STATE OF NEW JERSEY VS. EDUARDO LAGO(11-04-0450, UNION COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2321-14T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EDUARDO LAGO, a/k/a CHULEY EDDIE,
EDGARDO LAGO, EDUARDO L. LAGO,
and EDUARDO LAGOS,

Defendant-Appellant.
____________________________________

Submitted March 14, 2017 – Decided August 1, 2017

Before Judges Fisher, Leone and Vernoia.

On appeal from the Superior Court of New
Jersey, Law Division, Union County, Indictment
No. 11-04-0450.

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

Christopher S. Porrino, Attorney General,
attorney for respondent (Sarah E. Ross and
Frank Muroski, Deputy Attorney Generals, of
counsel and on the brief).

PER CURIAM
 Defendant appeals his convictions following a jury trial for

murder and weapons offenses. He argues the court erred by

permitting testimony in violation of his right to confrontation

and by providing an incorrect response to a question posed by the

jury during its deliberations. Based on our review of the record

in light of the applicable law, we affirm.

I.

The charges against defendant arise from the murder of Yessina

Feliciano at the Elizabeth home of her sister, Gloria Francisco,

and brother-in-law, Jesus Francisco.1 In the early morning hours

of November 14, 2010, the doorbell rang and Feliciano and Gloria

opened a side door to the home, where they were confronted by

three men. Gloria knew defendant and immediately recognized him

as one of the men, but was not familiar with the others. She saw

defendant lift his arms with something in his hands, and heard a

single gunshot. Feliciano suffered a gunshot wound and died at the

scene. The three men fled.

Defendant was arrested and charged in an indictment with

first-degree knowing or purposeful murder of Feliciano, N.J.S.A.

2C:11-3(a) or (b) (count one); second-degree unlawful possession

of a weapon, N.J.S.A. 2C:39-5(b) (count two); and second-degree

1
We will refer to Gloria and Jesus Francisco by their first names
to avoid any confusion and for ease of reference.

2 A-2321-14T4
possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-

4(a) (count three). The evidence during his jury trial showed the

following.

On November 14, 2010, Gloria and Feliciano awoke to the sound

of the doorbell and went to side door of the home. The area outside

the door was well-lit and when Feliciano opened the door, Gloria

saw defendant and two other men. Gloria knew defendant "extremely

well" because he was a former friend of her son Steven Rios, had

been at their home hundreds of times, and had lived at the home

for a few months. When Gloria saw defendant standing at the door,

his hands were down between his legs and he was holding something.

The other two men stood with their hands at their sides.

Gloria testified that she observed "something in between

[defendant's] hands which was a gun," but later clarified that she

could not identify the object he held. However, Gloria saw

defendant raise his arms while grasping the object, and point his

arms in the direction of her and Feliciano. She heard a gunshot,

pulled Feliciano away, and closed the door. Gloria saw Feliciano

bleeding from the chest and mouth.

Jesus testified he awoke to screaming and went downstairs

where he observed Feliciano bleeding from the chest. He asked

Gloria who shot Feliciano and she said it was defendant. Jesus

3 A-2321-14T4
called the police and, after they arrived, provided them with

photographs of defendant and Rios together.

Rios testified about his prior friendship with defendant and

a dispute that had arisen between them over gang membership. Rios

and defendant had been close friends and in 2010 joined the "Crips"

gang. Defendant later moved to Newark and joined the "Bloods"

gang. Rios's gang "boss" learned that defendant joined the Bloods

and "gave [Rios] a green light" to beat up defendant. Rios

testified that if he did not follow the order, he would be beaten

by his own gang's members. Rios said he never saw defendant again,

and that his only further contact with defendant was an argument

over the phone at an unspecified time after defendant moved to

Newark.

The police searched for defendant following Gloria's

identification of him as the shooter. Detective William Lord went

to an apartment on Railroad Avenue in Newark to search for

defendant. The apartment was identified as a place defendant and

a friend had lived. The residents of the apartment were Donte

Kirce, his girlfriend Laisha Maldanado, her brother Kidanys

Maldanado,2 and other members of the Maldanado family.

