NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0492-11T4
A-1593-12T4
STATE OF NEW JERSEY,
Plaintiff-Respondent, APPROVED FOR PUBLICATION
NOVEMBER 29, 2017
v.
APPELLATE DIVISION
ROLANDO TERRELL,
Defendant-Appellant.
_______________________________
Submitted September 17, 2015 - Decided May 3, 2016
Before Judges Lihotz, Fasciale and Higbee.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Indictment Nos.
09-07-2029 and 09-07-2032.
Joseph E. Krakora, Public Defender, attorney
for appellant (Alison S. Perrone, Designated
Counsel, on the brief).
Carolyn A. Murray, Acting Essex County
Prosecutor, attorney for respondent (Lucille
M. Rosano, Special Deputy Attorney General/
Acting Assistant Prosecutor, on the brief).
PER CURIAM
Defendant Rolando Terrell appeals from convictions under
two indictments. The first, Indictment No. 09-07-2029, charged
him with numerous crimes regarding the September 8, 2008 arson,
robbery, and murders of four victims. Co-defendant Lester Hayes
was charged in the first fifteen counts of this indictment. 1 The
second, Indictment No. 09-07-2032, charged defendant with the
single count of second-degree possession of a weapon by a
certain persons not to possess weapons, N.J.S.A. 2C:39-7(b).
During defendant's trial, Hayes, who pled guilty pursuant
to a negotiated plea agreement, testified on behalf of the State
as to the events underlying the charges against defendant.
Following trial, a jury acquitted defendant of some crimes,
convicted him of others, and hung on the counts charging murder
and one weapons offense. Immediately thereafter, a second trial
was held, limited to the certain persons offense in the separate
indictment; the jury found defendant guilty. Defendant was then
sentenced. Defendant appealed from the final judgment of
1
An Essex County Grand Jury charged defendant, under
Indictment No. 09-07-2029, with: second-degree conspiracy to
commit robbery, N.J.S.A. 2C:5-2 (count one); two counts of
first-degree robbery, N.J.S.A. 2C:15-1 (counts two and three);
four counts of first-degree knowing and/or purposeful murder,
N.J.S.A. 2C:11-3(a)(1) and (2) (counts four, five, six and
seven); four counts of first-degree felony murder, N.J.S.A.
2C:11-3(a)(3) (counts eight, nine, ten and eleven); second-
degree unlawful possession of a handgun on September 8, 2008,
N.J.S.A. 2C:39-5(b) (count twelve); second-degree possession of
a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count
thirteen); second-degree conspiracy to commit aggravated arson,
N.J.S.A. 2C:5-2 and 2C:17-1(a)(1) and (2) (count fourteen);
second-degree aggravated arson, N.J.S.A. 2C:17-1(a)(1) and (2)
(count fifteen); third-degree defacing a handgun, N.J.S.A.
2C:39-9(e) (count sixteen); and second-degree unlawful
possession of a handgun, N.J.S.A. 2C:39-5(b) (count seventeen).
Count seventeen was severed at trial.
2 A-0492-11T4
conviction and argued the sentence imposed was excessive. His
challenges are presented under Docket No. A-0492-11.
While this appeal was pending, the State retried defendant
on the murder and weapons defacement charges. Defendant was
convicted of the four murder charges and acquitted of the
weapons charge. Defendant appeals from the convictions and the
sentences imposed for these crimes. The challenges raised are
presented under Docket No. A-1593-12.
We calendared the matters back-to-back and address the
issues raised in both appeals in one opinion. Following our
review of the arguments, in light of the record and applicable
law, we affirm.
I.
These facts are taken from the trial records. Initially,
we recite the facts leading to defendant's indictment, followed
by the results of the trial and retrial. Next, we separately
discuss defendant's arguments challenging his convictions.
Additional facts specific to defendant's arguments raised on
appeal will be included in the discussion of each argument.
A.
Michael Fields, his daughter, his girlfriend (Fields'
girlfriend), her daughters and grandchild lived at a residence
on Columbia Avenue in Irvington. Fields, an avowed member of a
3 A-0492-11T4
gang, was a drug dealer and worked with gang associates James
Williams and Kevin Wigfall. Fields openly stated he kept drugs
and sales proceeds in his home.
Although Fields was imprisoned, he remained in contact with
his girlfriend, Williams and Wigfall. Fields also knew
defendant. Five days prior to the September 8, 2008 murders,
Fields called his home and defendant answered the phone.
Other witnesses confirmed defendant visited the Columbia
Avenue residence prior to the murders and fire. One resident of
the home (the survivor) testified regarding defendant's visit in
early August, accompanied by Williams and Wigfall, and again
approximately two weeks before the murders. During this latter
meeting Fields' girlfriend, the survivor, and defendant sat in a
1997 red Jeep Grand Cherokee. Defendant questioned Fields'
girlfriend, who related a threatening telephone call she
received and stated she was considering moving.
On the morning of September 8, 2008, Hayes was waiting at a
bus stop when defendant, driving a red Jeep, stopped and
motioned him to get in the vehicle. Hayes knew defendant from
prison and believed defendant was offering him a ride to his
mother's home. Once in the vehicle, defendant told Hayes, "we
getting [sic] ready to go do this robbery now." Hayes told
defendant he was not interested, but defendant replied, "Nah, we
4 A-0492-11T4
getting [sic] ready to do it right now." Hayes understood he
was to accompany defendant.
The pair drove to and parked across the street from the
Columbia Avenue apartment. Defendant told Hayes he intended to
rob the home, admitting he knew "the girl that lives [t]here,"
and knew her boyfriend was in prison. Defendant stated:
"Everything is going to be all right, Mu. You know, we going to
go in here [sic], and get this money, and get this shit, and
come out, and it's going to be real easy."
Defendant handed Hayes an empty Corona bottle. Next, he
retrieved a gas container from the rear of the Jeep, took the
bottle, filled it with liquid, put a sock around the top and
handed the filled beer bottle back to Hayes. Defendant also
showed Hayes a loaded black automatic handgun.
The pair exited the Jeep and headed to Fields' girlfriend's
apartment. As defendant followed Hayes up the stairs, he placed
the beer bottle in Hayes' back pocket and covered the bottle
with Hayes' shirt. Fields' girlfriend answered the door and
recognized defendant. Defendant introduced Hayes as "Uncle Mu"
and Fields' girlfriend allowed them to enter. Once inside,
Hayes described defendant's interaction with Fields' girlfriend
this way:
[Defendant] turned and asked, you know,
like, "Is everything still all right in
5 A-0492-11T4
here," you know, inquiring about, you know,
where's the drugs at, and stuff, if they're
still here, and that's when it took a turn,
because she was like, "Nah, they came and
got it last night, yesterday," or whatever,
and he was like, "Nah, it's still here,"
like, he knew it was still in the house, and
she was trying to tell him, like, no, it
wasn't in there, and they . . . kept going
back and forth, and he's, like, "I know it's
in here," and she's like, "Nah, nah, it's
not in here, it's not in here."
Fields' girlfriend became hysterical and defendant grew more
aggressive and insistent drugs were in the home. As the
argument continued, defendant "reached behind him and pulled the
gun out, and put it on her neck, and was like, 'I know it's in
here. Bitch, I know it's in here.'" Hayes explained defendant
continued to push Fields' girlfriend and hold the gun at her
neck, demanding she turn over the drugs.
[A]ll of a sudden . . . [w]hen [defendant]
pushed her for the last time, she backed up,
and reached and grabbed something, like a
little bag, like a billfold or something
like that, and said, "Here, take it." She
threw – she must have threw [sic] it at him,
because it bounced, and it hit him, and it
fell, and it was a little – some money. It
just hit the floor.
Defendant retrieved the object.
Hayes believed defendant obtained what he wanted and moved
to exit the residence. Defendant grabbed the beer bottle from
Hayes' rear pocket. Hayes heard defendant say he was "tired of
you bitches." He turned and saw defendant pull the sock from
6 A-0492-11T4
the bottle and splash its contents throughout the room. As
Hayes left the house he heard a gunshot. He walked across the
street and recalled hearing a total of four or five gunshots.
When he saw defendant exit, Hayes saw smoke coming from the
windows of the home.
The survivor, who had described the earlier meeting held in
the Jeep with defendant and Fields' girlfriend, awoke and heard
a man's voice saying "'Where's it at? Where's it at? You know
what I'm looking for.'" She told police she heard only one male
voice, which "wasn't old, and it wasn't young," perhaps
belonging to someone in his twenties or thirties. She described
the voice as "anxious," and sounded like the man "was stopped
up, like he had a cold." When interviewed that day, she
believed the voice was familiar but she was unable to identify
the person; she believed she could identify the voice if she
heard it again because she heard the man talking throughout the
incident.
During the altercation, the survivor hid in her closet and
attempted to call for help.2 When she first tried to escape, she
stopped after she heard the front door close. However, when
smoke alarms sounded and smoke from the living room filled the
2
The initial 9-1-1 call was disconnected and repeated calls
were made, all of which were played for the jury.
7 A-0492-11T4
apartment, she grabbed her young nephew, ran out the back door
and began screaming for help.
As Hayes stood across the street, he saw defendant leave
the apartment and enter the Jeep. Defendant picked up Hayes and
the two drove toward East Orange. Defendant told Hayes, "'I
don't need no codefendants, Mu.'" Defendant told Hayes he
wanted to go to Brooklyn, New York. Hayes agreed to get him
there. As they drove, defendant pointed to a tattoo on his neck
and Hayes knew defendant was a gang member. Defendant told
Hayes: "'Yeah, Mu, I love this shit right here, I'd die for
it,'" which Hayes realized meant he "couldn't tell on him,
because he was part of the . . . gang, and they'll come get me
if I did, you know, 'cause they – they're a vicious group
. . . ." Hayes testified he felt nervous, but did not want
defendant to suspect he might inform authorities. While stopped
in traffic, defendant told Hayes to toss the near empty Corona
bottle from the Jeep window; defendant also threw out the sock.
During the drive, Hayes received several calls from his
girlfriend. For defendant's benefit, he pretended the calls
were from his mother and informed defendant he was late, as he
promised his mother he would help her get to work. To avoid
revealing his home address, Hayes asked defendant to stop at a
location other than his residence. As he exited the Jeep,
8 A-0492-11T4
defendant handed Hayes $200, repeating: "'You know, I don't
need no codefendants now.'" Hayes took the money "so . . . it
wouldn't look like, you know, like, I would tell on him or
anything." Hayes assured defendant: "'Yeah, all right, Man,
I'll see you later . . . .'"
The next day, after consulting with his attorney, Hayes
voluntarily surrendered to police. He did not know defendant's
name, but described him and chose defendant's photograph from an
array. He also made an in-court identification.
The State also presented evidence from neighbors. One, who
was across the street, heard two gunshots and observed "two or
three" Afro-American men running from a residence and enter a
red "truck."3 The witness reported the fire located in the house
across the street from where the red vehicle was parked. The
following day, the witness was interviewed by police and chose
defendant's photograph from an array, identifying him as one of
the men observed running from the house after gunshots were
heard. During trial, the witness made an in-court
identification of defendant and also identified a photograph of
the red Jeep, stating it was the "red truck" she saw parked on
Columbia Avenue on September 8, 2008. On cross-examination, the
3
The witness did not testify during defendant's retrial.
9 A-0492-11T4
witness advised overhearing another neighbor refer to one of the
men as "Mu."
A different neighbor described seeing an orange Jeep at 7
a.m. parked on Columbia Avenue on the morning of September 8,
2008, as he exited his driveway. The windows were tinted and he
could tell only that someone was inside the vehicle.
Firefighters were dispatched between 7:40 and 7:50 a.m.
Fields' girlfriend and another were dead, after being shot in
the head; two others, although shot in the head, were alive;
however, they later succumbed to their injuries.
On September 10, 2008, while relating the events to her
boyfriend, the survivor suddenly realized she recognized the
man's voice she heard on the morning of the shootings. The
following day police brought her in for additional questioning.
In a taped statement, she told police she was "a hundred percent
positive that [she] knew who it was," naming defendant, whom she
knew as "Unc." She was shown photographs and identified
defendant's picture as "Unc." She also identified photographs
of Williams and Wigfall. At trial, the survivor insisted she
initially told police she could recognize the voice, but
conceded that remark was not in her September 8, 2008 statement.
Essex County Prosecutor's Office Detective Christopher
Smith testified regarding his involvement in law enforcement's
10 A-0492-11T4
investigation, beginning on the morning of September 8, 2008.
He confirmed he first spoke to the survivor that morning and she
told him she recognized the voice, which was familiar, but was
unable to identify the man. He also confirmed the survivor
subsequently identified defendant as the one she heard screaming
at Fields' girlfriend. Police obtained a search warrant for the
Jeep and an arrest warrant for defendant. Defendant surrendered
to police on September 13, 2008.
Detective Kenneth Dougherty was called by the State to
testify regarding an unrelated Essex County Prosecutor's Office
investigation conducted in conjunction with the Drug Enforcement
Administration (DEA). Police monitored an authorized wiretap of
the phone of Bengie Davis, who engaged in calls with defendant,
Williams, and Wigfall, which implicated knowledge of or
involvement in the murders.
Davis testified, prior to September 8, 2008, he met
defendant in a Newark bar, where the two were drinking. When
defendant began "acting out of control" and firing a gun in the
air, Davis took the weapon and kept it at his residence. He
described the weapon as a black nine-millimeter handgun with a
red dot on its side. Davis said defendant "just kept calling
me, harassing me for it," meaning his gun. Specifically,
defendant called Davis on September 7, 2008, when Davis told him
11 A-0492-11T4
he was "inpatient [sic] as hell." Defendant told Davis he was
"meaning . . . to come through and get it," which Davis
interpreted to mean defendant would be coming to get the gun.
Davis confirmed defendant came to his apartment on September 7,
2008, and Davis returned the gun. Also, Davis identified
defendant's voice in calls he received that were played for the
jury.4
Davis further admitted he knew Williams and Wigfall and
they were fellow gang members. He also knew defendant drove a
Jeep Cherokee, which he believed was owned by Williams.
Finally, he acknowledged he was testifying as a condition of a
negotiated plea agreement resolving narcotics trafficking
charges.
Police recovered an operable defaced Hi-Point nine-
millimeter handgun from another person. Four spent shell
casings recovered from Columbia Avenue were determined to have
been fired from the handgun, confirming it was the murder
4
Among the wiretapped recordings played for the jury were:
(1) session 2050: a September 7, 2008 call at 10:03 p.m. from "a
gentleman who referred to himself as Uncle Rat in one of the
prior sessions, and . . . Davis"; (2) session 2051: a September
7, 2008 call at 10:05 p.m., between Davis and someone
identifying himself as Uncle Rat; (3) session 2052: a September
7, 2008 call at 10:08 p.m. between Davis and someone identifying
himself as Uncle Rat; (4) session 2057: a September 7, 2008 call
at 10:24 p.m., between Davis and "Mizi," who was Williams; (5)
session 2058: a September 7, 2008 call at 10:25 p.m., between
Williams and Davis.
12 A-0492-11T4
weapon. Davis testified this nine-millimeter handgun was the
same gun with the red dot he had taken from and later returned
to defendant on September 7, 2008.
The State presented expert testimony regarding the fire,
its origination and cause. A forensic chemist, qualified as an
expert in fire debris analysis, identified the presence of
volatile substances on the victims' clothing, the clothing Hayes
wore on September 8, 2008, and in the Jeep. The State also
called a street gang expert.
Defendant presented testimony from a private investigator,
who had measured distances from the Columbia Avenue address to
the testifying neighbor's homes. Although a pretrial ruling
permitted a defense expert to testify in specified areas
regarding the accuracy and reliability of voice identification
evidence, defendant called no other witnesses and offered no
documents.
On April 12, 2011, the jury rendered its verdict after
considering the evidence presented over fifteen days of trial.
The jury acquitted defendant of first-degree robbery of one
victim (count three) and second-degree aggravated arson (count
fifteen), but convicted him of first-degree robbery of Fields'
girlfriend (count two) and the second-degree offenses of
conspiracy to commit robbery (count one), unlawful possession of
13 A-0492-11T4
a handgun (count twelve), possession of a handgun for an
unlawful purpose (count thirteen), and conspiracy to commit
arson (count fourteen). The jury was unable to render a verdict
on all murder charges (counts four through eleven), as well as
possession of a defaced firearm (count sixteen). Finally, in a
separate trial, the same jury convicted defendant of the
separately charged certain persons not to possess weapons
offense.
