STATE OF NEW JERSEY VS. SADOT COUNCIL (15-08-1859, ESSEX COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: July 25, 2019
• Docket: A-4100-16T1
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-4100-16T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SADOT COUNCIL, a/k/a WATSON SADOT, COUNCIL SADOT, KAREM A. WATSON, and SADAT A. WATSON,

Defendant-Appellant. _____________________________

Argued November 8, 2018 – Decided July 25, 2019

Before Judges Fuentes, Vernoia and Moynihan.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 15-08-1859.

Cody T. Mason, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Cody T. Mason, of counsel and on the briefs).

Lucille M. Rosano, Special Deputy Attorney General/ Acting Assistant Prosecutor, argued the cause for respondent (Theodore N. Stephens II, Acting Essex County Prosecutor, attorney; Lucille M. Rosano, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Sadot Council appeals from his convictions following a jury

trial for murder and weapons offenses and the life sentence imposed by the court.

Based on our review of the record in light of the applicable law, we are

convinced that the cumulative effect of errors committed during the trial had the

probable effect of rendering the trial unfair, and reverse.

I.

On April 28, 2015, Anthony Mayse died after being shot twice at a Newark

housing complex. On May 8, 2015, defendant was arrested in connection with

the shooting, and later charged in an indictment with one count of first-degree

murder, N.J.S.A. 2C:11-3(a)(1), (2) (count one), second-degree possession of a

weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count two), and second-

degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count three). 1

1 Although not included in the record on appeal, the parties acknowledge and do not dispute that defendant was charged in a separate indictment with second - degree certain persons not permitted to have weapons, N.J.S.A. 2C:39-7(b). The indictment was dismissed at the State's request following defendant's conviction on the charges that are the subject of this appeal.

A-4100-16T1 2 Prior to trial, defendant moved to suppress the out-of-court identifications

made by three purported witnesses to the shooting, Nolie Clark, Jullisa Perna

and a then sixteen-year-old juvenile, J.S., and requested a Wade/Henderson2

hearing. Defendant claimed he was entitled to a hearing because Clark described

the shooter as a dark-skinned African-American male but the photo arrays used

during the separate identification procedures included photos depicting light-

skinned African-American males, and J.S. refused to sign the photograph of

defendant she selected during the procedure.

In a written opinion and order, the court denied the request for a hearing,

finding defendant failed to demonstrate any evidence of suggestiveness in the

photo identification procedures. The court reviewed the photo arrays and

determined they included individuals with similar physical characteristics and

were not otherwise suggestive. The court rejected the contention that J.S.'s

refusal to sign the photograph she selected was evidence of suggestiveness.

During the subsequent jury trial, the State presented evidence showing

that on April 28, 2015, Mayse suffered from two gunshot wounds, one of which

perforated his heart and caused his death. The shots were fired from a .32 caliber

2 United States v. Wade, 388 U.S. 218 (1967); State v. Henderson, 208 N.J. 208 (2011). A-4100-16T1 3 handgun, but it could not be determined if the handgun was a semi-automatic or

a revolver.

The identification of defendant as the shooter rested on the testi mony of

the three purported eyewitnesses: Perna, Clark and J.S. Perna testified she had

known defendant and Mayse since 2000. She was close to Mayse and he viewed

her as a maternal figure. She let him use her apartment at the housing complex

to sell drugs, and he gave her drugs. According to Perna, on the evening prior

to the shooting, she witnessed a verbal altercation between defendant and Mayse

during which defendant said he would "blow [Mayse's] fucking head off." It

was shown, however, that in her June 9, 2015 statement to the police, she

reported that defendant said he would "knock [Mayse's] fucking head off, blow

his fucking head off, actually."

Perna expected Mayse at her apartment on the morning of April 28, 2015,

but he did not appear. In the early afternoon, she was told defendant and Mayse

were fighting. She immediately left her apartment and observed defendant

riding a bicycle in the direction of his apartment in the complex and then return,

again riding on a bicycle. He was not wearing a shirt. She testified defendant

had a silver revolver in his hand and that she saw defendant shoot Mayse, but

on cross-examination admitted she reported the gun was a black automatic

A-4100-16T1 4 weapon in a June 9, 2015 statement to the police. After witnessing the shooting,

Perna ran back to her apartment.

Perna first spoke to the police more than six weeks after the shooting when

she provided her June 9, 2015 statement. On that date she also reviewed a photo

array presented by an officer who had no knowledge of the case, selected

defendant's photograph and identified him as the individual who shot Mayse.

When the police arrived at the scene of the shooting, Clark told an officer

he did not see the shooting because he was around the corner of a building when

it occurred. He and J.S. later went together to the hospital where Mayse had

been taken. Clark spoke to the police at the hospital and again said he did not

witness the shooting.

During a recorded statement with the police two days after the shooting,

Clark said he witnessed a physical altercation between Mayse and defendant,

and observed defendant leave the scene and return on a bicycle and shoot Mayse

twice with a handgun. At trial, Clark testified he could not recall what occurred

at the housing complex on April 28, 2015, but the court conducted a Gross3

hearing, determined his memory loss was feigned, and permitted the State to

3 State v. Gross, 121 N.J. 1 (1990). A-4100-16T1 5 play a video recording of the statement he gave to the police on April 30, 2015,

two days after the shooting.

In his recorded statement, Clark explained he and Mayse had known each

other for two years prior to the shooting. They arrived together at the housing

complex prior to the shooting. Following their arrival, Mayse and an individual

Clark identified in a photo identification procedure as defendant had a physical

altercation. Clark described defendant as a skinny, brown-skinned male with

"dreads" who, following the altercation, was not wearing a shirt. Clark further

explained that after the physical altercation ended, defendant left the scene on a

bicycle, returned a short time later on the bicycle, shot defendant two times and

then departed. In his statement, Clark said that after the shooting he was "busy

worrying about" Mayse and could not recall if defendant left the scene of the

shooting on a bicycle. According to Clark, he and J.S. attempted to aid Mayse

after the shooting.

The jury was shown the video recording of Clark's statement, as well as

the recording of the photo array identification procedure during which Clark

selected defendant's photograph and identified defendant as the shooter. At trial,

Clark acknowledged signing defendant's photo and identifying him as the

shooter during the photo identification procedure.

A-4100-16T1 6 J.S. testified she was friends with Mayse and met him at the housing

complex when he arrived with Clark on April 28, 2015. She also testified that

Mayse and a person she identified as defendant during a photo identification

procedure had a physical altercation. She observed defendant leave the scene

of the altercation on a bicycle, return a short time later on the bicycle and shoot

defendant with what she described as a .32 caliber silver revolver. J.S. said

defendant was not wearing a shirt.

She acknowledged that when she spoke to the police on April 28, 2015,

immediately after the shooting, she said she did not see the shooting. She

testified she denied seeing the shooting at that time because she feared being

identified as a "snitch."