2
We will refer to Laisha and Kidanys Francisco by their first
names to avoid any confusion and for ease of reference.

4 A-2321-14T4
 During the daytime hours of November 14, 2010, Lord went to

the Railroad Avenue apartment twice in search of defendant. Lord

spoke with Laisha and was permitted to look through the apartment

for defendant, but defendant was not there.

Later that evening, Kirce arrived home at the Railroad Avenue

apartment and found the door barricaded with furniture. Kidanys

let Kirce into the apartment and Kirce saw defendant. About forty-

five minutes later, Kirce left the apartment and went to see Laisha

where she worked. Kirce testified that Laisha "explained the

situation" that a "lady died in Elizabeth." The court sustained

defense counsel's hearsay objection to the testimony and struck

the testimony. In response to the prosecutor's next questions,

Kirce said he called "Crimestoppers"3 based on information he

learned from Laisha. Kirce did not testify about what he told

Crimestoppers when he called.

Kirce returned to the Railroad Avenue apartment and "sat in

the living room with Kidanys and defendant." Kirce heard defendant

say "[s]omebody had to go," but defendant did not indicate what

he meant or who he was talking about.

3
"Crimestoppers" was described by Lord as a hotline "where people
can make anonymous tips to the police regarding criminal activity."

5 A-2321-14T4
 The State introduced portions of Kirce's statement4 to the

police where he explained that while he was in the apartment,

Kidanys retrieved a gun with a missing bullet from a back room and

handed it through the apartment door to an unidentified individual.

In his statement, Kirce explained that defendant said "they" shot

his "baby['s] mother['s] salon," that he went "looking for the

dudes" and when he could not find them, he shot "one of the dude's

aunt[s]." Kirce also told the police defendant was "scared" because

defendant believed "the cops [were] coming."

In response to the information Kirce provided to

Crimestoppers, later that evening Lord and Sergeant Jorge Jiminez

went to the Railroad Avenue apartment and arrested defendant. They

also took Kidanys, Kirce, and two other men to the police station

to obtain their statements. The investigation led police to the

men that accompanied defendant to the scene of the shooting.

Noel Gonzalez was present when Feliciano was shot. He

testified that he left a party in Newark with defendant and a man

named Chutay in a car driven by Nelson Pena. Gonzalez was

intoxicated but remembered standing by a house and seeing defendant

at a different house about twenty feet away. Gonzalez saw defendant

4
The court permitted the introduction of portions of Kirce's
statement to the police following a hearing conducted in accordance
with State v. Gross, 121 N.J. 1 (1990). Defendant does not
challenge the court's ruling on appeal.

6 A-2321-14T4
"pull up [what] would appear to look like a gun" and shoot a woman

at her doorway. On cross-examination, he acknowledged he "didn't

see [defendant] actually pull the trigger," but did see defendant

raise his hand right before the gunshot went off. According to

Gonzalez, when defendant raised his hand, there was no one else

near defendant other than the woman in front of him.

Nelson Pena testified that at about 4:00 a.m., he left a

party in a car with defendant, Gonzalez, Chutay and "Slash."

Defendant gave Pena directions to a street in Elizabeth, where

Pena stopped the car in accordance with defendant's instructions.

Pena, Gonzalez and defendant exited the car. Pena watched defendant

and Gonzalez approach the side of a house, heard a shot and a

scream, and the three men ran back to the car and departed. Pena

testified that he did not see defendant with a gun and there was

no discussion in the car concerning a shooting after they departed

the scene.

Kidanys also testified. He was at the Newark party but did

not leave in the car with defendant and the others. He testified

that defendant left in a car driven by "Nelson" and there were

three other occupants. Kidanys explained that when the individuals

later returned to the party, defendant said they had gone to

Elizabeth and that "They did something . . . Somebody got killed."

Defendant told Kidanys "he shot the person in the head." Defendant

7 A-2321-14T4
said the shooting was over "family problems or something like

that," and showed Kidanys a .22 caliber revolver and a bullet

casing. Defendant also told Kidanys a guy was "bothering

[defendant's] baby mom," and that he rang the doorbell of the home

where the shooting took place and shot the woman that opened the

door.

Feliciano's autopsy was performed by a State medical

examiner, Dr. Wall,5 on the day of the shooting. At the time of

trial, Wall was not available to testify. The State called another

medical examiner, Dr. Junaid Shaikh, to testify concerning the

cause of Feliciano's death. Shaikh was qualified as an expert in

forensic pathology.

