State of New Jersey v. Ronald J. Teschner

• Court: New Jersey Superior Court Appellate Division
• Decided: December 1, 2025
• Docket: A-2047-22
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2047-22

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RONALD J. TESCHNER,

Defendant-Appellant.

Submitted September 24, 2025 – Decided December 1, 2025

Before Judges Currier, Smith and Berdote Byrne.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 20-02- 0263.

Jennifer N. Sellitti, Public Defender, attorney for appellant (Stephen W. Kirsch, Designated Counsel, on the brief).

Raymond S. Santiago, Monmouth County Prosecutor, attorney for respondent (Monica do Outeiro, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM Defendant appeals from his convictions of the murder of Jacqueline

Terrulli, arson, and other offenses after a jury trial, asserting error in certain

evidentiary rulings, the jury instructions, the court's decision to remove him

from the courtroom on several occasions for his misbehavior, and the recusal of

one of his counsel. After a careful review of these contentions in light of the

record and applicable principles of law, we affirm.

I.

Defendant was charged with murder, N.J.S.A. 2C:11-3(a)(1) and/or

N.J.S.A. 2C:11-3(a)(2) (count one); felony murder, N.J.S.A. 2C:11-3(a)(3)

(count two); robbery, N.J.S.A. 2C:15-1 (count three); burglary, N.J.S.A. 2C:18-

2 (count four); aggravated arson, N.J.S.A. 2C:17-1(a) (count five); aggravated

assault, N.J.S.A. 2C:12-1(b)(8) (count six); desecration of human remains,

N.J.S.A. 2C:22-1(a)(1) (count seven); three counts of theft, N.J.S.A. 2C:20-3(a)

(counts eight, nine, and ten); possession of fentanyl, N.J.S.A. 2C:35-10(a)(1)

(count eleven); two counts of resisting arrest, N.J.S.A. 2C:29-2(a) (counts

twelve and thirteen); two counts of unlawful possession of a weapon, N.J.S.A.

2C:39-5(j) (counts fourteen and fifteen); and certain persons not to have

weapons, N.J.S.A. 2C:39-7(b)(1) (count sixteen).

A-2047-22 2 Background

Trial took place between September 20 and October 25, 2022. We present

the following pertinent facts from the trial record. Terrulli became romantically

involved with defendant in 2019 and permitted him to move into her rented home

where she lived with other family members. Terrulli's sister, Briten Alston, told

the jury that after defendant moved in, things in the house became "a little eerie"

because everyone was afraid of defendant "drinking or doing drugs" and because

he would "sit there and just stare." At one point, Alston told Terrulli she was

worried defendant was "going to snap," but Terrulli told her she could "handle

him" and not to worry about it. Alston said her sister "just wanted [defendant]

to stay straight" and "got very frustrated" when defendant "couldn't seem to

stop" using alcohol and drugs.

During this timeframe, Terrulli became friendly with Meryl Kolb and the

two decided to open a business together. Kolb testified that she thought Terrulli

was not "happy with" her relationship with defendant.

On September 11, 2019, defendant and Terrulli went to Kolb's house so

defendant could do some handyman work there. Kolb described defendant as

"angry" and "frustrated" with Terrulli, "because [Terrulli] was telling him what

to do all the time . . . ." In a moment when Terrulli was not in the room,

A-2047-22 3 defendant asked Kolb if she "knew somebody with a sewing machine, so he

could sew [Terrulli's] mouth shut because she's a f[***]ing know-it-all." Kolb

said defendant again called Terrulli a "know-it-all" in an "annoyed" tone later

on.

That evening, Terrulli and defendant were alone at Terrulli's home, as the

rest of Terrulli's family had gone to Atlantic City. Terrulli and Kolb spoke on

the phone and exchanged text messages about their business, expressing

excitement about the future and discussing their "grand opening." They made

plans to meet up the following morning at 8:00 a.m. During the phone call,

Terrulli told Kolb she "want[ed] to get [defendant] . . . out of the house[]" and

"get rid of him." Kolb testified that Terrulli was speaking loudly when saying

this, and knowing Terrulli was alone with defendant, Kolb asked Terrulli if she

was okay and whether she wanted to stay at Kolb's home. Terrulli responded

that she was "fine" and could "handle" defendant.

Terrulli also spoke to and texted with Alston that evening, telling her sister

she wanted defendant to move out. Alston testified that Terrulli said she

"couldn't do it anymore and she just wanted [defendant] out" when the family

got home. In another text, Terrulli said defendant was "just way too much for

anyone" and that she was "way too old for this and him" and "need[ed] some

A-2047-22 4 normal sanity in [her] life." In a subsequent phone call, Terrulli told Alston she

intended to sleep in a separate room with the family's dog.

The Fire

Sam Garfunkle lived across the street from Terrulli. At around 7:25 a.m.

on September 12, 2019, Garfunkle was pulling out of his driveway to take his

children to school when his son noticed smoke coming from Terrulli's house.

Garfunkle got out of his car and ran to help, calling 9-1-1. He testified that the

fire was spreading quickly from the right side of the house, and that in "what

felt like seconds . . . it seemed like the whole house was on fire." While running

around the left and rear of the house, Garfunkle saw windows in the back

"cracking" and smoke coming from the second floor. Garfunkle did not see

Terrulli's Jeep at the house or driving away from the area. He stated he noticed

a gas can outside the garage and noticed a "heavy smell of gasoline."

Officer Karen Noel of the Ocean Township Police Department (OPD)

responded to the 9-1-1 call, where she saw that the entire right side of the house

was on fire and there were flames coming from the front door and windows. The

firefighters' efforts to enter the home to search for anyone inside were hampered

by the black smoke coming out of the house. At some point, part of the second

floor and roof collapsed. Police and firefighters determined that it was too

A-2047-22 5 dangerous for anyone to go inside until after the blaze was quelled and continued

fighting the fire from the outside. Eight to ten fire companies responded to the

site, and it took them "many hours" to suppress the fire.

Meanwhile, police learned that Terrulli's family were safe in Atlantic City,

but Terrulli and defendant had not been located. Law enforcement began the

search for Terrulli's Jeep. Terrulli also kept a trailer at her home, which she

used in her landscaping business.

When Terrulli did not show up for their meeting on the morning of

September 12, Kolb repeatedly called her, but got no response. Terrulli also did

not answer texts and calls from Alston, who had been informed of the fire and

was on her way home; Alston said her sister was "never" without her phone.

Police tried to call Terrulli's phone, but the calls went unanswered and by 9:00

a.m. went straight to voicemail.

Thereafter, police made emergency requests for information to Terrulli's

cell phone carrier. They learned that the phone's "last active ping" at the time

of the request was to a cell tower at a park in Paterson around 9:00 a.m. on

September 12. Additional phone records, E-ZPass records, surveillance videos,

and data taken from the Jeep confirmed that the vehicle and phone left Ocean

A-2047-22 6 Township and traveled to Paterson at around the same time Garfunkle noticed

the fire.

Surveillance video from the afternoon of September 12 showed the Jeep

parked near a store outside Paterson owned by defendant's ex-girlfriend, Natalie

Rubestello. A friend of defendant's, Mark LaCorte, testified that defendant

called him that morning after not speaking to him for months. When LaCorte

met with defendant shortly thereafter, defendant offered him some landscaping

equipment to repay a debt. LaCorte agreed to look at the items, and defendant

came to his house driving "a white Jeep" with "[k]ind of a bunch of lawn

equipment" in it. LaCorte told police the Jeep was "a complete mess" and full

of "a clutter of s[***]." LaCorte said defendant "seemed normal," was not dirty,

and did not smell like smoke. LaCorte told defendant he did not need any of the

equipment, and defendant left.

Defendant's Arrest

Later, on September 12 and into September 13, 2019, law enforcement

continued to search for Terrulli, defendant, and the Jeep. At around 1:00 a.m.,

the Jeep was found parked on the side of the road in a residential area.

Defendant was sleeping inside, "partially leaning out of the driver's window ."

A-2047-22 7 OPD Sergeant1 Jesse Orbach testified that the Jeep was filled with "a lot

of personal belongings" to the point where "it looked like nobody else . . . could

fit in the vehicle . . . ." Defendant was not wearing shoes, and Orbach observed

multiple decks of a substance they initially thought was heroin but that was later

tested and revealed to be fentanyl on his lap and near his feet. Orbach asked

defendant to exit the vehicle and as he began to handcuff and arrest him,

defendant pulled away and ran for approximately twenty-five feet before

officers were able to secure him.

Photographs were taken of defendant at OPD, depicting "some abrasions"

or "scratches" on defendant's forearms and biceps. When shown the

photographs of defendant at trial, Alston testified that she had not seen any

scratches on defendant's arms before she left for Atlantic City on September 10 .

Kolb said defendant was wearing a black tank top while they were together on

September 11, and his arms were uninjured.

A search of Terrulli's Jeep revealed landscaping equipment, a chainsaw, a

toolbox, a printer, a hammer and rubber mallet, cleaning supplies, shoes and

clothing including at least one item of women's clothing in a leopard print, a

Coach brand bag full of toiletries, a Versace bag with sunglasses in it, jewelry

1 Orbach was a detective with OPD at the time of the fire and investigation. A-2047-22 8 including a Rolex watch, and four cell phones. Police found cash, pens, credit

cards,2 and a BJ's Wholesale membership card in Terrulli's name in the well of

the driver's side door.

Police also found two shotguns inside cases in the Jeep. The guns were

in "near pristine" condition, and there was no ammunition anywhere in the

vehicle. Cyrus Seervai, who owned a sporting goods store, testified he had sold

the guns to Terrulli.

Alston confirmed that the jewelry, printer, equipment, and several other

items found inside the Jeep belonged to Terrulli. She testified that her sister

never kept her landscaping equipment in the Jeep because she had a trailer for

that and did not want the equipment to get her vehicle dirty. She had never seen

Terrulli's gun cases in the Jeep either. Alston further said she had never known

Terrulli to give defendant permission to use her credit cards.

