant and his expert
testified, and by helping to counter
defendant's challenge to Investigator
Mitchell.
[Ibid.]
In Guido, supra, 40 N.J. at 208 n.2, a case cited by
defendant and the Court in Taffaro and O'Brien, among other
things, the judge's salacious questioning of the defendant had
the clear capacity to discredit her testimony before the jury
and resulted in reversal. In State v. Ray, 43 N.J. 19, 27
20 A-2193-08T4
(1964), cited by the Court in Taffaro, the judge conducted
"lengthy questioning of [the] defendant's key witness," a
defense pathologist. The judge also engaged in "frequent
interrogation of [the] defendant [that] improperly suggested his
doubts as to her credibility." Id. at 28.
Defendant has failed to bring to our attention any
published opinion in which our courts have reversed a
defendant's conviction based upon judicial questioning directed
solely to the State's witnesses.4 This is not to say that a
judge's improper questioning of the State's witnesses may compel
reversal if, for example, it serves to bolster the State's case.
The harm exceeds the impact of any actual answer provided by the
witness because it conveys that the judge is taking "one party's
side." Taffaro, supra, 195 N.J. at 451. Our point is simply
that when the judge's conduct is directed toward a defendant and
his witnesses, it carries a greater risk of not only conveying
4 In three of the federal cases cited by our dissenting
colleague, the questioning of the defendant or defense witnesses
figured prominently or exclusively in compelling reversal. See
United States v. Ottaviano, 738 F.3d 586, 596 (3d Cir. 2013);
United States v. Filani, 74 F.3d 378, 381 (2d Cir. 1996);
Bland, supra, 697 F.2d at 264-65. In United States v. Rivera-
Rodriguez, 761 F.3d 105, 111, 113 (1st Cir. 2014), cert. denied,
___ U.S. ___, 136 S. Ct. 1573, 191 L. Ed. 2d 656 (2015), the
offending questions were posed to the government's two
cooperating witnesses.
21 A-2193-08T4
impartiality to the jury but also negatively impacting the fair
presentation of a defense. O'Brien, supra, 200 N.J. at 534-35.
In this case, defendant concedes that the judge did not
pose questions to him or his alibi witness at all. He argues,
nonetheless, that this lack of questioning, when compared to the
extensive questioning of the State's witnesses, subtly
discredited the defense case. This argument might have merit,
except that, as we already noted, the judge posed few questions
to the four witnesses whose testimony mattered most in resolving
the single contested issue in the case, i.e., the identity of
the shooter.
The judge asked few questions of Huff. The testimony of
McKnight, the only eyewitness, was unfettered by any questions
from the judge. The same is true of Wakefield, who, in the end,
recanted any testimony that was damaging to defendant. Although
we cannot divine the impact of Wakefield's testimony on the
jury, it is difficult to imagine that the jury found any of it,
including his prior statements, to be credible. As to Roberts,
the judge expressed a level of frustration with her testimony,
but, on balance, defense counsel was able to fully impeach her
credibility regarding defendant's alleged admissions and also
obtained the benefit of Roberts's late-asserted claim that
defendant had recanted any prior admissions.
22 A-2193-08T4
In this case, therefore, we must part company with our
dissenting colleague and conclude that the impact of the
extensive and, in many instances, unnecessary questioning by the
judge does not "raise a reasonable doubt" that "the jury [was
led] to a result it otherwise might not have reached[.]"
Taffaro, supra, 195 N.J. at 454. We add some additional reasons
that support our conclusion.
We have recognized that "[c]laims of judicial misconduct
pose a severe problem to our appellate tribunals for 'it is
difficult to review a charge of unfairness upon a dry record.'"
Medina, supra, 349 N.J. Super. at 131 (quoting Guido, supra, 40
N.J. at 208). In this case, however, defense counsel, who was
"in the trenches" and best able to assess what, if any, impact
the judge's questioning was having, never posed a single
objection. We should not assume counsel was shy or reluctant
for fear of alienating the judge because, as we noted, the judge
repeatedly overruled the prosecutor's objections during defense
counsel's cross-examination of Roberts. Defense counsel's
decision not to object was quite rational, given that most of
the judge's questions were posed to witnesses that provided
23 A-2193-08T4
scant evidence of defendant's involvement in the murders and had
little impact on the defense strategy.5
Moreover, we cannot overemphasize the powerful effect that
the cross-examination of defendant must have had upon the jury.
After testifying that he was at McPhatter's house when the
shootings occurred, the State confronted defendant with his own
words to the contrary. At the time, defendant was not speaking
to a cellmate or some jailhouse "snitch." He was speaking with
his father, the man who accompanied him to police headquarters
to report the gun-waving incident of October 1, 2003.
Lastly, the jury in this case deliberated extensively
before indicating it was deadlocked. After a juror was excused
for illness, the reconstituted jury deliberated for many hours
over several more days. We acknowledge, without necessarily
accepting, the proposition that these lengthy deliberations
reflect that the State's evidence was not overwhelming, and that
in such a close case, there was fertile ground upon which the
judge's extensive questioning might sow mischief.
However, the last witness called by the State, and the last
witness to whom the judge posed any questions, testified on
April 10, 2008. The last witness — defendant — testified on
5 We further note that defendant's motion for a new trial decided
immediately before sentencing did not challenge the nature or
scope of the judge's questioning of witnesses.
24 A-2193-08T4
April 15, and the jury began its deliberations the next day.
The verdict was announced on April 29, 2008, nearly three weeks
after the judge interjected his last question. In our minds,
the jury's extensive deliberations indicate the judge's
questioning weeks earlier had little impact upon the fair
consideration of the evidence.
In sum, we find no basis to reverse defendant's conviction
on this ground.
III.
Defendant's remaining points warrant limited comment. We
find no error, let alone plain error, in the judge's refusal to
disclose to the jury the results of Wakefield's polygraph — that
he was not forthright — which preceded his first formal
statement. Our Court has consistently held that polygraph
results are generally inadmissible because they are unreliable.
State v. A.O., 198 N.J. 69, 86 (2009). Polygraph evidence may
also "receive undue weight and distract jurors from judging the
credibility of witnesses directly." Id. at 92. Moreover, the
record does not reflect what questions Wakefield allegedly
answered with a lack of candor. Consequently, the instruction
that defense counsel requested — informing the jury that
Wakefield had essentially failed the test — would only have
invited speculation.
25 A-2193-08T4
Nor are we convinced by defendant's argument that the jury
would likely have concluded that Wakefield was truthful to the
polygraphist, because the police subsequently took his
statement. The jury could have just as plausibly concluded that
Wakefield dissembled to the polygraphist, and only upon being
confronted with that result, decided to change his story,
without any assurance that the next version was any more
truthful than the previous one. Furthermore, as the defense
established, Wakefield gave yet another statement a few weeks
later, which deviated significantly from the first.
Under these circumstances, the judge appropriately
instructed the jury not to speculate as to the results of the
polygraph; and to consider the fact that Wakefield submitted to
a polygraph only in connection with how long he was interrogated
by Clements and Lyons. We presume the jury was capable of
following these instructions.6 Ross, supra, 218 N.J. at 152.