J.S. identified defendant as the shooter on April 29, 2015, by selecting his

photo from an array of six photographs shown to her by a police detective who

had no prior knowledge concerning the case or investigation. The recorded

photo identification procedure was played for the jury. During the trial, J.S. also

identified defendant in still photographs taken from a surveillance video of the

area surrounding the scene of the murder immediately before and after the

murder. The shooting, however, was not captured on the surveillance

recordings.

A-4100-16T1 7 Essex County Prosecutor's Office Detective Bruce Branch, the lead

detective in the investigation of Mayse's murder, detailed the investigation,

including his review of various surveillance camera video recordings of the

housing complex areas where the physical altercation and murder occurred.

Detective Branch explained that murder charges were filed against defendant on

May 1, 2015, and defendant was arrested on May 8, 2015, after turning himself

in to the police.

The State presented other witnesses, including Dr. Andrew Falzon, the

State Medical Examiner, who testified Mayse died as a result of the perforation

of his heart and internal bleeding from one of the gunshot wounds. He also

testified Mayse was struck by another gunshot, but it caused only soft tissue

injuries. A ballistics expert testified that the two bullets recovered from Mayse's

body were fired from a .32 caliber handgun, but it could not be determined if

the gun was a revolver or semi-automatic.

Defendant called Newark Police Officer Edwin Padilla. He testified he

was dispatched to the scene of the shooting. When Padilla arrived, he observed

Clark providing aid to Mayse. Padilla explained Clark denied seeing the

shooting and said that after the shooting he observed a group of males running

away.

A-4100-16T1 8 The jury convicted defendant of murder, possession of a firearm and

possession of a firearm for an unlawful purpose. The State moved for imposition

of a mandatory extended term sentence on the murder charge based on

defendant's prior record. See N.J.S.A. 2C:43-7.1(b)(2). The court granted the

State's motion and imposed an aggregate life sentence subject to the

requirements of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. This

appeal followed.

Defendant's counsel presents the following arguments for our

consideration:

POINT I

REVERSAL IS REQUIRED BECAUSE THE STATE PRESENTED INADMISSIBLE TESTIMONY ABOUT UNNAMED WITNESSES IMPLICATING DEFENDANT, AND A DETECTIVE'S OPINION ABOUT WHO WAS PRESENT DURING THE SHOOTING. (Not Raised Below)

A. Reversal Is Required Because the State Relied on Prejudicial Hearsay About Unnamed Witnesses Implicating Defendant, Including in Summation.

B. Reversal Is Required Because the State Relied on Prejudicial Opinion Testimony to Show a Witness and Defendant Were Present During the Shooting.

A-4100-16T1 9 POINT II

REVERSAL IS REQUIRED BECAUSE THE TRIAL COURT WRONGLY INSTRUCTED THE JURY TO ONLY CONSIDER THE LESSER CHARGE OF PASSION/PROVOCATION MANSLAUGHTER IF IT FIRST ACQUITTED DEFENDANT OF MURDER. (Not Raised Below)

POINT III

THE CONVICTIONS MUST BE REVERSED BECAUSE THE STATE DID NOT RECORD THE WITNESSES' LEVELS OF CERTAINTY REGARDING THEIR OUT-OF-COURT IDENTIFICATIONS . . . AND THE TRIAL COURT DID NOT CHARGE THE JURY ON THAT OMISSION. (Not Raised Below)

POINT IV

THE PROSECUTOR ENGAGED IN REVERSIBLE MISCONDUCT WHEN HE REPLAYED THE WITNESSES' VIDEO STATEMENTS IN SUMMATION, MADE UNSUPPORTED COMMENTS ABOUT THE WITNESSES' FEAR OF SNITCHING, VOUCHED FOR THE WITNESSES, DISPARAGED THE DEFENSE . . . AND MADE UNSUPPORTED COMMENTS ABOUT THE FIGHT. (Partially Raised Below)

A. The Prosecutor Improperly Replayed Video of Key Pretrial Witness Statements During Summation.

B. The Prosecutor Unfairly Bolstered the Credibility of the State's Witnesses with Unsupported Comments About their Fear of Being Labeled as Snitches.

A-4100-16T1 10 C. The Prosecutor Committed Misconduct When He Made Unsupported Statements that Defendant Started the Fight and Received a Call to Confront the Decedent.

D. The Prosecutor Committed Misconduct When He Framed a Guilty Verdict as the "True" Result, Disparaged the Defense, and Vouched for the State's Witnesses.

POINT V

REVERSAL IS REQUIRED BECAUSE THE STATE RELIED ON EVIDENCE IRRELEVANT TO FLIGHT TO ARGUE CONSCIOUSNESS OF GUILT, AND THE COURT PROVIDED AN INCOMPLETE FLIGHT CHARGE. (Partially Raised Below)

POINT VI

THE CUMULATIVE EFFECT OF THE TRIAL ERRORS DEPRIVED DEFENDANT OF DUE PROCESS AND A FAIR TRIAL AND WARRANTS REVERSAL OF HIS CONVICTIONS. (Not Raised Below)

POINT VII

A REMAND FOR RESENTENCING IS REQUIRED BECAUSE THE COURT DID NOT ADEQUATELY EXPLAIN THE SENTENCE, LIMITED DEFENDANT'S ALLOCUTION WITHOUT EXPLANATION, AND IMPOSED A $200,000 FINE WITHOUT MAKING APPROPRIATE FINDINGS.

A. A Remand Is Required Because the Court Did Not Adequately Explain the Sentence Imposed.

A-4100-16T1 11 B. Resentencing Is Required Because the Court, Without Explanation, Denied Defendant's Request to Further Allocute in Response to the Prosecutor.

C. A Remand Is Required Because the Court Did Not Make Any Findings Regarding Defendant's Ability to Pay $200,000 in Discretionary Fines.

In his pro se supplemental brief, defendant presents the following

arguments:

CONVICTION WAS ACHIEVED BY PROSECUTORIAL MISCONDUCT IN VIOLATION TO DUE PROCESS. THE STATE DID NOT ESTABLISH "EVERY" ELEMENT [BEYOND] REASONABLE DOUBT REQUIRES REVERSAL[.]

A. A timely objection was not made reversal is requi[r]ed because it was prejudicial to use of the photo marked S20 to build the State's case by the use of the testimonial privile[]ge [.]

B. Prosecutorial Misconduct Administered by the State in Defendant's trial; where the State made Multiple improper prejudicial [comments] during Summations[.]

POINT II

REVERSAL IS REQUIRED DIRECTING THE TRIAL COURT TO REVOKE THE IMPOSED FINES, AND ASSES[S]MENTS . . . DUE TO ABUSE OF DISCRETION. BECAUSE THE DEFENDANT IS UNABLE TO PAY, AND SUCH IMPOSITIONS ARE ILLEGAL SENTENCES DISPOSED WITHOUT HOLDING A HEARING FOR ABILITY TO PAY,

A-4100-16T1 12 WHICH ESTABLISH "CONSTITUTIONAL" ERROR, AND REQUIRES REVOCATION IN "WHOLE"[.]