Defendant was initially charged with receiving stolen property, possession

of a controlled dangerous substance, and unlawful possession of the guns found

in the Jeep.

2 One of the credit cards was in Alston's name. A-2047-22 9 Investigation of Terrulli's Home

State Troopers and their K-9 partners searched the burnt and partially

collapsed remains of Terrulli's rented home, as well as a nearby wooded area for

several days following these events, but did not find the presence of any human

remains. Investigators found the remains of Terrulli's dog and one of her cats

inside an upstairs bathroom, those of another cat under a fallen door, and those

of a cockatoo bird in its cage on the second floor.

Fire Investigator Douglas Rowell testified that, based on his investigation,

the blaze started in Terrulli's bedroom on the first floor and spread to the nearby

hallway and stairwell and then beyond. The greatest damage to the house was

at its rear. Terrulli's bedroom, at the back on the first floor, was damaged enough

that the second floor collapsed down into it. Rowell ruled out a lightning strike,

electrical issues, and smoking materials as causes of the fire. He testified that

while the actual cause was "undetermined," it was most likely that an "open

flame" was used to ignite "combustible materials" through "human behavior."

Samples of material taken from Terrulli's bedroom and at the base of the

stairs to the second floor did not reveal the presence of any ignitable liquids .

However, both Rowell and Laurel Mason, who tested the samples, stated that it

was possible the fire was caused by a liquid that would not have been identifiable

A-2047-22 10 in post-fire chemical analyses. Rowell also acknowledged that it was

"impossible" to determine with exactitude what the "first fuel" or material

originally set on fire was, due to the collapse of the second floor into Terrulli's

bedroom and attendant spread of debris in the area.

Testimony of Defendant's Cellmates

Following his arrest, defendant was incarcerated at the Monmouth County

Correctional Institution (MCCI). From September 19 to September 25, 2019,

he was cellmates with Michael Smith, who testified that he had general

conversations with defendant, and that on September 22, 2019, the two talked

about the crimes for which they had been arrested.

Smith said defendant told him he would regularly "steal" his "girlfriend's"

car when she was sleeping, and drive to Paterson to buy drugs. Defendant also

said he overheard his girlfriend on the phone telling people she wanted him to

move out of her house, and around 4:30 a.m. the following morning on

September 12, he began taking items from her including jewelry, watches,

purses, and guns. According to Smith, the girlfriend caught defendant taking

the items and trying to leave in her vehicle and threatened to call the police.

Defendant told Smith he "handled" or "dealt with" his girlfriend, then took

her body and dumped it "[s]omewhere by a transportation center." Smith said

A-2047-22 11 defendant told him he went back and started a fire at her house using nail polish

remover at around 7:00 a.m., then drove to Paterson, sold some of her property,

and used the money to buy drugs. Defendant's intention was to go to a rehab

facility to establish an alibi. Smith also said defendant was concerned about

scratches on his arms that police had photographed after arresting him .

Defendant told Smith the scratches were from "[w]restling around with" the

"person in question."

Edward Patterson was also defendant's cellmate at MCCI, from September

30, 2019 to March 20, 2020. After hearing "a little bit" about defendant's

charges, Patterson came up with a "plan" to become friendly with him and find

out information about his case. He testified that he hoped to share the

information with law enforcement to obtain leniency in his own criminal

prosecution.

According to Patterson, defendant told him he struck Terrulli on the side

of the head with a rubber mallet while they were alone in her house, rendering

her unconscious. He did this after Terrulli refused to loan defendant her Jeep so

he could buy drugs. Patterson testified that defendant never told him "fully"

how he killed Terrulli, but said that defendant and Terrulli "got into an argument

. . . and the next thing [defendant] [knew]" was that "she was dead." According

A-2047-22 12 to Patterson, defendant said he loaded Terrulli's Jeep with guns and other items,

then started a fire in Terrulli's bedroom because that was where "a lot of different

type[s] of evidence" was located. Defendant told Patterson he dumped Terrulli's

body near a river in Paterson, where he had gone to buy drugs.

Both Smith and Patterson informed law enforcement of the conversations

they had with defendant while incarcerated. However, Terrulli's body was not

found at either of the referenced locations.

At trial, Smith testified he had multiple prior convictions, and informed

law enforcement about his conversations with defendant because he hoped to be

released from jail. He was told they "[couldn't] promise anything," but the rest

of his ninety-day sentence was suspended, and he was released from

incarceration the evening after he gave his statement.3

Smith also admitted that the day after defendant talked to him about

Terrulli's death, he talked to his mother on the phone about defendant's case .

Portions of this call were read to the jury. Smith told his mother that defendant

was his "bunkie," and asked her to "Google [defendant's] name" to see if any of

3 While released, Smith was almost immediately arrested in Ocean County on a burglary charge. He was still incarcerated when he testified at defendant's trial. Smith testified that neither the Ocean County Prosecutor's Office nor the Monmouth County Prosecutor's Office had given him any "benefit" for testifying. A-2047-22 13 the search results mentioned a "[m]issing woman" or a "[f]ire or homicide in

Monmouth County." Smith also asked his mother to contact the Monmouth

County Prosecutor's Office and tell them he wanted to talk to them about his

"bunkie." Smith's mother did so, initiating Smith's contact with the prosecutors.

Patterson testified that he suffered from schizophrenia and was

unmedicated when he spoke with defendant at MCCI. He also admitted that he

had multiple prior convictions including a first-degree robbery charge from 2019

to which he had pled guilty as part of an agreement to give a statement and

testify in defendant's case. The prosecutor informed the jury of Patterson's plea

agreement in that case: Patterson would receive a three-year sentence and three

years of parole; Patterson had initially faced a life sentence due to being eligible

for an extended term.

Patterson also testified that in his quest to obtain leniency in his own case,

he lied to the prosecutor's office and claimed he knew information about

defendant that defendant had not yet divulged, such as where Terrulli's body was

and where the fire started in Terrulli's house. He said even after defendant talked

to him, Patterson wanted to provide only "little bits" of knowledge to get the

prosecutors' attention and then work on getting more information. Patterson

admitted that at one point, he wrote a letter to prosecutors saying that he and

A-2047-22 14 defendant never spoke about the case. He explained that he did so because

defendant had accused him of "telling on" him and he did not want to lose his

source of potential information.

Discovery of Terrulli's Remains

In May 2020, a demolition company began to tear down Terrulli's rented

house. In June, the company's employee was excavating the foundation of the

house with a large machine when he noticed "a smell, like a rotten smell" that

he had not previously encountered on the property. Later that day, he saw

"something white" in the orange dirt he was excavating. Upon investigation, he

saw a human foot and a white garbage bag.

The white bag, along with another unearthed black garbage bag, contained

Terrulli's remains; her identity was confirmed via forensic examination of the

body's teeth and Terrulli's dental records. According to detectives, the body,

which had suffered "extensive decomposition," had been "cut in half," and the

left arm had "become detached" from her body. Terrulli had been buried

approximately four-and-a-half feet underground, about three feet from a door

leading outside from her bedroom.

Anna Delaney, a forensic anthropologist with the New Jersey State Police

who examined the remains, testified they were consistent with a body that had

A-2047-22 15 been decomposing underground for eight or nine months. She said that the

"significant trauma" to Terrulli's ribcage was "most likely" caused by the

excavation machine and she found no other trauma to the body that was not

likely inflicted by the machine. Laura Cannon, who performed DNA testing on

Terrulli's fingernails—which had sloughed off her body and were found inside

the trash bags—testified that only Terrulli's DNA was found on them.

State troopers explained at trial that many factors can impact a trained

dog's ability to smell a body, such as temperature, weather, and wind direction.

One trooper said if a body was "covered up, or concealed, or sealed," the odor

would not be able to "get out" for the dog to detect it, citing examples of bodies

that are "buried underground" in a "shallow grave," underwater, "wrapped in a

tarp" or put in a "container," or covered by a "building collapse," as

circumstances that would make it harder for a dog to notice a smell.

The items found in Terrulli's Jeep included a pair of boots caked with dirt,

which belonged to defendant. Dirt samples from the boots, and samples taken

from outside Terrulli's residence, including the grave site, were tested and

compared by a forensic geologist. The geologist opined at trial that he found an

"inclusion" between the soil taken out of the grave site and the soil on the boots .

A-2047-22 16 Dr. Stephen Melito, a forensic pathologist and assistant medical examiner

with the Middlesex Regional Medical Examiner's Office, also examined

Terrulli's remains and provided a report and expert testimony at trial . The

remains were heavily decomposed and skeletal, which Melito said hampered

him in discerning information. For example, he said it was impossible to tell if

there had been trauma to Terrulli's internal organs, because of their decomposed

or absent condition. He also said it would be difficult to determine if Terrulli

was strangled, because her eyes and the mucosa around them and in her mouth

had completely decomposed.

Melito testified that although he found no fractures or trauma to the skull

or neck bones, this did not necessarily mean Terrulli was not injured, but only

that any potential injuries did not involve trauma to her bones . He reiterated

that the absence of skin and tissue precluded his ability to discover any stab

wounds or bruising to Terrulli's torso. However, he agreed with Delaney that

the severe visible trauma to Terrulli's torso appeared to have been caused by the

excavator.

Toxicology reports revealed only that Terrulli had consumed caffeine at

some point just prior to her death, so Melito ruled out a drug overdose . Melito

said that the remaining portions of Terrulli's organs did not indicate illness or

A-2047-22 17 another natural cause for her death. Melito stated in his report and testimony

that her cause of death was "undetermined," because there were "certain things

[he couldn't] rule out based on the condition[] of her remains."

Over defendant's objection, the court permitted Melito to testify as to the

manner of Terrulli's death. Melito stated he had concluded Terrulli's manner of

death was "homicide." He explained that a manner of death must be selected

from among five options set by the Center for Disease Control: natural,

accident, suicide, homicide, and undetermined. Unlike the "cause of death," for

which the medical examiner states a specific "mechanism in which somebody

dies," such as "pneumonia, a gunshot wound, a stab wound, [or] a drug

overdose," the manner of death is "a checkbox option."