As for defendant's claim of prosecutorial misconduct, it is
inappropriate for the State to ask a witness to opine whether
another witness was truthful. State v. Bunch, 180 N.J. 534, 549
(2004). Defense counsel could have objected when the prosecutor
asked defendant whether Wakefield and Roberts had lied. But no
6 We note that Roberts also testified that she submitted to a
"lie detector" during questioning. However, defense counsel did
not seek any instruction regarding that polygraph.
26 A-2193-08T4
objection was raised. Consequently, in reviewing the issue, we
must determine if there was plain error. We conclude there was
none, given that it was a principal defense theme that Wakefield
and Roberts had in fact lied.
In a similar vein, in his pro se filing, defendant argues
that an answer given by Clements during cross-examination, in
which the detective expressed his personal belief that
Wakefield's second statement as "truthful," requires reversal.
This answer was not appropriate, but defense counsel never
sought to strike the testimony, and, in light of our earlier
comments regarding Wakefield's credibility, this single answer
did not amount to plain error.
Also in his pro se filing, defendant contends the admission
of autopsy and crime scene photos, as well as the playing of the
Barbashov's 911 call to police, requires reversal. There were
repeated objections to the photographs, primarily because
defendant did not contest the cause and manner of death, or, for
that matter, any evidence from the crime scene. The judge
overruled these objections, tersely explaining that the
prosecutor had the right to prove her case. It is clear from
the record, however, that the judge limited the number of photos
that the prosecutor otherwise wished to publish to the jurors.
We ordinarily review the trial court's evidentiary rulings
to determine whether there was a mistaken exercise of
27 A-2193-08T4
discretion. State v. J.D., 211 N.J. 344, 354 (2012). Any
decision to admit or exclude crime scene photographs rests with
the sound discretion of the trial judge. State v. Johnson, 120
N.J. 263, 297 (1990). We apply the same standard to the
admission of autopsy photographs. State v. Morton, 155 N.J.
383, 455-56 (1998). Here, copies of the admitted photographs
are not included in the record, and we have no basis upon which
to conclude the judge's highly discretionary decision requires
reversal.
As to the recording of the 911 call, there was no objection
during the testimony from Barbashov's girlfriend, who identified
his voice on the tape. However, when the State rested, the
judge noted defense counsel's objection to its admission. We
acknowledge that the tape of the victim calling 911 after having
been shot and as he neared death lacked any significant
probative value and probably should not have been admitted.
However, we cannot conclude that this brief snippet of a phone
conversation denied defendant a fair trial.
IV.
Defendant was almost twenty-one years old at the time of
the homicides and nearly twenty-six years old at sentencing in
August 2008. The judge noted defendant's prior adjudications of
delinquency, as well as two adult convictions that took place
after the murders. As noted above, defendant's prior conviction
28 A-2193-08T4
for aggravated assault involved the pointing of a firearm; a
second adult conviction was for theft.
Citing State v. Yarbough, 100 N.J. 627, 643-44 (1985),
cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308
(1986), State v. Carey, 168 N.J. 413 (2001), and State v.
Molina, 168 N.J. 436 (2001), the judge concluded that
consecutive sentences were appropriate because there were "two
victims." The judge reviewed the tragic circumstances of the
victims' deaths and much of defendant's biographical information
before concluding that aggravating sentencing factors three, six
and nine applied. N.J.S.A. 2C:44-1(a)(3) (the risk of re-
offense); -1(a)(6) (the extent of prior criminal record and the
seriousness of the offense for which defendant was convicted);
and -1(a)(9) (the need to deter defendant and others). Although
the prosecutor urged application of other aggravating factors,
the judge rejected them without explanation, and he also
rejected defense counsel's argument that mitigating factor
eleven applied. See N.J.S.A. 2C:44-1(b)(11) (imprisonment would
entail an excessive hardship to defendant's family).
Concluding the aggravating factors "substantially
outweigh[ed]" the non-existent mitigating factors, the judge
stated that defendant "must be separated from normal society for
the rest of his natural life." The judge imposed two
consecutive life terms, both subject to NERA. The judge gave no
29 A-2193-08T4
explanation at all for the consecutive sentence imposed on the
hindering apprehension charge, which was premised on defendant's
concealment of the murder weapon.
Defendant essentially concedes that pursuant to Yarbough,
Carey and Molina, "consecutive terms of imprisonment are
virtually mandated in a case involving multiple homicides."
However, he contends the judge failed to consider the "real-time
consequences of NERA," although he acknowledges that the judge's
stated intention to "separate[] [defendant] from normal society
for the rest of his natural life," reflects a complete, albeit
inappropriate, understanding that defendant must now serve 127.5
years before he is eligible for parole. Defendant argues the
aggregate sentence is excessive. He also contends that the
judge gave no explanation for imposing a consecutive five-year
term on the hindering charge.
We begin by noting that "[a]ppellate review of the length
of a sentence is limited." State v. Miller, 205 N.J. 109, 127
(2011). As the Court has recently reiterated:
The appellate court must affirm the sentence
unless (1) the sentencing guidelines were
violated; (2) the aggravating and mitigating
factors found by the sentencing court were
not based upon competent and credible
evidence in the record; or (3) "the
application of the guidelines to the facts
of [the] case makes the sentence clearly
unreasonable so as to shock the judicial
conscience."
30 A-2193-08T4
[State v. Fuentes, 217 N.J. 57, 70 (2014)
(alteration in original) (quoting State v.
Roth, 95 N.J. 334, 364-65 (1984)).]
Furthermore, "trial judges have discretion to decide if
sentences should run concurrently or consecutively." Miller,
supra, 205 N.J. at 128.
In Yarbough, the Court identified the factors to be
considered in deciding whether to impose concurrent or
consecutive sentences:
(1) there can be no free crimes in a system
for which the punishment shall fit the
crime;
(2) the reasons for imposing either a
consecutive or concurrent sentence should be
separately stated in the sentencing
decision;
(3) some reasons to be considered by the
sentencing court should include facts
relating to the crimes, including whether or
not:
(a) the crimes and their
objectives were predominantly
independent of each other;
(b) the crimes involved separate
acts of violence or threats of
violence;
(c) the crimes were committed at
different times or separate
places, rather than being
committed so closely in time and
place as to indicate a single
period of aberrant behavior;
31 A-2193-08T4
(d) any of the crimes involved
multiple victims;
(e) the convictions for which the
sentences are to be imposed are
numerous;
(4) there should be no double counting of
aggravating factors;
(5) successive terms for the same offense
should not ordinarily be equal to the
punishment for the first offense[.]7
[Yarbough, supra, 100 N.J. at 643-44
(footnote omitted) (emphasis added).]
"When a sentencing court properly evaluates the Yarbough factors
in light of the record, the court's decision will not normally
be disturbed on appeal." Miller, supra, 205 N.J. at 129.
It is clear that pursuant to Carey, supra, 168 N.J. at 431,
and Molina, supra, even when the only Yarbough factor found by
the sentencing court is the multiplicity of victims, that factor
"is entitled to great weight and should ordinarily result in the
imposition of at least two consecutive sentences." 168 N.J. at
443. As a result, we find no reason to disturb the judge's
decision to impose consecutive sentences for the two murders.8
7 A sixth factor, imposing an overall outer limit on consecutive
sentences, was superseded by legislative action. See State v.
Eisenman, 153 N.J. 462 (1998).