At sentencing, on the State's motion, the judge determined
defendant was a habitual offender. After merger, he imposed a
life term of imprisonment on count two subject to the parole
ineligibility period of the No Early Release Act (NERA),
N.J.S.A. 2C:43-7.2; a concurrent twenty-year term, with a ten-
year period of parole ineligibility on count thirteen; a
concurrent ten-year term subject to NERA and a mandatory five-
year parole supervision on count fourteen; and on the possession
of a weapon by certain persons not to possess weapons conviction
in the separate indictment, a consecutive ten-year term, subject
to a five-year parole ineligibility period. Defendant filed an
appeal from these convictions (Docket No. A-0492-11).
Defendant was re-tried by a jury on the four murder, four
felony murder and the firearm defilement charges (counts four
14 A-0492-11T4
through eleven and sixteen). The State's evidence was largely
identical to what was presented in the first trial.
On July 11, 2012, the second jury found defendant guilty of
all eight homicide counts, but acquitted him on the weapons-
defilement count. After merger, he was sentenced to four
consecutive seventy-five-year terms, subject to NERA, and five
years of parole supervision upon release. The sentences were
ordered to be served consecutively to the life sentence imposed
on the initial conviction.5 Defendant appealed (Docket No. A-
1593-12).
B.
On appeal defendant raises several issues for review.
First, in appealing his initial conviction, docketed at A-0492-
11, he argues:
POINT ONE
THE IMPROPER EXCLUSION OF EXPERT TESTIMONY
TO ASSIST THE JURY IN EVALUATING THE
RELIABILITY OF CRITICAL VOICE IDENTIFICATION
EVIDENCE REQUIRES THE REVERSAL OF
DEFENDANT'S CONVICTIONS.
POINT TWO
THE GANG EXPERT EVIDENCE IN THIS CASE WAS
IRRELEVANT, PREJUDICIAL AND INADMISSIBLE,
THEREBY DEPRIVING DEFENDANT OF HIS RIGHT TO
A FAIR TRIAL.
5
The State moved to dismiss count seventeen, which was
granted.
15 A-0492-11T4
POINT THREE
DEFENDANT'S ROBBERY CONVICTION MUST BE
VACATED BECAUSE GIVEN THE STATE'S FAILURE TO
REQUEST AN ACCOMPLICE LIABILITY CHARGE, THE
JURY QUESTIONS DURING DELIBERATIONS, AND THE
PARTIAL VERDICT, IT IS LIKELY THAT THE JURY
IMPROPERLY CONVICTED DEFENDANT OF ROBBERY AS
AN ACCOMPLICE.
Second, in appealing his initial conviction on retrial, docketed
at A-1593-12, defendant argues:
POINT ONE
SINCE THE JUROR EXCUSED DURING DELIBERATIONS
WAS NEITHER ILL NOR UNABLE TO CONTINUE UNDER
[RULE] 1:8-2(d), AND THE JURORS HAD ALREADY
REACHED AN ADVANCED STAGE OF DELIBERATIONS,
HER REMOVAL AND THE COURT'S REFUSAL TO
DECLARE A MISTRIAL VIOLATED DEFENDANT'S
RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL
BY AN IMPARTIAL JURY. U.S. CONST. AMENDS.
V, VI, XIV; N.J. CONST. (1947) ART. I, [¶¶]
1, 9, 10.
POINT TWO
THE GANG EXPERT EVIDENCE IN THIS CASE WAS
IRRELEVANT, PREJUDICIAL AND INADMISSIBLE,
THEREBY DEPRIVING DEFENDANT OF HIS RIGHT TO
A FAIR TRIAL.
POINT THREE
PROSECUTORIAL MISCONDUCT DEPRIVED DEFENDANT
OF HIS RIGHT TO A FAIR TRIAL.
POINT FOUR
EXPERT TESTIMONY PERTAINING TO THE CHEMICALS
TOLUENE AND D5 WAS IRRELEVANT AND
MISLEADING, AND THEREFORE, SHOULD NOT HAVE
BEEN ADMITTED AT TRIAL.
POINT FIVE
DEFENDANT IS ENTITLED TO A NEW TRIAL BASED
ON THE STATE'S DISCOVERY VIOLATION.
16 A-0492-11T4
We will address these issues seriatim. Where appropriate,
we will include additional factual context and combine similar
matters.
II.
A.
Defendant asserts several arguments challenging evidentiary
determinations made by the trial judge. Specifically, defendant
cites as error: (1) the exclusion of defense expert testimony
evaluating the reliability of voice identification evidence; (2)
the admission of what he characterizes as the State's
prejudicial, irrelevant gang expert evidence; and (3) the
admission of the State's misleading expert testimony pertaining
to the chemicals Toluene and D5.
Generally, when reviewing the admission or exclusion of
evidence, appellate courts afford "[c]onsiderable latitude" to a
trial judge's determination, examining "the decision for abuse
of discretion." State v. Kuropchak, 221 N.J. 368, 385 (2015)
(alteration in original) (quoting State v. Feaster, 156 N.J. 1,
82 (1998), cert. denied, 532 U.S. 932, 121 S. Ct. 1380, 149 L.
Ed. 2d 306 (2001)); see also State v. Jenewicz, 193 N.J. 440,
456 (2008) (stating "the abuse-of-discretion standard" is
applied "to a trial court's evidentiary rulings under Rule
702"). Importantly, "[u]nder th[is] standard, an appellate
17 A-0492-11T4
court should not substitute its own judgment for that of the
trial court, unless 'the trial court's ruling was so wide of the
mark that a manifest denial of justice resulted.'" Kuropchak,
supra, 221 N.J. at 385-86 (quoting State v. Marerro, 148 N.J.
469, 484 (1997)).
Expert testimony is admissible if it meets
three criteria:
(1) the intended testimony must
concern a subject matter that is
beyond the ken of the average
juror; (2) the field testified to
must be at a state of the art such
that an expert's testimony could
be sufficiently reliable; and (3)
the witness must have sufficient
expertise to offer the intended
testimony.
[State v. Henderson, 208 N.J. 208, 297
(2011) (quoting Jenewicz, supra, 193 N.J. at
454).]
When considering proffered expert testimony, the trial
court exercises discretion in determining "[t]he necessity for,
or propriety of, the admission of expert testimony, and the
competence of such testimony." State v. Zola, 112 N.J. 384, 414
(1988), cert. denied, 489 U.S. 1022, 109 S. Ct. 1146, 103 L. Ed.
2d 205 (1989). "The qualifications of an expert and the
admissibility of opinion or similar expert testimony are matters
left to the discretion of the trial court." State v. McGuire,
419 N.J. Super. 88, 123 (App. Div.) (citing State v. Torres, 183
18 A-0492-11T4
N.J. 554, 572 (2005)), certif. denied, 208 N.J. 335 (2011);
State v. Summers, 176 N.J. 306, 312 (2003).
Finally, "[t]he party offering the evidence has the burden
of proof to establish its admissibility." Torres, supra, 183
N.J. at 567.
The proponent of expert testimony must
demonstrate that it would "enhance the
knowledge and understanding of lay jurors
with respect to other testimony of a special
nature normally outside of the usual lay
sphere." State v. Kelly, 97 N.J. 178, 209
(1984) (quoting State v. Griffin, 120 N.J.
Super. 13, 20 (App. Div. 1972)). In
addition, the proponent must demonstrate
that the expert's testimony would be
reliable. Id.
[State v. J.Q., 252 N.J. Super. 11, 25 (App.
Div. 1991), aff'd 130 N.J. 554 (1993)).]
1.
On appeal, defendant does not contest the denial of his
Wade challenges.6 Rather, defendant sought to introduce expert
testimony from Steven Penrod, Ph.D., a research psychologist and
licensed attorney, identifying factors affecting the reliability
of what he termed "earwitness" identification. Defendant
6
A separate Wade hearing was conducted to examine whether
police identification procedures undergirding the six
identification witnesses suffered from impermissible
suggestibility. See United States v. Wade, 388 U.S. 218, 87 S.
Ct. 1926, 18 L. Ed. 2d 1149 (1967). Specifically, the judge
considered defendant's challenges to the reliability of the
survivor's testimony regarding her recognition of the voice she
heard yelling at her mother on the morning of the murders.
19 A-0492-11T4
proffered his expert would inform the jury of relevant social
science studies and experiments conducted by others regarding
the potential for misidentification, designed to aid evaluation
of the reliability of the survivor's voice recognition
testimony.
Following an N.J.R.E. 104 hearing to discern the
admissibility of the expert's proffered testimony, the judge, in
a written opinion, reviewed each of the eleven areas set forth
in Dr. Penrod's report.7 The judge concluded the expert's
opinion was admissible in part to address the scientific
evidence concerning factors affecting the accuracy of
identifications. The judge determined the limits of
admissibility, deeming certain subjects inadmissible for reasons
including: the expert was found not qualified to address the
area; the testimony risked misleading the jury; the concepts
related matters of common sense; and the opinion tended to tread
on the jury's credibility determinations.
Defendant argues "the limited nature of testimony permitted
under the [c]ourt's ruling" neutralized the effectiveness of Dr.
Penrod as an expert and amounted to reversible error. We are
not persuaded.
7
The report is not included in the appellate record.
20 A-0492-11T4
Reviewing whether the expert's proffered voice recognition
testimony was admissible, the trial judge examined the areas Dr.
Penrod discussed. First, the judge disallowed testimony
designed to attack a witness's credibility, concluding the
latter subject rested solely within the province of the jury.
The inclusion of testimony directed to the credibility of other
witnesses is not permitted. Henderson, supra, 208 N.J. at 297
("[E]xperts may not opine on the credibility of a particular
eyewitness."). The judge did not suggest, nor do we infer, Dr.
Penrod offered an opinion on whether the survivor's recognition
was accurate.8
Next, the judge determined Dr. Penrod was permitted to
testify regarding the relationship of stress and perception, and
specifically address the effect on a witness experiencing
stress, extreme duress, or danger. The judge found the
information would aid the jurors and highlight flaws with the
commonly held belief that a person's ability to perceive is
heightened under highly stressful circumstances. However, he
disallowed testimony regarding voice recognition because Dr.
8
Among the areas of Dr. Penrod's asserted expertise was "a
variety of jury issues," including "specialized issues on jury
decision making," which amounted to sixty percent of his
research grant funding. We determine the judge's opinion was
directed to testimony, which at times, related to the influence
of a witness' statements. These were correctly found
inadmissible.
21 A-0492-11T4
Penrod never offered an opinion, but only reviewed published
research with which he was familiar. As the judge noted, Dr.
Penrod "did not provide his own analysis or expertise."
Further, Dr. Penrod related only a "minimal recitation of the
facts and the process underlying the research" he reviewed and
acknowledged some research did not reflect the identification
circumstances presented at trial. Thus, the judge found the
expert could not testify on the issue because the expert's
opinion was not validated by his reasoning or understanding of
the underlying methodology of others as applied to the facts at
hand. The judge concluded such testimony "would present a risk
of misleading the jury."
Dr. Penrod was also permitted to opine on the relationship
of a witness's confidence or level of certainty in making the
identification and its accuracy. However, he was excluded from
testifying regarding the impact of subsequent events as
affecting witness confidence because the issue was "a matter of
common sense."
Dr. Penrod next discussed the small body of research,
although he did not name the researcher, suggesting when people
view a face and a voice simultaneously the chance of
misidentification increases. The judge disallowed this
testimony, noting the doctor "did not apply his own analysis or
22 A-0492-11T4
expertise" on the issue, but "merely repeated the results of the
other researcher's studies" and the manner in which the study
was conducted was not described. The judge concluded the expert
"was unqualified" in this area and his "testimony would present
a risk of misleading the jury."9 Similarly, regarding
"unconscious transference," the act of transferring one person's
identity to another "from a different setting, time or context,"
the judge found Dr. Penrod did not apply his analysis or
expertise to the research he reviewed, and his comments would
risk misleading the jury.
The judge also found inadmissible opinion regarding: an
individuals' ability to estimate duration of events; the idea
that identifications are at times inaccurate; concepts stating
the longer an individual hears a voice and alterations in the
speaker's tone increases the accuracy of the identification; the
fact that other competing voices overlaid with a speaker's makes
identification more difficult; and the longer the delay
following an event, the less accurate the subsequent
identification. All of these concepts were determined to be
9
The suggestion the survivor viewed defendant's face when in
his company two weeks earlier is not in the record. The
survivor only testified during this encounter she sat in the
back seat of the Jeep while defendant sat in the front seat.
23 A-0492-11T4
within an average juror's common knowledge and capable of
evaluation without need of an expert opinion.
Finally, on reconsideration, in light of a recently
released special master's report presented to assist the Court's
review in Henderson, the trial judge considered two additional
areas sought to be presented by Dr. Penrod. First, in light of
the survivor's testimony, the judge concluded the expert could
discuss the effect on identification when a witness is told by
police a suspect was apprehended, conditioned on his
demonstration of expertise. Second, the trial judge recognized
"jurors tend to underestimate the importance of the memory
retention interval." However, he noted Dr. Penrod's testimony
stated the "concept of memory decay falls within the area of
common sense." Consequently, the judge declined to disturb his
prior ruling. Defendant chose not to call Dr. Penrod at trial.10
10
In the event of a Wade hearing, the accuracy of eyewitness
identification, particularly cross-racial identification, has
come under scrutiny. Much research has been devoted to
understanding factors influencing such identifications,
concentrating on encounters between strangers. In State v.
Henderson, Chief Justice Rabner, writing for the unanimous
Court, comprehensively discussed social science research as
presented by a special master's report. The Court reviewed in
detail various "system variables," within the State's control,
Henderson, supra, 208 N.J. at 248-61, and "estimator variables,"
representing factors outside the control of the criminal justice
system, affecting an eyewitness' ability to perceive and
remember an event. Id. at 261-72. Henderson provides insight
regarding research limited to eyewitness identifications and
(continued)
24 A-0492-11T4
Following our review, we note throughout his testimony Dr.
Penrod conflated eyewitness identification with voice
recognition, often making no differentiation between the two.
In much of his discussion, Dr. Penrod listed factors and
research affecting mistaken eyewitness testimony with little or
no correlation to how these concepts applied to voice
recognition or this matter. While the evidence perhaps
supported a theory that many identifications were mistaken, it
did not clearly explain what analysis a juror should undergo to
assess the State's voice identification evidence.
Also, Dr. Penrod's testimony, generally, did not reveal the
methodologies used by the researchers he cited to. This lack of
foundation undermined the validity of wholesale acceptance of
the restated conclusions. Rather than offering his reasoning
based on his experience and study regarding the impact on
memory, in turn affecting the accuracy of identification based
on sight or hearing, Dr. Penrod was described by the trial judge
as "parroting" the research.11 To the point, Dr. Penrod's
(continued)
courts now have the benefit of a legal standard for assessing
the suggestibility and reliability of eyewitness identification
evidence. Henderson announced a new rule of law and the Court
directed its holding be applied "prospectively." Id. at 220.
11
Dr. Penrod's testimony states the underlying nature of the
studies he referenced were contained in his report, a document
(continued)
25 A-0492-11T4
testimony did not explain exactly what he relied on for voice
recognition opinions. We do not know whether he referred to
empirical research, articles, or articles about research. In
the absence of this analysis we cannot agree the judge clearly
abused his discretion or embarked on a clear error in judgment
by limiting Dr. Penrod's expert opinion testimony. State v.
J.A.C., 210 N.J. 281, 295 (2012).
On some matters, Dr. Penrod was found not qualified to
present an opinion because he failed to use his knowledge and
experience, and apply the research to reach the opinion he
espoused. For example, when asked on cross-examination to
relate any details about the ten cases in which he had presented
voice recognition expert testimony, he could not. Moreover, he
(continued)
not provided by defendant on appeal. Nevertheless, Dr. Penrod's
testimony refers to voice recognition studies conducted by
researchers in Canada and the United Kingdom. One 1994 study by
Daniel Yarmey, Ph.D., involved voice identification from a voice
line-up, a circumstance not relevant here. Moreover,
introduction of Yarmey's conclusion would necessitate
introduction of the nature of his experiment as well as the
instructions given to his college student participants
performing the evaluation, along with possible factors impacting
their identification. This problem is also illustrated by S.
Pryke's study, also referred to by Dr. Penrod in his testimony.