Melito outlined the options for manner of death, explaining that a

"natural" death involves "no toxin . . . [and] no injury that contributed even one

percent to that person's death," an "accident" involves an injury where "there

was no intent of that person being hurt," and a "suicide" occurs "where a person

inflicts an injury or ingests a toxin for the sole purpose of causing . . . one's own

harm." Melito said that "homicide" means that "somebody else contributed to

. . . somebody's death," and that this option should be selected if the medical

examiner determines that "from a pathology perspective," the person's "death

A-2047-22 18 was at least one percent at the hands of somebody else." Finally, the

"undetermined" category is used when a medical examiner "can't pick between

those main four . . . ."

Melito testified that his determination that Terrulli's manner of death was

homicide was based on his autopsy, toxicology testing, and "the investigation

that occurred prior" to his examination of the body, including the fact that

Terrulli had been found buried in trash bags near her home. He also said there

was no evidence of any other manner of death, such as illness. Melito reiterated

that all those factors led to a conclusion that Terrulli's death was at the hands of

another person.

Recusal of Defendant's Attorney

Assistant Public Defender Allison Friedman represented Patterson—

defendant's cellmate—for three months in late 2015. During that time, Patterson

signed a HIPAA form and Friedman issued a subpoena for Patterson's medical

records from Jersey Shore University Medical Center's Meridian Behavioral

Health program and Park Place Treatment Center. Friedman also represented

Patterson at an arraignment in November 2015. Friedman could not recall how

many meetings, if any, she had with Patterson following his arraignment. A

subsequent public defender took over Patterson's case in December 2015 and

A-2047-22 19 represented Patterson when he entered a guilty plea in February 2016, and at his

sentencing hearing in April 2016.

Patterson was indicted in Monmouth County in 2019 for armed robbery,

aggravated assault, and weapons offenses. On March 12, 2020, the State entered

into an agreement with Patterson under which he agreed to provide testimony in

defendant's case. Patterson pleaded guilty in November 2020, to an amended

charge of second-degree robbery, which was to be treated as a third-degree crime

for sentencing, contingent on his cooperation. On January 6, 2021, the State

informed the defense of its intention to call Patterson as a witness against

defendant.

In February 2021, the State moved to recuse Friedman, who had been

working as one of defendant's attorneys, because of her prior representation of

Patterson. Defendant wanted Friedman to continue as his attorney. The court

requested supplemental briefs on the subject and reviewed relevant parts of

Patterson's "prior files" submitted by the State. The court advised during a

hearing that it would "consider" defendant's preference, but the request could

not overcome a conflict of interest if one existed.

The court analyzed the pertinent case law and controlling RPC 1.9(a) in a

thorough well-reasoned oral decision on June 10, 2021. The court found that

A-2047-22 20 Patterson's signing of a HIPAA form in October 2015 "clearly indicate[d] . . .

that there was a discussion" between him and Friedman "prior to the

arraignment" in November 2015. It also noted that the arraignment forms were

filled out by Friedman "personally," and she said she had talked to Patterson at

the arraignment and "was going to talk to him again about further medical

records." The court found that the evidence Friedman obtained was "clearly"

later used by the subsequent public defender "to obtain a favorable plea deal"

for Patterson that included "probation conditioned upon successful completion

of [a] behavioral healthcare program" with Rutgers Behavioral Health .

However, the court eventually sentenced him to three years of incarceration .

The court next found that Patterson's and defendant's interests in the

current case were materially adverse, because the State had proffered that it

anticipated Patterson would testify that defendant confessed to Terrulli's murder

and told him where the body was located. The court commented that this put

the two men "on opposing teams," stating that it would be "the duty of the

defense attorney to cross-examine" Patterson. The court found that as

defendant's counsel, Friedman, would be responsible for probing the "significant

issue" of Patterson's credibility, personally or alongside co-counsel.

A-2047-22 21 The court found that Friedman's "familiarity" with Patterson, based on

prior interactions with him and her receipt of confidential medical records,

including ones pertaining to his mental health, would be "part of the calculus"

in any "attack" she might make regarding his credibility. It stated that the

"substance" of the confidential records were "relevant to any cross-

examination," and found that because "[o]nly a person who represented Edward

Patterson would know about" them, they would "put[] Allison Friedman at an

advantage against her former client when he testifie[d] . . . ." The court

concluded that the "specific facts" of this matter required Friedman's

disqualification from representing defendant. The court denied defendant's

subsequent motion for reconsideration.

The jury acquitted defendant of count thirteen, and convicted him of all

other charges, with count four being reduced to a lesser-included offense of

third-degree burglary. The court denied defendant's subsequent motion for a

new trial. Defendant was sentenced to an aggregate term of life without parole

for murder plus a consecutive term of ten years with an eighty-five percent

parole disqualifier under the No Early Release Act, N.J.S.A. 2C:43-7.2, for

arson.

A-2047-22 22 II.

On appeal, defendant raises the following arguments for our

consideration:

POINT I THE MEDICAL EXAMINER IMPROPERLY OPINED, OVER OBJECTION -- WITH INSUFFICIENT EVIDENCE TO SUPPORT THE CONCLUSION -- THAT, ALTHOUGH HE COULD NOT TELL THE CAUSE OF THE DECEDENT'S DEATH, THE MANNER OF DEATH WAS "HOMICIDE."

POINT II REVERSAL IS MANDATED BECAUSE: (A) THE DEFENDANT WAS INAPPROPRIATELY REMOVED FROM THE COURTROOM MORE THAN ONCE; (B) EACH REMOVAL, EXCEPT ONE, FAILED TO PLACE THE DEFENDANT IN A ROOM WHERE HE COULD FOLLOW THE ONGOING PROCEEDINGS BY WAY OF A READILY AVAILABLE AUDIO OR VIDEO CONNECTION; AND/OR (C) THE INSTRUCTIONS DELIVERED TO THE JURY REGARDING THE EJECTIONS WERE HOPELESSLY DEFICIENT BECAUSE THEY FAILED TO TELL THE JURY NOT TO CONSIDER THE DEFENDANT'S ABSENCE FROM THE COURTROOM AGAINST HIM.

POINT III THE TRIAL JUDGE IMPROPERLY DENIED DEFENDANT HIS CONSTITUTIONAL RIGHT TO COUNSEL OF CHOICE WHEN HE GRANTED THE STATE'S MOTION TO RECUSE ONE OF DEFENDANT'S LAWYERS FOR REASONS THAT

A-2047-22 23 DO NOT AMOUNT TO AN ACTUAL CONFLICT OF INTEREST.

POINT IV THE STATE IMPROPERLY PUT INTO EVIDENCE TELEPHONE CALLS BETWEEN DEFENDANT AND NATALIE RUBESTELLO WHICH CONTAINED INADMISSIBLE STATEMENTS BY RUBESTELLO WHICH REPEATED THE HEARSAY OPINIONS OF OTHERS THAT DEFENDANT WAS GUILTY OF THE CHARGED CRIMES.

A.

We begin our discussion with Point III, whether the trial court erred in

recusing Friedman. Our evaluation of an order granting or denying an attorney

disqualification motion is "de novo plenary review in light of the fact that a

decision on such a motion is made as a matter of law." Twenty-First Century

Rail Corp. v. N.J. Transit Corp., 210 N.J. 264, 274 (2012).

The Sixth Amendment to the United States Constitution provides that,

"[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the

Assistance of Counsel for his defen[s]e." U.S. Const. amend. XI. Where this

right has been wrongfully denied, a defendant need not demonstrate prejudice;

"the right at stake" is "the right to counsel of choice," and a violation of that

right is "complete" when "the defendant is erroneously prevented from being

represented by the lawyer he wants, regardless of the quality of the

A-2047-22 24 representation he received." U.S. v. Gonzalez-Lopez, 548 U.S. 140, 146-48

(2006). An erroneous deprivation of the right to choose counsel is a "structural

error" requiring reversal even if it appears that the counsel the defendant

received was competent and the trial was otherwise fair. Id. at 146-50.

However, "the right to counsel of one's choice is not absolute." State v.

Kates, 426 N.J. Super. 32, 45 (App. Div. 2012). The right to choose counsel is

"circumscribed by the court's power to guard against conflicts of interest," to

protect the court's independent interest in ensuring that trials are conducted

within ethical standards, and that legal proceedings appear fair to observers.

Ibid. In criminal proceedings, "it is incumbent on the courts to ensure that

defendants receive conflict-free representation," and so the right to choose

counsel "must yield when an actual conflict is found." State ex rel. S.G., 175

N.J. 132, 140 (2003).

In New Jersey, the Rules of Professional Conduct provide that "[a] lawyer

who has represented a client in a matter shall not thereafter represent another

client in the same or a substantially related matter in which that client's interests

are materially adverse to the interests of the former client unless the former

client gives informed consent confirmed in writing." RPC 1.9(a).

A-2047-22 25 For purposes of deciding motions for recusal under this rule, matters are

"substantially related" if:

(1) [T]he lawyer for whom disqualification is sought received confidential information from the former client that can be used against that client in the subsequent representation of parties adverse to the former client, or (2) facts relevant to the prior representation are both relevant and material to the subsequent representation.

[City of Atlantic City v. Trupos, 201 N.J. 447, 452 (2010).]

The Trupos Court adopted this test to "protect[] otherwise privileged

communications" between the former client and the attorney, "while also

requiring a fact-sensitive analysis to ensure that the congruity of facts, and not

merely similar legal theories, governs whether an attorney ethically may act

adverse to a former client." Id. at 467.

"Prior representation, in and of itself, is not sufficient to justify

disqualification." State v. Hudson, 443 N.J. Super. 276, 291 (App. Div. 2015).

