STATE OF NEW JERSEY v. JAMES E. GRANTÂ (12-09-0849, MERCER COUNTY AND STATEWIDE) ( 2017 )


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  •                         NOT FOR PUBLICATION WITHOUT THE
    APPROVAL OF THE APPELLATE DIVISION
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    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-5023-13T2
    STATE OF NEW JERSEY,
    Plaintiff-Respondent,
    v.
    JAMES E. GRANT, JR., a/k/a
    BYRON BROWN,
    Defendant-Appellant.
    _________________________________
    Submitted December 20, 2016 – Decided June 27, 2017
    Before Judges Espinosa, Suter, and Guadagno.
    On appeal from the Superior Court of New
    Jersey,   Law   Division,  Mercer County,
    Indictment No. 12-09-0849.
    Joseph E. Krakora, Public Defender, attorney
    for appellant (Alyssa Aiello, Assistant Deputy
    Public Defender, of counsel and on the
    briefs).
    Angelo J. Onofri, Mercer County Prosecutor,
    attorney for respondent (Michael D. Grillo,
    Assistant Prosecutor, of counsel and on the
    brief).
    PER CURIAM
    Defendant James E. Grant, Jr. appeals his convictions for the
    attempted murder of two police officers sitting in their patrol
    car and weapons charges following a jury trial. Among the evidence
    presented at trial was a videotape that included significant
    portions of inadmissible and prejudicial material, consisting of
    a non-testifying witness's recital of damaging and inadmissible
    hearsay statements she termed "gossip" and a detective's opinion
    that defendant was guilty.     Because the trial judge permitted the
    videotape to be played without redaction, we are constrained to
    reverse defendant's convictions.
    I.
    Defendant was indicted in September 2012 on two counts of
    first-degree attempt to commit murder, N.J.S.A. 2C:11-3(a) and
    2C:5-1; two counts of second-degree possession of a weapon for an
    unlawful purpose, N.J.S.A. 2C:39-4(a); one count of second-degree
    possession of an assault firearm, N.J.S.A. 2C:39-5(f) and 2C:39-
    1(w); and one count of third-degree unlawful possession of a
    weapon, N.J.S.A. 2C:58-3 and N.J.S.A. 2C:39-5(c)(1) (Indictment
    No. 12-09-0849).   He was convicted of all six charges following a
    jury trial in 2014.    Subsequently, his motion for a new trial was
    denied.
    Defendant   was   later   indicted    in   2013   for   second-degree
    aggravated   assault,     N.J.S.A.        2C:12-1(b)(1);     third-degree
    2                               A-5023-13T2
    aggravated    assault,   N.J.S.A.        2C:12-1(b)(2);   second-degree
    possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-
    4(a); and second-degree unlawful possession of a handgun, N.J.S.A.
    2C:39-5(b), arising from an unrelated incident on May 10, 2012.
    Defendant pled guilty to second-degree aggravated assault on March
    13, 2014, and the other charges in that indictment were dismissed.
    Defendant was sentenced in April 2014 on his convictions
    following trial and on his guilty plea to aggravated assault.        For
    the attempted murder and weapons charges, defendant was sentenced
    to consecutive terms of fifteen years for each count of attempted
    murder for an aggregate sentence of thirty years in prison with
    an 85% period of parole ineligibility under the No Early Release
    Act (NERA), N.J.S.A. 2C:43-7.2.         He was sentenced on the weapons
    counts to concurrent terms not exceeding seven years.           On the
    aggravated assault charge, defendant was sentenced to a concurrent
    term of five years with an 85% period of parole ineligibility
    under NERA.
    II.
    A.
    On May 14, 2012, near midnight, Officers Runyon and Palumbo
    were patrolling in their marked police vehicle on Stuyvesant Avenue
    in Trenton, near the 400 block, when they heard sounds that caused
    them to unroll their windows.   Within seconds, their vehicle came
    3                           A-5023-13T2
    under fire from what sounded like a high-powered weapon and they
    sped    away   uninjured,   radioing   for   back   up.   Subsequent
    investigation revealed that five shots hit the vehicle, three of
    which came very near to the officers, including one that dented
    the seat back behind the officers.       The police found seven .30
    caliber shell casings in the vicinity of the shooting, but never
    recovered the weapon.
    D.C.,1 known colloquially as "Twin," and his brother were
    picked up by the police for questioning.      D.C., who was seventeen
    at the time, was a friend of defendant.      Both D.C. and defendant
    resided in the same area as the shooting.     D.C. testified at trial
    that defendant was upset about the recent death of          Orenthia
    "Pookie" Upshur, the brother of defendant's girlfriend, who died
    in an automobile accident while fleeing from the police.          D.C.
    testified that defendant had vowed revenge against the police.
