State of New Jersey v. Rolando Terrell

• Court: New Jersey Superior Court Appellate Division
• Decided: November 29, 2017
• Docket: A-0492-11/A-1593-12
• Status: Published

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

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).

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.

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

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.

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

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 . . .

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

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 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 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