8 We note, however, that the judge in this case never addressed
any of the other Yarbough factors at all. "[A] trial court is
expected to give 'a separate statement of reasons for its
decision to impose consecutive sentences.'" Molina, supra, 168
(continued)
32 A-2193-08T4
However, "[t]he fact that two consecutive terms of
imprisonment should ordinarily be imposed in multiple-victims
cases does not prevent the sentencing court from setting the
base term of each sentence below the maximum provided by the
Code." Carey, supra, 168 N.J. at 430. In Miller, supra, 108
N.J. at 122, a case that did not involve multiple victims, the
Court said that "[w]here the offenses are closely related, it
would ordinarily be inappropriate to sentence a defendant to the
maximum term for each offense and also require that those
sentences be served consecutively, especially where the second
offense did not pose an additional risk to the victim." In
State v. Pennington, 154 N.J. 344, 361-62 (1998), referring to
Yarbough factor five, the Court said in remanding for
resentencing after imposition of two consecutive maximum
sentences, the trial court was "required to explain why a
shorter second term for the same offense is not warranted if
consecutive terms are reimposed."
(continued)
N.J. at 442 (quoting State v. Miller, 108 N.J. 112, 122 (1987)).
As the Court has noted, although "[c]rimes involving multiple
deaths . . . represent especially suitable circumstances for the
imposition of consecutive sentences[,] . . . '[t]hat does not
mean that all consecutive sentencing criteria are to be
disregarded in favor of fashioning the longest sentence
possible.'" Carey, supra, 168 N.J. at 428 (quoting State v.
Louis, 117 N.J. 250, 258 (1989) (alteration in original)
(citations omitted).
33 A-2193-08T4
We have affirmed the imposition of two consecutive maximum
term sentences in a double homicide case. See, e.g., State v.
Kelly, 406 N.J. Super. 332, 353 (App. Div. 2009) (affirming
without discussion the imposition of two consecutive life
sentences based upon the murder of two victims), affirmed on
other grounds, 201 N.J. 471 (2010). However, we believe it is
incumbent upon the judge to explain fully the justification for
imposing such a sentence, particularly after, in this case,
rejecting the State's argument that other specific aggravating
factors were present and finding only the frequently-found
aggravating factors three, six and nine applied. We also agree
with defendant that the judge gave no explanation for the
imposition of a consecutive term on the hindering charge. As a
result, we remand the matter to the Law Division for re-
sentencing.
We affirm defendant's conviction and remand the matter to
the Law Division for re-sentencing.
34 A-2193-08T4
___________________________________
OSTRER, J.A.D., dissenting.
Upon review of the entire record, I am convinced the trial
judge exceeded the boundaries of permissible questioning under
N.J.R.E. 614 and our case law. The error was "clearly capable
of producing an unjust result." R. 2:10-2. That is, "the
possibility of injustice [was] 'sufficient to raise a reasonable
doubt as to whether the error led the jury to a result it
otherwise might not have reached.'" State v. Taffaro, 195 N.J.
442, 454 (2008) (quoting State v. Macon, 57 N.J. 325, 336
(1971)). Therefore, I respectfully dissent.
I.
I assume familiarity with the facts set forth in our prior
decision. The majority agrees that the trial presented
significant credibility issues for the jury. The State's
principal witnesses gave multiple, inconsistent statements.
They also had strong motives to curry favor from the State.
The State's theory was that defendant shot and killed
Alexey Bautin and Sergey Barbashov, two white men, after
mistaking them for a tall African-American man who had
threatened him with a gun almost a month earlier, on October 1,
2003. The State established Bautin and Barbashov were killed
while seated in a parked red 1999 Volkswagen Passat outside an
apartment complex in Woodbridge Township. The State's only
eyewitness to the homicides, Jamil McKnight, admitted he
retrieved the gun used, and accompanied defendant to the
shootings. Defendant's girlfriend Sharhi Roberts, and a friend,
Greg Wakefield, testified that defendant confessed to them. Ron
Huff claimed he was in the car when defendant first spotted the
men he thought were involved in the prior incident, and then
decided to retrieve a firearm. Huff claimed he left the car
before the homicides, but he later appeared at the scene.
The defense theory was that McKnight and another man,
Sherrill Williams, participated in the shooting. Defense
counsel argued that McKnight was threatened in the same early
October incident in which defendant was threatened; McKnight had
poor eyesight, making it more likely that he, not defendant,
misidentified the victims. Williams said in an out-of-court
statement that the gun removed from McKnight's house the night
of the shooting belonged to McKnight, not defendant. The
defense contended that each of the key incriminating witnesses
had motives to lie, in order to avoid prosecution related to the
homicides (in McKnight's case), or to curry favorable treatment
in connection with other charges (in Roberts's and Wakefield's
case).
II.
2 A-2193-08T4
The trial court's questioning must be considered against
this factual backdrop. At the risk of repetition with the
majority opinion, an extensive review of the record is necessary
to appreciate the full impact of the court's intervention.
The court's questioning fell into three major categories:
(1) bolstering State witnesses; (2) eliciting evidence that
supported the State's case, which the prosecutor herself did not
elicit; and (3) expressing impatience with a reluctant State
witness. The volume of the court's questioning was substantial.
The court interrogated fifteen of the State's seventeen
witnesses.1
The first two witnesses at trial were Woodbridge Police
officers Vincent Totka and Michael Ng. Totka took a statement
from defendant at the police station regarding the early October
incident in which someone driving a burgundy Ford or Mercury
pointed a handgun at defendant. Totka described defendant as a
crime victim who had voluntarily come forward to make a
statement. Totka noted defendant's father accompanied him to
1 The State presented its case through the testimony of (1) six
investigating officers — Vincent Totka, Michael Ng, Christopher
Reahm, Mark Clements, John Haley, and Christopher Lyons; (2)
three experts — ballistics expert Gary Mayer, and pathologists
Frederick J. DiCarlo and Andrew Falzon; (3) Verizon's records
custodian, Renada Lewis; and (4) seven other witnesses — Ronald
Gordon Huff, Alexander Bautin, Ekaterina Vodolatskaya, Sharhi
Roberts, David Robert Oakley, Jamil McKnight, and Greg
Wakefield.
3 A-2193-08T4
the police station, but defendant gave his statement without his
father present. The taped statement was played for the jury.
Cross-examination established that the gun was also pointed at
others at the scene, whom the police did not question.
The judge then asked Totka why defendant's father was not
present during the interview. Totka explained defendant was
twenty-one years old, and did not need parental consent to give
a statement. Although brief, the court's questioning may have
alleviated concerns jurors may have had about the police
behavior in taking defendant's statement without his father
present. There was nothing unclear about Totka's testimony
before the judge's questioning. The court simply chose to
elicit additional facts that assisted the State.
Ng's focus was the automobile accident. He testified that
defendant was asked to come in to discuss what Ng believed was
his involvement in an accident. Ng said defendant "came in to
report . . . that he was involved in a motor vehicle accident
that we were investigating the night before." Ng identified
motor vehicle accident reports, which were prepared based on
defendant's information. Defendant told Ng that he struck two
vehicles as he fled from the man who pointed a gun at him.