THE TRIAL JUDGE ERRED IN CHARGING FLIGHT TO THE JURY AS THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT THE INFERENCE THAT THE DEFENDANT'S ABS[]ENCE WAS A RESULT OF CON[S]CIOUSNESS OF GUILT, ESPECIALLY WHERE THE DEFENDANT'S KNOW[N] PLACES TO RESIDE [WERE] NOT INVESTIGATED AND WHERE DEFENDANT TURNED HIMSELF INTO AUTHORITIES ONCE HE BECAME AWARE THAT HE WAS A "SUSPECT" FOR THE CRIMES IN THE INSTANT CONVICTION. THUS DEFENDANT WAS DENIED A FAIR TRIAL[.]

RIGHT TO CONFRONTATION GUARANTEED BY THE SIXTH AMENDMENT WAS VIOLATED WHEN TRIAL COURT ALLOWED THE HEARSAY TESTIMONY OF DETECTIVE BRUCE BRANCH TO REPORT THAT HE QUESTIONED INFORMANTS . . . DISCLOSED THOSE FACTS TO THE JURY, BUT DEFENDANT WAS DEPRIVED TO CROSS-EXAMINE THOSE INFORMANTS, BECAUSE THEY DID NOT APPEAR IN COURT TO TESTIFY[.]

THE TESTIMONY OF DR. ANDREW FALSON . . . THE SPOKESMAN AS THE STATE'S EXPERT . . . DID NOT PREPARE THE AUTOPSY

A-4100-16T1 13 REPORT FINDINGS OF DR. ABRAHAM PHILLIP . . . THIS SPOLIATION OF DUE PROCESS, ALLOWED ONLY "NET OPINION" TESTIMONY INSTEAD OF "FACTUAL" TESTIMONY INFRINGED UPON THE DEFENDANT'S SIXTH AMENDMENT RIGHT OF CONFRONTATION, WITH THE ACTUAL MEDICAL EXAMINER WHO PREPARED THE AUTOPSY REPORT, CONSTITUTES TO CONSTIT[]UTIONAL ERROR[.]

TRIAL COURT SHOULD HAVE NOT DENIED DEFENDANT'S WADE/HENDERSON HEARING . . . AS A RESULT THE TRIAL COURT ABUSED IT[]S DISCRETION WHEN IT ERRED BY ALLOWING THREE OF THE STATE'S WITNESSES TO TESTIFY AT APPELLANT'S TRIAL, WHERE THE COURT AND STATE ALREADY WERE AWARE . . . THAT THE WITNESS WOULD EITHER TESTIFY INCONSISTENTLY TO THEIR PRIOR STATEMENTS . . . OR TESTIFY THAT THEY DID NOT REMEMBER THEIR PRIOR STATEMENTS EVER BEING GIVEN, ESTABLISHING PERJURED TESTIMONIES, AND THE STATE PROSECUTION HAVING "KNOWLE[D]GE" AND FAILING TO CORRECT SUCH PERJURED TESTIMONIES DENIED APPELLANT'S RIGHTS OF DUE PROCESS AND TO A FAIR TRIAL[.]

A. Inconsistent Testimony with out of court Statements[.]

B. State's Prosecutor's Knowing Use of Perjured Testimonies[.]

A-4100-16T1 14 POINT VII

A COURT REVIEWING A CLAIM OF ACTUAL INNOCENCE MUST EXAMINE THE RECORDS AS A WHOLE- "'ALL THE EVIDENCE.' OLD AND NEW". THE EVIDENCE IS INSUFFICIENT TO WARRANT A CONTINUED CONVICTION OBTAINED BY NEPOTISM. REVERSAL IS NECESSARY TO DIRECT THE TRIAL COURT VACATE THE JUDGMENT OF CONVICTION, AND TO DIRECT THE ENTRY OF A NEW JUDGMENT OF ACQUITTAL . . . N.J. CONST. ART. I, PAR. 6; N.J. CONST. ART VI § 4, BECAUSE THE DEFENDANT IS ACTUALLY INNOCENT[.]

POINT VIII

THE TOTALITY OF THE CLAIMS RAISED ON THIS APPEAL CONCLUDE THAT THE SENTENCING COURT COMMITTED A CLEAR ABUSE OF DISCRETION. NERA "SHALL NOT APPLY" PURSUANT TO N.J.S.A. 2C:43-7(c). IMPOSITION OF DEFENDANT'S SENTENCE BEYOND THE STATUTORY MAXIMUM BASED ON JUDICIAL FACT-FINDING OF AGGRAVATING FACTORS . . . WHICH WAS NEVER ADMITTED TO BY DEFENDANT OR SUBMITTED TO A JURY AND PROVED BEYOND A REASONABLE DOUBT VIOLATED BOTH HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS. THERE ARE SUBSTANTIAL MITIGATING FACTORS IN THIS CASE. . . . AS A RESULT THE TRIAL COURT IMPOSED AN ILLEGAL SENTENCE REQUIRES THAT THE CONVICTION BE VACATED AND REVERSED TO THE TRIAL COURT[.]

A-4100-16T1 15 A. The defendant expressed his remorse and the court had no consideration to it and imposed an illegal sentence.

B. Weapon's violations are not subject to NERA[.]

C. Defendant's last release from confinement was on November 27, 2014, there are no records of two or more prior convictions from that date. The court misapplied NERA to impose an illegal sentence

D. The Judicial fact-finding of aggravating factors which was never admitted to by the defendant or submitted to a jury and proved beyond reasonable doubt violated both his state and federal constitutional rights.

E. There are substantial mitigating factors.

F. The sentencing court committed a clear abuse of discretion[.]

POINT IX

THE CUMULATIVE ERRORS IN POINTS I THROUGH POINT VIII, HEREBY ESTABLISH THE DEFENDANT WAS DEPRIVED OF A FAIR TRIAL AND VIOLATED HIS RIGHT OF DUE PROCESS GUARANTEED BY THE U.S. CONST. AMEND. XIV, § 1, TOWARDS DEFENDING HIS RIGHT OF LIFE AND LIBERTY, GUARANTEED BY N.J. CONST. ART. I PAR. 1[.]

II.

Defendant challenges his conviction based on numerous claims

concerning alleged errors by the trial court, almost all of which were not raised

A-4100-16T1 16 before the trial court. Therefore, unless otherwise noted, we consider the alleged

errors under the plain error standard. R. 2:10-2. "A defendant who does not

raise an issue before a trial court bears the burden of establishing that the trial

court's actions constituted plain error" because "to rerun a trial when the error

could easily have been cured on request[ ] would reward the litigant who suffers

an error for tactical advantage either in the trial or on appeal." State v.

Santamaria, 236 N.J 390, 404-05 (2019) (quoting State v. Ross, 229 N.J. 389,

407 (2017)).

Under the plain error standard's "high bar," id. at 404, "[w]e may

reverse . . . only if the error was 'clearly capable of producing an unjust result, '"

Ross, 229 N.J. at 407 (quoting R. 2:10-2). "The possibility of an unjust result

must be 'sufficient to raise a reasonable doubt as to whether the error led the jury

to a result it otherwise might not have reached.'" Ibid. (quoting State v.