    D.C. testified that late on May 14, 2012, he stopped at
    defendant's house to retrieve a pair of shoes, but defendant was
    not at home. As D.C. was proceeding home, he had a chance encounter
    with defendant, who he observed, despite the darkness, was kneeling
    down in the yard of an abandoned house on Stuyvesant Avenue.      D.C.
    greeted defendant, who told him to "[s]hut the f*ck up."          D.C.
    1
    We use initials because D.C. was a minor at the time of the
    incident.
    4                           A-5023-13T2
    testified defendant was holding a large rifle.               When a police
    vehicle came down Stuyvesant Avenue in their direction, D.C.
    testified that defendant stood up, took a few steps forward, and
    fired between four and eleven shots at the vehicle.          D.C. followed
    defendant,   running   from   the    scene,   and   stayed   the   night    at
    defendant's house.
    D.C. and his brother were both brought in by the police for
    questioning on May 18, 2012.        In the presence of his mother, D.C.
    gave a videotaped statement where he described what occurred.               On
    the tape, D.C. claimed he only heard the shots and saw defendant
    running; he did not see the rifle or defendant shooting it.
    D.C. was charged with attempted murder.            He testified at
    trial that after he was charged, he "ask[ed] for a lawyer and I
    went to tell them the truth."       D.C. gave a formal statement to the
    police on June 5, 2012 in which he identified defendant as the
    shooter.   Defendant was arrested and charged with the shooting.2
    In addition to D.C.'s testimony, the State presented evidence
    of incriminating statements made by defendant to two fellow inmates
    at the Mercer County Corrections Center (the Workhouse). Defendant
    was incarcerated at the Workhouse in the same cellblock as Raheem
    Hickmond, who knew defendant.        Hickmond testified defendant told
    2
    D.C. later pled guilty to obstruction of administration of law
    and received a thirty-day suspended sentence.
    5                              A-5023-13T2
    him about his role in the shooting and specifically that he had
    "let off a shot - - a couple of shots" at the police.     Defendant
    told him that "Twin" was with him that night, and that Twin "was
    the only one who knew about the shooting and that's how the cops
    found out."    Hickmond testified "that [defendant] put a hit out
    on Twin" through another inmate, Willie Yeager, but it was "messed
    up" when Twin's grandmother instead of Twin was shot in the arm.
    Hickmond gave a formal statement to the police in November 2012.
    In exchange for his testimony, the prosecutor agreed to recommend
    a lighter sentence on his then pending charges.
    Terrell Black met and became friends with defendant at the
    Workhouse.    Black testified that defendant told him that he shot
    six rounds at the police on Stuyvesant Avenue.       Defendant also
    told Black he was with a young boy who had braids and who apparently
    had talked to the police about the shooting.    Black gave a formal
    statement to the police in July 2012.          In exchange for his
    testimony in this and other cases, the prosecutor recommended a
    one-year sentence followed by probation.
    B.
    An issue arose at trial regarding the hour and one-half long
    videotape of D.C.'s interrogation by the police on May 18, 2012.
    Defense counsel wanted to play two excerpts from the tape, lasting
    a total of five minutes, to impeach D.C.'s testimony that he had
    6                          A-5023-13T2
    seen defendant shoot at the police.             The prosecutor asserted the
    tape was more of a discussion than an interrogation, because D.C.'s
    mother made a number of comments on the tape.             The prosecutor took
    the position that the entire video had to be shown, citing to
    N.J.R.E. 106.       Without viewing the videotape, the judge said,
    [COURT]: I would prefer the entire video be
    shown because I would imagine that even if you
    did show part of it, he is going to want to
    go and bring the other part in . . . . [T]he
    preference is always to play it in its
    entirety.
    After    learning    the   video   was   long   and    there   was    no   written
    transcript of it, the court stated,
    [COURT]: I'm not saying you can't — look, you
    handle it how you want. If you want to play
    certain portions of it, he is going to do the
    other parts; okay?
    Defense counsel expressed concern because D.C.'s mother could be
    heard on the tape but was not going to be called as a witness at
    trial.
    [DEFENSE]: She . . . says things that are
    detrimental to my client on there. I think
    that should never be allowed because she's not
    a witness.
    Defense   counsel    wanted   to      impeach   D.C.    with   his     prior
    inconsistent statements and acknowledged she could use the tape
    or "just ask him these questions, if he denied them, then play
    it."    But the prosecutor reiterated that,
    7                                  A-5023-13T2
    [STATE]: [T]he problem for the State is now,
    Judge, how do I go about and now parcel out
    with the video what statement — exclude the
    [illegible] of the mother or whatever that she
    claims is prejudicial to her client? I can't
    do that now in the middle of a trial.