Further, a mere "appearance of impropriety may not be used as a basis to find a

conflict of interest" under RPC 1.9(a). Id. at 280 (citing In re Sup. Ct. Advisory

Comm'n on Pro. Ethics Op. No. 697, 188 N.J. 549, 563 n.5 (2006)). Instead,

there must be some "factual underpinnings describing the prior representation"

demonstrating that the attorney actually received confidential information from

A-2047-22 26 the former client that may be used adversely to that client in the current matter,

or that there truly are facts relevant to the prior matter that are also material to

the current matter. Id. at 291-92.

Our courts have also been concerned with the protection of confidential

information provided by former clients to attorneys now engaged in

representation adverse to them. See State v. Sanders, 260 N.J. Super. 491, 497

(App. Div. 1992) (viewing it as "significant" that attorney's prior representation

of the defendant involved inquiries into many personal matters, because the

attorney's duty "not to disclose a client's confidences or secrets" would continue

during his representation in the current matter of a co-defendant whose interests

were adverse to the defendant's); State v. Needham, 298 N.J. Super. 100, 105-

06 (Law Div. 1996) (expressing concern that the defendant's attorney might not

cross-examine a former client vigorously, or that alternatively he might use

confidential information gleaned from the prior relationship during that cross-

examination); State v. Catanoso, 222 N.J. Super. 641, 645 (Law Div. 1987)

(defense counsel's prior representation of a witness may have permitted him to

acquire confidential information that could be used favorably by the defendant).

Although these cases utilized the since-rejected "appearance of

impropriety" standard to evaluate the representation in question, they

A-2047-22 27 nevertheless demonstrate that an attorney's use of confidential information when

cross-examining or otherwise working against a former client is a primary

concern. The change in the standard simply means there must be some proof

that the attorney actually did obtain such information; this sharing of

confidences may not merely be assumed from the fact of the prior representation

on its own. See Hudson, 443 N.J. Super. at 290-91.

Applying these principles, we discern no error in the trial court's finding

there was a conflict of interest placing Friedman's representation of defendant

at odds with RPC 1.9(a). There was evidence of Patterson's signing a HIPAA

waiver form and Friedman's subsequent subpoena of his mental health records

that showed the two must have conversed about that issue. This topic is highly

personal, and the records Friedman received would not have been available to

her without Patterson's express consent. Therefore, this is not a situation where

the trial court merely speculated that an attorney received confidential

information from a former client. Instead, the court found there was direct

evidence that Friedman did so, and the court reviewed that evidence, including

the medical records themselves, when reaching its decision.

Here, Patterson's testimony was crucial to the State's case. Patterson had

told the prosecutor's office that defendant confessed to hitting Terrulli with a

A-2047-22 28 mallet, killing her, setting a fire in her bedroom to destroy evidence, stealing

items from her home to sell for drug money, and hiding her body. Patterson's

testimony provided detailed descriptions of defendant's actions and bolstered

the State's circumstantial evidence, including the fact that defendant was found

in Terrulli's Jeep which contained a mallet, other items belonging to Terrulli,

and drugs; Rowell's testimony that the fire very likely started in Terrulli's

bedroom; and the fact that Terrulli's body was found buried and hidden. There

is no indication the State sought Friedman's disqualification "merely as a

strategic maneuver" meant to hamper the defense by requiring substitution of

counsel. See Hudson, 443 N.J. Super. at 290.

Patterson's credibility was highly contested. The fact that he suffered

from unmedicated schizophrenia and other mental health issues was raised by

both the State and the defense at trial. The confidential records Friedman

received during her prior representation of Patterson related to those very same

issues. There was thus a true "substantial risk" that Friedman either could have

used confidential information gleaned during the past matter against Patterson

on cross-examination, giving her an unfair advantage against the State and

against Patterson's testimony, or may alternatively have been unwilling or

A-2047-22 29 unable to vigorously cross-examine Patterson on his mental health due to their

prior attorney-client relationship, undermining defendant's case. Id. at 291-92.

We are satisfied the court did not err in granting the State's motion to

recuse Friedman, as defendant's case was "substantially related" to Patterson's

prior matter under the Trupos test. Her continued representation of defendant

would have contravened RPC 1.9(a).

B.

In Point I, defendant contends the trial court erred by permitting medical

examiner Melito to testify that Terrulli's manner of death was homicide despite

the fact that her cause of death was undetermined. He asserts that Melito's

opinion had "no conceivable scientific basis" and the testimony was based solely

on the fact that Terrulli was "unconventionally buried," which was not a subject

"beyond the ken of the average juror." Defendant asserts that Melito's opinions

were not a proper subject of expert testimony under N.J.R.E. 702 and should not

have been admitted.

During several pretrial hearings, defendant objected to Melito's proffered

expert testimony that Terrulli's manner of death was homicide. On August 31,

2022, the court ruled on the objection and found, under relevant case law, that a

medical examiner may reach a conclusion as to the manner of death through the

A-2047-22 30 process of elimination, citing to State v. Lodzinski, 249 N.J. 116, 138-39 (2021).

The court stated: "Here, the Medical Examiner concluded that given the

circumstances surrounding the decedent's disappearance, subsequent discovery

of her body several months afterward, and advanced state of decomposition,

potentially obscuring autopsy findings, the manner of the victim's" death was a

"homicide." The court found, under N.J.R.E. 403, there was no risk of undue

prejudice to defendant or confusion for the jury if Melito testified to that effect .

It further stated it would give the jury a limiting instruction concerning the

evaluation of expert testimony when Melito testified and in its final charge. The

court did give those instructions.

A court's evidentiary rulings are reviewed for abuse of discretion. State

v. Burney, 255 N.J. 1, 20 (2023).

Under Rule 702, a qualified expert witness may testify on a subject "[i]f

scientific, technical, or other specialized knowledge will assist the trier of fact

to understand the evidence or to determine a fact in issue . . . ." The proponent

of expert testimony bears the burden of proof on admissibility. State v. Torres,

183 N.J. 554, 567 (2005). Rule 702 imposes three requirements:

(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;

A-2047-22 31 and (3) the witness must have sufficient expertise to offer the intended testimony.

[State v. Kelly, 97 N.J. 178, 208 (1984).]

These requirements are construed liberally in favor of the admissibility of expert

testimony. State v. Jenewicz, 193 N.J. 440, 454 (2008).

As stated, defendant contends Melito's opinion on Terrulli's manner of

death had no scientific basis. We disagree.

Melito's testimony was based upon his education, training, and

examination of Terrulli's body, which was found heavily decomposed in a

shallow grave dug in her yard and inside trash bags, and which upon Melito's

examination showed no signs of a death by natural causes or other causative

factors. Given the skeletal state of Terrulli's remains, Melito candidly testified

that he could not opine as to the cause of her death. However, he also stated

that, in his opinion, classifying the manner of death as homicide was based on

his autopsy and consideration of the medical evidence and toxicology reports

provided to him. See State v. Howard-French, 468 N.J. Super. 448, 465-66

(App. Div. 2021).

Melito testified in detail about his findings concerning the state of

Terrulli's bones, organs, and tissue, and how his efforts were hampered by the

decomposition. He also explained that medical examiners must choose from

A-2047-22 32 one of five possible manners of death. He described how and why his findings

led him to rule out natural causes, accident, and suicide, ultimately concluding

that Terrulli's death was at least one percent at the hands of another person.

Defense counsel cross-examined Melito as to the strength and value of his

opinion, based upon the quality of the evidence supporting it, and the jury was

instructed that it should give weight to his testimony only if it felt that support

was sufficient and found he was a credible witness. Melito opined using a

process of elimination and carefully avoided mentioning any specific degree of

homicide.

We are also unconvinced that Melito's testimony was improper because it

was not outside the ken of the average juror. "[T]he proponent of expert

testimony must demonstrate that testimony 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.'" Kelly, 97 N.J. at 209 (quoting State

v. Griffin, 120 N.J. Super. 13, 20 (App. Div. 1972)). "Expert testimony is not

necessary to tell the jury the 'obvious.'" State v. Cain, 224 N.J. 410, 420 (2016).

The average juror would not know how to perform an autopsy or read

toxicology reports, as Melito did. The jury would also not know how to rule out

other potential manners of death, given that Terrulli's remains were so

A-2047-22 33 decomposed that it was not possible even for a trained medical examiner to

determine a cause of death. Because Melito's opinion on these issues was based

in part upon medical and scientific data that the average layperson would not be

able to understand, and because in general such testimony is routinely provided,

the trial court did not abuse its discretion in permitting the testimony,

particularly since it was accompanied by a limiting instruction.

C.

We turn to defendant's contentions regarding the admissibility of portions

of the calls he made from jail to a former girlfriend, Natalie Rubestello, in which

she "repeated the inadmissible lay opinions of others that [he] was guilty ." He

contends that no lay witness should be permitted to "offer[] an opinion about the

guilt of [a] defendant."

While incarcerated pending trial, before Terrulli's remains were found,

defendant made numerous phone calls to Rubestello, which were recorded and

which the State later sought to admit into evidence. Defendant argued that the

calls were hearsay, and that they should be "reduced as cumulative" if they were

permitted to be played at all. The State agreed not to play "a number of calls"

and advised that redactions had been made to remove references to defendant's

prior convictions and drug use as well as other areas of concern. Ultimately, the

A-2047-22 34 trial court ruled that the calls, with agreed-upon redactions, were admissible

statements by a party opponent and that their probative value was not

outweighed by any undue prejudice. Several calls were played during trial.

On appeal, defendant asserts the trial court should not have allowed three

portions of the calls to be played. In the first of these conversations, Rubestello

told defendant that she had become "like a celebrity out here." When defendant

asked why, she said, "[e]veryone's saying it could have been you, it could have

been you, it could have been you." Defendant asked her if she was "serious,"

and she replied that she was. Defendant then asked Rubestello if she thought he

"would do that to [her]," and she said, "no."

In the second conversation, defendant asked Rubestello if she had "heard

anything," because he "[didn't] really hear anything in [jail], other than from

[his] lawyer . . . ." Rubestello said, "everybody thinks you did it out here. I

think me, Mike, and Julie are the only ones that don't think it." Defendant asked,

"But why? Why? I don't understand why?" Rubestello said she didn't know

but told defendant that "[s]ome people" were wondering where Terrulli was and

what he "was doing with her."