Williams, 168 N.J. 323, 336 (2001)).

Although we are compelled to assess most of defendant's arguments under

the plain error standard, we must also consider the cumulative effect these errors

had on defendant's fundamental right to a fair trial. State v. Jenewicz, 193 N.J.

440, 473 (2008). In doing so, we must determine whether "the probable effect

of the cumulative error was to render the underlying trial unfair," State v.

A-4100-16T1 17 Wakefield, 190 N.J. 397, 538 (2007), thereby "dictat[ing] the grant of a new trial

before an impartial jury," ibid. (quoting State v. Orecchio, 16 N.J. 125, 129

(1954)).

A.

Defendant contends the prosecutor violated his rights under the

Confrontation Clause of the United States Constitution, U.S. Const. amends VI,

XIV, and New Jersey Constitution, N.J. Const. art. I, ¶¶ 1, 9, 10, as well as our

hearsay rule, N.J.R.E. 802, by presenting evidence and making argument in

summation implying that unnamed individuals who did not testify at trial

provided information to the police implicating him in Mayse's murder. More

particularly, he argues the prosecutor impermissibly elicited testimony from

Detective Branch suggesting that unnamed individuals provided information

that led to the identification of defendant as a suspect. Defendant further asserts

the prosecutor reinforced the notion that other non-testifying witnesses

identified defendant as the shooter in comments made during his summation.

On April 28, 2015, the day Mayse was shot and killed, Clark and J.S.

denied witnessing the shooting to officers at the scene and again later to

Detective Branch at the hospital. Detective Branch testified that after leaving

the hospital, he canvassed the apartments in the area of the shooting for

A-4100-16T1 18 witnesses. Detective Branch testified that he spoke with individuals who were

willing to provide him with information, but unwilling to provide their names

or appear at the prosecutor's office to "give statements." Detective Branch

further explained that he identified surveillance cameras he believed might have

recorded events relevant to the investigation, obtained recordings from those

cameras and reviewed them.

For the first time on appeal, defendant challenges Detective Branch's

testimony that defendant was already a suspect when he reviewed the recordings

and that he reviewed the recordings for the purpose of looking for defendant:

[Q]: Now, at a certain point, you also became aware of [defendant] as your suspect in the case; is that correct?

[A]: Yes.

[Q]: Were you—did you put—as you reviewed those videos, were you looking for [defendant] on those videos?

[A]: Uh, yes.

[Q]: Did you find [defendant] on some of those videos?

[Q]: And, as you were watching those videos, did you find anybody else who matched his description in terms of clothing, build, hairstyle, around that time in that area?

A-4100-16T1 19 [A]: Yes.

[Q]: Were there other people, beside [defendant], who fit that description as the suspect?

[A]: Uh, the description of [defendant]?

[Q]: Yes. So, aside from [defendant], were there other people on those videos who looked like [defendant], [who] would be easily confused for him?

[A]: No.

Defendant contends Detective Branch's testimony that he canvassed the

area, spoke with witnesses who were willing to provide information but not their

names or formal statements, and later reviewed the video recordings looking for

defendant as the suspect leads to the inescapable conclusion that non-testifying

witnesses identified defendant as the shooter. Defendant claims the testimony

runs afoul of the principles established in State v. Bankston because it supports

an inescapable inference that non-testifying witnesses identified defendant as

the perpetrator of the offenses for which he was charged. 63 N.J. 263, 268-69

(1973).

The State argues the prosecutor elicited testimony from Detective Branch

about his "unsuccessful canvasses for additional witnesses to show Detective

Branch conducted a thorough investigation, left no stone unturned and did not

arbitrarily target defendant." The State also contends Detective Branch's

A-4100-16T1 20 identification of defendant as a suspect was based on "a trove of evidence,"

including J.S.'s and Clark's statements and physical descriptions of the shooter

and Detective Branch's review of the video recordings, and that Detective

Branch's testimony establishes he reviewed the recordings for defendant only

after Clark and J.S. identified him.

We reject the State's assertion that Detective Branch's challenged

testimony does not identify the time he reviewed the recordings and, as a result,

it could reasonably be inferred that Detective Branch's identification of

defendant as a suspect was the product of the identifications of defendant

provided by testifying witnesses—J.S. and Clark—in the days following the

shooting. The assertion is contradicted by the record.

The prosecutor asked Detective Branch about his review of the recordings

with only a temporal reference to "a certain point," but Detective Branch's

description of his investigation was linear and chronological and, when fairly

read in context, shows he obtained a description of defendant and identified him

as a suspect following his canvas of the apartments for witnesses and review of

the recordings before any testifying witness identified defendant as the shooter

or provided defendant's description. Indeed, the prosecutor understood that

Detective Branch testified that he reviewed the recordings on April 28, 2015,

A-4100-16T1 21 the day of the murder. Immediately after the challenged colloquy, the prosecutor

instructed Detective Branch, "I'm going to draw your attention to the . . . next

day, the morning of April 29th, 2015," and asked, "What did you do with regard

to this—investigation that morning?" (Emphasis added). The only logical

interpretation of Detective Branch's testimony is that he identified defendant as

a suspect, obtained defendant's description and reviewed the recordings on April

28, 2015, prior to the identification of defendant first made by J.S. on April 29

and next by Clark on April 30.

"[B]oth the Confrontation Clause and the hearsay rule are violated when,

at trial, a police officer conveys, directly or by inference, information from a

non-testifying declarant to incriminate the defendant in the crime charged."

State v. Branch,4 182 N.J. 338, 350 (2005) (citing Bankston, 63 N.J. at 268-69).

Our Supreme Court has explained that the "common thread" running through

Confrontation Clause jurisprudence "is that a police officer may not imply to the

jury that he [or she] possesses superior knowledge, outside the record, that

incriminates the defendant." Id. at 351. In addition, "[w]hen the logical

implication to be drawn from the testimony leads the jury to believe that a non -

4 The defendant in this Supreme Court opinion is not related to Detective Branch. A-4100-16T1 22 testifying witness has given the police evidence of the accused's guilt, the

testimony should be disallowed as hearsay." Bankston, 63 N.J. at 271; see also

State v. Irving, 114 N.J. 427, 446 (1989) (finding improper a police officer's

testimony that after he canvassed the neighborhood looking for leads, "he

focused on the defendant as the subject of his investigation and placed his

picture in the [photo] array").

Here, the record is bereft of evidence that any testifying witness either

identified defendant as the shooter or provided a description of defendant prior

to Detective Branch's review of the recordings on April 28, 2015. To the

contrary, on April 28 J.S. and Clark denied witnessing the shooting and did not

identify or describe the shooter.5 Thus, Detective Branch's testimony that on

April 28 he reviewed the recordings for defendant as a suspect and with a

description of defendant supported an "inescapable inference" that non-

testifying witnesses informed Detective Branch that defendant was the shooter

and provided a description of defendant. Bankston, 63 N.J. at 271. As the Court

observed in Branch, "the jury was left to speculate that the detective had superior

knowledge through hearsay information implicating defendant in the crime[s]."