Dr. Penrod described this only as "look[ing] at multiple aspects
of identification for one event[:] people who were able to
identify voice, face, and . . . clothing." The judge's decision
to exclude recitation of these conclusions as misleading because
they were unaccompanied by the expert's analysis of the studies
represents a proper exercise of discretion.
26 A-0492-11T4
had limited information on the manner in which some studies he
cited were conducted, and for others he recognized the
conditions that diverged considerably from the facts at hand.
For instance, a study determining how inaccurate voice
identifications occur when subjects listen to recorded voice
exemplars of strangers is significantly dissimilar to what
occurred here.
The weighing of the admissibility of expert testimony,
which is focused on factors that may produce unreliable
identifications, cannot be lightly undertaken. "By merely being
labeled as a specialist in eyewitness [or earwitness]
identifications, an expert has the broad ability to mislead a
jury through the 'education' process into believing a certain
factor in an eyewitness [or earwitness] identification makes
that identification less reliable than it truly is." State v.
Young, 35 So. 3d 1042, 1050 (La. 2010) (citing United States v.
Angleton, 269 F.Supp. 2d 868, 873-74 (S.D. Tex. 2003)).
"The necessity for, or propriety of, the admission of
expert testimony, and the competence of such testimony, are
judgments within the discretion of the trial court." State v.
Long, 119 N.J. 439, 495 (1990) (quoting Zola, supra, 112 N.J. at
414). "[A] trial judge has a responsibility to screen expert
evidence for reliability and to determine the total effects of
27 A-0492-11T4
proposed evidence, weighing its probative value against its
potential to (among other things) confuse the jury." United
States v. Schiro, 679 F.3d 521, 529 (7th Cir. 2012) ("If jurors
are merely told that voice identifications frequently are
mistaken, what are they to do with this information? The
defendant's lawyer will argue mistaken identification and jurors
told that such mistakes are common may be afraid to make their
own judgment."); see also Landrigan v. Celotex Corp., 127 N.J.
404, 414 (1992) (noting the key to the admissibility of a
particular expert's testimony is "the validity of the expert's
reasoning and methodology" and his or her ability to explain
scientific principles and to apply them in such a way that he or
she is not simply "self-validating"). We defer to the trial
judge, who had the benefit of reading Dr. Penrod's report, as
well as observing his testimony, and nevertheless found the
omission of analysis risked juror confusion.
We will not interfere with the conclusion that aspects of
Dr. Penrod's testimony were excluded because they involved
readily known and understood concepts, not aided by expert
opinion. Observations such as the longer a speaker hears a
voice, the more accurate a later identification is
"unremarkable." Angleton, supra, 269 F. Supp. 2d at 874 ("The
proposition that increasing the length of the recorded speech
28 A-0492-11T4
increases the accuracy of voice identification seems
intuitive."). So, too, the possible inaccuracy of a person's
time estimation and the decrease in accuracy when voices are
accompanied by other distractions are also self-evident and
intuitive. See People v. Clark, 833 P.2d 561, 614 (Cal. 1992)
("[I]t is a matter of common experience that the ability to
remember a perceptive experience diminishes over time. It is
also generally known that voices may sound slightly different
through different media."), cert. denied, 507 U.S. 993, 113 S.
Ct. 1604, 123 L. Ed. 2d 166 (1993). Identifications can be
imperfect. However, that alone will not render obsolete the
factual analyses necessary for the admission of expert evidence.
We agree with our dissenting colleague that a witness is
not disqualified because he did not conduct independent
research. See State v. Smith, 21 N.J. 326, 334 (1956) ("[A]n
expert may be qualified by study without practice."). Nor is
there dispute Dr. Penrod is a recognized expert in eyewitness
identification. However, an expert must provide the basis for
his opinion and relate it to the facts of the case. While Dr.
Penrod generally discussed concepts relating to the fallibility
of eyewitness identification and related research regarding the
reliability of voice recognition, oftentimes his focus was not
on the factors aiding analysis of voice recognition that fell
29 A-0492-11T4
outside of common experience. By merely reciting the findings
of other researchers, Dr. Penrod did not adequately relate his
specialized knowledge or analyze concepts he studied. Thus, his
opinion did not aid the jury's ability to distinguish factors
bearing on voice recognition.
We also agree the judge inartfully suggested "if the jury
were provided documentation of the study, they would be able to
come to the same conclusion." Following our review, we
understand this reference was directed to the underpinnings of
the research, found to be either sparsely mentioned or involved
circumstances differing from the voice identification of this
case. This is why our dissenting colleague's view as to the
learned treatise exception, Rule 803(c)(18), misses the mark.12
At its core, the purpose of the learned-treatise exception
is to allow statements from the treatise to be admitted as
12
The dissent argues:
[t]he trial judge made the inconsistent
finding that a distinguished expert in the
field of witness identification did not know
enough to explain the research, but the jury
would somehow know and understand it if
given the studies. Jurors not only cannot
be given the studies, but are instructed to
not use the internet or do their own
research as they cannot consider studies
that are not in evidence through the
testimony of an expert.
[Post (slip op. at 17).]
30 A-0492-11T4
substantive evidence, with the caveat that the expert be on the
stand to explain the studies he or she relies on and testify to
the methodology or assist in its application. See Jacober v.
St. Peter's Med. Ctr., 128 N.J. 475, 491 (1992) (explaining that
the learned-treatise exception is designed for "situations in
which an expert is on the stand and available to explain and
assist in the application of the treatise if desired"). Thus,
an expert may not be called for the sole purpose of qualifying a
treatise, nor may a treatise be introduced as a substitute for
expert testimony. Biunno, Current N.J. Rules of Evidence,
comment on N.J.R.E. 803(c)(18) (2015). Here, Dr. Penrod could
not adequately explain or assist in the application of the
studies he introduced on voice identification. Instead, he only
offered the conclusions without sufficient supporting
information to assist the jurors in analyzing the studies,
rendering that testimony inadmissible.
Importantly, the judge did not reject the underlying
scientific research regarding the accuracy of voice
identification as suggested by our dissenting colleague, see
post (slip op. at 3).13 Rather, the judge disallowed testimony
13
We consider our dissenting colleague's view as suggesting
the trial judge found the expert's opinion on earwitness
testimony unreliable, a subject warranting de novo review. See
post (slip op. at 2-4). Certainly, in a criminal trial the
(continued)
31 A-0492-11T4
based on unexplained research conducted under circumstances
unlike those presented in this matter, which is simply a
witness's later recall of a familiar voice, State v. Hackett,
166 N.J. 66, 81 (2001) ("[T]he uncritical acceptance of expert
testimony can becloud the issues." (quoting State v. R.W., 104
N.J. 14, 30 (1986))), and found other opinions unnecessary
because they addressed a subject understood by jurors who
utilized common judgment and experience, see State v. Sowell,
(continued)
admissibility of scientific test results is permitted only when
shown to be generally accepted as reliable within the relevant
scientific community. State v. Chun, 194 N.J. 54, 91, cert.
denied, 555 U.S. 825, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008);
State v. Harvey, 151 N.J. 117, 169-70 (1997); see also State v.
Moore, 188 N.J. 182, 206 (2006) (holding scientific theories are
accepted as reliable when "based on a sound, adequately-founded
scientific methodology involving data and information of the
type reasonably relied on by experts in the scientific field"
(quoting Rubanick v. Witco Chem. Corp., 125 N.J. 421, 449
(1991))). Further, we agree "[a]n appellate court may
independently review scientific literature, judicial decisions,
and other authorities to determine whether proposed expert
testimony is scientifically reliable and has obtained general
acceptance so that it may be admitted in our courts." McGuire,
supra, 419 N.J. Super. at 123-24 (citing Torres, supra, 183 N.J.
at 567). However, we do not agree the judge's determinations of
admissibility turned on this issue. Nor does the record on
appeal contain evidence allowing such a review.
For the reasons discussed in our opinion, the
inadmissibility of Dr. Penrod's expert opinion was found to turn
on other bases, which we examined. We also note expert
testimony meeting the criteria for admission may nevertheless be
excluded under other rules. See, e.g., N.J.R.E. 704 (excluding
opinion embracing an ultimate issue); N.J.R.E. 403 (excluding
opinion that would necessitate undue consumption of time or
create substantial confusion).
32 A-0492-11T4
213 N.J. 89, 99 (2013) (noting expert testimony is unnecessary
to discuss a matter within the jury's competence and
understanding); Hackett, supra, 166 N.J. at 83 (rejecting expert
testimony because the determination was not beyond the ken of
the average juror or "so esoteric that jurors of common judgment
and experience cannot form a valid judgment" (quoting Butler v.
Acme Markets, 89 N.J. 270, 283 (1982))).
We do not conclude the judge abused his discretion when
limiting aspects of the proffered evidence. McGuire, supra, 419
N.J. Super. at 123. He satisfactorily detailed areas where the
expert's reasoning and methodology on "earwitness"
identification testimony seemed self-validating or jumbled with
eyewitness identifications, a topic the expert was admittedly
more familiar with. As a result, the expert's proffered
testimony not only risked juror confusion but also tended toward
subjects where expert opinion would be unnecessary. Further,
the judge did not preclude the totality of the expert's
testimony, which defendant chose not to present to the jury.
Moreover, we underscore the identification at issue was the
survivor's recollection it was defendant's voice she heard.
This identification was one of several introduced by the State
and is not the sole identification evidence placing defendant at
the scene of the murders. The survivor was familiar with
33 A-0492-11T4
defendant and had spent ten minutes talking with him in the Jeep
two weeks earlier. Police did not conduct a voice array from
which the survivor matched the voice she heard. See State v.
Gallagher, 286 N.J. Super. 1, 18 (App. Div. 1995) (using voice
array to identify a defendant), certif. denied, 146 N.J. 569
(1996). Nor was the survivor's recollection prompted by police
interrogation. In fact, the day following the murders, as the
survivor recounted the events to her boyfriend, unprompted, she
realized the man in her home was defendant.14
Next, we reject as lacking merit defendant's additional
suggestion of prosecutorial misconduct during summation, when
referencing the survivor's reported recollection of defendant's
voice. Defendant directs his attack to this statement by the
prosecutor: "A traumatic event like that, Ladies and Gentlemen,
one could logically infer, reasonably, that she replayed that
14
We disagree with our dissenting colleague's assertion
stating a new trial is necessary because Dr. Penrod's testimony
"undermined the testimony of, perhaps, the most credible witness
to identify defendant, albeit by voice." See post (slip op. at
1). Further, we cannot abide the minimization of the State's
evidence against defendant, characterized in the dissent as "two
convicted felons who testified in exchange for sweetheart plea
deals, and a young woman who survived the crimes by hiding in a
closet." See post (slip op. 2). The State presented more than
twenty witnesses, five lay individuals, experts, law
enforcement, scientists from the State crime lab and fire
officials. Our role in reviewing this matter does not include
making credibility assessments, as such a determination rests
solely with the jury.
34 A-0492-11T4
over and over in her mind, and she, by doing that, determined
who that voice was."
Not only was no objection made at trial, suggesting the
statement was innocuous, but also evidential support for the
statement was included in the survivor's testimony. See State
v. Carter, 91 N.J. 86, 127 (1982) (stating a prosecutor may
argue any conclusion rationally supported by evidence). The
prosecutor's assertion restated facts and responded to
defendant's vigorous cross-examination attacking the survivor's
ability to identify defendant's voice. No plain error is found.
R. 2:10-2.
2.
Defendant also challenges the admission, over his
objection, of the State's expert on gang-related activity,
Lieutenant Earl J. Graves of the Essex County Prosecutor's
Office. Defendant contends the trial judge abused his
discretion by allowing testimony, which exceeded "even the broad
boundaries" permitted for admission of such evidence. He argues
defendant's involvement in a gang had no relevance to motive,
opportunity, or the victims and co-defendant's involvement in
the crimes. As a result, its admission was extremely
prejudicial, warranting a new trial. During retrial, the same
objection was raised when the State sought to use the same
35 A-0492-11T4
expert evidence and witness. We have reviewed both transcripts
and note the State's evidence is generally consistent.
Therefore, we have chosen to describe the issue as it unfolded
in the first trial, understanding the same arguments arose on
retrial.
The introduction of expert testimony regarding gang
behavior is guided by State v. Torres, 183 N.J. 554 (2005). In
Torres, the defendant was charged with first-degree murder as an
accomplice in the killing of a member of his gang by fellow gang
members. Id. at 562-64. Examining whether gang-related expert
testimony was admissible under N.J.R.E. 702, the Court aligned
with other jurisdictions and concluded "testimony explaining the
structure, organization, and procedures of street gangs would be
helpful to a jury's understanding of the relevant issues at
trial." Id. at 573. However, the Court cautioned expert gang
testimony
must be restricted to those areas that fall
outside the common knowledge of jurors. For
example, a juror generally would not be
expected to be familiar with the structure
and organizational aspects of gangs or the
significance of particular gang symbols.
Those areas fall within the specialized
knowledge of the expert, who by virtue of
his training, experience, and skill can shed
light on such subjects.
[Ibid.]
36 A-0492-11T4
In Torres, the expert testimony regarding a defendant's gang
involvement was "relevant to show the connection between
defendant's actions as the leader of the gang and the actions of
the other gang members who actually committed the murder."
Ibid.
During a Rule 104 hearing, Lieutenant Graves testified as
to the origination of the specific gang set to which defendant,
Fields, Wigfall and Williams belonged. He identified the gang
structure, explaining defendant's role as an "OG" or "original
gangster" who headed a set, and the role of the soldiers in a
gang, explaining the information was provided by defendant and
recorded in prison classification documents. Also discussed was
the significance of tattoos to identify gang affiliation and
"intimidate" or "influence" others. Specifically linking his
expertise to the facts in this matter, Lieutenant Graves noted
his review of the wiretapped phone calls with Davis, revealed
defendant's statements support the understanding that he holds a
leadership position in a gang set and identified himself as a
"Triple OG."
In a comprehensive oral opinion, the judge concluded
Lieutenant Graves was qualified as an expert in street gangs and
permitted him to testify, concluding defendant's claims of
prejudice were not outweighed by the probative value of the
37 A-0492-11T4
evidence. In reaching this conclusion, the judge reviewed the
evidence under the rigors of the four-factor test identified in
State v. Cofield, 127 N.J. 328, 338 (1992), and evaluated its
admissibility under N.J.R.E. 404(b).15 In doing so, the judge
concluded the evidence was relevant to "defendant's opportunity,
knowledge and motive" to commit the crimes targeted to this
specific home and family. The judge barred testimony regarding
alleged gang habits for weapons used in criminal activity.
In discussing the claimed prejudice to defendant, the judge
noted there was clear and convincing evidence of defendant's
gang involvement, including his own statements, the survivor's
testimony stating Fields, Williams and Wigfall knew each other
15
"In Cofield, the Court developed 'a rule of general
application in order to avoid the over-use of extrinsic evidence
of other crimes or wrongs[.]'" State v. Sheppard, 437 N.J.
Super. 171, 189 (App. Div. 2014) (alteration in original)
(quoting Cofield, supra, 127 N.J. at 338), certif. denied, 221
N.J. 219 (2015). The four-pronged test for admissibility of
other evidence of prior bad-acts includes:
1. The evidence of the other crime must be
admissible as relevant to a material issue;
2. It must be similar in kind and reasonably
close in time to the offense charged;
3. The evidence of the other crime must be
clear and convincing; and
4. The probative value of the evidence must
not be outweighed by its apparent prejudice.
[Cofield, supra, 127 N.J. at 338.]
38 A-0492-11T4
from their gang set, Hayes' compliance with defendant's requests
and the significance of defendant showing Hayes his tattoo. The
judge found the prejudice to defendant by the expert's testimony
was not outweighed by the probative value supporting motive and
opportunity for commission of the crimes, including defendant's
access to Williams' red Jeep, defendant's knowledge of the drugs
and money held by Fields' girlfriend, defendant's access to her
home, and Hayes' reaction to defendant's tattoo.
Defendant moved for reconsideration, arguing the testimony
was unnecessary to explain other lay witness statements and duly
prejudicial. The motion was denied. Also, defendant's
objection during trial prior to the State's presentation of the
witness was overruled.
At trial, following voir dire, Lieutenant Graves was asked
limited questions regarding the gang set, code names used for
guns and weapons, the use and significance of tattoos, the set's
structure, enforcement of discipline, and use of personal
property. His testimony and expressed opinion was far more
circumscribed than that presented in the Rule 104 hearing. He
stated only that defendant was a member of the gang set based on
his tattoo and statements during the wiretap.