Finally, in the third conversation, defendant told Rubestello he had seen

Terrulli's family in court. Rubestello said, "[t]hey basically think that you had

A-2047-22 35 something to do with this. Yup." Defendant replied that was "[c]razy," saying

he did not know "why they would think that." Rubestello repeated, "[t]hey think

you have something to do with it." Defendant insisted to Rubestello that he

"didn't have nothing to f[***]ing do with it," to which Rubestello answered, "I'm

not saying you did. I'm not saying you didn't. I'm not saying anything. It's just

a very upsetting situation." However, she then said she told "the prosecutors"

he had never done anything violent to her. Defendant responded he "never

would" because he was "not that type of person."

We review the court's ruling admitting the calls for an abuse of discretion

and see none. Burney, 255 N.J. at 20.

Hearsay is generally not admissible except as provided in the Rules of

Evidence. N.J.R.E. 802. Under N.J.R.E. 801(c), "hearsay" means a statement

that the declarant makes outside of testifying at the current trial or hearing, that

"a party offers in evidence to prove the truth of the matter asserted in the

statement."

Rubestello's statements to the effect that other people around her, and

Terrulli's family, believed defendant was responsible for Terrulli's death, were

not hearsay. They were not offered for the proposition that the other individuals

believed that defendant harmed Terrulli. They also were not offered for the truth

A-2047-22 36 of Rubestello's belief that anyone held these opinions at all. Instead, these

statements were permitted to give context to other things defendant said: his

protestations that he had nothing to do with Terrulli's disappearance and did not

know where she could be, and his general complaints about Terrulli and his

relationship with her. Indeed, in addition to saying that others thought him

guilty of some crime, Rubestello also repeatedly reassured defendant that she

did not believe he had done anything wrong. These opinions also were not

offered for their truth.

Further, the cases defendant cites in support of his argument that the calls

contained "inadmissible lay opinions" are distinguishable. They involved trial

witnesses testifying as to their opinions on matters including the defendant's

guilt. For example, in State v. McLean, 205 N.J. 438, 459-63 (2011), the Court

found that the trial judge erred by allowing a detective to testify that the

defendant engaged in a "drug transaction," which was "an expression of a belief

in defendant's guilt" and was not based on his own perceptions of the alleged

transaction as required for a lay opinion to be admitted under Rule 701. In State

v. Frisby, 174 N.J. 583, 593-95 (2002), the Court similarly found that the trial

judge should not have allowed the police witnesses to state their opinions that

A-2047-22 37 the father's alibi had been "substantiated" or that the father was "more credible"

than the defendant, "when that was the ultimate question for the jury."

By contrast, here neither Rubestello nor any police witness testified that

defendant was guilty. No witness who might have had a great amount of

influence on the jury, like a police detective, gave any testimony suggesting that

Rubestello or the people she mentioned seemed credible in their views or that

any of these individuals' opinions had any bearing on the investigation or the

State's case. We are satisfied Rubestello's statements did not contain any "lay

opinions" that the trial court should have evaluated and rejected under Rule 701.

The court did not abuse its discretion in admitting the redacted jail calls.

D.

We next address defendant's contention that the court wrongfully removed

him from the courtroom during certain portions of the trial. Defendant asserts

for the first time on appeal, that even if the removals were not improper, the

court erred by failing to place him in a room equipped with a live video or audio

feed from the courtroom so he could follow the proceedings in real time. He

also argues, for the first time, that the court's instruction to the jury concerning

his absence from the courtroom was deficient because the judge did not

explicitly state that the jurors must not "consider [his] absence against him."

A-2047-22 38 Beginning with the very first recorded hearing in this record, defendant

repeatedly interrupted courtroom proceedings to argue with the prosecutors, his

attorneys, and the trial judge. The court instructed defendant on countless

occasions to be quiet during argument and to confer with his counsel instead of

interrupting. Defendant also accused the prosecutor of lying on multiple

occasions, despite warnings from the court not to "disparage anybody in this

courtroom." The court demonstrated patience and restraint on numerous

occasions, telling defendant that it needed to "maintain the decorum of the

courtroom" to make sure he would "get a fair trial by a fair and impartial jury,"

and cautioned that there were "certain sanctions [it could] take moving forward"

if his disruptive behavior continued.

To support our analysis, we provide several examples of defendant's

behavior during trial. On September 28, 2022, defendant addressed the court

with a motion to replace his counsel, arguing that his attorneys were not

sufficiently familiar with his case and were not asking witnesses certain

questions. When the prosecutor began to argue in response to the motion,

defendant repeatedly interrupted him. The court told defendant he needed to be

quiet when others were talking, but defendant continued his inte rruptions,

talking over the prosecutor and ignoring the court's further warnings.

A-2047-22 39 Eventually, the court denied defendant's motion, finding that because the trial

had progressed through over twenty witnesses and there was nothing to suggest

that defendant's attorneys were not vigorously representing him, any further

delay to replace counsel would be unnecessary. After stating his decision, the

court told defendant "if you continue to be disruptive, this trial will proceed

without you."

Later the same day, and on multiple occasions thereafter, the court

cautioned defendant that some discussions between him and his counsel while

the jury was present were "louder than they should be." At one point, the court

noted defendant was speaking so loudly during testimony that a witness could

not hear the prosecutor's questions.

During a hearing regarding the admissibility of the jail calls, defendant

accused the court of "do[ing] nothing" to prevent the jury from finding out he

had "been in prison before." After further colloquy, the court ended the hearing.

Before trial began on October 11, 2022, defendant interrupted his counsel

to try to argue about an issue in his attorneys' stead. The court told him that it

could "just put [him] downstairs and . . . finish the legal arguments," because he

"ha[d] two attorneys." Defendant protested that he wanted to speak because he

"kn[e]w more about [his] case than both of them together," to which the court

A-2047-22 40 replied that it was "trying to teach [defendant] the proper decorum for [the]

courtroom" but that "apparently [he hadn't] caught onto that." When defendant

continued to argue, the judge said, "[g]et him out of here." Defendant asked if

he was being removed "[b]ecause [he was] saying the truth," and the judge

replied it was "because [he was] being disrespectful." After defendant was

escorted from the courtroom, the court told defendant's attorneys that he had

"been patient throughout the course of this trial with [their] client," and that they

had "an obligation to do [their] best to make sure that he understands the

decorum" expected in the courtroom.

Defense counsel noted that defendant had been "very audible" when

talking about the jail calls during trial, "despite counsel's insistence not to talk

about them because they do not help his case." Counsel also stated that

defendant had "unfortunately consistently disclosed defense strategies, defense

conversations . . . in the courtroom audibly." However, counsel objected to

defendant's removal from the courtroom, saying "he has the right to be here."

Counsel conceded that defendant "does not have the right to cause a mistrial or

to be disruptive," but asked that the court "give him another chance . . . ." The

court stated that it intended to do so but warned that if defendant "continue[d]

A-2047-22 41 to be disruptive and loud and boisterous," it would remove him and instruct the

jury on his absence and statements.

The court brought defendant back to the courtroom and cautioned him

again that he needed to keep his voice down during witness testimony. The

court said it hoped defendant could be "professional, respectful, and less

combative" once the jury was brought in for the day's proceedings. Defendant

remarked, "I know you're eager to throw me out." The court disagreed, stating

it was "looking for every reason to see that [defendant did] the things that [he]

need[ed] to do to remain in the courtroom," but that defendant had shown

"disrespect," "rudeness," and "combativeness." The court warned that there was

"a limit to [its] patience" but if defendant wanted to discuss "a different issue"

rather than continue arguing about the jail calls, the court would allow it.

Defendant proceeded to complain once more that he had to "teach" his

case to his attorneys at the counsel table. When the court asked him to stop,

defendant interrupted. The court stated that it would not allow defendant to

"impugn the integrity and reputation of [his] counsel," saying both attorneys

were experienced and had provided "quality" representation.

During a recess, the court asked whether the defense had anything to bring

to its attention, and defendant raised his hand. When the court permitted

A-2047-22 42 defendant to speak, he said, "Monmouth County should be ashamed of

themselves that they're attempting to solve murders with guys like this ." The

court advised the discussion would continue off the record.

Later that day, the court said:

I did want to put on the record, Mr. Teschner, certainly I was observing all morning. You spent the vast majority of your time looking towards the back of the courtroom. There is no business for you in the back. I'm instructing you you're not to be talking to anyone in the gallery, you're not to be addressing comments, you're not to be scowling. Your attention should be to the front of this courtroom and the front of this courtroom only.

I'm not going to tell you that again. And just as I've cautioned you throughout the course of this trial to keep your voice down, if it becomes necessary for me to remind you to turn forward, I will be more than happy to do that. Your business is here in front of the courtroom, and no place else.

Several times that afternoon, the judge admonished defendant for

speaking loudly during witness testimony. During a recess, the court once more

warned defendant to keep his voice down, and cautioned that if defendant did

not, he would instruct the jury that it "must totally disregard" any statement they

may have heard defendant make. The court said, "I have talked to you on a

number of occasions about interrupting this proceeding, the orderly decorum

and what is expected during the course of the trial." The court stated that

A-2047-22 43 defendant's attorneys had "gone out of their way when they deem appropriate to

interject some of [his] questions and to interject certainly lines of questioning

that perhaps do not flow as smoothly as [they] ordinarily would flow during the

course of a cross-examination without the constant interruptions." The court

said, "this is the final time that I am going to warn you. I have said now on a

number of occasions, with regards to my patience, bountiful but not infinite.

We're at that point, sir." The jury returned to the courtroom and testimony

continued from Patterson.

Defendant immediately spoke to the cross-examining attorney loudly

enough to be transcribed: "Ask him to explain it." Counsel began to question

Patterson about the letter he wrote to the prosecutor's office saying he had never

spoken to defendant, but then said, "I'll withdraw that question." Defendant

interjected, "[n]o, you don't." Then, in a sidebar, defendant continued to loudly

call for his attorney to ask Patterson a question, despite the court again telling

him to keep his voice down. Thus, approximately five minutes after the jury

had returned to the courtroom, it was removed again for another sidebar

discussion regarding defendant's misconduct.