5 As noted, J.S. did not identify defendant as the shooter until April 29, 2015, and Clark did not provide a statement identifying defendant as the shooter until April 30, 2015. A-4100-16T1 23 182 N.J. at 347-48. The trial court erred by allowing the testimony; its

admission "violated defendant's federal and state rights to confrontation as well

as our rules of evidence." Id. at 348.

Detective Branch provided further support for the inference that non-

testifying witnesses identified defendant as a suspect when he explained to the

jury his selection of the photographs for the photo arrays shown to J.S., Clark

and Perna. Detective Branch identified defendant as the suspect prior to his

construction of the photo arrays shown to putative witnesses. And he expressly

testified he included the suspect's picture in the photo array "[b]asically based

on . . . sources or information" that he received "during [his] investigation."

Because J.S. was the first testifying witness that identified defendant, Detective

Branch's testimony concerning his decision to include the suspect's photo in the

array also supported the inescapable inference that defendant, who Detective

Branch said was the suspect, had been identified as the shooter based on "sources

or information" from non-testifying witnesses.

In Branch, the Court observed that the reason an "officer place[s] the

defendant's photograph in the array is of no relevance to the identification

process and is highly prejudicial." 182 N.J. at 352. Yet that is precisely what

Detective Branch did here; he "implied that he had information from an out-of-

A-4100-16T1 24 court source, known only to him, implicating defendant in the" crimes charged,

id. at 353, and "the jury heard irrelevant, 'gratuitous hearsay testimony' that

violated defendant's right to confrontation and the rules of evidence," State v.

Lazo, 209 N.J. 9, 21 (2012) (quoting Branch, 182 N.J. at 348). "By doing so,

[Detective Branch] enhanced the [other witnesses'] credibility and intruded on

the jury's role." Id. at 22.

Detective Branch's reliance on information provided by non-testifying

witnesses to support his selection of defendant's photo for inclusion in the photo

array shown to J.S. was not only clear from his testimony, it was further

confirmed by the prosecutor during summation. Addressing Detective Branch's

selection of the photograph, the prosecutor explained that "[t]here are limitations

on what . . . [Detective] Branch can testify to, based [on] the evidence rules and

hearsay rules . . . but, as [Detective Branch] indicated, in the legally permissible

way, based on information he received, he decided to put [defendant] in the

photo array." In other words, the prosecutor confirmed for the jury exactly what

the Supreme Court in Branch prohibited—that defendant's photo was selected

for inclusion in the photo array based on "information [Detective Branch]

received" from non-testifying witnesses, see Branch, 182 N.J. at 352—and urged

the jury to consider that testimony in assessing the credibility of the witnesses'

A-4100-16T1 25 out-of-court identifications of defendant in its determination of defendant's guilt

or innocence on the charges.

Moreover, Detective Branch did not "indicate, in the legally permissible

way," the reason he selected defendant's photograph for inclusion in the photo

array. As our Supreme Court has explained, a witness cannot testify that a

defendant's photograph was selected based "'upon information received.' Even

such seemingly neutral language, by inference, has the capacity to sweep in

inadmissible hearsay. It implies that the police officer has information

suggestive of the defendant's guilt from some unknown source." Ibid. The

prosecutor could not properly do indirectly what our Supreme Court prohibits a

witness from doing directly: argue to the jury that the inclusion of a photo in an

array was based on information provided by non-testifying witnesses. See ibid.

Contrary to the State's contention, the prosecutor's argument was not made

proper because it was made in response to defense counsel's assertion that

Detective Branch had no basis to select defendant's photograph. "In contexts

other than a photographic identification" a police officer may testify he or she

relied on "information received" "to explain their actions, but only if necessary

to rebut a suggestion that they acted arbitrarily and only if the use of that phrase

does not create an inference that the defendant has been implicated in a crime

A-4100-16T1 26 by some unknown person." Ibid. (emphasis added). Here, reliance on the refuge

of "information received" to explain the selection of defendant's photograph was

not available to either Detective Branch or the State because it involved a

photographic identification and the testimony and argument created the highly

prejudicial, inescapable inference that non-testifying witnesses implicated

defendant in the commission of the crimes for which he was charged. Ibid.

Defendant objected to the prosecutor's argument, but only on the basis that

the State improperly suggested there was information the jury should consider,

even though not admitted in evidence. The court provided a limiting instruction

in response to defendant's objection, advising the jury that counsels' closing

arguments do not constitute evidence and the jury should rely on its own

recollection of the evidence. Defense counsel advised the court that she did not

object to the prosecutor's statement that Detective Branch's decision to include

defendant's photo in the array was "based on information he received." The

court's instruction therefore did not address the issue now raised on appeal —

that the prosecutor's reference to the information received supported the

inescapable inference that Detective Branch relied on information supplied by

non-testifying witnesses implicating defendant in the crimes for which Detective

Branch identified him as a suspect.

A-4100-16T1 27 "When evidence is admitted that contravenes not only the hearsay rule but

also a constitutional right, an appellate court must determine whether the error

impacted the verdict." State v. Weaver, 219 N.J. 131, 154 (2014). Where, as

here, there was no objection to Detective Branch's testimony about his review

of the recordings and selection of defendant's photograph, the prosecutor's

erroneous argument that defendant's photograph was selected based on

information received, or the court's curative instruction that did not address

Detective Branch's impermissible testimony, our standard of review requires

that we determine if the errors were clearly capable of producing an unjust

result. Branch, 182 N.J. at 353; see also State v. Kemp, 195 N.J. 136, 156 (2008)

(finding that even where testimony may implicate "the concerns[] interdicted by

Bankston," a reversal is not required where the totality of the circumstances

leads to the conclusion that admission of the evidence was harmless).

The assessment of whether the errors in admitting Detective Branch's

testimony, allowing the prosecutor's comments and in providing the putative

curative instruction impacted the jury's verdict requires consideration of the

strength of the State's case, the other evidence presented and any other trial

errors. See, e.g., State v. Hightower, 120 N.J. 378, 410 (1990). That analysis

is informed by a recognition that the primary issue—indeed the only contested

A-4100-16T1 28 issue upon which defendant's guilt or innocence depended—was the

identification of the shooter.

The State did not present forensic evidence tying defendant to Mayse's

murder, and the video recordings did not capture the shooting. Thus, the

identification of defendant as the shooter turned on the testimony of the three

putative eyewitnesses: J.S., Clark and Perna. We appreciate that each of the

witnesses identified defendant in photo identification procedures and that those

identifications, if accepted as credible, support the jury's verdict. Perna also

identified defendant in still photographs taken from the video recordings, and

J.S. and Perna identified defendant as the shooter at trial. But the reliability of

the witnesses and their respective identifications of defendant as the shooter

were not without issue.