Defendant described the man as a "black male, approximately six-
two . . . ." Ng did not issue any summonses to defendant
because he did not believe defendant was driving carelessly
4 A-2193-08T4
under the circumstances. The defense asked one question on
cross-examination, to establish that the Ford Taurus and Mercury
Sable had similar body styles.
The judge then engaged Ng in questioning that lasted almost
half the length of the State's direct examination. The judge
elicited how Ng came to invite defendant into the station for
questioning. In response to the court's numerous questions, Ng
described his investigation, step by step. Ng testified he was
dispatched to the scene of the motor vehicle accidents. He
spoke to a witness, examined the two vehicles defendant struck,
and then found a parked vehicle nearby that appeared to have
been in a collision. After impounding the vehicle, a police
search of the vehicle disclosed defendant's identification.
Police then went to defendant's house, spoke to his father, and
asked him to come into the police station for questioning.
These additional facts emphasized that defendant failed to
report the incident immediately or voluntarily. See N.J.S.A.
39:4-130 (making it a motor vehicle violation to fail to report
an accident involving, among other things, property damage of
$500 or more). The questioning also highlighted that defendant
did not take the initiative to report to police that he was
threatened with a gun, a serious crime, which may have created
the inference that defendant intended to address the threat
himself. The judge's questioning established that police
5 A-2193-08T4
effectively had to track defendant down to obtain his accident
report.
In sum, with the first two witnesses, the judge established
himself as an active questioner whose questions tended to
support the State's case. Notably, the court gave no mid-trial
instruction to the jury to disregard any implication that he
favored the State's case.
The court elicited additional factual details from the next
four witnesses: the Verizon records custodian Renada Lewis, who
identified records of the 911 call; New Jersey State Police
trooper Christopher Reahm, who presented the 911 recording, and
described its method of storage; Alexander Bautin, who was in
his apartment when he heard the shooting of his brother Alexey
and his friend Sergey Barbashov; and Barbashov's girlfriend,
Katerina Vodolatskaya, who testified about the victim's
whereabouts before the shooting. Defense counsel declined
cross-examination of Lewis and Reahm; posed one question to
Bautin, to identify that his brother's car was a 1999 Volkswagen
Passat; and briefly questioned Vodolatskaya to establish that
Bautin had money problems with his business partner, who owned a
gun.
The court pursued separate lines of questioning after
defense counsel's turn. Many of the judge's questions were
leading, which established the judge as a knowledgeable
6 A-2193-08T4
questioner. The information did not directly reflect negatively
on defendant. It was undisputed that a drive-by shooter killed
Bautin and Barbashov. However, the questioning maintained the
judge's role as an active questioner who supplemented evidence
in the State's case.
In questioning Huff for five pages of transcript, the judge
addressed an apparent inconsistency in Huff's testimony, and
emphasized facts that supported the State's theory of the case.
Huff initially identified the occupants of the vehicle by their
nicknames — "360" or "60," who was Ross; Sagacious, who was
McKnight; and Boo, who was Williams. He was asked on direct
regarding Sagacious, "Do you know that person's real name?"
Huff said he did not. On cross-examination, counsel referred to
"Jamil McKnight, a man you knew as Sagacious," but Huff repeated
that he did not know Sagacious's or Boo's real names. The judge
then interjected, "You don't know their real names?" and Huff
again said no. Later in cross-examination, counsel questioned
Huff referring only to McKnight, not Sagacious, and Huff had no
difficulty responding. In the judge's separate examination, he
returned to the issue, and allowed Huff to reiterate that he did
not know Sagacious's real name, but thought that was his real
name based on defense counsel's prompting.
The court's questioning also elicited details about the
lighting around the apartments where the shooting took place.
7 A-2193-08T4
These questions reinforced already clear and unambiguous
testimony that the State had elicited on direct, and which the
defense did not challenge on cross-examination. In so doing,
the judge elicited testimony that supported the State's theory
of the case: that defendant thought he was getting revenge on a
man named Mitch, who pulled a gun on him on October 1, but
instead accidentally shot two innocent men sitting in their car
that night.
Sharhi Roberts was one of the two witnesses to whom
defendant allegedly confessed. Roberts testified that the day
after the shooting, defendant told her he shot the two men.
About a year later, he again confessed to her, adding he
intended to shoot Mitch, but shot the victims by mistake. She
also asserted that defendant told her that Mitch previously
threatened him with a gun. However, she also claimed that
subsequent to the two confessions, defendant told her that he
did not shoot the two men, and he only made up that he did.
The prosecutor confronted Roberts on direct examination
with a prior statement to police, in which she did not mention
the third conversation. She claimed that she did not disclose
the conversation "because the officers [Lyons and Clements]
didn't want to hear that" and her lawyer, David Oakley, told her
"to tell them what they wanted to know and that's that." She
asserted the officers "were harassing" her for her statement.
8 A-2193-08T4
In return for her testimony, the officers informed the
prosecutor of Roberts's cooperation, and the pending charges
against her were dismissed. The prosecutor also elicited that
Roberts testified at a trial of a different defendant in August
2007 — over which the same trial judge presided — and confirmed
her statement to police, but did not mention the third
conversation.
On cross-examination, defense counsel elicited Roberts's
claim that Lyons and Clements harassed her. The court
intervened in counsel's questioning, expressing impatience, and
at one point stating that "we" need specifics.
Q Okay. So you've been dealing with
Clements and Lyons for a while, haven't you?
A Yes.
Q Okay. Have they harassed you in the
past?
A Yes.
Q Can you describe for the jury the
manner in which they harassed you with as
much specificity as you can.
A Okay. They came to my house.
I've been evicted from places.
THE COURT: I'm sorry. Came to your house
and what?
A They came to my house. Harassed
me numerous times.
THE COURT: In other words, the question is
we need specifics. What did they do?
9 A-2193-08T4
Specifically what did they do? What did
they say? What did they do?
A Well --
THE COURT: Okay.
A They --
THE COURT: They came to your house. What
else?
. . . .
Q All right. Sharhi, describe how you
were harassed. I don't just mean the cops
showed up. How many times did they come,
what did they say to you and so forth,
things like that.
. . . .
Q Where were you working at the time?
A Perth Amboy Shop-Rite on Convery
Boulevard.
Q Okay. So when's the first time that
you can remember the police coming to you
and harassing you?
A The first time I remember was my
father's house, on 19 Walter Drive,
Woodbridge.
THE COURT: When? When? When? When? Not
where.
THE WITNESS: I can't remember the
exact day.
THE COURT: Well, was it like -- was it
before August -- before October 30th, 2003,
or was it after October 30th?
THE WITNESS: It was after.
10 A-2193-08T4
THE COURT: Was it a month after, a year
after?
THE WITNESS: A year, a year -- almost
two years -- it was a little after
November, I want to say -- I want to
say '05 --
THE COURT: Okay.
THE WITNESS: -- 6, November.
THE COURT: November 2005.
Q Did the police ever offer you anything
for your testimony?
A Yes. Yes. Numerous times.
The court intervened during cross-examination about the
pre-interview, in which defense counsel sought to establish that
officers told Roberts to discuss only the two confessions, and
not the subsequent denial.
Q Earlier you mentioned that when talking
to the police, and by the police I mean
basically the Woodbridge police, the
Middlesex County Prosecutor's Office, there
were portions of your conversations that
were unrecorded?
A Yes.
Q Was there some sort of preinterview
that occurred before the recording begins?