39 A-0492-11T4
On appeal, defendant maintains "the workings of the gang
were not even marginally related to the crime and defendant's
role in it." We disagree.
At trial, the survivor connected Fields, Williams and
Wigfall to the same gang and stated defendant "was in the gang
as well" and "was . . . over all of them." Fields confirmed the
gang relationship of the parties and that defendant told Hayes
the robbery was of "his man's girl," referring to Fields.
Lieutenant Graves also confirmed Davis' testimony regarding
defendant's statements about "his girlfriend" were references to
his gun, although Lieutenant Graves admitted the reference was
not necessarily limited to gang members. In his conversations
with Hayes, defendant conveyed a message by specifically drawing
attention to his set tattoo. Lieutenant Graves also noted
defendant's higher rank in the gang caused Williams to give
defendant his Jeep when directed to do so.
The limited areas covered by the expert aided the jury's
understanding of defendant's reference to his tattoo when
telling Hayes he did not "want any co-defendants" as an implied
threat to secure his silence, defendant's use of Williams' Jeep,
and defendant's relationship with Davis, Williams, Wigfall,
Fields and his girlfriend. Moreover, as the trial judge noted,
no other evidence could fully explain defendant's opportunity in
40 A-0492-11T4
committing these crimes, and why the events unfolded as they
did.
We also reject the notion defendant's convictions resulted
because of evidence of his gang membership. See State v.
Goodman, 415 N.J. Super. 210, 226 n.4 (App. Div. 2010)
(reaffirming a court "may not convict an individual merely for
belonging to an organization that advocates illegal activity")
(quoting United States v. Abel, 469 U.S. 45, 48, 105 S. Ct. 465,
467, 83 L. Ed. 2d 450, 455 (1984)), certif. denied, 205 N.J. 78
(2011). To reach such a result would require us to disregard the
judge's supported findings leading to his conclusion the
proffered testimony was helpful for the jury's understanding or
other witness testimony and not designed to enhance the State's
evidence. Moreover, such a conclusion gives no consideration to
the jury selection voir dire16 and jury instructions issued by
the trial judge limiting the use of the evidence.
We determine no basis to interfere with the judge's
exercised discretion in admitting Lieutenant Graves'
circumscribed testimony, which provided a framework for the
jury's understanding of key events, testimony by the lay
16
A series of five questions issued during jury selection
examined whether a prospective jury could remain fair and
impartial in performing as a juror if evidence of defendant's
gang involvement was presented.
41 A-0492-11T4
witnesses and the relationship between defendant and co-
defendants.17 Finally, the judge mitigated possible prejudice
through the use of direct voir dire questions during jury
selection. Goodman, supra, 415 N.J. Super. at 234; State v.
Muhammad, 145 N.J. 23, 52 (1996) (stating "there is no reason to
17
Our dissenting colleague concludes the expert testimony is
neither relevant nor probative, but "significant[ly]"
prejudicial. See post (slip op. at 40). We cannot accept this
view, which appears to overstate the breadth of the ten pages
containing Lieutenant Graves' sustentative direct and cross-
examination testimony. At trial, Lieutenant Graves did not
opine that defendant was a higher ranking member than Fields,
Williams and Wigfall, see post (slip op. at 38), or state
defendant had no fear of retaliation from Fields because of gang
hierarchy, see post (slip op. at 39). Rather, Lieutenant Graves
succinctly related the general gang set hierarchy. Facts
regarding defendant's rank and authority in the gang were
elicited by Hayes, Fields and the survivor. Also, we note the
dissent rejects the judge's factual findings in favor of an
independent weighing of the evidence, including the credibility
attached to facts asserted by other State witnesses.
As to whether the testimony was unduly prejudicial, our
colleague emphasizes that gang evidence is inherently
prejudicial. Certainly, "[o]ther-crimes evidence is considered
highly prejudicial." State v. Vallejo, 198 N.J. 122, 133
(2009). However, the trial judge considered all evidence and
took appropriate steps at voir dire to mitigate possible
prejudice. The trial judge also crafted explicit jury
instructions limiting the jury's use of the evidence as to
motive. See Goodman, supra, 415 N.J. Super. at 230 (admitting
gang evidence to prove motive). "The mere possibility that
evidence could be prejudicial does not justify its exclusion."
State v. Long, 173 N.J. 138, 164 (2002). The trial court is
necessarily in the best position to balance possible resulting
prejudice from the admission of this evidence. State v.
Krivacska, 341 N.J. Super. 1, 40 (App. Div.), certif. denied,
170 N.J. 206 (2001), cert. denied, 535 U.S. 1012, 122 S. Ct.
1594, 152 L. Ed. 2d 510 (2002).
42 A-0492-11T4
believe that jurors will not act responsibly in performing their
duty").
We also reject, as unfounded, defendant's claim Lieutenant
Graves' testimony exceeded the bounds permitted by the judge and
the Court in Torres. Defendant identifies no specific statement
or line of testimony to support this contention. His broad
generalization is rejected as meritless. R. 2:11-3(e)(2).
3.
Defendant further cites as error the admission of testimony
regarding the chemicals toluene and decamethylcyclopentasiloxane
(D5) found at the crime scene, in the red Jeep, and on Hayes'
clothing. This issue was raised not only in the initial trial,
but also on retrial.18
On appeal, defendant argues, as he did before the trial
judge, the testimony was not relevant because the existence of
these substances failed to prove his guilt. We disagree.
The evidence was related to the aggravated arson and
conspiracy to commit aggravated arson charges. The State's
witness, a chemist who qualified as an expert in fire debris and
hair analysis, explained although often found in various
household products, it was rare to find these two volatile
18
The same judge tried each matter. His ruling during
retrial remained consistent with his initial decision. In
presenting the issues, we describe it as presented initially.
43 A-0492-11T4
substances together. Yet she isolated both chemicals on
clothing worn by the victims, in the Jeep, and on several
articles of Hayes' clothing. Although not probative of how the
fire started, the proofs tended to corroborate Hayes' version of
events because the unusual combination of substances found in
these places logically linked Hayes to Fields' girlfriend's
apartment and the Jeep. See State v. Koskovich, 168 N.J. 448,
480-81 (2001). Thus, there was a logical connection between the
State's proffered evidence and a fact in issue. State v.
Hutchins, 241 N.J. Super. 353, 358 (App. Div. 1990).
We conclude the judge properly analyzed the issues and
correctly noted defendant's challenges affected the weight of
the evidence and not its admissibility. N.J.R.E. 403. Further,
the judge also noted the probative value outweighed any possible
prejudice, which was skillfully borne out during cross-
examination, and which perhaps led to the jury's verdict
acquitting defendant of aggravated arson. See Hisenaj v.
Kuehner, 194 N.J. 6, 24-25 (2008) (deficiencies in expert report
were explored during cross-examination and jury was charged with
determining the opinion's weight).
B.
Defendant argues the judge erroneously denied his motion
for a new trial on the first-degree robbery charge. Defendant
44 A-0492-11T4
suggests the jury's questions and the resultant deadlock on
murder and felony murder shows some jurors likely relied on a
theory of accomplice liability to support the related robbery
conviction. Defendant maintains the State's failure to include
an accomplice liability charge precludes his conviction for
first-degree robbery. We are not persuaded.
After receiving the charge, which included Model Jury
Charge (Criminal), "Robbery in the First Degree (N.J.S.A. 2C:15-
1)" (Sept. 10, 2012),19 and Model Jury Charge (Criminal), "Felony
Murder-Slayer Participant (N.J.S.A. 2C:11-3(a)(3))" (March 22,
2004), the jury submitted questions during deliberations
including: "Does felony murder mean the defendant killed the
victims in this case, or does it mean that he was present during
the murders, but did not actually kill the victims?" The
State's theory of the case against defendant was principal
liability. Defendant suggested the question showed the jury was
considering defendant's guilt as an accomplice, which was never
presented.
19
The model charge cited is the one provided by the State in
its appendix, but the charge in effect at the time of trial in
2011 was Model Jury Charge (Criminal), "Robbery in the First
Degree (N.J.S.A. 2C:15-1)" (May 10, 2010). Nevertheless,
neither side claims the modification presents a meaningful
distinction.
45 A-0492-11T4
The judge granted defendant's request to respond directly
to the jury question and then reread the applicable charges. He
informed the jury:
Okay, just so it's crystal clear, Ladies and
Gentlemen, I'm going to reread your question
number 2 and then answer it in two parts.
"Does felony murder mean that the defendant
killed the victims in this case?" In short,
the answer is yes. In order to find the
defendant guilty of felony murder, you must
find beyond a reasonable doubt that this
defendant, Mr. Terrell, killed the victims
in this case.
And then the second part, "Or does it mean
that he was present during the murders and
did not actually kill the victims," the
short answer to that question is no.
The judge elaborated on these direct answers, making it clear
the jury could not find defendant guilty of felony murder
"unless you first find him guilty beyond a reasonable doubt of
having committed . . . the robbery. . . . [I]n summary, . . .
in order for [defendant] to be found guilty of murder, the State
must prove beyond a reasonable doubt that the defendant is the
person who actually killed the victims." This latter
instruction was repeated when recharging felony murder, and the
judge added "felony murder does not mean that the defendant was
merely present during the murders," but defendant had been
"engaged in the commission of, or attempt to commit, or flight
46 A-0492-11T4
after committing, or attempting to commit, the crime of robbery,
as charged in counts 2 and 3."
Deliberations resumed and additional questions from the
jury issued. One question asked whether, with respect to felony
murder, "a person would have to directly rob the person
murdered, or does this merely mean that any one person within
the household was robbed and members of the household were
murdered? This seems to be a contradiction."
The judge informed the jury that neither the indictment nor
the verdict sheet were evidential. He then instructed:
In order for you to find the defendant . . .
guilty of felony murder, you must find
beyond a reasonable doubt that he killed the
victims named in [the indictment] during the
course of committing a robbery of . . .
[Fields' girlfriend] and [the survivor]
regardless of whether he did so purposely or
even knowingly, or recklessly or
unintentionally, or even by accident. . . .
[Y]ou cannot find [defendant] guilty of
felony murder unless you first find him
guilty beyond a reasonable doubt of having
committed the crime of robbery.
The verdict sheet reflected the jury found defendant guilty
of robbing Fields' girlfriend, but not guilty of robbing another
victim. The jury could not reach a verdict on the murder and
felony murder counts.
Ruling on defendant's motion for a new trial, the judge
rejected defendant's argument the deadlock on the felony-murder
47 A-0492-11T4
charge must mean "[a]t least one of the jurors must have
believed that defendant was an accomplice, not the principal,
with respect to the killings." Defendant's argument, if he were
the principal, assumed, as suggested by the guilty verdict on
the robbery charge, he would have been convicted of felony-
murder. The judge found the State's evidence was sufficient to
support the first-degree robbery conviction.
A motion for a new trial is granted in the interests of
justice, but the court shall not set aside a jury verdict as
against the weight of the evidence "unless, having given due
regard to the opportunity of the jury to pass upon the
credibility of the witnesses, it clearly and convincingly
appears that there was a manifest denial of justice under the
law." R. 3:20-1. The motion is decided in the court's
discretion in light of the credible evidence and with deference
to the trial judge's feel for the case and observation of
witnesses. State v. Brooks, 366 N.J. Super. 447, 454 (App. Div.
2004). In our review, we do not attempt to reconcile the
verdicts on the different counts nor do we speculate whether
verdicts resulted from "jury lenity, mistake, or compromise,"
and even inconsistent verdicts. State v. Muhammad, 182 N.J.
551, 578 (2005). For purposes of appellate review, this court
considers the evidence presented in support of each count as
48 A-0492-11T4
though it were presented in a separate indictment. Ibid. The
jury verdict will be upheld where there is sufficient evidence
to support the conviction on that charge. Ibid.
Here, defendant was charged under N.J.S.A. 2C:15-1,
providing a person is guilty of first-degree robbery when in the
course of a theft he or she attempts to kill, purposely inflicts
serious bodily injury, or uses or threatens the use of a deadly
weapon. Neither the State nor defendant sought an accomplice
liability charge.
Evidence from both the survivor and Hayes satisfied the
requisite proof requirements beyond a reasonable doubt for
first-degree robbery. Hayes described defendant's use of a gun
held to Fields' girlfriend's neck, while demanding she turn over
the drugs and money she held. Defendant's attempt to view the
robbery and felony-murder verdicts as a combined offense is
rejected. The evidence supporting first-degree robbery could be
separated from the evidence of the murders. These verdicts are
not inconsistent. The trial judge's analysis of the sufficiency
of the evidence when denying defendant's motion for a new trial
is well supported.
C.
After deliberations commenced in the retrial, two jurors
requested to be excused. Defendant contends the court erred in
49 A-0492-11T4
handling these requests by not properly making necessary
findings before excusing one of the two jurors. He maintains
the judge's inquiry and conclusory findings were flawed and
dismissal and replacement of one juror, over defendant's
objection, rather than declaring a mistrial, was error. We
reject these arguments.
The jury had deliberated for less than eight hours, spread
over three days (excluding time periods spent listening to
testimony read back), when the judge informed counsel he
received a note stating: "Two jurors, Number 2 and Number 6,
would like to be replaced." Counsel was consulted regarding how
to proceed. Defendant argued the judge should "not react"
because the juror's note was not specific as to the hardship and
"pulling them out now -- it might be premature." The State
disagreed and reminded the judge "Juror [2] was originally the
juror that was perceived to have been spoken to. Whether you
term it as a threat — but it was an outside communication to her
on Friday morning as she walked into the courthouse." The State
also noted juror six related she recorded an outside
communication encounter. Jurors two and six were actually being
transported to and from the courthouse by the sheriff's
department. Following argument, the judge conducted separate
50 A-0492-11T4
limited voir dire of the jurors. As a result of the jurors'
responses, the judge excused juror two and retained juror six.
After explaining he "just want[ed] to broadly discuss the
issue of why a note indicating that you would like to be
replaced was sent out; that's the focus of the discussion,
nothing having to do with the jury deliberations[,]" the judge
engaged in the following colloquy with juror two:
THE COURT: Do you feel that there is
emotionally an inability for you to proceed
and perform your duties as a deliberating
juror?
THE JUROR: Yes.
THE COURT: Do you feel that these
emotions that you have, again, would impact
upon your ability to perform your function
in this case?
THE JUROR: No. I know it's not
balanced in what I'm saying, but there's
[sic] reasons why I can't speak without
giving away –
THE COURT: I don't want you to talk
about that. But emotionally, you feel you
can't continue?
THE JUROR: Correct.
THE COURT: I'm going to leave it at
that for now. Thank you.
Similar questions were posed to juror six, who stated she
had neither emotional nor personal reasons presenting an
inability to proceed and perform the duties of a deliberating
51 A-0492-11T4
juror. The judge questioned whether something else prevented
her from continuing to serve as a juror, without going into jury
deliberations. She replied: "Without going into – it is very
difficult to explain-" The judge interrupted, warning: "I don't
want to go there." Juror six confirmed her reason for wanting
to be excused was neither emotional nor physical.
One of the two alternates replaced juror two. Juror six
returned to the panel. The judge issued supplemental
instructions and directed deliberations begin anew with the
replacement juror. The jury then retired for the evening.
Deliberations commenced the following morning. Approximately
two-and-one-half hours following the replacement of juror two,
the jury reached a verdict.
"Our review of a trial court's decision to remove and
substitute a deliberating juror because of an 'inability to
continue,' pursuant to Rule 1:8-2(d)(1), is deferential." State
v. Musa, 222 N.J. 554, 564-565 (2015). "We will not reverse a
conviction unless the court has abused its discretion." Id. at
565.
The substitution of a juror in the course of deliberations
"does not in and of itself offend a defendant's constitutional
guarantee of a trial by jury." State v. Ross, 218 N.J. 130, 146
(2014) (quoting State v. Williams, 171 N.J. 151, 162 (2002)).
52 A-0492-11T4
"Such a substitution, however, contravenes constitutional norms
if it impairs the mutuality of deliberations — the 'joint or
collective exchange of views among individual jurors.'" Id. at
146-47 (quoting Williams, supra, 171 N.J. at 163). Indeed,
"[b]ecause juror substitution poses a clear potential for
prejudicing the integrity of the jury's deliberative process, it
should be invoked only as a last resort to avoid the deplorable
waste of time, effort, money, and judicial resources inherent in
a mistrial." State v. Hightower, 146 N.J. 239, 254 (1996).