J.S. and Clark identified defendant in the photo arrays administered in the

days following the shooting. However, in the hours immediately following the

shooting, they separately told the police they did not see either the shooting or

the shooter. J.S. offered reasons for her initial denial—she did not want to be

identified as a snitch—and the State argued Clark initially denied seeing the

shooting for the same reason. But the record nonetheless permits the conclusion

that J.S. and Clark lied either initially to the police or later in their statements.

A-4100-16T1 29 Moreover, at trial Clark denied any recollection of the shooting. Although the

court determined his claimed lack of memory was feigned and allowed

admission of his recorded statement as a result, Clark did not affirmatively

testified at trial that he observed the shooting or the shooter. Moreover, if his

lack of recollection was feigned, he lied while under oath before the trial court.

Perna's testimony is likewise filled with disturbing details. She waited

almost six weeks to contact the police about her observations; the evidence also

established that at the time of the murder, she allowed Mayse to use her

apartment to sell drugs in exchange for drugs that she used. The evidence also

showed inconsistencies between her recorded statement and trial testimony, and

suggested a motive for her identification of defendant—a dispute between

Mayse, for whom she was a maternal figure, and defendant over a drug sale in

her apartment on the evening prior to the murder.

We need not, and do not, resolve the credibility issues presented by the

witnesses or assess which version of the events they provided before and during

trial is more believable or persuasive. Instead, we determine only that in light

of the evidence otherwise supporting a challenge to the credibility of the

witnesses who provided the identifications that were the lifeblood of the State's

case, we cannot discount the prejudicial effect of Detective Branch's testimony

A-4100-16T1 30 that he received information from non-testifying witnesses supporting his

identification of defendant as the suspect. The record provided a substantial

basis for the jury to question the credibility and reliability of the witnesses'

identifications of defendant. Thus, the admission of Detective Branch's

testimony, the allowance of the prosecutor's argument that other non-testifying

witnesses or "information [Detective Branch] received" identified defendant as

the suspect and the court's ineffective curative instruction concerning the

prosecutor's improper argument not only deprived defendant of his

constitutional rights, it was highly prejudicial, unfair and supports a reasonable

doubt about whether the testimony and prosecutor's argument caused the jury to

reach a verdict it would have otherwise not reached. In other words, admission

of the testimony and allowance of the argument constituted plain error requiring

reversal of defendant's conviction and a remand for a new trial. See Branch, 182

N.J. at 353-54. The prejudice to defendant is not diminished by the fact that the

testifying witnesses selected defendant's photo from the arrays. To the contrary,

the witnesses' selections of the photos may have impermissibly served to

confirm what Detective Branch explained, and the prosecutor emphasized: that

non-testifying witnesses had identified defendant as the shooter.

A-4100-16T1 31 B.

The prejudicial effect of Detective Branch's testimony, the prosecutor's

comments regarding Detective Branch's testimony, and the court's ineffective

curative instruction was further exacerbated by additional errors, including the

erroneous admission of Detective Branch's testimony identifying defendant on

the video recording. Defendant did not object to the testimony, but it was clearly

inadmissible as lay opinion testimony under Rule 701. See N.J.R.E. 701.

The admission of lay opinion testimony is allowed under Rule 701, which

provides:

If a witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences may be admitted if it (a) is rationally based on the perception of the witness and (b) will assist in understanding the witness' testimony or in determining a fact in issue.

[N.J.R.E. 701.]

Opinion testimony may not "intrude on the province of the jury by

offering, in the guise of opinions, views on the meaning of facts that the jury is

fully able to sort out . . . [or] express a view on the ultimate question of guilt or

innocence." State v. McLean, 205 N.J. 438, 457 (2011) (citations omitted).

"[L]ay opinion testimony is limited to what was directly perceived by the

witness and may not rest on otherwise inadmissible hearsay." Id. at 460. To be

A-4100-16T1 32 admissible, lay opinion testimony must be founded on a witness's perception

which must "rest[] on the acquisition of knowledge through use of one's sense

of touch, taste, sight, smell or hearing." Id. at 457.

A fact witness is one who testifies as to what "he or she perceived through

one or more of the senses." Id. at 460. "Fact testimony has always consisted of

a description of what the officer did and saw[.]" Ibid. "Testimony of that type

includes no opinion, lay or expert, and does not convey information about what

the officer 'believed,' 'thought' or 'suspected,' but instead is an ordinary fact-

based recitation by a witness with first-hand knowledge." Ibid.

Detective Branch's testimony identifying defendant as appearing in the

recordings constituted an inadmissible lay opinion under Rule 701. It was not

based on Detective Branch's personal perceptions of defendant— Detective

Branch was not present for, and not did not witness, the shooting—and intruded

on the jury's role by "offering the view of the witness about . . . facts that the

jury [could] evaluate for itself or an opportunity to express a view on guilt or

innocence."6 McLean, 205 N.J. at 462. In addition, there were other witnesses,

6 In contrast, Detective Branch's testimony identifying Clark as appearing on the video recordings constituted proper lay opinion testimony. Detective Branch saw Clark immediately following the shooting, interviewed him at the hospital and observed what Clark was wearing, including Clark's distinctive red

A-4100-16T1 33 J.S., Clark and Perna, who testified they witnessed the shooting and identified

defendant. See Lazo, 209 N.J. at 23 ("Courts evaluating whether a law

enforcement official may offer a lay opinion on identification also consider,

among other factors, whether there are additional witnesses available to identify

the defendant at trial."). More importantly, the testimony added to the prejudice

resulting from Detective Branch's other testimony and the prosecutor's

comments during summation concerning the identification of defendant as a

suspect by non-testifying witnesses because it bolstered the challenged

identifications made by J.S., Clark and Perna with an impermissible

identification of defendant by the detective in charge of the murder

investigation. "In an identification case, it is for the jury to decide whether an

sweatpants. His identification of Clark on the recording was based on his personal perceptions of Clark on the day of the shooting. His testimony that he recognized Clark on the recording was founded on those perceptions, assisted the jury in determining whether Clark was present at the scene, and therefore constituted proper lay opinion testimony under Rule 701. See, e.g., State v. Carbone, 180 N.J. Super. 95, 96-97 (Law. Div. 1981) (finding admissible as lay opinion testimony concerning photographic identifications of defendant in an armed robbery prosecution by witnesses who had personal knowledge of the defendant's appearance at the time of the robbery, but who were not present when the robbery occurred); cf. Lazo, 209 N.J. at 24 (finding a police officer's testimony that the "defendant's arrest photo closely resembled the composite sketch" was inadmissible lay opinion because the officer "had not witnessed the crime and did not know defendant; the officer's opinion stemmed entirely from the victim's description").

A-4100-16T1 34 eyewitness credibly identified the defendant. . . . Neither a police officer nor

another witness may improperly bolster or vouch for an eyewitness' credibility

and thus invade the jury's province." Id. at 24.