A Yes. He stated that he wanted me
--
THE COURT: No. No. No. Question was was
there portions of the interview that was
unrecorded. Yes?
THE WITNESS: yes.
11 A-2193-08T4
THE COURT: Next question.
Q That was during the preinterview?
THE COURT: The preinterview is -- in other
words, did they talk to you before they
actually put the machine on and recorded
your statement?
THE WITNESS: Yes.
THE COURT: Okay. So you had a
preinterview?
THE WITNESS: Yes.
THE COURT: Okay.
Q What did they tell you in the
preinterview or at any time when the
recorder wasn't on?
MS. DAVISON: Again, Judge, this is
hearsay.
THE COURT: Overruled.
A At the time, the day -- the day I
made -- the day of January --
THE COURT: This is January 26th, 2006, your
attorney was there?
THE WITNESS: Yes.
THE COURT: And what did they tell you?
A They asked me to go back to the
time that my sister had stated -- made
the statement previous. They wanted me
to go back to that time and recall of
those two times that my sister had
mentioned originally to Chris Lyons and
Woodbridge Police Department of
November -- in November. They wanted -
-
12 A-2193-08T4
Q Is it fair to say you were limited to
those two times?
A Yes.
Q And then -- and then you were told that
there would be consequences if you changed
your story out of what was just said?
A Yes.
Officer Lyons initially testified on direct regarding his
arrival on the scene of the homicides, and his initial
observations of the two victims and their car. He testified he
secured Huff for questioning by detectives. The judge
interjected several friendly questions, in the midst of the
direct examination, prompting the witness to clarify a point,
spell a name, describe a location, explain an acronym, indicate
the meaning of a gesture, and expand upon a comment. In so
doing, the court appeared to work in tandem with the prosecutor.
Lyons's cross-examination was brief. It focused on the
fact that police did not test Huff for gunpowder residue. The
court sustained the State's objection when defense counsel
inquired about other aspects of the State's investigation, which
were outside the scope of direct.
The judge then engaged Lyons in over six pages of
questioning. By contrast, the direct examination consumed
nineteen pages of transcript, including the judge's interjected
questioning. He elicited additional details about the officer's
13 A-2193-08T4
efforts to secure the crime scene. Most significantly, the
judge elicited testimony regarding the lighting conditions at
the scene of the crime. Lyons testified the area was "[f]airly
dark," there were no streetlights in the area, and "very little"
light was coming from a nearby building. These facts supported
the State's theory that the shooter misidentified the victims in
part because of the dark conditions.
Officer Haley testified about his crime scene
investigation, including his collection of bullets and spent
shells, and provided a critique of gunshot residue testing.
During the direct examination, the judge repeatedly interjected
questions to clarify or supplement information elicited by the
State. The judge also engaged in two separate rounds of
friendly questioning of the witness, consuming over twelve pages
of transcript. Although the information elicited did not appear
to be directly damaging to defendant, the judge did highlight
the depth of the witness's experience, and again appeared to be
in sync with the prosecution.
The State called Lyons again to testify about how the
investigation of the dual homicides, which had turned cold after
failing to uncover any suspects, was revived in 2005, after the
police received information in early November 2004. The same
week, Lyons interviewed Roberts and her sister. He discussed
his subsequent efforts during 2005 and 2006 to obtain statements
14 A-2193-08T4
from Roberts, Huff, McKnight, Wakefield, and Williams. After
police arrested defendant and charged him with the murders in
September 2006, Lyons continued his efforts with the five.
Cross-examination was vigorous, and highlighted
inconsistencies in the statements of the State's witnesses.
Defense counsel also established that Lyons threatened some
witnesses, telling them they could be witnesses or they could be
defendants. Lyons admitted that such tactics were coercive, but
justified, because he was "using leverage against people who had
lesser charges or lesser crimes to get the information about
this double homicide."
At the end of cross-examination, the judge engaged Lyons in
a line of questioning premised on his assumption that Roberts
had been charged with making a false report to police before the
State suspected defendant committed the murders. Lyons
corrected the judge stating that defendant became a suspect in
late 2004; the charges were lodged against Roberts in 2005; and
she thereafter gave her formal statement incriminating
defendant, which prompted Lyons to contact the municipal
prosecutor on her behalf. Nonetheless, the judge's effort —
albeit unsuccessful — to establish the lack of a connection
between the charges against Roberts and efforts to secure her
cooperation, constituted another effort to establish facts
favorable to the State's case. Moreover, the friendly tenor of
15 A-2193-08T4
the judge's questions of Lyons contrasted with his impatience in
questioning Roberts.
The judge asked no questions of David Oakley, Roberts's
attorney. Oakley denied he told his client to tell officers
what they wanted to hear, but he testified that Roberts received
harsher treatment — in terms of the bail set, and the State's
willingness to prosecute — for her own alleged offense, because
the State was interested in securing her cooperation.
During the direct examination and extensive cross-
examination of Jamil McKnight, who claimed to have witnessed the
shooting, the judge's involvement was limited to interjecting
brief clarifying questions. The judge also overruled several
State objections on cross-examination.
The judge played a similar role during the testimony of
Greg Wakefield. While separate gun charges were pending against
Wakefield, he told police in two formal statements in April 2005
that defendant confessed to him. When the charges were resolved
in March 2008, Wakefield recanted.
Ballistics expert Gary Mayer testified that the collection
of spent shell casings found at the scene matched each other and
were fired from the same gun. Over the course of fifteen pages
of transcript, the court asked both clarifying and substantive
questions, some leading, assisting in Mayer's presentation.
16 A-2193-08T4
Mayer testified that he had also tested a separate group of
shells from another case. He determined they matched each
other, but not the shells of the other group. The judge asked,
"So then you're saying that there were two different weapons
used, is that right?" After Mayer answered affirmatively, the
judge called counsel to sidebar. The prosecutor explained that
the State's position was that only one gun was used in the
homicides of Bautin and Barbashov, and the second group of
shells were from a different investigation. The judge then
advised the prosecutor that the jury was likely confused, and
advised the prosecutor that she pose clarifying questions.
However, before the prosecutor did so on redirect, the court
continued with over thirteen pages of questioning, focusing on
the properties of semi-automatic weapons — the type used in the
homicides — and the differences between them and revolvers. At
one point, the judge used the collective pronoun "us" in
responding to an answer from Mayer, stating, "Okay. Okay. All
right. That's not going to help us. You'll have to —
Prosecutor will have to explain that."
The trial judge also took an active role in the questioning
of DiCarlo, who performed the autopsy of Bautin, and Falzon, who
performed the autopsy of Barbashov. A key point of the medical
examiners' testimony was that the victims were hit by bullets
shot from the victims' height — which was consistent with a
17 A-2193-08T4
drive-by shooting. The judge interjected questions with
increasing frequency during the State's examination. In
addition to clarifying DiCarlo's testimony, the court elicited
supplementary information, often through leading questions.
Defense counsel declined cross-examination of both witnesses,
yet the court engaged in six pages of additional questioning of
DiCarlo and one page of additional questioning of Falzon.
A principal focus of Clements's testimony was his response
to Wakefield's claim that he was unduly pressured by the
officers during the interrogation preceding his April 7, 2005
statement. The interrogation began in the late afternoon, and
Wakefield gave his formal statement shortly before midnight.