The court must be prepared to declare a
mistrial if a substitution would imperil the
integrity of the jury's process. [Id. at
253-54.] The trial judge's task is
complicated by the need to diligently
protect the confidentiality of jury
communications as he or she inquires about
the status of the juror in question. In
short, the trial court must appraise the
impact of a juror substitution on the jury
process, without tainting that process with
intrusive questions. It must conduct any
inquiry with respect to the juror in
question . . . with caution and restraint.
[Ross, supra, 218 N.J. at 147.]
Accordingly, a trial judge "must determine the cause of the
juror's concern and assess the impact of the juror's departure
on the deliberative process." Ibid. Further, the judge must
"ascertain whether a reconstituted jury will be in a position to
conduct open-minded and fair deliberations." Ibid.
53 A-0492-11T4
In Ross, the Court reviewed consideration of this issue and
reaffirmed that when "evaluating the cause of a juror's
departure, our courts distinguish between reasons that are
personal to the juror, which may permit a substitution under
Rule 1:8-2(d)(1), and issues derived from 'the juror's
interaction with the other jurors or with the case itself,'
which may not." Ibid. (quoting Williams, supra, 171 N.J. at
163). Also, "a juror's psychological condition as a reason that
he or she cannot continue to serve" has been addressed, noting
"[t]he 'inability to continue' language of Rule 1:8-2(d)(1) 'has
been invoked to remove a juror under circumstances that reveal
the juror's emotional condition renders him or her unable to
render a fair verdict.'" Id. at 148 (quoting Williams, supra,
171 N.J. at 164); see also State v. Miller, 76 N.J. 392, 406-07
(1978) (holding judge properly substituted an alternate for
juror who explained because of "his then nervous and emotional
condition, he did not think he could render a fair verdict").
In conducting this examination, the judge must not permit the
juror to reveal confidential jury communications.
Defendant argues juror two's explanations fell short of
what is required to satisfy the "inability to continue"
standard, stating the juror did not reveal she was unable to
render a fair verdict. He additionally infers from juror two's
54 A-0492-11T4
comments she was at odds with other jurors, a circumstance not
justifying excusal. See State v. Jenkins, 182 N.J. 112, 124-25
(2004) (holding excusing a juror cannot be based on juror
interaction with other jurors). We cannot agree the juror's
comments revealed she faced hostility from fellow jurors or, as
defendant now suggests, she was "the lone holdout." See Ross,
supra, 218 N.J. at 152. We reject such presumptions following
examination of the facts of record.
Here, the trial judge sought the explanation for juror
two's request to be excused. He directed the juror not to
reveal juror interactions and deliberations. Jenkins, supra,
182 N.J. at 134 ("We cannot overemphasize the importance of
maintaining the secrecy of jury deliberations . . . ."). After
the inquiry, the judge explained the release of juror two: "I
think she was pretty unequivocal that emotionally she cannot
continue. I even got that sense from her voice. Her voice was
cracking . . . ." This determination relied on not only the
juror's verbal responses, identifying her emotional condition,
but more importantly, was supported by observations of her
physical demeanor, which revealed an obvious personal emotional
condition, rendering her unable to continue.
Regardless of whether we believe the inquiry could have
been more probing to more firmly establish the juror's specific
55 A-0492-11T4
reasons confirming her request was personal to her, we respect
the trial judge's ability to assess the juror's demeanor to
discern whether the concern was evoked from interaction with
fellow jurors or an individualistic reaction in reviewing the
matter. See Musa, supra, 222 N.J. at 565 ("The deference that
must be accorded to trial court fact-findings in this setting
must guide our analysis . . . .").
The trial judge was in the best position to make these
determinations. We conclude the trial judge properly carried
out the delicate balancing function in exercising his reasoned
judgment. Indeed, he evaluated the testimony of two jurors,
each seeking to be excused, and reached different conclusions
based on their responses. The judge gave particular attention
to each juror's demeanor. The conclusion that juror two
suffered emotional distress making her unable to continue was
based on the judge's evaluation of her statements and the
judge's observations of her demeanor, which must be respected.
Nothing in the record suggests juror two requested to be removed
because of her interaction with other jurors or that she was a
lone holdout. As we discuss below, the record shows the jury
was still evaluating evidence and had not progressed to a point
where the determination of factual issues was reached.
56 A-0492-11T4
We decline to conclude the judge abused his discretion in
releasing juror two based on alternate possibilities developed
in hindsight for the juror's expressed emotional condition, as
advanced by defendant or the additional questions which could
not have been posed to the juror as suggested by our dissenting
colleague, see post (slip op. at 46). See Musa, supra, 222 N.J.
at 572 ("Questioning, if not properly narrowed, had the
potential to impermissibly infringe on the jury's deliberative
process."); State v. Lipsky, 164 N.J. Super. 39, 44 (App. Div.
1978) ("[D]espite our disagreement with the judgmental decision
of the trial judge, we cannot conclude that his failure to
utilize better alternatives constitutes an abuse of the
discretion vested in him in procedural matters of this kind.").
Reversal is unwarranted. Goodman, supra, 415 N.J. Super. at
234-35.
We further conclude the deliberations had not proceeded to
such an extent that declaring a mistrial was required. A
mistrial is an extraordinary remedy used when necessary to
prevent a manifest injustice. Id. at 234. The Court has also
observed that granting a mistrial "imposes enormous costs on our
judicial system," and the Court has noted its awareness that the
prospect of a retrial after days or weeks of testimony creates a
sense of futility. Jenkins, supra, 182 N.J. at 124.
57 A-0492-11T4
In Ross, the Court rejected imposition of an "inflexible
rule" to preclude substitution of a juror after deliberations
had been conducted over a specific period of time. Ross, supra,
218 N.J. at 151. Instead, a trial judge, in his or her
discretion, considers whether the jury appears to have
progressed to the point where issues have been decided and
deliberations cannot commence anew with a substituted juror.
Ibid.
In this matter, although three days had elapsed from the
time the case was submitted to the jury, deliberations had not
been continuous. The jury submitted numerous requests to review
evidence and hours of read-backs were performed in the presence
of the jury and the alternates. No prior communications denoted
the jury had decided any factual or legal issue. Id. at 152.
Viewing all events and circumstances, we conclude the judge's
determination the jurors were in the process of sifting through
the evidence and deliberations had not gone so far that a
reformulated jury would not be able to conduct open-minded
dialogue to determine defendant's guilt or innocence was
supported. See Williams, supra, 171 N.J. at 169 (stating read-
back requests demonstrate uncertainty concerning guilt or
innocence and did not prohibit substitution of jurors).
58 A-0492-11T4
We further reject defendant's speculative inferences in
support of a claim of prejudice, drawn from the shorter period
of deliberations undertaken by the reconstituted jury. No
prejudice or other basis requiring we set aside the judge's
substitution of the excused juror is presented.
D.
Defendant next identifies five comments by the State during
summation as unsupported by evidence. He asserts these improper
statements amount to prosecutorial misconduct, the cumulative
prejudice from which denied him a fair trial.
Following the State's closing, defendant objected to these
five statements as unfounded: (1) suggesting Williams and
Wigfall must have been the people who picked up the drugs from
Fields' girlfriend; (2) stating Williams and Wigfall were gang
members with defendant; (3) asking whether, after spending
eighteen years in prison, Hayes really knew what gasoline
smelled like; (4) assuming "women are better at colors than men"
to explain why a male witness stated the Jeep was orange not
red; and (5) asserting defendant was not arrested when stopped
for a motor vehicle infraction while driving the Jeep after the
crimes because the officer did not have a warrant. The State
responded to each of these, providing the facts from which these
reasonable inferences were drawn, and conceded the judge could
59 A-0492-11T4
give an instruction addressing the comment about women's ability
to identify colors.
Considering the arguments, the judge stated "looking at the
five you mentioned, I don't think it warrants a curative
instruction on any of them." He emphasized the jury
instructions were replete with references that it is the jury's
decision "as to what the facts [we]re not what counsel says"
and "summations are not evidence, [they are] the recollection of
the evidence by the attorneys." He also noted the overall
instructions to the jury fully address their role and properly
inform the jurors that summations include counsel's "comment" on
what the State thinks was proven and what the defense thinks the
State failed to prove.
"Prosecutors are afforded considerable leeway in closing
arguments as long as their comments are reasonably related to
the scope of the evidence presented." State v. Frost, 158 N.J.
76, 82 (1999). In determining whether comments in summation
require reversal, an appellate court "must take into account the
tenor of the trial and the degree of responsiveness of both
counsel and the court to improprieties when they occurred."
State v. Marshall, 123 N.J. 1, 153 (1991), cert. denied, 507
U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993).
Whether particular prosecutorial efforts can
be tolerated as vigorous advocacy or must be
60 A-0492-11T4
condemned as misconduct is often a difficult
determination to make. In every instance,
the performance must be evaluated in the
context of the entire trial, the issues
presented, and the general approaches
employed.
[State v. Negron, 355 N.J. Super. 556, 576
(App. Div. 2002).]
Where prosecutorial misconduct has occurred, to justify
reversal, the misconduct must have been "so egregious that it
deprived the defendant of a fair trial." Frost, supra, 158 N.J.
at 83.
Judged by these standards and also considering the
comprehensive jury instructions presented to the jury by the
trial judge, we cannot agree these five comments caused
prejudice or in any way diminished the fairness of defendant's
trial. The prosecutor's explanation, responding to defendant's
objection, tied testimonial evidence directly to support the
statements to show they presented a reasonable inference from
the facts of the record. McGuire, supra, 419 N.J. Super. at 140
(stating the prosecutor is granted "wide latitude to make 'fair
comment' on the evidence") (quoting State v. Mayberry, 52 N.J.
413, 437 (1968), cert. denied, 393 U.S. 1043, 89 S. Ct. 673, 21
L. Ed. 2d 593 (1969)). The only exception was item four, the
prosecutor's comment on color identification. The inclusion of
this statement had little or no impact on the trial.
61 A-0492-11T4
Mindful that remarks in summation must be measured in the
context of both closings and the trial as a whole, State v.
Johnson, 31 N.J. 489, 513 (1960), we find no error. See State
v. Mahoney, 188 N.J. 359, 376-77 (holding prosecutor's comments
were fairly based on the facts and reasonable inferences to be
drawn therefrom), cert. denied, 549 U.S. 995, 127 S. Ct. 507,
166 L. Ed. 2d 368 (2006).
E.
Defendant's final challenge lodges a discovery violation.
He maintains the State failed to timely disclose a possible
exculpatory witness, that is, a woman who had contacted police
three weeks before trial stating defendant was with her at the
time of the murders. During jury selection, defendant's mother
called the judge's chambers advising that Detective Robert
Morris of the Essex County Prosecutor's Office was given a
statement from "Michele" who provided an alibi for defendant.
Defendant had received similar information from his mother, but
insisted the State failed to disclose an exculpatory witness.
In response to the defendant's application, the judge
stated: "You're turning it on its head. Your client would have
had this information" because it related to where he allegedly
was during the crime. Defendant would have known had he been
with the alibi witness. However, he never gave notice of an
62 A-0492-11T4
alibi. Also, the judge aptly noted this was a retrial and an
alibi was never before raised. For these reasons, we conclude
the argument lacks sufficient merit to warrant additional
discussion in our opinion. R. 2:11-3(e)(2).
Affirmed.
63 A-0492-11T4
HIGBEE, J.A.D., dissenting.
I respectfully disagree with the majority on several
issues. The trial court excluded almost all of a defense
expert's testimony describing the scientific research on voice
identification, as well as the expert's opinions based on this
research, for reasons that in some instances merely implicated
the weight of the evidence, and in other instances were grounded
in unprecedented and unsupportable precepts. The defense
expert's testimony undermined the testimony of, perhaps, the
most credible witness to identify defendant, albeit by voice.
Precluding defendant from presenting the evidence arguably in
and of itself denied defendant a fair trial; but there was more.
The trial court admitted all but one of the State's
expert's opinions about street gangs, even though the prejudice
to defendant — primarily demonstrating he was a high ranking
leader of a dangerous gang — substantially outweighed the
purported probative value of explaining other testimony. In
addition, the trial court erred during the second trial by
replacing a deliberating juror based on a limited and inadequate
inquiry into the juror's reasons for wanting to be excused.
Any one of these errors had the clear capacity to affect
the outcome of the trials. Cumulatively, they leave no
reasonable doubt defendant was denied fair trials.
It is undisputed that four women were fatally shot in the
head during a robbery and left to die in their burning
apartment. The State accused defendant, Rolando Terrell, of
perpetrating the robbery of two of the victims, the arson of
their apartment, and the execution of all four women. The
State's three key lay witnesses were two convicted felons who
testified in exchange for sweetheart plea deals, and a young
woman who survived the crimes by hiding in a closet. She
identified defendant solely by his voice. Because my
disagreement with the majority begins with the exclusion of
expert testimony tending to undermine the voice identification,
I begin with that issue and discuss in turn the two other issues
on which I disagree with my colleagues.
I. EXCLUSION OF DEFENSE EXPERT'S TESTIMONY
My disagreement with the majority on this issue involves
both the appropriate standard of review and the trial court's
application of legal principles governing the admission of
expert testimony. The majority cites State v. Kuropchak, 221
N.J. 368, 385-86 (2015), for the proposition that our review of
a trial court's evidential rulings is deferential. Kuropchak
involved neither the admission of scientific evidence nor
appellate review of a trial court's decision to bar a defense
expert's scientific opinions in a criminal trial.
2 A-0492-11T4
In State v. Torres, 183 N.J. 554 (2005), the Supreme Court
held a trial court's evidentiary rulings excluding defense
expert testimony in criminal trials are reviewed under an abuse
of discretion standard, but with less deference than in other
settings. The Court explained that when reviewing the admission
of scientific evidence, the appellate court must evaluate the
reliability of the proffered scientific evidence, noting:
While the trial court is in a better position to
shape the record and make credibility
determinations, "appellate courts can digest
expert testimony as well as review scientific
literature, judicial decisions, and other
authorities." The appellate court should
carefully review the relevant authorities in
determining the correctness of the decision to
admit or exclude the disputed testimony. In
short, the appellate court need not be as
deferential to the trial court's ruling on the
admissibility of expert scientific evidence as
it should be with the admissibility of other
forms of evidence.
[Torres, supra, 183 N.J. at 567 (citations
omitted).]
There are other subtle variations in the standard of review
of the admission of defense expert testimony in criminal cases.
The admissibility of expert testimony is governed by N.J.R.E.
702:
If scientific, technical, or other
specialized knowledge will assist the trier
of fact to understand the evidence or to
3 A-0492-11T4
determine a fact in issue, a witness
qualified as an expert by knowledge, skill,
experience, training, or education may
testify thereto in the form of an opinion or
otherwise.
There are three requirements for expert testimony to be
admissible: "(1) the . . . subject matter [must be] beyond the
ken of the average juror; (2) the field . . . must be at a state
of the art [such] that an expert's testimony could be
sufficiently reliable; and (3) the witness must have sufficient
expertise to . . . testi[fy]." State v. Townsend, 186 N.J. 473,
491 (2006) (quoting Torres, supra, 183 N.J. at 567-68).
Appellate review of the second prong has moved steadily
closer to de novo review. "An appellate court may independently
review scientific literature, judicial decisions, and other
authorities to determine whether proposed expert testimony is
scientifically reliable and has obtained general acceptance so
that it may be admitted in our courts." State v. McGuire, 419
N.J. Super. 88, 123-24 (App. Div.) (citing Torres, supra, 183
N.J. at 567), certif. denied, 208 N.J. 335 (2011)). Although
appellate courts continue to review a trial court's rulings on
prongs one and three for abuse of discretion, our review of a
trial court's exclusion of defense expert testimony in criminal
cases requires consideration of "[N.J.R.E.] 702's liberal
approach favoring admissibility." State v. Jenewicz, 193 N.J.
4 A-0492-11T4
440, 456 (2008). With this in mind, the Supreme Court
explained:
That the strength of an individual's
qualifications may be undermined through
cross-examination is not a sound basis for
precluding an expert from testifying as part
of a defendant's defense, even if it likely
will affect the weight that the jury will
give the opinion. Rather, a court should
simply be satisfied that the expert has a
basis in knowledge, skill, education,
training, or experience to be able to form
an opinion that can aid the jury on a
subject that is beyond its ken.