Once the jury was gone, defendant continued complaining that his

attorney "refuse[d] to ask every single question [he] asked him [to]." He insisted

A-2047-22 44 that he could "prove [Patterson was] lying in five questions," but that his

attorney kept telling him "every question [he] ask[ed] him to ask [was] not

appropriate." Defendant continued talking while the judge attempted to stop

him. The judge then said, "[w]e're done. He's gone," and directed for defendant

to be removed from the courtroom.

The court advised it intended to bring the jury back in and give two

limiting instructions: one concerning defendant's statements, and one

concerning defendant's absence from the courtroom, saying:

It's my intention at this point, from time to time I will bring [defendant] up, we'll see whether or not we have any improvement in the professionalism and the decorum, and if we do, then at that point it would be my intent to have him rejoin us. If I do not believe that . . . is going to happen, then clearly he will sit out the balance of our work together.

When the jury returned, the judge instructed it as follows:

[B]efore we continue with the trial, I'd like to address what you've probably already noticed; the defendant's absence from the courtroom. Defendant has the absolute right to absent himself from these proceedings. At this time he has exercised that right. You're not permitted to speculate as to the reason for the defendant's absence. Defendant is presumed to be innocent. The burden of proving each element of a charge beyond a reasonable doubt rests upon the State, and that burden never shifts to the defendant.

A-2047-22 45 You may have heard some statements or remarks made by the defendant in open court. He did not make those statements as a witness. His statements are not evidence. You must totally disregard any statements which you may have heard or anything that you may have seen. The only evidence that you are permitted to consider is sworn testimony of witnesses, together with any exhibits which may have been admitted into evidence. The defendant is entitled to have the jury consider all of the evidence admitted at trial and nothing else.

Patterson's cross-examination then resumed, followed by an additional witness's

testimony.

At the close of court for the day, the court brought defendant into the

courtroom to state that the testimony defendant missed had been

"straightforward," and that he had instructed the jury as promised. The court

then tried to explain to defendant that the questions he wanted his attorneys to

ask, particularly those about "lie detector tests," were "not in conformance with

either the rule of law or Rules of Evidence and were improper questions" that

were rightfully objected to and subject to being stricken.

The court continued:

Having said that, [defendant], it's certainly your decision and your decision alone, whether or not you believe that you can comport yourself with the decorum that is appropriate for a trial . . . . It was your decision to be disruptive, in spite of the warnings and cautions that I've given you over our time together.

A-2047-22 46 So you're go[ing to] have to give it some thought this evening. You certainly can make whatever determination that you want to make for tomorrow's proceeding. But if you cannot comport yourself with the way that you're supposed to behave in a courtroom, this proceeding will finish without your further presence.

Defendant responded that he thought the court was "exaggerating the

amount of noise [he was] making" and "seem[ed] determined to throw [him] out

of this courtroom." The court stated that its "intent was to try and do the very

best to give [defendant] the guidance that [he] needed so that [he] could be here

throughout the course of these proceedings," but that defendant was "determined

to have the last word" and "[had] been disruptive throughout" the trial.

Defendant began to argue again that his attorneys should have asked Patterson

if he "was ever asked to take a lie detector test" because Patterson had "lied

repeatedly." The court attempted to curtail this behavior, but defendant said,

"[t]here are a lot of things I want to tell you but all you're gonna do is tell me to

shut up and you're throwing me out." Defendant continued protesting that

witnesses had lied and his attorneys wrongly refused to ask questions he wrote

down for them.

The next day, the court began the proceedings by telling defendant it had

"cautioned [him] at this point for months" about his "disruptive, combative,

A-2047-22 47 disrespectful, and rude behavior" and "constant interruptions," and warning him

that it was "[his] decision" whether he would conduct himself properly in the

courtroom, or be removed again. Defendant responded by again complaining

that when he wrote questions down for his attorneys to ask, the attorneys

"ignored" him and did not ask them; he said that was why he "started to talk a

little loud." As the court attempted to answer him, defendant went on, saying

that the court "should let [him] speak because [he was] saying the truth" while

"everybody that [got] on that stand" had lied.

Defendant suggested that if the court did not want him to interrupt during

witness testimony, it should allow him to write down any questions and

objections he thought his attorney should have asked and made but didn't and

then let him read them out loud on the record at the end of the day. He said that

was his "solution to exposing all the lies that go on around here." The court

reminded defendant that many of the things he wanted his attorneys to do were

not legally sound or permissible. Defendant said the court was not giving him

a fair trial and was "railroad[ing him] into a life sentence." He also said his

attorneys were "f[***]king clueless."

The court told defendant it would give him another chance, and that if he

was disruptive and talked loudly during the proceedings, he would be removed

A-2047-22 48 again. The court said it was up to defendant to decide if he wanted to be in the

courtroom or not, and that if he did not, he would be given "an update at the end

of the day [about] what transpired." He also reminded defendant to keep his

attention on the proceedings and not to stare at the back of the courtroom.

At one point during witness testimony that day, defendant again spoke

loudly enough to his counsel that it was picked up for transcription . He told

counsel, "ask him," in regard to cross-examination of a witness, and shortly

thereafter said he had "asked [him] [forty] times" to ask a question, though the

topic of the question was not transcribed. The court told him to "keep [his] voice

down."

During a break that day, the court stated it had "asked at least half a dozen

times for [defendant] to keep [his] voice down," and that it was "up to

[defendant] where [he] want[ed] to finish up the rest of the afternoon ." When

defendant again said that the reason he spoke up was that his attorneys were not

reading the questions he wrote down for them, the court told him it was the

attorneys' job to choose trial strategy and that the discussion was "done ." The

court stated that if defendant continued to disrupt the proceedings, he would be

removed again and the jury would be given the same instructions as the previous

day regarding his absence and statements.

A-2047-22 49 The following day, defendant interrupted the direct examination of a

witness to correct an answer to a question. The court stopped the proceedings,

removed the jury, and warned defendant that if he spoke out again, he would be

removed. When the jury returned, the court gave it the same instruction about

disregarding defendant's statements as set forth above. At one point, the court

said, "[s]ir, please face forward," most likely to defendant. When Alston's direct

examination concluded, and while the jury was in the process of exiting the

courtroom at the end of the day, defendant said, "[s]he does not have to come

back." Because the jury was still present, the court tried to stop defendant from

speaking, but defendant continued, saying, "[s]he is hurting, and obviously

believes them. Let her leave and not come back. She doesn't need to come back.

I have no questions for her."

Once the jury was gone, the court addressed defendant, saying it had been

"extraordinarily patient" with him but that his outbursts were trying that

patience. The court said it would instruct the jurors again the next morning that

defendant's statements were not evidence. It continued:

But, sir, we're at that crossroads. We're at that point, if this happens again—if it happens again, you will be out. This is not . . . time out. This is not where we have a little cooling off and we go through this again and again. You're not going to continue to disrupt the orderly procession of this trial.

A-2047-22 50 Defendant said again that Alston was "obviously hurting" and that there

was "no reason" for her to come back for cross-examination. He then continued

interrupting as the court attempted to tell him that he "shouldn't be speaking

during the course of this trial" and he would have an opportunity to testify

himself if he wished but until then he should stop speaking so loudly.

Eventually, the court advised defendant's attorneys that they could talk with

defendant about strategy and whether Alston should be cross-examined, and

reiterated he would instruct the jury to disregard defendant's statements and

"move forward."

At the start of the next day, before the jury came into the courtroom, the

court counseled defendant that if he could not "comport [him]self with the

decorum and the professionalism that is expected in any court," he would "spend

the rest of the time downstairs, and [his] attorneys [would] bring [him] the

information as it unfold[ed] during the course of the day." The court said it

would "start the day afresh and anew," but that it was defendant's choice whether

to abide by the rules or to be removed for failing to do so. When the jury was

brought in, the court again gave the instruction concerning defendant's

statements.

A-2047-22 51 At some point during the proceedings that day, defendant "ripped up a

court document" he had previously signed, while the jury was present . Later,

after the jury was dismissed for the day, he interrupted a colloquy about the jail

calls that had just been played. At that point, the court said "[g]et him out."

While he was being escorted out, defendant said that "[a]nywhere else there'd

be a mistrial" and that he would have "no problem being quiet, if you play fair."

At the end of the court's colloquy with counsel, the court told defendant's

attorneys that they "need[ed] to impress upon [defendant] that he has had his

last chance today" and that he could not "continue to be disruptive . . . make

remarks . . . or look in the back of the courtroom." The court said that starting

with the next day of trial, "the next time [defendant] disrupts this proceeding

may be the last time . . . ."

At the start of proceedings on the next trial date, defendant interrupted his

counsel's argument. The court asked him to stop, then denied his motion for a

mistrial. When defendant protested, the court said it was "going to give [him]

another warning" about his conduct. The court said this would be defendant's

first warning of the day, and that if he could not comport himself properly after

this, he would be "gone" for the rest of the day. Defendant then accused the

judge of having "control issues."

A-2047-22 52 After the first witness finished testifying, defense counsel said she had

"nothing further," and defendant interrupted to say, "I do. Your Honor, I do ."

The court took a recess, and once the jury was excused, defendant was again

removed from the courtroom. The judge then told counsel that defendant

"already had his warnings" for the day and had been told not to "blurt out and

talk in front of the jury." Counsel explained that defendant wanted her to ask

questions about lie detector tests for Smith and Patterson that she knew were not

permissible, as well as other questions she felt would actually harm defendant's

case. Counsel said that defendant did not understand that certain information is

inadmissible and "the distinction of what [his attorneys] can and cannot ask,"

despite both her and co-counsel explaining it to him "very often."