Shaikh testified he reviewed Wall's autopsy report and made

independent findings based on his review of photographs of the

autopsy, the toxicology report, and the record of Wall's

investigation. Shaikh determined the cause of death was a "gunshot

wound [to her] chest," and the manner of death was "homicide."

Defense counsel objected to Shaikh's testimony, arguing it

was hearsay because it was based on Wall's autopsy report. The

court overruled the objection, finding "the hearsay rules permit

5
The record does not indicate Wall's full name.

8 A-2321-14T4
an expert [] to rely upon other expert[s'] reports . . . in

reaching his or her conclusions."

Defendant exercised his right not to testify and did not

present any witnesses. He was convicted on all counts. At

sentencing, the court merged count three into count one and imposed

a forty-year sentence subject to the requirements of the No Early

Release Act, N.J.S.A. 2C:43-7.2, and a concurrent seven-year

sentence with a three-year period of parole ineligibility on count

two. Defendant appealed.

On appeal, defendant makes the following arguments:

POINT I

IN VIOLATION OF THE CONFRONTATION AND HEARSAY
DOCTRINES OF STATE V. BRANCH AND STATE V.
DEHART, THE TRIAL JUDGE IMPROPERLY ALLOWED THE
STATE TO PUT BEFORE THE JURY EVIDENCE THAT
DONTE KIRCE CONTACTED POLICE IN ORDER TO HAVE
DEFENDANT ARRESTED ONLY IN RESPONSE TO BEING
TOLD A HEARSAY ACCOUNT OF DEFENDANT'S ALLEGED
COMMISSION OF THE CRIME. (PARTIALLY RAISED
BELOW).

POINT II

THE JUDGE'S RESPONSE TO THE JURY'S QUESTION
ABOUT THE DEFENDANT'S POTENTIAL CRIMINAL
RESPONSIBILITY IF HE WERE NOT THE SHOOTER WAS
CLEARLY ERRONEOUS AND DEPRIVED DEFENDANT OF A
POSSIBLE VERDICT FOR A LESSER-INCLUDED
OFFENSE. (NOT RAISED BELOW).

POINT III

THE MEDICAL EXAMINER, WHO DID NOT CONDUCT THE
AUTOPSY OF THE DECEDENT, WAS IMPROPERLY

9 A-2321-14T4
 ALLOWED, OVER OBJECTION OF DEFENSE COUNSEL,
TO READ PORTIONS OF THE AUTOPSY REPORT THAT
WAS PREPARED BY THE MEDICAL EXAMINER WHO
ACTUALLY PERFORMED THE AUTOPSY, THEREBY
VIOLATING DEFENDANT'S CONFRONTATION RIGHTS
UNDER STATE V. BASS.

II.

"The Sixth Amendment to the United States Constitution and

Article I, Paragraph 10 of the New Jersey Constitution confer on

. . . defendant[s] the right to confront the witnesses against

[them]." State v. Williams, 219 N.J. 89, 92 (2014), cert. denied,

___ U.S. ___, 135 S. Ct. 1537, 191 L. Ed. 2d 565 (2015). Defendant

argues his right to confrontation was violated when Kirce testified

that he called the police based on information provided by Laisha.

Defendant contends the testimony permitted the jury to infer that

Laisha had knowledge implicating defendant in Feliciano's murder,

and that its admission requires reversal of his convictions.

Before the challenged testimony, defendant had objected to

Kirce's testimony that Laisha told him "about the situation" and

that "a lady died in Elizabeth." The State argued the testimony

was admissible to explain why Kirce subsequently called the police

about defendant. The court sustained the objection on hearsay

grounds and immediately advised the jury that the testimony was

stricken.

10 A-2321-14T4
 Kirce then answered the following two questions posed by the

prosecutor.

[PROSECUTOR:] Without giving any testimony
to what conversations you [and Laisha] had,
did you learn information from Laisha?

[KIRCE:] Yes.

[PROSECUTOR:] Based upon that information,
what did you do?

[KIRCE:] I called Crimestoppers.

Defendant did not object to the questions, but now contends Kirce's

responses violated his right to confrontation as interpreted by

our Supreme Court in State v. Branch, 182 N.J. 338 (2005).