[Id. at 455.]
Moreover, defendants in criminal cases have "a fundamental
constitutional right to a fair trial, which necessarily includes
the right to present witnesses and evidence in [their] own
defense." Id. at 451 (citing Washington v. Texas, 388 U.S. 14,
19, 87 S. Ct. 1920, 1923, 18 L. Ed. 2d 1019, 1023 (1967)). This
"fundamental right . . . is protected not only by the Federal
Constitution but also by Article 1, paragraph 1 of the New
Jersey Constitution." Ibid. For this reason, "the substantial
liberty interest at stake for [a] defendant" is a factor that
must be considered by a trial court in exercising its discretion
to admit or deny expert testimony. Id. at 456. Significantly,
"[N.J.R.E.] 702's liberal approach favoring admissibility . . .
and the substantial liberty interest at stake for defendant
[may] tip the scales in favor of finding error in the trial
5 A-0492-11T4
court's preclusion of [a defense expert's] testimony." Ibid.
That should have been the result here.
The trial judge held a pretrial hearing under N.J.R.E. 104
to determine the admissibility of the opinions of defendant's
expert, Dr. Steven Penrod. The testimony elicited at the
hearing disclosed the following information. Dr. Penrod has a
Bachelor's degree from Yale, a J.D. from Harvard University, and
a Ph.D. in social psychology from Harvard. After completing his
education, Dr. Penrod served as an assistant and a full
professor of psychology at the University of Wisconsin. He then
became a faculty member at the University of Minnesota School Of
Law before becoming program director for joint degrees in
psychology and law at the University of Nebraska. At the time
of the hearing, he held the title of distinguished professor in
psychology at the John Jay College of Criminal Justice in New
York City where he had worked since 2001.
Dr. Penrod described himself as a research psychologist.
He testified his primary areas of research and study have
focused on jury decision making and eye-witness identification.
He has devoted much of his career to the study of law and
psychology, specifically of memory encoding, recall, and
identification by witnesses particularly in a criminal trial
context. As a result, Dr. Penrod has been qualified as an
6 A-0492-11T4
expert and testified about memory formation and eye-witness
recognition in various State and Federal courts well over 100
times. He testified he has also been qualified as an expert in
voice identification cases approximately ten times in various
courts, although voice identification is relevant in criminal
trials considerably less often than eye-witness identification.
In 2009, the Supreme Court appointed Judge Geoffrey Gaulkin,
P.J.A.D., (retired and temporarily assigned on recall), as a
Special Master to preside over a hearing on the reliability of
eye-witnesses and prepare a report on his findings. Dr. Penrod
was chosen as one of the experts to testify and offer his expert
opinions at the hearing.
Within the scientific community that concentrates on the
study of memory and witness identification, Dr. Penrod has been
asked to speak and present his research papers at over 200
conferences involving psychologists from the United States and
Europe. He authored or co-authored five books on eye-witness
identification and published over 140 articles on jury decision
making and witness identification. More than forty percent of
his papers have been published in peer reviewed journals.
His research for the last thirty years, and continuing at
the time of the hearing, was primarily funded by the National
Science Foundation (NSF). He explained that only fifteen
7 A-0492-11T4
percent of proposals submitted to the NSF are approved for
grants yearly, and at the time of the hearing, his research was
being funded by two separate NSF grants.
Dr. Penrod has done his own independent research and
studies on jury decisions, memory, and eye-witness
identification; however, he acknowledged he had not conducted
his own experiments or studies on voice identification. He
studied the research on voice identification, and included the
topic in one of the first articles he wrote after graduating
from Harvard. Dr. Penrod reviewed research on the subject from
the 1930s and a published study from 1944. However, until the
1970s, there had been little research in that specific field.
He testified a "new flourishing body of research" was undertaken
by psychologists on voice identification starting in the 1970s.
He admitted there was still a much smaller body of research
limited to voice identification than was devoted to eye-witness
identification. However, despite the smaller body of research,
the investigations focused on the same factors and were
"parallel streams of research."
The doctor explained that recalling and identifying a face
or a voice a witness has seen or heard before relies on the
ability to encode and then reconstruct the memory. According to
Dr. Penrod, a memory is not, as is commonly believed by jurors,
8 A-0492-11T4
a photograph or a tape recording sitting in the brain waiting to
be retrieved. Rather, memory involves piecemeal construction
and reconstruction and is fallible. He testified that
psychologists study the same factors affecting reliability of
memory reconstruction and eye-witness identification as those
studied on ear-witness identification. Dr. Penrod provided a
list of more than twenty scientific research papers specifically
about ear-witness identification. He particularly referenced
the work of the leading researcher on the topic, a Canadian
psychologist named Dan Yarmey, who has published over ten
research papers specifically on witness voice identification.
Dr. Penrod testified the opinions he gave in his report
were based on scientific research on both eye-witness testimony
and ear-witness testimony that were generally accepted in the
scientific community. He advised the court he would not comment
on the witnesses or the specific facts, as he never opines on a
particular witness's credibility. He explained he would simply
testify about the science that could be applied by the jury to
evaluate the evidence.1
1
The prosecutor, on one hand, argued for exclusion because Dr.
Penrod's testimony would not address the facts of the case,
while arguing on the other hand his testimony would invade the
province of the jury to determine credibility. The judge did
not bar testimony based on either of these arguments.
9 A-0492-11T4
Following the hearing, defendant argued Dr. Penrod was a
qualified expert in the field of voice recognition and that his
testimony would assist the jury in understanding and evaluating
the ear-witness testimony.
The State did not call an expert to challenge the
reliability of the science underlying Dr. Penrod's testimony;
nor did it produce any evidence disputing the general acceptance
by the scientific community of Dr. Penrod's opinions on face and
voice identification. The State moved to exclude the testimony
of Dr. Penrod, arguing he was not qualified as an expert to give
testimony on voice recognition; that the testimony he proffered
was not outside the ken of the average juror; that he did not
give an opinion about the facts of the case; and the jury should
determine credibility without assistance.
The trial judge issued a written opinion and order
excluding almost all of Dr. Penrod's testimony. First, the
judge acknowledged that although the evaluation of credibility
of any witness was solely within the province of the jury,
expert testimony in cases involving witness identification was
admissible to demonstrate to the jury a witness may genuinely
believe their identification is accurate even when it is
incorrect. The trial judge stated:
In cases where expert testimony has been admitted
to elucidate witness statements, it was therefore
10 A-0492-11T4
not to address whether the witness was giving
truthful testimony, but rather to give the jury a
"context in which to more realistically and fairly
. . . appraise and consider the witness' perceptual
accuracy." The trend is toward admitting such
testimony after ensuring that it meets the rules
for the admissibility of expert testimony.
[(Citations omitted).]
The trial judge proceeded to rule specifically on the
admissibility of each separate topic presented in Dr. Penrod's
report based on the criteria set forth in State v. Kelly, 97
N.J. 178, 208 (1984), stating:
(1) the intended testimony must concern a
subject matter that is beyond the ken of the
average juror; (2) the field testified to
must be at a state of the art such that an
expert's testimony could be sufficiently
reliable; and (3) the witness must have
sufficient expertise to offer the intended
testimony.
In his analysis of the admissibility of evidence, the trial
judge did not exclude any of the testimony based on the second
prong of the three prong test. In fact, the prosecutor did not
request exclusion of the testimony under prong two. Instead,
the prosecutor and the trial judge — as does the majority -
focused on an out-of-context quotation by the expert that he
relied on "experimental" research. The prosecutor and trial
court relied on this quotation when discussing the expert's
qualifications to testify, thus seemingly implying the science
was in doubt, but making no finding that the subject of voice
11 A-0492-11T4
identification was not sufficiently accepted or reliable for
admission. In fact, Dr. Penrod's testimony included a
description of studies based on results from scientifically
controlled experiments and other types of studies that gathered
data from field observations or statistical databases. Dr.
Penrod at one point differentiated other types of research from
"experimental" research where experiments were actually
conducted. At no time did he use the word "experimental" in the
context of "unproven."
The following is a review of the rulings made by the trial
judge on each of the reliability factors affecting ear-witness
testimony as explained by Dr. Penrod.
A. STRESS
The testimony proffered by the expert on stress was based
on studies showing that when an individual is under "flight or
fight" stress, which is when they believe they are in immediate
danger, their perception and ability to construct an accurate
memory of a face or a voice is diminished. Their subsequent
recall of that face or voice, and thus their identification of a
defendant, is less reliable than if they were not under stress.
The judge barred Dr. Penrod from testifying on the effect
of stress on the reliability of ear-witness testimony, thus
significantly limiting the defendant's ability to challenge the
12 A-0492-11T4
survivor's voice identification of defendant. The judge found
the stress testimony was not within the ken of the average
juror. Specifically, he found "information concerning stress
and perception appears to be of potential help to the trier of
fact in understanding the identification testimony of [the
survivor]." The judge made a general finding that the field of
study demonstrating stress diminishes the capacity for
perception is "at such a state of the art that it can be
reasonably relied upon." Indeed, Dr. Penrod testified at the
hearing there is general acceptance within the scientific
community of the studies affecting both eye-witnesses and ear-
witnesses. The judge stated: "cases evaluating the
admissibility of expert testimony considering 'ear-witness'
identifications have drawn correlations to, or seen it as a
subset of, expert testimony concerning eye witness testimony."
However, the judge barred the testimony on stress's effect
on voice identifications holding "it appears that Dr. Penrod is
therefore unqualified to testify concerning the effects of
stress on voice recognition, and that such testimony would
present a risk of misleading the jury." The judge reasoned Dr.
Penrod was unqualified because he never conducted his own
studies on voice identification. The State in their brief does
not cite any precedential published case decided by any New
13 A-0492-11T4
Jersey court that one must have conducted their own experiments
or studies to be qualified as an expert witness. To the
contrary, N.J.R.E. 702 states "a witness qualified as an expert
by knowledge, skill, experience, training, or education may
testify thereto in the form of an opinion or otherwise."
(Emphasis added). The rule does not require that an expert
personally conduct experiments.
The trial court cites to one case from 1992 where a federal
judge barred Dr. Penrod's testimony on stress and eye-witness
testimony. In United States v. Nguyen, 793 F. Supp. 497, 515-16
(D.N.J. 1992), the federal district court judge found one of the
reasons for barring his testimony was Dr. Penrod had not
conducted his own experiments. Nguyen, which the State relied
upon and which the trial judge discussed at length in his
opinion, presents two legally unsupported and untenable
assertions which fly in the face of legal precedent in this
State and elsewhere.
The first is the assertion that not having done original
research or experiments on a particular scientific topic is a
basis for finding an expert is not qualified to give an opinion
in that field. The second is the assertion that a subject is
not outside the ken of the average juror if the jurors could
read the scientific studies themselves, and understand them.
14 A-0492-11T4
Both of those misguided assertions were repeated by the
trial judge here as reasons to bar Dr. Penrod's testimony.
Nguyen, however, does not reflect New Jersey controlling law in
1992 or in 2011, or the law in any other state. The trial judge
here cited several other federal court decisions from the 1990's
that admitted eye-witness expert testimony, including a 1991
decision by the Third Circuit that admitted the testimony of Dr.
Penrod. See U.S. v. Stevens, 935 F. 2d 1380, 1397 (3d Cir.
1991)
The trial judge, again borrowing from the legally unsound
reasoning of Nguyen, further held: "It is likely if the jury
were provided documentation of the study, they would be able to
come to the same conclusions . . . ." This reasoning is
incompatible with our Rules of Evidence.
In 1991, the Supreme Court adopted the federal rule of
evidence on the admission of learned treatises in Jacober v. St.
Peter's Medical Ctr., 128 N.J. 475, 495 (1992). Before that
decision, published textbooks, research papers or articles
describing the current scientific knowledge in a field were not
admissible except when used on cross-examination of a witness
who acknowledged them as authoritative. In Jacober, the court
adopted the federal evidence rule that allowed the admission
into evidence of learned treatises. What prevents the jury from
15 A-0492-11T4
considering as evidence any article published by anyone anywhere
is the requirement that the treatise be vouched for by an expert
on the stand.
As Justice Stein wrote: "Recently, we noted that in
determining reliability '[t]he focus should be on what the
experts in fact rely on, not on whether the court thinks they
should so rely.'" Jacober, supra, 128 N.J. at 495-96 (quoting
Ryan v. KDI Sylvan Pools, Inc., 121 N.J. 276, 289 (1990)).
Thus, a jury can consider a learned treatise only when an expert
can testify to its reliability, explain it, and be cross-
examined about it. Justice Stein explained this principle as
follows: "[t]he rule's emphasis on expert guidance, as well as
its prohibition on the receipt of learned treatises as exhibits,
limits the risk that factfinders will misunderstand or misapply
learned-treatise statements and discourages the use of learned
treatises as substitutes for expert testimony." Id. at 491.
Following the Jacober decision, N.J.R.E. 803 (18) was
adopted and learned treatises were made an exception to the
hearsay rule under the condition they be introduced by an expert
on the stand and not be given directly to the jury. The Rule
states:
To the extent called to the attention of an
expert witness upon cross-examination or relied
upon by the expert in direct examination,
statements contained in published treatises,
16 A-0492-11T4
periodicals, or pamphlets on a subject of
history, medicine, or other science or art,
established as a reliable authority by
testimony or by judicial notice. If admitted,
the statements may not be received as exhibits
but may be read into evidence or, if graphics,
shown to the jury.
[N.J.R.E. 803(18) (emphasis added).]
The trial judge's statement that if the jurors were given
the documentation they could come to the same conclusion as the
expert as a reason to bar expert testimony is incomprehensible
in light of N.J.R.E. 803(18)'s explicit preclusion of statements
in learned treatises being received as exhibits. The question
is, does the average juror know the information and the
scientific acceptance of the information? The trial judge made
the inconsistent finding that a distinguished expert in the
field of witness identification did not know enough to explain
the research, but the jury would somehow know and understand it
if given the studies. Jurors not only cannot be given the
studies, but are instructed to not use the internet or do their
own research as they cannot consider studies that are not in
evidence through the testimony of an expert.
A finding that Dr. Penrod was not qualified in the face of
the evidence that was presented on his qualifications was as
unsound as the court's statement the jurors themselves could
17 A-0492-11T4
read and understand the studies. The ruling constituted a clear
abuse of discretion.
B. WITNESS CONFIDENCE
The survivor testified she heard defendant speak only once
before the date of the crime. She could not identify who he was
by his voice when interviewed by police immediately after the
crime. The next day she spoke to her boyfriend and she
testified, while talking to him, she realized the voice she had
heard was defendant's voice. She did not report this to the
police until they called her to come into the station two days
after the crime. At that point, the co-defendant had already
identified defendant as the murderer to his friend, his brother,
and the police. The police advised the survivor they had a
suspect. The police did not provide her with a voice
identification test similar to a line up or photo identification
test. The witness identified defendant's voice only by her
stated recollection. At trial she testified she was 100 percent
certain about her identification of defendant.
Dr. Penrod would have testified that studies generally
accepted by the scientific community demonstrate there was only
a very modest correlation between the level of confidence
asserted by a witness and the accuracy of their identification.
Yet, research conducted by Dr. Penrod and others showed that
18 A-0492-11T4
jurors are systematically influenced by the level of confidence
the witness displays in their identification and do not
understand how little that means in terms of accuracy of the
identification.
The doctor further opined that the level of confidence of a
witness is influenced by subsequent events unbeknownst to the
witness. He explained even a response as slight as the
researcher saying "good" when the identification was made would
substantially increase the confidence of the witness. Other
studies demonstrated that when the witness became aware the
person they identified had been identified by someone else,
their confidence in the identification was substantially
increased.
The trial judge ruled he would allow testimony regarding
witness confidence being only modestly correlated with the
accuracy of an identification, but would not allow Dr. Penrod to
testify that confidence was increased or decreased by feedback.
The judge again discussed the decision in Nguyen pointing out
that the federal judge had barred Dr. Penrod from giving any
testimony about confidence and accuracy.
The trial judge explained: "Dr. Penrod's [proffered]
testimony that subsequent events may effect a witness'
confidence in her testimony is a matter of common sense, and is
19 A-0492-11T4
not outside the knowledge of the average juror." The evidence
provides no support for this finding.