The court stated that while he appreciated "the difficult position" the

attorneys were in, it had made it clear that defendant's disruptive behavior was

intolerable. The court felt that defendant saw the trial as "a game," and that

defendant "want[ed] to see how far that he [could] push and how far he [could]

go." The court stated it would bring the jury back in and instruct them again not

to consider defendant's statements. After the lunch break, the court said it would

speak to defendant to "see what his temperature [was]," and make a

A-2047-22 53 determination whether defendant could be in the courtroom for the remainder of

the day.

The judge instructed the jury as discussed and brought defendant back into

the courtroom. Defendant continued to argue with the court about his attorneys

not asking questions and claimed that the court was "exaggerating" about his

loud speech and behavior. The court issued another warning about his actions

and allowed him to stay in the courtroom for the rest of the day .

Over the next several days, defendant interrupted colloquies between the

court, the prosecutors, and his attorneys. The court told him to stop and

continued on with the day.

During the State's summation, defendant interrupted and asked the

prosecutor why she was not telling the jury certain information. The court

immediately attempted to quiet defendant while taking a "very short recess."

After the jury exited the courtroom, the court removed defendant from the

proceedings. As defendant left, he said "[y]ou want me out of here so everybody

can lie. Hey, Kate, could you pass . . . a lie detector test?" referring to the

prosecutor who had been giving the summation.

A few minutes later, the jurors were brought back into the courtroom, and

the court instructed them as follows:

A-2047-22 54 Ladies and gentlemen of the jury, as I have on a couple of occasions after our work together, I do want to respectfully draw [to] your attention that the defendant is absent from the courtroom. He has an absolute right to absent himself from these proceedings. At this time, he has . . . exercised that right by his behavior. You are not permitted to speculate as to the reason for his absence. The defendant is presumed to be innocent. The burden of proving each and every element of the charges beyond a reasonable doubt rests upon the State and that burden never shifts.

You have heard some statements or remarks from him. He did not make those statements as a witness. His statements are not evidence. You must totally disregard any statements which you may have heard or anything that you may have seen. The only evidence that you are permitted to consider is sworn testimony of witnesses, together with any exhibits which may be admitted into evidence. The defendant is entitled to have the jury consider all of the evidence admitted at trial and nothing else.

The prosecutor then completed her closing statement.

Thereafter, the court and attorneys had another discussion concerning

defendant's behavior. The court remarked that there "[didn't] seem to be

anything that can be said to dissuade" defendant from disrupting proceedings,

and that it "appear[ed] as if [defendant] believe[d] he[] [was] smarter than

everyone." The court said it was "not going to put up with drama" during the

jury charge the following day, and that it "[didn't] know [if] [it could] have any

confidence that it [wouldn't] happen." The court stated it would "take

A-2047-22 55 [defendant's] pulse" the next day concerning his attitude and would "make a

final determination at that point." If defendant could not behave in the

courtroom during the jury instructions, he would be removed and then brought

in afterward to "bring him up to date." In either event, defendant would be given

a copy of the jury charge.

At the start of the next day, the court informed the attorneys that defendant

would be left "downstairs" during the jury charge. The court explained that at

this late and "critical stage of the trial," it did not want to risk defendant

"interject[ing]" anything or having an "outburst" during the instructions, that

could further affect the jury's perception and deliberations. The court advised it

did not want to be "distracted" while reading the charge, and have to "look[] up

to see what [defendant] may or may not be doing, who he may or may not be

glaring at, and whether or not he's getting all wound up and [ready] to spring out

of the chair." The court stated that after the instructions were completed, it

would address defendant and "ask him where he want[ed] to be for the remainder

of [the] proceeding." If defendant could comport himself properly, he could

stay in the courtroom; if he could not, he could "stay downstairs and wait for

counsel to show [him] information" during the jury's deliberations.

A-2047-22 56 During its final instructions, the court again told the jury that defendant

had an "absolute right to absent himself from the trial," that he had "exercised

that right," that the jury was "not permitted to speculate as to the reason for" his

absence, and that the State bore the burden to prove each element of each offense

beyond a reasonable doubt.

After the jury left the courtroom, the court spoke with defendant. During

this conversation, defendant continually interrupted the court, stating it was

"sad" that he "[had] to consistently point out all the f[***]ing lies," and

complaining about certain pieces of evidence and testimony. He told the court

that it "should have told people that were lying on the stand" to "shut up" and

"get out of here," instead of removing him when he "[said] that truth." He also

called the judge a "dictator" and accused him of intending to impose "five life

sentences" and using "sneaky, lying, manipulating ways" to accomplish this .

Over defendant's continuing ranting about lying witnesses, the court stated

that it appeared defendant's demeanor and lack of respect had not changed. At

one point, defendant said he "apologized," so he "should get another chance" to

be in the courtroom, but the court noted that defendant had apologized "multiple

times" over the course of the trial and then repeated the same bad behavior.

A-2047-22 57 Defendant stated the court was "exaggerating some of the things that [he had]

done and throwing [him] out for little to no reason" and for "speaking the truth."

At that point, the court removed defendant, saying it would talk to him

again "later in the afternoon." The court addressed the attorneys, saying it did

not want to jeopardize "all of the hard work . . . [the] time, and the energy" that

had gone into the trial if defendant acted out in front of the jury again .

Defendant's attorneys were given an opportunity to speak with him. The court

said it would bring defendant into the courtroom if the jury had questions during

its deliberations, so he could participate in the discussion of the questions and

answers. However, the court intended to remove defendant when it spoke with

the jury about its questions, to remove the risk of him "blurt[ing] out" that

witnesses lied or other disruptive statements.

Defendant was in the courtroom to hear the jury's requests and the

discussion between attorneys and the court. They also began to discuss the

bifurcated weapons charges, and whether defendant would stipulate to the

existence of the requisite predicate prior offenses.

Defendant was removed from the courtroom while the court answered the

jury's questions. When asked if the defense had anything it wanted to place on

the record after the jury exited again, counsel said there was a "continued

A-2047-22 58 request" for defendant to be present. The court said that defendant's attitude and

behavior had not improved, but that it would "bring him up, from time to time

and talk with him to see whether or not he can, in fact, conduct himself

professionally." The court reiterated its concern that defendant would "interject

himself" into the proceedings in front of the jury and "prejudice the hard work"

the jury was doing to deliberate. As a result, the court wanted to "continue to

monitor" defendant, and until it determined that defendant could behave

appropriately, defendant would "be part of this trial, but not in the presence of

the jury."

After the jury was excused for the day, the court brought defendant into

the courtroom to "bring [him] up to speed" about the fact that the jury would

continue its deliberations after the weekend. Defendant's counsel asked the

court to allow defendant to participate fully when the proceedings resumed. The

court said it would talk to defendant and "see whether or not his attitude is any

better or worse than it was today" before making a decision. Defendant

interrupted to say that it would "save everybody time and money and effort" if

he was not brought to the courthouse at all; he said once a verdict was reached,

the court could "just send it over." The court reiterated its plan for defendant to

be present, and to decide based on his behavior whether he could be in the

A-2047-22 59 courtroom during the jury's deliberations and for any further questions it might

have.

When the jury continued its deliberations, the court spoke with the

attorneys, saying that it learned that defendant, who was "downstairs" at the

time, had already been behaving badly that morning. The court reiterated it did

not want to risk the possibility that an outburst by defendant would "influence

or prejudice [the] deliberating [j]ury."

Defense counsel stated that defendant wanted to either be present for

every part of the proceedings or be taken back to jail. The court asked counsel

if, based on her experience as an attorney, she could say "with any confidence"

that defendant would not go on a "tirade" in front of the jury. Counsel replied,

"[n]o, Your Honor . . . I cannot control [defendant] and what he may or may not

do, other than just place on the record that he is requesting to participate . . . ."

The court replied it had given defendant "every opportunity to comport himself

with the decorum [and] . . . respect that is necessary for the orderly proceeding

of a criminal trial," but that defendant had "not been able [to] do that." He said

that typically, defendant became more "volatile" as the daily proceedings went

on, so it was concerning that on this day, defendant "just started at volatile" from

the beginning. The court said it had come up with an "accommodation," in

A-2047-22 60 which defendant would be placed in another courtroom with an audio feed that

would allow him to hear the proceedings "contemporaneously." Defendant

would "not be able to speak," but could "listen as the [c]ourt is addressing the

[j]ury," and to "any read-back from the court record." The court said counsel

would be "free to go and speak with him" about any issues that came up and

then "make his thoughts known" to the court, in the same way as when he had

previously been removed from the courtroom.

This plan was carried out, and the proceedings continued with the jury

asking further questions. The record reflects defense counsel advised at one

point that defendant "[did] not care" about the court's answer to a question about

the verdict sheet's instructions. The jury returned its verdict later that day.

After this, the "second bifurcated portion" of the trial began, with the court

swearing in defendant. At sidebar, the court asked defendant whether he

intended to testify during this part of the trial. Defendant began to argue with

the court, claiming he had wanted to testify in the main portion of the trial as

well. Calling the judge a "dictator," he said the prosecution had not proven any

element of the charges against him and that the judge "railroad[ed] him." The

court continued to ask whether defendant wanted to testify, and defendant finally

said he did.

A-2047-22 61 The court then tried to explain to defendant that he would be "asked direct

questions" and must "only answer the question that's asked." It also told

defendant he would be subject to cross-examination and would not "be able to

pick and choose which questions [he] want[ed] to answer." Defendant continued

to be argumentative, saying that other witnesses "got to pick and choose their

answers" and that the prosecutors had "fed [witnesses] the answers ." The court

warned defendant that he was "not going to turn this into a circus," at which

point defendant accused the court of creating a circus by allowing other

witnesses to lie, of "scold[ing] [him] like [he was] a child," and of intending to

give him "five life sentences." The court told defendant that if he was unable to

confine himself to answering the questions asked, and behaved disruptively, he

would be removed from the courtroom again and not permitted to continue

testifying.