In State v. Bankston, 63 N.J. 263, 265-68 (1973), the Court

addressed an accused's right to confront witnesses in the context

of a police officer's testimony concerning why certain actions

were taken during an investigation. During trial, a detective

testified that "before defendant was arrested the officers had

been talking to an informer and that based on information received

they went to [a] tavern," with a description of defendant's

clothing, and found defendant in possession of narcotics. Id. at

266-67.

The Court explained the hearsay rule does not prevent an

officer from testifying that he took an action based "upon

information received," but that "when the officer becomes more

11 A-2321-14T4
specific by repeating what some other person told him concerning

a crime by the accused the testimony violates the hearsay rule

. . . [and] the accused's Sixth Amendment right to be confronted

by witnesses against him." Id. at 268-69. The Court reversed the

defendant's conviction because the "detective's hearsay testimony

led to the 'inescapable inference' that the detective received

information from an unknown source implicating the defendant in

the crime," Branch, supra, 182 N.J. at 349 (explaining Bankston),

and because "the record presented a debatable case for the jury,

admission of the testimony "may well have been the decisive factor

which resulted in the guilty verdict," Bankston, supra, 63 N.J.

at 272-73.

In Branch, supra, 182 N.J. at 346-47, the primary issue

concerning defendant's guilt was his identification by two victims

during their review of photo arrays. A detective testified the

arrays were assembled "based on information received." Id. at 347.

The Court found that a police officer may testify that he took an

action "based on information received" to explain an action, "but

only if necessary to rebut a suggestion that they acted arbitrarily

and only if the use of that phrase does not create an inference

that the defendant has been implicated in a crime by some unknown

person." Id. at 352. "The 'common thread' that renders testimony

about information received from non-testifying third parties

12 A-2321-14T4
inadmissible 'is that a police officer may not imply to the jury

that he possesses superior knowledge, outside the record, that

incriminates the defendant.'" State v. Weaver, 219 N.J. 131, 152

(2014) (quoting Branch, supra, 182 N.J. at 351); see also State

v. Lazo, 209 N.J. 9, 12—13 (2012) ("an officer's reasons for

placing a particular photo in an array are irrelevant and

prejudicial," and can "improperly bolster[] the victim's account

and invade[] the role of the jury to weigh the

victim's credibility").

Defendant argues Kirce's testimony that he called

Crimestoppers based on information from Laisha violated his right

to confrontation in the same manner as the testimony of the

officers in Bankston and Branch. Even if we assume this testimony

violated defendant's right to confrontation, he cannot show

prejudice. "When evidence is admitted that contravenes not only

the hearsay rule but also a constitutional right, an appellate

court must determine whether the error impacted the verdict."

Weaver, supra, 219 N.J. at 154. Here, defendant did not object to

the testimony and we therefore consider whether Kirce's testimony

impacted the verdict under the plain error standard. We will not

reverse unless the testimony was "clearly capable of producing an

unjust result." R. 2:10-2; see Branch, supra, 182 N.J. at 353

(applying the plain error standard where there was no objection

13 A-2321-14T4
to testimony that violated defendant's right to confrontation).

We reverse only where there is a possibility of an unjust result

"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. G.V., 162 N.J. 252, 280 (2000) (quoting State v. G.S.,

145 N.J. 460, 473 (1996)).

Having carefully reviewed the record, we are convinced

Kirce's testimony was not clearly capable of producing an unjust

result. R. 2:10-2; see also State v. Kemp, 195 N.J. 136, 156 (2008)

(finding that even where testimony may implicate "the concerns

interdicted by Bankston," a reversal is not required where the

totality of the circumstances leads to the conclusion that

admission of the evidence was harmless). Kirce's testimony that

he called Crimestoppers based on information he received from

Laisha does not logically support a conclusion that Laisha

implicated defendant in the commission of a crime or that she had

any knowledge concerning his involvement in any crime.

The jury was not presented with any evidence Laisha had any

knowledge about defendant's involvement in Feliciano's murder. She

was not present at the scene and there is no evidence she spoke

to anyone who was present. The evidence showed only that Laisha

spoke to Lord when he went to the apartment on two occasions

looking for defendant.