To the contrary Dr. Penrod testified:
Well, there have been a number of surveys of
the general public and what they believe
about the influence of a variety of factors
that have been the subject of research
investigation, and whether they have the
same understanding of these effects as
research psychologists.
The common pattern of findings is that
some portion of the general public shares a
belief that matches the research findings,
but another substantial portion of the
general public doesn't share that belief.
The average juror does not necessarily have any knowledge about
the impact of even slight feedback. The judge's decision to bar
this testimony was arbitrary. He did not examine the totality
of Dr. Penrod's testimony and abused his discretion.
C. LISTENERS' VIEW OF FACE
Dr. Penrod testified that there is an inherent level of
unreliability in witness voice identification which is increased
when a witness looks at the person while hearing their voice.
He described studies where individuals listened to a voice and
then had to identify the voice. In the other arm of the
studies, individuals saw a person's face as they spoke and then
had to identify the voice. The results demonstrated that when a
person hears just a voice there is a better chance they will be
20 A-0492-11T4
able to subsequently identify it than if they see the person and
hear the voice simultaneously. The reason proffered by Dr.
Penrod is that people focus more on faces than on voices, and
therefore do not create as accurate a memory of the voice.
This is information the jury should have been allowed to
hear because it could have assisted them in their evaluation of
the identification of the defendant's voice by the survivor.
The one time she heard defendant speak before the crime was
committed, she was simultaneously looking at him. She next
heard his voice on the night of the crime. It was from her
memory of the prior occasion that she was able to identify his
voice. According to the research, the reliability of her memory
could be affected if the memory of his voice was developed while
viewing defendant.2
The judge again used the language and reasoning of the
district court judge in Nguyen to bar Dr. Penrod's testimony,
finding he was not qualified to testify as an expert because he
2
The record does not reflect whether the survivor was looking
at defendant's face when he spoke because this area of testimony
became irrelevant when the expert's testimony was barred. It
most certainly would have been probed during her examination if
the expert's testimony was not already barred. Then, depending
on her testimony, Dr. Penrod could have been cross-examined on
the reliability of the research. If the testimony established
the survivor did not see defendant's face as he spoke, the State
could have moved to bar this area of testimony. Significantly,
this was not part of the trial court's reasoning for barring the
testimony.
21 A-0492-11T4
relied upon the studies of other researchers, did not provide
his own analysis, and provided only a "minimal recitation of the
facts and processes underlying the research." The judge also
noted, "if the jury were provided documentation of the study,
they would be able to come to the same conclusions." The
indisputable error in that statement has already been discussed.
Such a misunderstanding and misstatement clearly constitutes an
abuse of discretion. See Moraes v. Wesler, 439 N.J. Super. 375,
378 (App. Div. 2015) (noting abuse of discretion arises when,
among other things, a decision impermissibly departs from
established policies, rests on an impermissible basis, or is
based upon consideration of irrelevant or inappropriate
factors).
D. UNCONSCIOUS TRANSFERENCE
Dr. Penrod testified that sometimes a witness is influenced
to identify the wrong perpetrator when they have some limited
prior exposure to that person. He described several studies
including one where researchers staged thefts both in classroom
and in street settings. Witnesses were asked to identify the
thief. Twenty-five percent of witnesses wrongly identified an
innocent bystander, unconsciously transferring a face they had
some memory of to the perpetrator. The jury should have been
22 A-0492-11T4
permitted to consider unconscious transference in evaluating the
reliability of the witness identification.
The studies described by Dr. Penrod on this topic did not
include specific studies of voice identification versus eye-
witness identification. However, the judge did not find his
opinions on voice identification were unscientific. Rather, he
again barred the testimony finding it could be misleading
because Dr. Penrod did not do his own studies or "apply his own
analysis or expertise to it." He also found the jury "would be
able to come to the same conclusions" if they were given the
studies to read. Barring this testimony on that basis, which
has no foundation in the law, was an abuse of discretion.
E. DURATION OF EXPOSURE TO VOICE
Dr. Penrod testified at the hearing that studies show the
longer a witness is exposed to a voice, the more accurate the
witness identification of the voice. The trial court barred
expert testimony on both factors.
As to the proffer that the longer the exposure the more
accurate the identification, the trial judge barred the
testimony and found this was common sense and within the ken of
the average juror. The judge was correct on that limited
finding. The expert, however, was actually proffering this
testimony to explain the common understanding that duration of
23 A-0492-11T4
exposure is equated to accuracy is only true "if all other
[factors] are equal." Dr. Penrod referenced a study conducted
on military personnel who were interrogated for forty minutes
face-to-face in both high stress and low stress situations. The
effect of very high stress was of such significance that even
though the interrogation was of long duration the accuracy rate
of subsequent identifications was only twenty-seven percent.
Dr. Penrod also used the concept of duration of time to
explain that although studies show that longer time exposure
improved accuracy, if the exposure was broken up in several
episodes, the observer would have better recall. For example,
if one hears a voice for a period of time, then there is a break
in time, and then exposure begins again, the witness will
usually have more accurate recall than if the exposure to the
voice was for the same length of time but was continuous. Thus,
Dr. Penrod had more to offer to the jury than the isolated
concept that the longer one is exposed to a voice, the more
accurate the identification. For this reason, the judge's
finding, which did not address the entirety of what was being
proffered and took Dr. Penrod's testimony out-of-context, was
made arbitrarily and was an abuse of discretion.
24 A-0492-11T4
F. TIME ESTIMATIONS
The doctor's second opinion about time of exposure
concerned the overestimation by test subjects of the length of
time of non-routine brief events. A witness's description of
how long a period of time an event lasted, and thus how long
they were exposed to a persons' voice or face, according to Dr.
Penrod, is almost always overestimated by a significant amount
when the event is brief and not routine. Researchers found
witness time estimates are significantly more accurate for
longer events than shorter events. The trial judge barred this
testimony because it was within the ken of the average juror,
but offered no support for this holding. Some jurors may
believe it to be true and others may not, but few, if any,
jurors will have read the scientific literature and know what
studies have demonstrated. Nor could they use them in the jury
room without expert testimony.
The judge, in barring this testimony and several of the
factors that follow, also held that the accuracy of the
witness's testimony could be tested based on the witness's
demeanor and through cross-examination. This finding by the
court demonstrates a lack of comprehension of the entire purpose
of allowing expert testimony on witness identification.
Normally jurors can evaluate credibility because deciding
25 A-0492-11T4
whether someone is telling the truth is a skill learned through
experience. The problem with witness identification is it can
be mistaken for reasons explained by Dr. Penrod, even in the
absence of a motive to lie that can be revealed on cross-
examination. The witness may be an honest person with good
intentions who sincerely but mistakenly believes they are
telling the truth. The witness's demeanor will be that of a
truth teller if they believe they are being truthful.
Finally, the judge again found the expert just recited the
findings of others as opposed to doing original research, and
that the jury could read and understand the studies themselves.
These reasons are unsupported by the law and demonstrate an
abuse of discretion.
G. CHANGES IN SPEAKER'S TONE
Dr. Penrod testified another factor that affects voice
recognition is whether the speaker's tone of voice is the same.
He described a Canadian study where individuals were played a
recording of a speaker talking in a normal non-emotional voice
and subsequently were asked to identify that voice from other
voice recordings, including the original speaker speaking in
very emotional tones. Here, the survivor first heard
defendant's voice in a conversation while sitting in a truck,
then two weeks later at the crime scene where the speaker was
26 A-0492-11T4
shouting and threatening in an angry voice. The effect a change
of tone can have on the reliability of an identification could
be helpful to the jury in evaluating reliability.
The trial judge barred it, however, because he found it was
within the ken of the average juror that hearing a voice in a
different tone would make it more difficult to identify. What
the judge ignored is that the study described by the expert
demonstrated statistically that subjects in the study who heard
a voice in a different tone were no more statistically likely to
identify the right voice than would have occurred by chance, or
in other words, just guessing. While a juror might assume
through common sense that a change in tone might affect the
accuracy of a voice identification, the experiments and the
research demonstrate that tone of voice is very significant in
terms of recollection. The trial judge did not look at the
totality of the information Dr. Penrod proffered. The barring
of testimony applying this limited examination of the proffered
testimony was an abuse of discretion.
H. COMPETING VOICES
Dr. Penrod's proffered testimony on competing voices was
that the reliability of voice identification is diminished when
there are other voices and sounds heard at the same time. He
offered no additional information. The trial judge barred the
27 A-0492-11T4
testimony because he found this is common sense. There was no
error in this ruling.
I. RETENTION INTERVAL
The trial judge found Dr. Penrod's testimony on the effect
of the duration of time between hearing the voice and the
identification of the voice was not beyond the ken of the
average juror, and he barred it as falling within the realm of
common sense. The trial judge oversimplified Dr. Penrod's
testimony by describing it as simply an opinion that the longer
the time period between the identification and the crime, the
less accurate the identification.
In fact, there are two time periods in this case possibly
affecting the reliability of the identification. First, the
survivor heard defendant's voice two weeks before she heard it
during the crime. Second, there was a different period of time
following the crime before she was able to identify the voice as
defendant's. The studies Dr. Penrod described in his testimony
relate to how the duration of time between first hearing a
voice, and then hearing it a second time, impacts the accuracy
of the identification. Although the average juror would have a
common sense understanding that the longer the time gap, the
less accurate the identification will be, Dr. Penrod proffered
more scientific information that is not common sense and does
28 A-0492-11T4
fall outside the ken of the average juror. Dr. Penrod
testified:
[M]ost people do recognize that, with the
passage of time, we lose information. What
people typically will not understand, and
what the research shows — and, indeed this
is research dating back to the 1880s with
regard to memory – is that the loss of
memory is most rapid in the first few hours
and then days following an event.
Dr. Penrod testified that he, along with other colleagues,
have done a meta-analysis of the research on loss of face
memory, which demonstrated that the most rapid loss of memory
occurred in the first ten hours. Specifically, in voice
recognition studies, he testified other researchers found
between a nineteen and sixty-nine percent accuracy in
identifying a voice after two weeks. This is not information
within the ken of the average juror, and it was an abuse of
discretion to bar the testimony on this basis.
J. VOICE VERSUS FACE RECOGNITION
The trial judge barred Dr. Penrod's testimony that voice
identification is substantially less accurate than face
identification, i.e., eye-witness versus ear-witness. The judge
again found this was common sense and not beyond the ken of the
average juror. The fact that it is easier to identify a face
than a voice may not be common knowledge. Dr. Penrod's
testimony went beyond the general knowledge the average juror
29 A-0492-11T4
might have as to the level of accuracy of voice identification.
The research demonstrates, according to Dr. Penrod,
"dramatically worse" results for voice recognition. He
discussed the specific differences and study results in his
pretrial testimony. It was an abuse of discretion to bar all of
his testimony because of a finding the average juror may have
some information based on his or her own experience, without
recognizing the average juror is unlikely to know the accepted
scientific research that puts the juror's general understanding
in the context of the magnitude of difficulties in voice
recognition.
K. WITNESS IDENTIFICATION GENERALLY
Dr. Penrod proffered testimony about a body of research
that shows witness identification by both eye-witnesses and ear-
witnesses is much more unreliable than the average juror would
expect. The three Kelly criteria were met by this proffer, but
the trial judge barred the testimony finding inexplicably this
could be explored on cross-examination. I disagree.
There is no lay witness that can be cross-examined about
the research that has found the reliability of witness
identifications to be problematic. The judge's determination
this was within the ken of the average juror is not supported by
the studies relied on by the expert. According to Dr. Penrod,
30 A-0492-11T4
the research demonstrates that jurors have mixed understandings
about the reliability of witness identification and the factors
that affect it. The trial judge barred this area of testimony
because he found that "while courts have allowed testimony
concerning special factors affecting identification accuracy, it
does not appear that courts have admitted testimony concerning
the general reliability or unreliability of eye-witness
identifications." It is understandable that this lack of prior
precedent would cause a trial judge to pause and consider the
reason for the same. However, evidence cannot be excluded
because it has not been found admissible in prior cases. As we
explained in State v. Burr, 392 N.J. Super. 538, 557 (App. Div.
2007), aff'd as modified, 195 N.J. 119 (2008):
Our court rules allow the admission of "all
relevant evidence" that is not otherwise
excluded by law. Relevant evidence is
defined as any evidence that has "a tendency
in reason to prove or disprove any fact of
consequence to the determination of the
action." In determining whether proffered
evidence is relevant, the trial court should
inquire as to whether a "logical connection"
exists between the evidence and a fact in
issue. Stated another way, if the evidence
renders a desired inference more probable or
logical, then the evidence should be
admitted. The test for relevancy is a broad
one that generally favors admissibility.
[(Citations omitted).]
31 A-0492-11T4
Considering this standard for admissibility of relevant
evidence, it was an abuse of discretion to preclude Dr. Penrod's
testimony about studies on the general lack of reliability of
witness identification. Dr. Penrod could be cross-examined by
the State about any flaws in the studies themselves, his
reasoning, and the applicability of eye-witness studies to voice
identification.
L. RECONSIDERATION BY THE COURT
After the judge ruled on the admissibility of Dr. Penrod's
testimony, the Special Master's Study ordered by the Supreme
Court was completed and released. Defendant made a motion for
reconsideration on the admission of Dr. Penrod's testimony. The
trial judge denied the motion, and stood by his prior decisions,
except for one.
The judge addressed in some detail two specific areas
discussed in the report. The Special Master found that jurors
tend to underestimate the importance of memory decay. The trial
judge acknowledged this contradicted his prior finding that this
area of testimony was within the ken of the average juror.
Nonetheless, he ruled it was barred as being common sense, based
on one statement, taken out-of-context, where Dr. Penrod said
the general principle was common sense. The judge overlooked
the balance of the expert's testimony.
32 A-0492-11T4
The second area the judge addressed was defendant's
argument that because the witness was told by the police they
had a suspect before she identified defendant, this might have
tainted the identification. The judge applied the same flawed
criteria he relied upon to bar other testimony, namely, he would
only consider allowing the testimony into evidence if Dr. Penrod
had conducted his own study on this factor.3 Defense counsel did
not contend Dr. Penrod performed such a study.
In view of the trial judge's rulings — which eviscerated
the expert's opinion — defendant did not call the expert as a
trial witness to testify about two factors: (1) the effect of
stress on eye-witness testimony, not including the effect of
stress on voice identification or the crossover between the
studies; and (2) studies showing a witness's confidence level
and the accuracy of his or her identification are not
correlated, not including the studies showing how outside
factors can affect the witness' confidence level. The majority
faults defendant for not presenting his expert's eviscerated
opinion, stating: "On appeal, defendant claims 'the limited
nature of testimony that he would be permitted under the Court's
ruling' neutralized its effectiveness. We disagree." Our
3
The judge pointed out another psychologist had testified on
this factor before the Special Master and not Dr. Penrod.
33 A-0492-11T4
agreement or disagreement with defendant's decision is
irrelevant. The question is whether defendant was deprived of
"a fundamental constitutional right to a fair trial, which
necessarily includes the right to present witnesses and evidence
in his own defense." Jenewicz, supra, 193 N.J. at 451.
"[N.J.R.E.] 702's liberal approach favoring admissibility . . .
and the substantial liberty interest at stake for defendant
[may] tip the scales in favor of finding error in the trial
court's preclusion of [a defense expert's] testimony." Id. at
456. Here, the trial judge not only overlooked these
considerations, he barred defendant from presenting evidence in
his own defense based on unsupported assumptions and a
misunderstanding of the rules of evidence.
The law in the area of witness identification is still
developing. The Supreme Court's decision in State v. Henderson,
208 N.J. 208 (2009),4 is not retroactive, but the evidence that
was wrongfully barred in this case was admissible under our case
law at the time of the trial. The trial court's rulings barring
testimony of Dr. Penrod should be reversed for the reasons and
with the exceptions set forth above.
4
Dr. Penrod's testimony before the Special Master and his
published work were quoted at length in the decision, which
focused on eye-witness identification.
34 A-0492-11T4
II. ADMISSION OF TESTIMONY BY STATE'S GANG EXPERT
The trial judge allowed the State to call Lieutenant Earl
Grave as an expert on gangs. Lieutenant Graves works for the
Essex County Prosecutor's Office. Defendant argues that while
Lieutenant Graves' testimony may have been otherwise admissible,
it should have been barred under N.J.R.E. 404(b), which states:
Except as otherwise provided by Rule 608(b)
evidence of other crimes, wrongs, or acts is
not admissible to prove the disposition of a
person in order to show that such person
acted in conformity therewith. Such
evidence may be admitted for other purposes,
such as proof of motive, opportunity,
intent, preparation, plan, knowledge,
identity or absence of mistake or accident
when such matters are relevant to a material
issue in dispute.