Although we might not otherwise conclude that Detective Branch's

testimony identifying defendant on the video recording alone constitutes a plain

error, R. 2:10-2, we are convinced the cumulative effect of its admission with

the erroneous admission of Detective Branch's testimony concerning the

identification of defendant as a suspect and inclusion of defendant in the photo

arrays rendered defendant's trial unfair. The State presented its case in a

thoughtful and strategic manner and, in our view, it is not by chance that the

State, in recognition of the credibility challenges to its three putative

eyewitnesses, sought to bolster its proofs on the only issue that mattered —the

identification of the shooter. It did so in a subtle but persuasive manner by using

Detective Branch's testimony to first establish the inescapable inference that

non-testifying witnesses had identified defendant as the shooter and, as if that

were not enough, by then asking Detective Branch to identify defendant on the

recording even though Detective Branch was not present when the shooting

A-4100-16T1 35 occurred.7 Defendant should have objected to the testimony, but the lack of an

objection does not obviate the fact that Detective Branch's unchallenged

testimony was highly prejudicial, unfair and cumulatively requires the

conclusion that its admission was clearly capable of producing an unjust result

requiring a reversal of defendant's conviction. Jenewicz, 193 N.J. at 473-74.

C.

Our conclusion there was plain and cumulative error warranting a reversal

of defendant's conviction based on the admission of Detective Branch's

testimony concerning his identification of defendant as a suspect prior to his

review of the recordings, his selection of defendant's photograph for inclusion

in the photo arrays, and his identification of defendant on the video recordin gs

renders unnecessary a consideration of all defendant's remaining claims, most

7 We also observe that the State further sought to directly bolster the credibility of the witnesses' identifications of defendant by playing portions of the recordings of J.S.'s and Perna's identifications and the entirety of Clark's statement and identification of defendant during closing arguments. On appeal, the State concedes the credibility of the witnesses' identifications constituted the fulcrum upon which defendant's guilt was based—the State argues the playing of the recordings during closing arguments was required in response to defense counsel's "strenuous[] urg[ing]" that the witnesses' identifications of defendant were not credible.

A-4100-16T1 36 of which were not before the trial court and which can be addressed and raised

on the record extant during the retrial. 8

We will, however, address two claims pertinent to the matter on remand.

First, defendant argues the judge wrongly instructed the jury that it could only

consider the lesser-included offenses to murder if it acquitted defendant of

murder. See State v. Coyle, 119 N.J. 194, 222-23 (1990). More particularly,

defendant argues the murder charge and the lesser-included offense of

passion/provocation manslaughter should have been instructed together and the

verdict sheet should have been tailored to ensure the two charges were

considered together and not sequentially.

"[A]ppropriate and proper charges [to a jury] are essential for a fair trial."

State v. Baum, 224 N.J. 147, 158-59 (2016) (quoting State v. Reddish, 181 N.J.

553, 613 (2004)). A trial court has an "independent duty . . . to ensure that the

jurors receive accurate instructions on the law as it pertains to the facts and

issues of each case, irrespective of the particular language suggested by either

8 For example, if the prosecutor intends to replay the video recordings of the identification procedures during his or her summation, the issues shall be addressed by the parties and the court at the appropriate time in accordance with the procedure required by State v. Muhammad, 359 N.J. Super. 361, 380-83 (App. Div. 2003). Similarly, the court shall consider the appropriateness and content of any proposed flight charge based on the evidence presented during the retrial. A-4100-16T1 37 party." Id. at 159 (alteration in original) (quoting Reddish, 181 N.J. at 613).

"Because proper jury instructions are essential to a fair trial, 'erroneous

instructions on material points are presumed to' possess the capacity to unfairly

prejudice the defendant." Ibid. (quoting State v. Bunch, 180 N.J. 534, 541-42

(2004)).

Defendant was charged with first-degree attempted murder and with the

lesser-included charges of attempted passion/provocation murder and

aggravated manslaughter. The court instructed the jury on the charges in

accordance with the model jury instructions and defendant neither requested a

change to the court's proposed jury charges on the offenses nor to the verdict

sheet. We therefore review the court's instructions and verdict sheet for plain

error, R. 2:10-2, and will not reverse unless there is an error that is sufficient to

raise a "reasonable doubt . . . as to whether the error led the jury to a result it

otherwise might not have reached," State v. Funderburg, 225 N.J. 66, 79 (2016)

(alteration in original) (quoting State v. Jenkins, 178 N.J. 347, 361 (2004)).

In the context of a jury charge, plain error is a "[l]egal impropriety in the

charge prejudicially affecting the substantial rights of the defendant and

sufficiently grievous to justify notice by the reviewing court and to convince the

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

A-4100-16T1 38 result." State v. Camacho, 218 N.J. 533, 554 (2014) (alteration in original)

(quoting State v. Adams, 194 N.J. 186, 207 (2008)). We consider the jury

instructions "as a whole" to determine if an error constitutes plain error. State

v. Brown, 190 N.J. 144, 160 (2007) (quoting State v. Torres, 183 N.J. 554, 564

(2005)). "[T]here is a presumption that [a] charge was not [in] error and was

unlikely to prejudice the defendant's case" where, as here, there was no objection

to the charge. State v. Singleton, 211 N.J. 157, 182 (2012). We find no plain

error here.

We consider "[t]he verdict sheet[] in conjunction with the jury charges."

State v. Galicia, 210 N.J. 364, 386 (2012). As our Supreme Court recently

stated:

A verdict sheet is intended for recordation of the jury's verdict and is not designed to supplement oral jury instructions. See State v. Reese, 267 N.J. Super. 278, 287 (App. Div.), certif. denied, 134 N.J. 563 (1993). Although a verdict sheet should list all elements of each offense, or no elements of any offense, our inquiry focuses on whether the jury understood the elements as instructed by the judge, and was not misled by the verdict sheet. See ibid. Where we conclude that the oral instructions of a court were sufficient to convey an understanding of the elements to the jury, and where we also find that the verdict sheet was not misleading, any error in the verdict sheet can be regarded as harmless. See id. at 287-89; State v. Vasquez, 265 N.J. Super. 528, 547 (App. Div.) (finding no reversible error where verdict sheet was erroneous but jury received proper

A-4100-16T1 39 oral instruction, because "[t]he jury is presumed to have understood [the] instructions" (citation omitted)), certif. denied, 134 N.J. 480 (1993); see also Sons of Thunder, Inc. v. Borden, Inc., 148 N.J. 396, 418 (1997) (stating that judge's charge and interrogatories to jury do not provide grounds for reversal unless misleading, confusing, or ambiguous).

[State v. Gandhi, 201 N.J. 161, 196-97 (2010).]

A purposeful killing in New Jersey can be either murder or the lesser-

included offense of passion/provocation manslaughter. See State v. Grunow,

102 N.J. 133, 138-40 (1986). Here, defendant does not argue that the

passion/provocation manslaughter charge was incorrectly included in the jury

instruction.