14 A-2321-14T4
 Moreover, there is no evidence showing Kirce knew the police

were searching for defendant prior to his conversation with Laisha.

In his challenged testimony, Kirce said only that based on the

information Laisha provided, he called Crimestoppers. The evidence

permitted only an inference that Laisha told Kirce the police were

searching for defendant, and Kirce, who knew defendant was at the

apartment, called Crimestoppers to report defendant's location.6

When considered in the context of the evidence, Kirce's

testimony about the actions he took based on information Laisha

provided relates solely to the search for defendant. Unlike the

testimony at issue in Bankston and Branch, Kirce's testimony did

not "permit[] the jury to draw the inescapable inference that a

non-testifying declarant provided information that implicated"

defendant in the commission of a crime, and did not "suggest[]

that some other person provided information that linked defendant

to the crime." Branch, supra, 182 N.J. at 351. To the contrary,

6
The same result applies even if we accept defendant's contention
that the jury could not be reasonably expected to honor the judge's
ruling striking Kirce's testimony that he discussed "the
situation" with Laisha and she said "a lady died in Elizabeth."
This testimony does not implicate defendant in the commission of
any crime but even if it did, it was harmless because there is no
evidence Laisha had any knowledge about the commission of the
murder or of defendant's involvement in the murder. In any event,
we presume the jury followed the court's instructions to strike
the testimony. State v. Smith, 212 N.J. 365, 409 (2012).

15 A-2321-14T4
Kirce's testimony suggested only what the jury knew from other

witnesses, that the police were searching for defendant. We

therefore do not find there is a reasonable doubt that admission

of the testimony led the jury to a result it otherwise might not

have reached. G.V., supra, 162 N.J. at 280.

Even assuming Kirce's testimony suggested defendant's

participation in a crime, there is an additional reason admission

of the testimony did not constitute plain error.7 Unlike in

Bankston, supra, 63 N.J. at 272-73, and Branch, supra, 182 N.J.

at 353, where the challenged testimony was capable of producing

an unjust result because there was little other evidence of guilt,

here there is substantial evidence of defendant's guilt beyond

Kirce's brief testimony. Gloria had known defendant for a very

long time, recognized him at the door, and immediately identified

7
Defendant argues the harmless error standard of review applies
because the challenge to Kirce's testimony was partially raised
below when defendant objected to Kirce's testimony that he and
Laisha discussed the situation and she said "a lady died in
Elizabeth." We disagree. The record shows the court sustained the
objection to the testimony and struck it. There was no objection
to the particular testimony challenged on appeal and, as such, the
plain error standard applies. R. 2:10-2; Branch, supra, 182 N.J.
at 353. In addition, we observe that because the harmless error
standard requires that we determine whether an error was clearly
capable of producing an unjust result, our decision here would be
unchanged under that standard. See State v. Macon, 57 N.J. 325,
337-38 (1971) ("[T]he same ultimate standard applies whether the
error was objected to below or whether the error was first claimed
upon appeal").

16 A-2321-14T4
him as the shooter. Gonzalez and Pena established that defendant

directed their travel to Gloria's home and that defendant went to

the door, stood in front of a woman, raised his hands, and a

gunshot was fired. Kirce testified defendant admitted that he shot

"one of the dude's aunt[s] where [the dude] live at." Kidanys

testified defendant showed him the gun and admitted to his motive

for the shooting, and that he rang a doorbell and shot the woman

that opened the door.

In sum, there was substantial evidence defendant murdered

Feliciano beyond Kirce's testimony that he called Crimestoppers

after speaking to Laisha. Kirce's testimony was therefore not

clearly capable of producing an unjust result. R. 2:10-2; Kemp,

supra, 195 N.J. at 153-54.

We also reject defendant's claim that Kirce's testimony

violated his right to confrontation. Defendant waived the claim

by failing to object to the testimony at trial. "The defendant

always has the burden of raising his Confrontation Clause

objection." Williams, supra, 219 N.J. at 99 (quoting Melendez-

Diaz v. Massachusetts, 557 U.S. 305, 327, 129 S. Ct. 2527, 2541,

174 L. Ed. 2d 314, 331 (2009)). "The right of confrontation, like

other constitutional rights, may be waived by the accused." Id.

at 98. A defendant is not required to assert a constitutional

right, and a defense attorney may choose as part of a reasonable

17 A-2321-14T4
defense strategy to refrain from objecting to testimony that may

be otherwise inadmissible because it violates a defendant's right

to confrontation. Id. at 99.