It is accepted that even when the jurors are instructed
that prior crimes or bad acts are being admitted into evidence
for reasons other than demonstrating defendant's propensity to
engage in criminal activity, such evidence is uniquely
prejudicial and inflammatory. The Supreme Court recognized this
as we acknowledged in State v Hernandez, 334 N.J. Super. 264,
269-70 (2000), aff'd as modified, 170 N.J. 106 (2001):
Because of the "widespread agreement that
other-crimes evidence has a unique tendency
to turn a jury against the defendant . . .
," State v. Stevens, 115 N.J. 289, 302
(1989), the compromise between the
antagonistic interests that the Rule seeks
to effect can be achieved only by the most
delicate balancing. As Stevens, supra, at
303, explains, "[i]t is this inflammatory
35 A-0492-11T4
characteristic of other-crimes evidence that
mandates a careful and pragmatic evaluation
by trial courts, based on the specific
context in which the evidence is offered, to
determine whether the probative worth of the
evidence outweighs its potential for undue
prejudice." The tension between undue
prejudice to the defendant and probative
value to the State to prove a fact
legitimately in issue induced the Supreme
Court in State v. Cofield, 127 N.J. 328, 338
(1992), to articulate further the conditions
of admissibility of other-crimes evidence,
the Court defining those conditions as
follows:
1. The evidence of the other crime
must be admissible as relevant to
a material issue;
2. It must be similar in kind and
reasonably close in time to the
offense charged;
3. The evidence of the other crime
must be clear and convincing; and
4. The probative value of the
evidence must not be outweighed by
its apparent prejudice.
[(Alteration in original).]
Defendant argued under the first and last Cofield prongs
the admission of the prosecution's gang expert's testimony in
both trials was error. Lieutenant Graves' testimony was of
little or no probative value, and had such a strong potential
for prejudice it should have been excluded.
The State argues the testimony by the gang expert was
admissible as relevant to several material issues in dispute.
36 A-0492-11T4
A. "GIRLFRIEND" AS GUN
Defendant was intercepted on a wiretap telling a man he was
coming by the next day to pick up his "girlfriend." The man
testified for the State that he had a gun belonging to defendant
and the gun was the "girlfriend." He further testified he
returned the gun to defendant the day before the murder. One
reason the State gave for calling the gang expert was to explain
that on the street, "girlfriend" means gun. This could have been
explained without a reference to gangs. Instead, Lieutenant
Graves was asked:
Prosecutor: In your experience, have blood
gang members, or gang members in general,
used coded words to, I guess, hide their
activities?
Expert: Absolutely, code words.
. . . .
Prosecutor: How about the weapons? Do they
use any code words to hide the meaning of a
handgun or any weapon?
Expert: Yes.
Prosecutor: What code words or phrases do
they use?
Expert: Girlfriend or wifey.
. . . .
Prosecutor: And what is the purpose of using
these coded words?
37 A-0492-11T4
Expert: To, uh, conceal it from law
enforcement, or just hide it.
These references to illegal gang activity were unnecessary
and had limited probative value. The jury heard the tape. The
same testimony offered by the expert about slang used for guns
came in from the man who had the gun. No one on the jury had any
reason to think defendant had left his actual girlfriend with the
man for days and wanted to pick her up.
B. USE OF JEEP
Lieutenant Graves testified that a lower ranking gang
member had to lend his personal property to a higher ranking
member of the gang:
Prosecutor: What about personal property
within the gang? How is that shared or
used?
Expert: It's shared with other members, and,
of course, the higher you are up the food
chain, the hierarchy, the more power you
would have and influence and use of whatever
you want, just as – – I'm a captain. If I
want something, you know, I'll use something
one of my – – one of my lieutenants or
detectives have, I'll just tell them to give
it to me, order 'em.
Because the red Jeep that was identified as being driven to
and from the crime by defendant was not owned by defendant, the
State asserts the expert testimony was needed to show why
defendant had use of the Jeep, even though the expert did not
mention the Jeep directly. However, there was testimony by
38 A-0492-11T4
other witnesses that defendant was seen driving the Jeep on
other occasions, and that it was owned by a man who let him use
it. There was no need to show this was because of gang ties.
Additionally, there was testimony that the police had stopped
defendant for traffic violations while in the Jeep. There was
no dispute defendant frequently drove the Jeep. The gang expert
testimony had little or no probative value because defendant's
use of the Jeep was available and given by other witnesses and
not even directly addressed by the expert. Under these
circumstances, the references by the gang expert did little more
than remind the jury defendant was a high ranking gang member.
C. OPPORTUNITY
The victim, who defendant was convicted of robbing in the
first trial and murdering in the second, was the girlfriend of a
man in jail. The boyfriend and victim were drug dealers. The
co-defendant testified defendant told him he was going to rob
the victim and it would be easy. The State established through
testimony that defendant had been to the victims' home before
the murder. The State claims the gang expert was called to
explain that defendant had the opportunity to gain entry into
the residence. The State asserts that since defendant was a
higher ranking gang member than the victim's boyfriend, the
victim, who was not a gang member, had to admit defendant into
39 A-0492-11T4
her home. The gang expert never gave this proffered testimony
and it would have been unnecessary as there was other testimony
defendant was allowed in the home and knew the victim's
boyfriend was in jail.
D. TATOOS
Lastly, the State asserts the gang expert's testimony about
gang tattoos had probative value. The co-defendant testified
defendant showed him a tattoo on his neck after the crime,
telling the co-defendant that he did not need any "co-
defendants." The co-defendant testified he knew defendant was a
gang member after seeing the tattoo. He also testified seeing
the tattoo made him nervous because he knew the defendant's gang
was vicious, and he feared for his family's safety. It was
unnecessary, therefore, for the gang expert to explain that gang
members had tattoos to identify them as part of a gang.
Defendant presented no evidence he was not part of a gang or the
tattoo was not a gang symbol.
The gang expert testimony simply repeated facts already
established by the lay witnesses. The probative value was
limited or non-existent. The prejudice, however, was
significant because the gang expert testimony was not limited by
the judge to the testimony the State claims was relevant.
40 A-0492-11T4
E. PREJUDICIAL EFFECT
The error in the admission of expert testimony is that it
included prejudicial testimony of defendant's involvement with
the "Bloods" and specifically included Lieutenant Graves'
history and habits of the Bloods. This history included
references to the Bloods' feud with the Crips, which had no
relevance to the crime. This testimony was followed by the
expert's identification of defendant as a top leader of the
Bloods gang, or as he described it, an original gangster or
founder of the gang. These gang names are well known, and the
public perception is that people who belong to these groups are
bad people with a propensity to commit crimes. Even if any of
the jury had not heard of the Bloods before the trial, they knew
about their involvement with law enforcement by the trial's end;
a fact relevant to no material issue in dispute. Defendant's
gang membership would have come before the jury, but not with
the same impact as when a member of law enforcement testifies
about the gang, its history, its hierarchy, and law
enforcement's prior focus on and encounters with gang members.
The probative value of the references to defendant's gang
ties were substantially outweighed by its undue prejudice. See
N.J.R.E. 403 ("evidence may be excluded if its probative value
is substantially outweighed by the risk of [] undue prejudice").
41 A-0492-11T4
Gang references are admissible only if N.J.R.E. 404(b) is
satisfied. "Other crimes evidence is considered highly
prejudicial." State v. Vallejo, 198 N.J. 122, 133 (2009). "The
prejudice of other-crime evidence is its tendency to demonstrate
a criminal predisposition; therefore, it poses a distinct risk
that it will distract a jury from an independent consideration
of the evidence that bears directly on guilt itself." State v.
G.S., 145 N.J. 460, 468 (1996). An individual may not be
convicted merely for belonging to an organization that advocates
crime. Scales v. United States, 367 U.S. 203, 220-21, 81 S. Ct.
1469, 1481-82, 6 L. Ed. 2d 782, 796, reh'g denied. 366 U.S. 978,
81 S. Ct. 1912, 6 L. Ed. 2d 1267 (1961).
III. REPLACEMENT OF A DELIBERATING JUROR
After deliberations commenced in the retrial, two jurors
requested to be excused. Defendant contends the judge's inquiry
and conclusory findings were flawed, and replacement of one
juror, over defendant's objection, rather than declaring a
mistrial, was error.
A court's substitution of an alternate juror is limited by
Rule 1:8-2(d)(1), which provides in relevant part:
Following the drawing of the names of jurors to
determine the issues, the court may in its
discretion order that the alternate jurors not be
discharged, in which event the alternate jurors
shall be sequestered apart from the other jurors
and shall be subject to the same orders and
42 A-0492-11T4
instructions of the court, with respect to
sequestration and other matters, as the other
jurors. If the alternate jurors are not
discharged and if at any time after submission of
the case to the jury, a juror dies or is
discharged by the court because of illness or
other inability to continue, the court may direct
the clerk to draw the name of an alternate juror
to take the place of the juror who is deceased or
discharged. When such a substitution of an
alternate juror is made, the court shall instruct
the jury to recommence deliberations and shall
give the jury such other supplemental
instructions as may be appropriate.
We review a trial court's decision to substitute an
alternate juror for an abuse of discretion. State v. Musa, 222
N.J. 554, 564-65 (2015). We are guided by certain principles in
applying this standard; Rule 1:8-2(d)(1) "delicately balances
two important goals: judicial economy and the right to a fair
jury trial." State v. Jenkins, 182 N.J. 112, 124 (2004). The
Supreme Court has explained that juror substitution should only
be invoked as a last resort because it "poses a clear potential
for prejudicing the integrity of the deliberation process."
State v. Hightower, 146 N.J. 239, 254 (1996). With this in
mind, "[t]he court must be prepared to declare a mistrial if a
substitution would imperil the integrity of the jury's process."
State v. Ross, 218 N.J. 130, 147 (2014). In making its
decision, "the trial court must determine the cause of the
juror's concern and assess the impact of the juror's departure
on the deliberative process." Ibid. Additionally, the court
43 A-0492-11T4
"must ascertain whether a reconstituted jury will be in a
position to conduct open-minded and fair deliberations." Ibid.
Here, the trial judge was confronted with the difficult
task of learning the source of the juror's distress without
asking a question that might elicit information about the jury's
deliberations. To avoid such disclosure, "[j]udges must caution
a juror at the outset of the colloquy that she must not reveal
the way in which any juror plans to vote, or the vote tally on a
verdict." Jenkins, supra, 182 N.J. at 134.
The Supreme Court has "restrictively interpreted the phrase
'inability to continue' in Rule 1:8-2(d)(1) to protect a
defendant's right to a fair jury trial, forbidding juror
substitution when a deliberating juror's removal is in any way
related to the deliberative process." Jenkins, supra, 182 N.J.
at 124. "A deliberating juror may not be discharged and
replaced with an alternate unless the record 'adequately
establish[es] that the juror suffers from an inability to
function that is personal and unrelated to the juror's
interaction with the other jury members.'" Id. at 124-25
(quoting Hightower, supra, 146 N.J. at 254).
In Jenkins, the Supreme Court strongly emphasized the
importance of not removing a juror because of inter-juror
conflict:
44 A-0492-11T4
A juror cannot be removed merely because she is
taking a position at odds with other juror's
views. A juror has the unassailable right to see
the evidence in her own way and to reach her own
conclusions, regardless of how overwhelming the
evidence or how illogical her view may appear to
other jurors. "If a court suspects that the
problems with the juror are due to interactions
with other jurors, the court should instruct the
jury to resume deliberations."
[Id. at 125 (citations omitted).]
We review what the judge did in this case in light of the
controlling law. Here, jurors two and six asked to be excused
via a note sent to the court. The judge interviewed juror two
who was described as clearly upset and emotional. The judge
described the juror's voice as cracking.
The judge first told juror two she could not discuss the
deliberations. This was appropriate, but the interview itself
was extremely short consisting of only three questions to which
the juror gave conflicting answers. Most importantly, the juror
was never asked to explain her reason for being upset. The
judge was required to ascertain why the juror was upset and
asking to be removed from the jury. He never achieved this goal
and made very little effort to get the information he needed.
His finding she was upset and emotional is undoubtedly true.
However, if her reasons for being upset were personal, she could
be removed and replaced, but if she was upset because of how
deliberations were going or because of interactions with other
45 A-0492-11T4
jurors during deliberations, she either had to continue or the
court was obligated to declare a mistrial. That decision could
not be made without information about the cause of her distress.
The colloquy between the court and the juror follows:
THE COURT: Do you feel that there is
emotionally an inability for you to proceed
and perform your duties as a deliberating
juror?
THE JUROR: Yes.
THE COURT: Do you feel that these emotions
that you have, again, would impact upon your
ability to perform your function in this
case?
THE JUROR: No. I know it's not balanced in
what I'm saying, but there's [sic] reasons
why I can't speak without giving away —
THE COURT: I don't want you to talk about
that. But emotionally, you feel you can't
continue?
THE JUROR: Correct.
THE COURT: I'm going to leave it at that
for now. Thank you.
It is difficult to reconcile that limited exchange with the
majority's conclusion that "the trial judge sought the
explanation for juror two's request to be excused." Ante at 55.
The judge appears to have avoided eliciting an explanation that
could require a mistrial, at the cost of wrongfully replacing a
juror. The juror never said she could not be fair to both
sides. In her limited response to question two, the juror
46 A-0492-11T4
denied that was the situation, but was prevented from giving an
explanation. She agreed in response to question one and three
that she did not feel she could continue with the deliberations
but gave no explanation as to why.
The majority opinion states:
He [defendant] additionally infers from
juror two's comments she was at odds with
other jurors, a circumstance not justifying
excusal. See []Jenkins, [supra,] 182 N.J.
[at] 124-25 [] (holding excusing a juror
cannot be based on juror interaction with
other jurors). We cannot agree the juror's
comments revealed she faced hostility from
fellow jurors . . . .
[Ante at 54-55.]
We do not know, based on this record, if the juror was
upset because she was at odds with other jurors since the juror
was never given the opportunity to reveal the reason for her
distress. Moreover, her assertion that "there's [sic] reasons
why I can't speak without giving away –" does reasonably imply
that she needs to discuss her emotional state in the context of
something relating to jury deliberations, which was the only
thing she was instructed not to mention. The trial judge
discharged juror two on a record that did not adequately
establish her inability to function.
The trial court's inquiry was insufficient to determine the
cause of the juror's unwillingness to continue deliberations.
47 A-0492-11T4
The juror started a statement that gave the trial court reason
to suspect the juror's problem was due to interactions with
other jurors, but he stopped her before she could complete her
answer. Even if there is some other way to interpret the
juror's statement, the trial record does not adequately
establish the juror suffered from an inability to function
personal to her and unrelated to her interaction with other jury
members.
Although it is clear the trial court's effort was designed
to preserve the verdict and "avoid the deplorable waste of time,
effort, money, and judicial resources inherent in a mistrial,"
Hightower, supra, 146 N.J. at 254, the cause of juror two's
emotional distress could have been attributable to either
personal problems or her interaction with other jurors. The
record does not adequately establish the cause. For that reason,
it is necessary to conclude the trial court misapplied its
discretion by replacing juror number two.5
IV.
Our Supreme Court has explained the doctrine of cumulative
error: "the rule is that where any one of several errors
5
The judge could have simply sent the jury home for the day to
allow the juror to calm down or could have asked whether her
reasons were related to other juror's interactions with her,
after telling her to limit her initial response to yes or no.
48 A-0492-11T4
assigned would not in itself be sufficient to warrant a
reversal, yet if all of them taken together justify the
conclusion that defendant was not accorded a fair trial, it
becomes the duty of this court to reverse." State v. Orecchio,
16 N.J. 125, 134 (1954) (quoting State v. Dolliver, 184 N.W. 849
(Minn. 1921)). Here, the trial court excluded relevant and
potentially exculpatory testimony, admitted mostly irrelevant
testimony about gangs, and improperly excused a deliberating
juror. In my view, each of these errors deprived defendant of a
fair trial. Their cumulative effect clearly did so. For the
reasons set forth above, I would reverse the convictions in both
trials and remand for a new trial on all remaining charges.
49 A-0492-11T4
State of New Jersey v. Rolando Terrell
Combined Opinion