Wakefield also mentioned that he was subjected to a polygraph
test. Clements defended his interrogation techniques, and also
asserted that Wakefield was not subject to his intense
questioning for the whole time period, because he was before the
polygrapher for about four hours.
The judge was restrained during most of the direct
examination of Clements. However, at one point during the
direct examination, the judge overruled a well-founded, albeit
belated objection, and interjected a properly phrased question:
Q Was Mr. Wakefield upset during the
preinterview or the actual formal statement?
A Yeah. Mr. Wakefield did cry. He
was crying at times during the
18 A-2193-08T4
interview process based on the fact
that it was our belief because he was
implicating his friend in the double
murder.
THE COURT: Sir, they can't hear you.
You're going to have to get into that
microphone and don't worry about looking at
the jury. Look – speak into the microphone
so they can hear you. Start again.
THE WITNESS: My apology.
THE COURT: Thank you.
A Could I have the question again
please?
THE COURT: Sure.
Q Was Mr. Wakefield upset at any time
during the preinterview or during the formal
statement?
DEFENSE COUNSEL: Objection, Judge.
Calls for Mr. Wakefield's state of
mind.
THE COURT: No. Did he appear to be
upset?
THE WITNESS: Yes, sir.
THE COURT: Thank you. Go ahead. Tell
the jury how he appeared.
A He was crying at times during the
interview. And it was our belief that
he was crying because he was
implicating his friend in the double
murder.
During cross-examination, defense counsel presented
evidence that tended to establish that Wakefield was with the
polygrapher significantly less time than Clements claimed.
19 A-2193-08T4
Defense counsel elicited that a Miranda card was executed by
Wakefield and the polygrapher at 8:38, and the polygraph ended
at shortly before 11:00, meaning Wakefield was gone for slightly
over two hours.
The judge then called a sidebar, and curtailed the cross-
examination after noting the possibility that the polygrapher
could have been engaged in various discussions with Wakefield
before he signed the Miranda card. Consistent with this point,
during the judge's own line of questioning, he established that
the polygrapher and Wakefield were in a separate room, and
Clements was not privy to what transpired there. The
implication was created that the polygrapher may have spent a
significant amount of time explaining the polygraph process
before obtaining Wakefield's Miranda waiver and beginning
questioning.
During the defense case, the judge was restrained. He did
not pursue a separate line of questioning of McPhatter or
defendant, and his interjections were largely for the purpose of
clarification.
III.
A trial judge's "broad discretion" to participate in the
questioning of a witness, State v. Ray, 43 N.J. 19, 25 (1964),
is limited by the court's obligation to maintain the appearance
and reality of impartiality. Taffaro, supra, 195 N.J. at 445.
20 A-2193-08T4
"[I]n exercising their discretionary power, judges must take
care not to influence the jury by signaling doubt about a
witness's credibility. To do otherwise might place the court's
impartiality in question and affect the trial's outcome."
Ibid.; see also State v. O'Brien, 200 N.J. 520, 534 (2009)
("[P]articularly in the context of a jury trial" a judge must
ensure that he "does not telegraph to the jury any partiality to
a given party's side."); Ray, supra, 43 N.J. at 24 (discussing
the "necessity of judicial self-restraint and the maintenance of
an atmosphere of impartiality.") (internal quotation marks and
citation omitted); State v. Guido, 40 N.J. 191, 207-08 (1963).
A trial judge must scrupulously avoid crossing the line
separating appropriate and inappropriate questioning. On the
one hand, the court's questioning may serve a salutary purpose.
The Court has identified four goals of a judge's questioning:
[I]t is proper, and even encouraged, for a
trial judge to step in [1] when a party's
basic rights are being threatened, [2] when
expedition is necessary to prevent a waste
of judicial time/resources, [3] when
testimony requires clarification, or [4]
when a witness appears to be in distress or
is having trouble articulating his/her
testimony.
[O'Brien, supra, 200 N.J. at 534 (internal
citations omitted).]
On the other hand, a trial judge must avoid "'undue
interference, impatience, or participation in the examination of
21 A-2193-08T4
witnesses, or a severe attitude . . . toward witnesses . . . .'"
Ibid. (quoting Guido, supra, 40 N.J. at 207). A judge may not
"take over the cross-examination for the government to merely
emphasize the government's proof or to question the credibility
of the defendant and his witnesses." Id. at 535 (quoting United
States v. Bland, 697 F.2d 262, 265 (8th Cir. 1983)). A judge
"should not press defendant when the meaning of their responses
is 'perfectly plain'". Taffaro, supra, 195 N.J. at 451 (quoting
Guido, supra, 40 N.J. at 208-09 n.2). Such questioning "may
express incredulity and prejudice a defendant." Just as a
court's questioning should not express incredulity in one side's
witness, it should not bolster or rehabilitate a witness on the
other side. O'Brien, supra, 200 N.J. at 539-40 (criticizing
trial judge's questioning that "help[ed] to counter defendant's
challenge" to a State witness).
Our Court has recognized that when a judge violates these
limitations, the risk of prejudice is great. See Guido, supra,
40 N.J. at 208. "The trial judge is an imposing figure. To the
jurors he is a symbol of experience, wisdom, and impartiality.
If he so intervenes as to suggest disbelief, the impact upon the
jurors may be critical." Ibid. "A judge's slightest indication
that he favors the government's case can have an immeasurable
effect upon a jury." O'Brien, supra, 200 N.J. at 535 (quoting
Bland, supra, 697 F.2d at 265-66).
22 A-2193-08T4
"When a judge questions a witness in such a way that he
takes over the role of the prosecutor, it can give the jury the
impression that the judge does not believe the witness, and that
impression can deny the defendant his right to a fair trial."
Ibid. (citing United States v. Filani, 74 F.3d 378, 385 (2d Cir.
1996)). "Where the court takes over the role of the prosecutor"
and displays bias, reversal is required." Filani, supra, 74
F.3d at 385 (internal citations omitted). If it appears to the
jury that the judge believes the accused is guilty, the
defendant will be "deprive[d] of the fair trial to which he is
entitled." Ibid.
In Taffaro and O'Brien, our court found that the trial
judge's inappropriate questioning constituted plain error.
Taffaro, supra, 195 N.J. at 454; O'Brien, supra, 200 N.J. at
539-40 (reversing based on plain error). "In light of the trial
judge's esteemed position in the courtroom and the central role
that defendant's credibility played in this trial, suggesting
disbelief of defendant's testimony could well have had a
critical impact on the verdict." Taffaro, supra, 195 N.J. at
454. Furthermore, our Court has repeatedly held that
instructing a jury, in accord with the model jury charge, not to
be influenced by the judge's questioning is insufficient to
23 A-2193-08T4
"cure the harm" of inappropriate questioning.2 O'Brien, supra,
200 N.J. at 539 (repeated mid-trial instructions that judge's
questions were not intended to favor one side were
insufficient); Taffaro, supra, 195 N.J. at 454 ("We are not
persuaded that the jury instruction was sufficient to cure the
harm."); Guido, supra, 40 N.J. at 208.