A failure to object to testimony that violates a defendant's

right to confrontation may not result in a waiver where the failure

"is so patently unreasonable and so clearly erroneous that no

rational counsel acting within the wide range of professional

norms would pursue such a course." Ibid. That is not the case

here. Kirce's challenged testimony added little to the State's

proofs at trial because it suggested only that he learned from

Laisha that the police were searching for defendant. The testimony

did not prejudice defendant because other witnesses established

that defendant had been identified as the shooter and that based

on that information, the police were searching for defendant.

"[G]enerally, a defendant must attempt to exercise his

confrontation right and object when necessary, if he wishes later

to claim that he was denied that right." Id. at 93. By failing to

do so here, defendant waived any claim Kirce's testimony violated

his right to confrontation.8 See id. at 102 (finding the defendant

8
Because we conclude that defendant waived his right to challenge
Kirce's testimony on Confrontation Clause grounds, it is
unnecessary to decide whether his challenge is also barred under
the invited error doctrine. Id. at 100; State v. A.R., 213 N.J.
542, 561-62 (2013). We note, however, that "[u]nder the invited

18 A-2321-14T4
waived his Confrontation Clause claim by failing to object to

challenged testimony at trial).

III.

We next consider defendant's argument that the court erred

by permitting Shaikh to testify concerning Wall's autopsy report.

Defendant asserts that because Shaikh did not perform the autopsy,

his reliance on Wall's report and testimony detailing the report's

findings constituted impermissible hearsay evidence and violated

his right to confrontation. Defendant interposed a hearsay

objection to the testimony at trial.9 We therefore consider his

error doctrine, 'trial errors that "were induced, encouraged or
acquiesced in or consented to by defense counsel ordinarily are
not a basis for reversal on appeal."'" State v. Munafo, 222 N.J.
480, 487 (2015) (quoting State v. A.R., 213 N.J. 542, 561 (2013)).
A defendant cannot agree to a particular instruction, "'and upon
adoption by the court, take his chance on the outcome of the trial,
and if unfavorable, then condemn the very procedure he sought and
urged, claiming it to be error and prejudicial.'" State v. Ramseur,
106 N.J. 123, 281-82 (1987) (citation omitted).
9
We reject the State's argument defendant waived his right to
challenge Shaikh's testimony on Confrontation Clause grounds
because defendant did not raise the issue prior to trial and during
trial objected only on hearsay grounds. State v. Wilson, 227 N.J.
534, 543-44 (2017); see also State v. Bass, 224 N.J. 285, 311
(2017) (explaining that although confrontation clause objections
are "best addressed before trial," they are not waived if raised
during a witness's testimony (quoting Williams, supra, 219 N.J.
at 102)). Like the defendant in Wilson, defendant not only
objected on hearsay grounds at trial, he also "alluded to an
inability to cross-examine" Wall, Wilson, supra, 227 N.J. at 543
(quoting State v. Wilson, 442 N.J. Super. 224, 235 n.4 (App. Div.
2015)), by asking, "Don't I have the right to cross-examine the
person who performed the autopsy?"

19 A-2321-14T4
contentions under the harmless error standard, R. 2:10-2, and must

reverse if we determine the purportedly erroneous admission was

clearly capable of producing an unjust result. State v. Scott, ___

N.J. ___, ___ (2017) (slip op. at 17).

In Bass, supra, 224 N.J. at 291-92, the Court held that under

certain circumstances "the State may present the testimony of a

qualified expert who has conducted independent observation and

analysis regarding an autopsy performed by a medical examiner who

is unavailable to testify at trial, without violating the

defendant's" right to confrontation. The testifying doctor is

permitted to testify "as an independent reviewer of the information

generated by the autopsy" based on a review of "autopsy

photographs" and other evidence. Id. at 319. The testifying doctor,

however, may not simply "parrot" the information in the autopsy

report without violating a defendant's confrontation rights. Ibid.