In front of the jury, the bifurcated trial began with the State presenting

defendant's prior judgments of conviction that formed the predicate offenses for

the certain persons not to possess firearms charge. Then, defendant was sworn

in to testify, and his counsel began to ask, "[n]ow, you just heard some of the

judgments of convictions that were placed on the record today. Do you dispute

that, the judgment of conviction that was—". Defendant broke in, saying, "[t]he

A-2047-22 62 only thing I dispute is the phone calls that were altered and the photographs that

were altered [and] the boots that were altered." As the court admonished him to

"listen to the question and answer the question," defendant said, "[e]verybody

that got on that stand and lied I dispute." The court excused the jury, but as they

left, defendant continued to speak about "altered phone calls," Patterson's and

Smith's testimony, and "the representation [he] got from [his] attorneys," saying

he "dispute[d]" those issues. Defendant was removed from the courtroom, the

jury was brought back in, and the proceedings continued and concluded with the

jury finding defendant guilty of the weapons charges.

Following the trial, defendant moved for a new trial, raising several

arguments, including that the court's removal of defendant from the courtroom

was improper. When the State attempted to respond, defendant interrupted the

prosecutor and accused him of lying, and that the court repeatedly asked him to

"close [his] mouth." The prosecutor continued, stating that defendant "yell[ed]

countless ludicrous things" in front of the jury during trial, "incessantly call[ed]

the prosecutors liars," and sometimes spoke so loudly that the jurors could likely

hear him from the jury room even when they were not in the courtroom. The

prosecutor stated that some of defendant's behavior was "not something that

could be picked up in a transcript later on for appeal," including instances where

A-2047-22 63 defendant whispered threats to the prosecutors as they walked by him, "tried to

testify from his chair," and turned toward the back of the courtroom to "g[i]ve a

middle finger" and "address[] the victim's family."

The court denied defendant's motion for a new trial. In pertinent part, the

court found that "before, during, and after the trial," defendant had been

"disruptive." The court found that defendant spoke loudly during testimony

"causing a distraction to the presentation of evidence," and did not comply with

instructions to write down his questions to counsel. He also found that defendant

did not heed "numerous warnings" that he was expected to comply with

courtroom etiquette. However, the court stated that defendant's behavior and

subsequent removal from the courtroom were not relevant to the new trial

motion based on weight of the evidence, and instead were "ancillary issues" he

merely "wanted to address them to make sure that there was an amplification on

the record for some of the decisions that were made during the course of [the]

trial."

"One of the most basic of the rights guaranteed by the Confrontation

Clause" of the Sixth Amendment to the United States Constitution "is the

accused's right to be present in the courtroom at every stage of his trial." Illinois

v. Allen, 397 U.S. 337, 338 (1970). This right is "protected by the due process

A-2047-22 64 clause of the Fourteenth Amendment 'to the extent that a defendant's absence

would hinder a fair and just hearing.'" State v. Luna, 193 N.J. 202, 209 (2007)

(quoting State v. Finklea, 147 N.J. 211, 216 (1996)). Rule 3:16(b) explicitly

provides that a criminal defendant generally "shall be present at every stage of

the trial . . . ." However, it further states that nothing in the Rule "shall prevent

a defendant from waiving the right to be present at trial." Ibid.

While "[o]ur system of justice functions best when the accused is present

throughout trial," the right to be present "is not absolute." Luna, 193 N.J. at

210. Our justice system also "entrust[s] trial judges with the responsibility to

control courtroom proceedings at trial and sentencing," with a judge's discretion

to do so "bounded by the law and court rules." State v. Tedesco, 214 N.J. 177,

188-89 (2013).

In Allen, 397 U.S. at 343, the Supreme Court found that although courts

"must indulge every reasonable presumption against the loss of constitutional

rights," a defendant could "lose" the right to be present during trial if, after

warnings from the judge that further disruptive behavior will result in removal,

the defendant "insists on" continuing a pattern of actions "so disorderly,

disruptive, and disrespectful of the court" that "trial cannot be carried on" in the

defendant's presence. It stated that an accused cannot be "permitted by . . .

A-2047-22 65 disruptive conduct indefinitely to avoid being tried," and that court proceedings

"cannot and must not be infected with . . . scurrilous, abusive language and

conduct . . . ." Id. at 346-47. The Allen Court clarified that once lost, the right

to be present could be "reclaimed" if the defendant shows a willingness to

behave "consistently with the decorum and respect inherent in the concept of

courts and judicial proceedings." Id. at 343.

In Allen, the defendant interrupted jury voir dire, tore up court documents,

proclaimed that his appointed attorney "was not going to act as his lawyer,"

threatened the judge, and repeatedly said that there was "not going to be no trial"

because he would "keep on talking all through the trial." Id. at 339-41. The

trial court ordered him removed from the courtroom after several warnings, but

promised him that he could return "whenever he agreed to conduct himself

properly." Id. at 341. Eventually, after the State had presented its case, the

defendant "gave some assurances of proper conduct and was permitted to be

present through the remainder of the trial . . . ." Ibid.

Similarly, in State v. Spivey, 122 N.J. Super. 249, 255-56 (App. Div.

1973), the defendant engaged in "bizarre behavior" such as "braying, kicking,

spitting, singing, [and] moaning," and "mouth[ing] obscenities and insults to the

trial judge and others"—behavior which had caused a mistrial once before. We

A-2047-22 66 found no error in the trial judge banning defendant from the courtroom, finding

that the judge had advised defendant that he could return when he could behave

properly but that defendant "continued his disruptive tactics" whenever he was

brought back in. Ibid. We concluded "it is essential to the proper administration

of criminal justice that dignity, order and decorum be the hallmarks of all court

proceedings" and that "the flagrant disregard in the courtroom of elementary

standards of proper conduct should not and cannot be tolerated." Ibid.; see also

State v. Reddy, 137 N.J. Super. 32, 36 (App. Div. 1975) (the defendant was

properly removed from the courtroom following "a lengthy diatribe and unruly

behavior," after "several warnings" and a promise that he could return if he "was

willing to comport himself with courtroom decorum").

Here, as detailed, throughout the trial, defendant interrupted the

proceedings before the jury by speaking loudly to his attorneys, insisting that

they ask questions that were inappropriate or not legally sound, and even

blurting out corrections to and complaints about witnesses' testimony.

Defendant also demonstrated an inability to follow the court's repeated

instructions not to talk when the judge or attorneys were speaking during legal

arguments at sidebar and before and after trial each day. His disruptive tactics

often caused delays while the court tried to address his behavior. The court

A-2047-22 67 continually had to dismiss and recall the jury to try to keep it from hearing things

that could prejudice their evaluation of the evidence.

The court addressed defendant directly and advised him multiple times

that if he comported himself with the proper decorum, he would be permitted to

remain in the courtroom, but if he disrupted the proceedings he would be

removed. Defendant was thus fully apprised of the consequences of his actions

and what he needed to do to return to the courtroom once removed.

Nevertheless, he persisted in his continuous interruptions, loud talking, and

intimidation tactics such as glaring at the back of the courtroom. This nonstop

display of obstreperous behavior resulted in a determination that defendant

waived his right to be present during the portions of trial he missed.

All of the removals took place after defendant persistently refused to

behave properly even after being warned again and again. The court gave

defendant multiple chances to return, and allowed defendant to be present when

he comported himself with respect and even in some instances when he did not.

The court displayed great patience in the face of extremely trying circumstances

and did not abuse its discretion in controlling the courtroom proceedings. The

court's determination to remove defendant from the courtroom when necessary

A-2047-22 68 to ensure a fair trial did not violate his Sixth Amendment rights. Allen, 397 U.S.

at 342-43.

We need only briefly consider defendant's argument that the court erred

by not placing him in a room that would allow him to view and hear the

proceedings, during the times when he was removed from the courtroom. In

Tedesco, 214 N.J. at 198, the Court stated that, in the context of a sentencing

hearing, "if there is no possible way to restore order and contain a defendant's

insistent, defiant behavior, a judge can direct that the defendant be taken to a

holding cell outfitted with a video or audio feed that will relay the proceedings

to the defendant remotely." However, the Court did not say that such action was

required whenever a defendant is removed from a courtroom during any part of

a trial as a result of their own inappropriate behavior.

Whether a defendant has a right to participate in their trial by audio/video

feed due to their own misbehavior is left to the court's discretion. Here,

defendant was fully apprised of what witness testimony he missed, and was

afforded opportunities to speak with his counsel during the portions of trial and

jury deliberations when he was removed. The court did not commit plain error

by failing to place defendant in a room with an audio/video feed sooner than it

did.

A-2047-22 69 Lastly, we discern no error in the court's instructions concerning

defendant's absence. "It is axiomatic that appropriate jury instructions are

essential for a fair trial." State v. Ball, 268 N.J. Super. 72, 112 (App. Div. 1993).

Where a defendant does not object to a jury instruction, that instruction is

reviewed on appeal for plain error. State v. Cole, 229 N.J. 430, 455 (2017); R.

1:7-2. Defendant thus must demonstrate legal impropriety in the charge that is

"sufficiently grievous" to convince this court that "the error possessed a clear

capacity to bring about an unjust result." State v. Hock, 54 N.J. 526, 538 (1969).

The Model Jury Charge concerning a defendant's absence reads as

follows:

As you know, (defendant) was absent from the trial. You should not speculate about the reason for his/her absence.

You are not to consider for any purpose or in any manner in arriving at your verdict the fact that (defendant) was not present at trial. That fact should not enter into your deliberations or discussions in any manner, at any time.

(Defendant) is entitled to have the jury consider all evidence presented at trial. He/She is presumed innocent even if he/she is not present.

[Model Jury Charges (Criminal), "Defendant's Absence From Trial" (rev. June 14, 2004).]

A-2047-22 70 The court's instruction, given each time defendant was removed from the

courtroom, sufficiently mirrored the Model Jury Instruction concerning this

issue. While the court did not tell the jury it could not consider defendant's

absence during its deliberations "for any purpose," he did instruct jurors that

they were to consider only the evidence presented at trial and that they should

not speculate as to the reason for defendant's absence. We are satisfied the

language sufficed to ensure that the jury did not take defendant's absences into

consideration.

Affirmed.

A-2047-22 71