In assessing whether a judge's intervention constitutes
plain error, a reviewing court must consider the judge's
interventions in the context of the record as a whole. See,
e.g., United States v. Rivera-Rodriguez, 761 F.3d 105, 111, 113
(1st Cir. 2014), cert. denied, ___ U.S. ___, 135 S. Ct. 1573,
191 L. Ed. 2d 656 (2015); United States v. Ottaviano, 738 F.3d
586, 596 (3d Cir. 2013), cert. denied, ___ U.S. ___, 134 S. Ct.
1922, 188 L. Ed. 2d 945 (2014). In so doing, the court weighs
the cumulative impact of multiple interventions, yet avoids
2 Model Jury Charge (Criminal), "Criminal Final Charge" (June
2015) states:
The fact that I may have asked questions of
a witness in the case must not influence you
in any way in your deliberations. The fact
that I asked such questions does not
indicate that I hold any opinion one way or
the other as to the testimony given by the
witness. Any remarks made by me to counsel
or by counsel to me or between counsel, are
not evidence and should not affect or play
any part in your deliberations.
24 A-2193-08T4
magnifying the impact of isolated instances. Rivera-Rodriguez,
supra, 761 F.3d at 113, 122.
The appellate court must consider the impact of the judge's
questioning on the key issues before the jury. For example,
prejudice is heightened when the success of the State's case
depends on the jury's credibility determinations, and the judge
conveys a view on that issue. See Taffaro, supra, 195 N.J. at
451 (internal quotation marks and citation omitted) ("[I]f a
judge's questions suggest disbelief, the impact upon the juror
may be critical. This is especially true when the outcome of a
case rests primarily and necessarily on the jury believing or
rejecting a defendant's version of events."). A reviewing court
may consider the weight of other evidence in the case to
determine whether the judge's interventions were prejudicial.
See Ottaviano, supra, 738 F.3d at 597 (finding judge erred in
its questioning of the defendant, but declining to reverse in
light of "overwhelming documentary and testimonial evidence of
guilt . . . .").
The volume of a judge's questioning is also relevant in
assessing whether it improperly influenced the jury. Taffaro,
supra, 195 N.J. at 453; see also Ottaviano, supra, 738 F.3d at
596 (stating a court may consider "the portion of the trial
record affected . . . ."). However, "it is the impact of the
25 A-2193-08T4
court's questions, and not the number of minutes they lasted,
which matters most." Taffaro, supra, 195 N.J. at 454.
"Whether the judge appeared to treat both sides
evenhandedly" is a factor as well. Ottaviano, supra, 738 F.3d
at 596. If a judge intervened actively, but evenhandedly, the
impact on the jury may be less significant than when the judge
appears to intervene disproportionately on behalf of one side.
See Rivera-Rodriguez, 761 F.3d at 113 ("[W]e have stressed that
where the judge participates actively, the judge's participation
must be balanced . . . .") (internal quotation marks and
citation omitted); Ottaviano, supra, 738 F.3d at 596 (the court
must balance the degree of questioning in each side's case-in-
chief "to determine whether the trial judge's comments have
pervaded the overall fairness of the proceeding.") (quoting
United States v. Wilensky, 757 F.2d 594, 598 (3d Cir. 1985)).
The prejudicial impact of a judge's intervention extends
not only to the evidence the judge elicits, but also to the
elicitation itself. By intervening in questioning, a judge may
convey to the jury that he finds a witness credible and
trustworthy, or the opposite; he finds one side's case more
persuasive than the other; and he expects the jury to return a
verdict in accord with his apparent preference. Whether the
judge subjectively intends to convey these messages is not
relevant to the analysis.
26 A-2193-08T4
[T]he judge's participation, whether in the
form of questions or of comments, is likely
to have a disproportionate and distorting
impact. The jury is likely to discern
hints, a point of view, a suggested
direction, even if none is intended and
quite without regard to the judge's efforts
to modulate and minimize his role.
[Marvin E. Frankel, The Search for Truth: An
Umpireal View, 123 U.Pa.L.Rev. 1031, 1043
(1975).]
The extent to which the judge used leading questions is
also a factor, because a judge's leading questions may convey to
the jury that he already is aware of certain facts, and seeks
only the witness's confirmation. Under such circumstances,
jurors may view the judge as more knowledgeable about the facts
in issue than they are. As a result, the judge's questioning
may infect the fairness of the trial as a whole.3
IV.
The judge's extensive questioning did not further any of
the four purposes identified in O'Brien, supra, 200 N.J. at 534.
No party's rights were threatened, necessitating court
intervention. Rather than conserve judicial time or resources,
the court's questioning generally extended the length of
3 We recognize the inherent difficulty in assessing the impact of
a judge's excessive intervention based on a cold transcript.
One commentator has argued that "[t]he effect of a trial judge's
improper intervention is immeasurable." Michael Pinard,
Limitations on Judicial Activism, 33 Conn.L.Rev. 243, 293
(2000). Consequently, he and others advocate a per se rule of
reversal where a judge intervenes improperly. Id. at 298-99.
27 A-2193-08T4
testimony. No witness, such as a child, appeared to be in
distress. Cf. State v. Riley, 28 N.J. 188, 201, cert. denied,
361 U.S. 879 (1959). Finally, although the court did ask
questions to clarify some answers, or to assure that a witness
could be heard, the overwhelming majority of the questions
served an inappropriate purpose.
The evidence elicited through the court's questioning
generally supplemented or reinforced evidence presented by the
State. The court alone established that officers had to ask
defendant to visit the station to report his multiple
collisions, and only then did defendant report that a person
pointed a gun at him. This left the jury free to infer that
defendant did not intend to seek police assistance in addressing
the gun pointing. The judge's questioning excused the
interrogation of defendant without his father and highlighted
the poor lighting in the area where defendant allegedly
mistakenly identified the victims. The judge gave Huff the
opportunity to rehabilitate himself, after Huff denied knowing
Sagacious's real name, yet responded to questions referring only
to Jamil McKnight. The court also elicited testimony to support
an inference that Wakefield may have been in the presence of the
polygrapher longer than the Miranda cards emphasized by the
defense might have indicated.
28 A-2193-08T4
The court's questioning was far from evenhanded. The court
did not subject the State's witnesses to rigorous or challenging
questions. In one instance, in which defense counsel raised a
well-founded, although belated objection to a question posed to
Clements, the judge himself rephrased the prosecutor's question
and elicited a response from the witness. The court's questions
for the State's witnesses were consistently friendly, with the
glaring exception of the court's questioning of Roberts, who
testified that Ross recanted his prior confessions. The court
expressed impatience and irritation, if not outright
incredulity.
The judge repeatedly interjected substantive questions
during the prosecutor's direct or redirect examination — but not
during the defense's cross-examination. The judge thereby
placed himself in a position where the jury might have viewed
him as working in tandem with the State. The judge's use of the
pronoun "we" and "us" in questioning was at best ambiguous, and
at worst, an unconscious alignment of himself with the State.
Even when the testimony elicited by the judge did not directly
implicate defendant, the court's separate examinations
supplemented the State's case. The sheer volume of the court's
questioning was substantial.
The overall impact of the judge's participation was to
convey partiality in favor of the State's case. I am confident
29 A-2193-08T4
that this was not the judge's intent; his purpose was to elicit
facts in the search for the truth. However, viewed objectively,
the jurors could have reasonably concluded, based on the extent
and nature of the judge's questioning, that the judge favored
the State's case. Enhancing the judge's already significant
position before the jury, the judge also frequently asked
leading questions, reflecting that the judge possessed prior
knowledge of relevant facts.