"[A] testimonial report that is not admitted into evidence can

engender a violation of the Confrontation Clause if that report

is 'integral' to the testimony of a substitute witness." Id. at

317 (quoting State v. Roach, 219 N.J. 58, 76-77 (2014), cert.

denied, ___ U.S. ___, 135 S. Ct. 2348, 192 L. Ed. 2d 148 (2015)).

Contrary to defendant's assertions, there were portions of

Shaikh's testimony that did not violate defendant's confrontation

rights. Shaikh explained that he conducted a review of the autopsy

20 A-2321-14T4
photographs, which showed Feliciano's internal and external

injuries, the gunshot wound, the entrance of the bullet at the

left side of Feliciano's chest, and the recovery of the bullet

within Feliciano's body. Based on his review of the photographs

and the autopsy and toxicology reports, he made an independent

finding that Feliciano died as the result of a gunshot wound to

the chest. This testimony was based on Shaikh's independent review

of the evidence and did not violate defendant's right to

confrontation. See id. at 319 (explaining that a substitute medical

examiner may provide an opinion based upon an independent review

of the evidence).

There were, however, portions of Shaikh's testimony where he

simply parroted Wall's autopsy report.10 Shaikh referred to the

autopsy report and testified concerning physical findings made by

Wall during the autopsy. Those portions of his testimony violated

defendant's confrontation rights. Id. at 316-20. We therefore must

consider whether the admission of those portions of his testimony

require reversal of defendant's convictions.

10
We reject the State's argument that Shaikh's testimony
concerning the autopsy report did not violate defendant's
confrontation rights because the report was not testimonial. See
id. at 316-17 (finding autopsy report was testimonial under the
"primary purpose test" where the autopsy was conducted during an
active police investigation of a homicide).

21 A-2321-14T4
 In determining whether admission of Shaikh's testimony

parroting Wall's report constituted harmless error, we consider

the importance of the testimony in the context of all of the

evidence presented at the trial. Id. at 308. The record shows

there was other substantial evidence demonstrating Feliciano died

from a gunshot wound to her chest. Separate from his parroting of

Wall's report, Shaikh testified that his own independent

evaluation of the evidence supported his conclusion Feliciano died

from a single gunshot wound. Other evidence established that

Feliciano was shot in the chest and died immediately thereafter.

Moreover, the cause of Feliciano's death was not an issue genuinely

disputed issue at trial. Instead, defendant argued only that the

State failed to establish beyond a reasonable doubt that he fired

the gun. Therefore, we are not convinced Shaikh's testimony, to

the extent it parroted Wall's report, was clearly capable of

producing an unjust result.

IV.

We last address defendant's claim that the court erred in its

response to a question posed by the jury during its deliberations.

The jury asked: "[c]an the defendant cause the victim's death by

instructing and leading everyone to the scene regardless of who

pulled the trigger[?]" The court conferred with counsel and the

22 A-2321-14T4
parties agreed without objection to the following response to the

jury's inquiry.

The answer to your question is no. Since the
defendant is charged with causing the death
of [] Feliciano himself, he cannot be found
guilty of causing [] Feliciano's death by
. . . instructing and leading everyone to the
scene regardless of who pulled the trigger.

If you are not convinced beyond a reasonable
doubt that it was [defendant] who caused the
death of [] Feliciano knowingly or purposely,
then you must find him not guilty.

However, if you are convinced beyond a
reasonable doubt that he did cause her death
and all the elements of either murder or
aggravated manslaughter have been proven by
the State beyond a reasonable doubt, then you
must convict the defendant.

Defendant argues for the first time on appeal that the court

erred in not instructing the jury on principal and accomplice

liability, thereby depriving defendant of an opportunity for a

verdict on the lesser-included offense of aggravated manslaughter

or a potential acquittal.

When a defendant fails to object to a jury charge at trial

or a response to a jury question during deliberations, we review

for plain error, and "disregard any alleged error 'unless it is

of such a nature as to have been clearly capable of producing an

unjust result.'" State v. Funderburg, 225 N.J. 66, 79 (2016)

(quoting R. 2:10-2). Plain error, in the context of a jury charge,

23 A-2321-14T4
is "[l]egal impropriety in the charge prejudicially affecting the

substantial rights of the defendant and sufficiently grievous to

justify notice by the reviewing court and to convince the court

that of itself the error possessed a clear capacity to bring about

an unjust result." State v. Camacho, 218 N.J. 533, 554

(2014) (alteration in original) (quoting State v. Adams, 194 N.J.