In Coyle, the Court addressed the jury instructions that must be given

where evidence in the record supports a finding of passion/provocation

manslaughter. 119 N.J. at 221. The Court noted that where evidence of

passion/provocation exists, the State may only obtain a murder conviction if it

proves beyond a reasonable doubt that the purposeful killing was not the product

of passion/provocation. Ibid.

Here, the judge correctly instructed the jury on the elements of murder

and passion/provocation manslaughter in accordance with the model criminal

jury instructions. See Model Jury Charges (Criminal), "Murder,

A-4100-16T1 40 Passion/Provocation and Aggravated/Reckless Manslaughter (N.J.S.A. 2C:11-

3(a)(1) and (2); 2C:11-4(a), (b)(1) and (2))" (rev. June 8, 2015). In pertinent

part, the court instructed the jury that defendant is guilty of murder if they found

"beyond a reasonable doubt that [he] purposely or knowingly caused . . .

Mayse'[s] death, or serious bodily injury that then resulted in death, and that he

did not act in the heat of passion resulting from a reasonable provocation, the

defendant would be guilty of murder." (Emphasis added). In its charge on the

offense of passion/provocation manslaughter, the court instructed that if the jury

found "defendant purposely or knowingly caused death, or serious bodily injury

that then resulted in death, and that he did act in the heat of passion resulting

from a reasonable provocation, the defendant would be guilty of

passion/provocation manslaughter." These instructions accurately described the

different elements of the offenses at issue in this case in accordance with the

requirements in Coyle. 119 N.J. at 221.

Defendant contends that the court's charge and the verdict sheet

erroneously instructed the jury to consider the murder and passion/provocation

charges sequentially, and that it was necessary that the court instruct the jury

that it should consider the charges at the same time. Defendant ignores that the

State was required to prove the absence of passion/provocation as an element of

A-4100-16T1 41 the murder charge, and the jury necessarily considered the issue of

passion/provocation when it found defendant guilty of murder. In other words,

even accepting defendant's contention it was error for the court not to expressly

instruct the jury to consider the charges at the same time and for the verdict sheet

not to direct the jury to do so, defendant suffered no prejudice from the purported

errors because in the jury's consideration of the murder charge, it found beyond

a reasonable doubt that the State proved an absence of passion/provocation. We

find no plain error in the court's instructions or the verdict sheet, see, e.g.,

Gandhi, 201 N.J. at 197, but do not limit the parties from requesting different

jury instructions or a verdict sheet based on the evidence presented at

defendant's retrial. 9

We also consider defendant's claim that the court erred by denying his

request for an evidentiary hearing on the admissibility of out-of-court

identifications of defendant made by J.S., Clark and Perna, and by denying his

9 We remind the parties and trial court of the availability of the Supreme Court Committee on Model Criminal Jury Charges' Criminal Sample Verdict Sheets, which include a "Sample Verdict Sheet (Murder (Own Conduct, Passion/Provocation and Aggravated/Reckless Manslaughter)), Revised [June 8, 2015]," and commend its use on remand if appropriate based on the evidence presented. We note the sample verdict sheet requires that the jury render its verdicts on murder and passion/provocation manslaughter in response to a single question. A-4100-16T1 42 motion to exclude evidence concerning the identifications at trial. We review

an order denying a motion to bar an out-of-court identification under the

standard we apply in "our review of a trial court's findings in any non-jury case."

State v. Wright, 444 N.J. Super. 347, 356 (App. Div. 2016). We accept the

court's findings that are "supported by sufficient credible evidence in the

record," State v. Gamble, 218 N.J. 412, 424 (2014), and review de novo the

court's legal conclusions "and the consequences that flow from established

facts," id. at 425.

To obtain an evidentiary hearing on the admissibility of eyewitness

identification evidence, "a defendant has the initial burden of showing some

evidence of suggestiveness that could lead to a mistaken identification."

Henderson, 208 N.J. at 288. That evidence must generally be tied to one of the

system variables identified by our Supreme Court in Henderson. Id. at 288-89.

Before the trial court, defendant asserted only that the photo identification

proceedings during which J.S., Clark and Perna identified defendant were

suggestive because Clark described the shooter as a dark-skinned male and the

photographs included in the arrays shown to the witnesses included light -

skinned males and J.S. refused to sign the photo she selected. The court

reviewed the photographs shown to the witnesses, determined that the

A-4100-16T1 43 photographs depicted individuals sharing similar skin tones, rejected the notion

that J.S.'s refusal demonstrated any evidence of suggestiveness and found no

evidence supporting defendant's claim that the photo identification procedures

were suggestive. We find defendant's claim that J.S.'s refusal to sign the photo

she selected demonstrated suggestiveness lacks sufficient merit to warrant

further discussion. R. 2:11-3(e)(2). We have also reviewed the photographs

and are satisfied they provide sufficient credible evidence supporting the court's

findings, Gamble, 218 N.J. at 424, and legal conclusion that defendant failed to

sustain his burden of demonstrating sufficient suggestiveness to warrant an

evidentiary hearing on the admissibility of the out-of-court identifications of

defendant, Henderson, 208 N.J. at 288.

For the first time on appeal, defendant argues the court erred by allowing

evidence concerning the out-of-court identifications because the officers who

conducted the photo identification procedures did not record the witnesses'

statements concerning their levels of confidence as required under Rule

3:11(c)(7) and State v. Delgado, where our Supreme Court held that law

enforcement officers are required to make "a written record detailing the out-of-

court identification procedure, including . . . the dialogue between the witness

and the interlocutor, and the results." 188 N.J. 48, 63 (2006). We consider

A-4100-16T1 44 defendant's argument under the plain error standard because, again, it was not

raised before the trial court. R. 2:10-2. Thus, "it is defendant's burden to

demonstrate that the police failed to create an adequate record of the [out-of-

court identification procedure] and that such failure was clearly capable of

producing an unjust result." Wright, 444 N.J. Super. at 362-63.

Here, the State complied with the recordation requirements imposed by

Rule 3:11 and Delgado; the photo identification procedures for J.S., Clark and

Perna were video recorded and the subject of written reports by the officers who

conducted them. Those records, however, do not include the witnesses'

statements of their levels of confidence in their selection of defendant's photo

because they were not asked by the officers to state their levels of confidence.

"It is . . . critical for law enforcement to record a witness' full statement

of confidence when an identification is first made—before any possible

feedback," State v. Anthony, 237 N.J. 213, 226 (2019), because without such a

recording "the defendant may not learn about confirmatory feedback or other

suggestive behavior," id. at 233. Although it appears defendant was not

deprived of any information about possible feedback because the photo

identification procedures were video recorded, and defendant was provided with

the recordings prior to trial, on remand defendant may request an evidentiary

A-4100-16T1 45 hearing based on his claim that, as a result of the officers' failures to request the

respective witnesses' level of confidence, the photo identification procedures

were suggestive. See generally, id. at 233-34. We offer no opinion on the merits

of such a request, which the court shall consider and determine based on the

record presented.

Reversed and remanded. We do not retain jurisdiction.

A-4100-16T1 46