V.
It is not easy to determine whether a judge's excessive and
inappropriate questioning constitutes plain error. See United
States v. Hickman, 592 F.2d 931, 932 (6th Cir. 1979) ("The law
in this area is as easy to state as it is difficult to apply.").
A defendant is entitled to a "fair trial, but not a perfect
one." State v. R.B., 183 N.J. 308, 333-34 (2005) (internal
quotation marks and citation omitted).
I recognize, as the majority highlights, the judge's
intervention here was unlike that which compelled reversal in
Taffaro or O'Brien. In O'Brien, supra, 200 N.J. at 526-31, the
trial judge engaged in an incisive cross-examination of the
defendant and his expert. Similarly, in Taffaro, supra, 195
N.J. at 453-54, the court cross-examined the defendant himself,
suggesting the court disbelieved him.
30 A-2193-08T4
Here, the judge did not directly challenge defendant or his
alibi witness. Nonetheless, viewing the record as a whole and
weighing the cumulative impact of the judge's intervention, I
believe prejudicial error resulted. The judge did not intervene
in isolated instances. Rather, he assumed an activist role from
the start, interjecting questions during the State's direct
examination, and pursuing his own separate lines of questioning
of numerous State witnesses. Further, there is nothing in
O'Brien or Taffaro that should serve to exclude their
applicability to cases where the trial judge participates
extensively in the State's case, but does not interfere directly
with defense witnesses. The fact that the judge here chose not
to question defendant or his alibi witnesses does not dispose of
defendant's claim he was not afforded a fair trial.
The judge elicited evidence that tended to support the
State's case, including the appropriateness of excluding
defendant's father from defendant's interrogation; defendant's
disinclination to seek the police's help after the gun-pointing
incident; the lighting conditions at the murder scene; and the
possibility that Wakefield was present with the polygrapher
longer than the Miranda cards may have indicated.
The prejudice caused by the judge's intervention goes
beyond the substantive evidence elicited. As a consequence of
the judge's intervention, the jury likely perceived him to favor
31 A-2193-08T4
the State's case. The judge created this perception by
intervening in tandem with the prosecution, posing friendly
questions to the State's witnesses, eliciting information
consistently favorable to the State's case, and bolstering the
credibility of State witnesses. As a consequence of the judge's
leading questions, and his prior involvement in apparently
related proceedings, the jury likely viewed the judge as privy
to facts that the jury was not.
The perception of partiality may be created as much by
constructive questioning during the State's case, as damaging
questions in the defense case. The judge did not challenge
defendant or his alibi witness, as did the judge in Taffaro and
O'Brien. Nonetheless, by his extensive and unwarranted
participation in the questioning of the State's witnesses, the
judge created the impression of favoring the State in a close
case.
The evidence of defendant's guilt was not insignificant.
Neither was it overwhelming. The State's case depended on the
jury finding credible a group of witnesses who had strong
motives to lie, and who gave inconsistent statements. The
defense plausibly argued that the sole alleged eyewitness to the
homicides — McKnight — had a similar motive to seek revenge
against Mitch. Because of his poor eyesight, he was more likely
to mistake the victims for his intended target. Further, he
32 A-2193-08T4
admittedly took steps to destroy evidence of homicides he
claimed he did not commit. And, perhaps most importantly, he
was admitted to the pre-trial intervention program in return for
his cooperation.
The two witnesses who claimed defendant confessed to them —
Roberts and Wakefield — gave inconsistent statements and alleged
police harassed or pressured them. At the same time, the two
had an interest in currying favor with the State in connection
with separate charges pending against them. Moreover, the
pending charge against Roberts was for making false accusations
against defendant's family.
Defendant's credibility was not helped by his inconsistent
statement to his father from the jail after his arrest. Yet,
the inconsistency may not have been as harmful as the majority
perceives. The jury may have found understandable a son's
initial unwillingness to admit to his father involvement in the
events leading to a homicide.
Certainly, we are obliged to consider "that the failure to
object may suggest the error was of no moment in the actual
setting of the trial." Macon, supra, 57 N.J. at 341. However,
I do not view defense counsel's failure to object as a strong
indication that the judge's questioning was harmless. With the
exception of his interrogation of Roberts, the judge's
questioning may not have seemed so antagonistic towards
33 A-2193-08T4
defendant as to prompt an objection. Rather, the court's
questioning had a cumulatively prejudicial impact.
Furthermore, a defense attorney may have a natural
hesitancy to object to a judge's own questions to avoid
alienating the judge or jury, especially if the judge responded
critically to the objection. The opportunity to repeatedly seek
a sidebar would not necessarily alleviate an attorney's concern.
See United States v. Lanham, 416 F.2d 1140, 1145 (5th Cir. 1969)
(reversing conviction based on court's inappropriate
questioning, noting that defendant's counsel "might hesitate to
make objections and reserve exceptions to the judge's
examination, because, if they make objections . . . it will
appear to the jury that there is direct conflict between them
and the court.") (internal quotation marks and citation
omitted); Pollard v. Fennell, 400 F.2d 421, 424 (4th Cir. 1968)
(noting "the natural reluctance of counsel to object to the
court's questions"); United States v. Hill, 332 F.2d 105, 106
(7th Cir. 1964) (describing "difficult and hazardous
predicament" of defense counsel who needs to object to judge's
questions in the presence of the jury); In re United States, 286
F.2d 556, 561 (1st Cir. 1961) (stating counsel may "think twice"
before objecting to a judge's question, and "counsel runs the
risk . . . of comment by the judge before the jury implying that
he is seeking to cut off legitimate inquiry"), rev'd sub nom on
34 A-2193-08T4
other grounds, Fong Foo v. United States, 369 U.S. 141, 82 S.
Ct. 671, 7 L. Ed. 2d 629 (1962); Kennedy v. State, 280 N.E.2d
611 (Ind. 1972).
The jury was much better positioned than this court, with
its reliance on a cold written record, to assess the credibility
of these witnesses. The jury apparently found the issue
challenging, based on the length of the jury's deliberations,
and the extensive readbacks it requested of Roberts's and
Oakley's testimony. I do not share the majority's view that the
judge's influence may have dissipated during the jury's lengthy
deliberations. The greater risk is that the judge's questioning
firmly shaped the jurors' perspectives, which remained a
continuing factor throughout the deliberations.
In sum, when a judge sheds the mantle of impartiality, the
defendant's right to a fair trial is at risk. The measurement
of prejudice is a delicate task. Under the circumstances of
this case, I conclude that the judge's extensive and
inappropriate questioning, and the resulting appearance that he
favored the State's case, raises a "reasonable doubt as to
whether the error led the jury to a result it otherwise might
not have reached." Macon, supra, 57 N.J. at 336. Consequently,
his conviction should be reversed and he should be granted a new
trial.
Therefore, I respectfully dissent.
35 A-2193-08T4
36 A-2193-08T4
State v. Michael Ross II (077458) (Middlesex and Statewide)
Court: Supreme Court of New Jersey
Date filed: 2017-06-26
Citations: 229 N.J. 389, 163 A.3d 278
Copy CitationsCombined Opinion