186, 207 (2008)).

Appropriate and proper jury charges, including instructions

on lesser-included offenses, are essential to a fair trial. State

v. Savage, 172 N.J. 374, 387 (2002); see also State v. Gonzalez,

444 N.J. Super. 62, 70 (App. Div.) (explaining that jury

instructions play a critical role in criminal prosecutions),

certif. denied, 226 N.J. 209 (2016). However, a defendant's

counsel's failure to object to jury instructions not only "gives

rise to a presumption that he did not view its absence as

prejudicial to his client's case," State v. McGraw, 129 N.J. 68,

80 (1992), but is also "considered a waiver to object to the

instruction[s] on appeal." State v. Maloney, 216 N.J. 91, 104

(2013).

"When a defendant may be found guilty either as a principal

actor or as an accomplice, the jury should be instructed about

both possibilities." State v. Roach, 146 N.J. 208, 223 (1997). The

judge may charge the jury on accomplice liability even if the

24 A-2321-14T4
indictment did not expressly allege accomplice liability as long

as there is a rational basis in the evidence for accomplice

liability. State v. Hakim, 205 N.J. Super. 385, 388 (App. Div.

1985). The rational basis standard is a low threshold, requiring

"more than a mere 'scintilla of evidence.'" State v. Harvey, 151

N.J. 117, 149 (1997) (quoting State v. Mejia, 141 N.J. 475, 489

(1995)), cert. denied, 528 U.S. 1085, 120 S. Ct. 811, 145 L. Ed.

2d 683 (2000).

"[T]he obligation to provide the jury with instructions

regarding accomplice liability arises only in situations where the

evidence will support a conviction based on the theory that a

defendant acted as an accomplice." State v. Crumb, 307 N.J. Super.

204, 221-22 (App. Div. 1997), certif. denied, 153 N.J. 215 (1998).

"When the State's theory of the case only accuses the defendant

of being a principal, and a defendant argues that he was not

involved in the crime at all, then the judge is not obligated to

instruct on accomplice liability." Maloney, supra, 216 N.J. at

106.

Applying these principals, we find no error, let alone plain

error, in the court's response to the jury question. Defense

counsel never requested a jury charge on accomplice liability and

agreed to the judge's response to the question. Moreover, there

was not a scintilla of evidence supporting a charge of accomplice

25 A-2321-14T4
liability. Harvey, supra, 151 N.J. at 149. The State's theory of

the case was that defendant shot Feliciano based on gang-related

retaliation against Rios and Rios's family. There was no evidence

that anyone other than defendant was the shooter.

Defendant did not testify or present any witness testimony.

In summation, defense counsel argued that the State put on an

incomplete case where no witness saw the gun allegedly used in the

shooting and the gun was not recovered. Counsel also argued each

witness had a different story and that defendant had no motive to

kill Feliciano based on gang-related issues with Rios. In other

words, defendant's theory was that he did not commit the crime at

all. The court therefore was not obligated to sua sponte instruct

the jury on accomplice liability in response to the jury question.

Maloney, supra, 216 N.J. at 106.

Defendant is also incorrect that the court's response to the

jury question deprived him of the possibility of being convicted

of the lesser-included offense of aggravated manslaughter. The

court charged the jury on the lesser-included offense of aggravated

manslaughter, and reminded the jury it could convict defendant of

either murder or aggravated manslaughter, or acquit defendant, in

its response to the jury's question. The judge ensured there was

no risk that the jury convicted defendant simply because it was

called upon to reach an "all-or-nothing" determination on the

26 A-2321-14T4
murder charge. See State v. Short, 131 N.J. 47, 54 (1993)

(explaining where jurors are not instructed on a lesser-included

offense, they "may be tempted to find defendant guilty of a crime

he or she did not commit simply because it prefers to convict on

some crime rather than no crime at all").

We have considered defendant's remaining arguments and find

they are without merit sufficient to warrant discussion in a

written opinion. R. 2:11-3(e)(2).

Affirmed.

27 A-2321-14T4