    Defense counsel told the judge she had taken out the comments
    by D.C.'s mother, but the State continued to assert its position
    of playing the entire tape and the court vacillated.
    [DEFENSE]: I went through and . . . every time
    the mom interrupted I took her part out. She
    is not relevant to this case. She is not a
    part of this case. She is not a witness to
    anything so whatever she says or doesn't say
    should not be put in front of the jury.
    . . . .
    [STATE]: All I am saying, Judge, is, is that
    I don't know what she is talking about in
    regards to, I don't know what the State is
    going to play or the State is going to show.
    . . . .
    [COURT]: Here is what we're stuck doing. What
    we're stuck doing . . . is you playing the
    excerpts; okay? I am going to assume, based
    on your representation, that the excerpts that
    you're going to play deal specifically with
    the testimony provided by [D.C.] either in
    court under examination by [the prosecutor]
    or with regards to the statements that were
    addressed in court.
    . . . .
    [STATE]: [T]he State is going to intend on
    playing the rest of this video, Judge, and I
    don’t know how we're going to get around it.
    8                          A-5023-13T2
    [COURT]: All right.
    . . . .
    [DEFENSE]: I just want to reiterate my
    objection to the mother's voice — I know there
    is nothing Your Honor can do, but I just want
    to put the objection on the record; that's
    all.
    [COURT]: All I want to know is what are we
    doing with this tape; are we playing it in
    full, in half, in part? Just tell me.
    [STATE]: You can't have your cake and eat it,
    too. If you're going to put portions in, then
    the State is going to put the rest of the
    portions in so do you want the full tape in
    or do you not want it in?
    [COURT]: How do you want to handle it?
    [DEFENSE]: I mean, I would rather put in my
    parts. I put in 15:08 to 16:12. I am talking
    about a time. And then I restart at 16:12:20
    to 16:12:47 and then stop.3
    [COURT]: Sure. Look, if that's how you want
    to proceed, I have no problem with that. I
    want you to handle your case the same way I
    want you to handle your case, the way you want
    it. It is not an issue with me.
    Defense counsel pressed the court for clarification.
    [DEFENSE]: My question, I guess, going forward
    is, if I make this effort, going through it
    like this, is the State then going to be
    allowed to play the entire missing parts? If
    3
    The tape started at 15:56 and ended at 17:50, referencing
    military time. Defense counsel wanted to play the tape starting
    at 16:08 to 16:12, which is where D.C. describes the events after
    he encountered defendant on Stuyvesant Avenue.
    9                           A-5023-13T2
    they are,   then   let's   just   play   the   whole
    thing.
    [COURT]: Well, for completeness, they are
    going to, but any statements that — any
    outbursts that the mother may make are going
    to have to be excised.
    The State reiterated that D.C.'s mother was "an integral part of
    the conversation" and that she could not be taken out "and get a
    full completeness of what is being said in that room."           The court
    responded,
    [COURT]: Look, the best that the Court can do
    is just hear the evidence, respond to the
    objections and you're in control of the — of
    your own respective evidence. And if it blows
    up on you, I will try to clean up the mess,
    but that is not my job.
    The State then suggested that the situation could be addressed
    by a curative instruction regarding any statements on the tape by
    D.C.'s mother saying that "it is not evidence in the case, the
    jury should not consider it in any way whatever[.]"               Defense
    counsel seemed persuaded.
    [DEFENSE]: We're making almost a joint
    decision to play the whole tape anyway. Since
    it is going to be played anyway, it doesn't
    make sense –
    [COURT]: I'm fine - if you want to play the
    whole thing and if you want to play the whole
    thing, I am fine with it, you know.
    [DEFENSE]: I am not going to object to
    anything in the tape, but I would like that
    curative instruction at the end and I would
    10                                 A-5023-13T2
    like it to be a Court exhibit, not a Defense
    exhibit, as well.
    When the court would not agree to mark the tape as a court
    exhibit, it was marked as a joint exhibit by the parties.       The
    court then advised counsel:
    [COURT]: I am sure nobody has anything to
    hide, but if you, if you're coming up on a
    part that you know that [D.C.'s mother] is
    going to say something really inflammatory,
    just skip it.
    [DEFENSE]: There are so many parts where she
    says things, it's hard to — literally, every
    stop and start is because mom is interrupting,
    mom is interrupting, mom is interrupting, so
    I think it is going to be difficult to pinpoint
    one thing and if we have a curative
    instruction, I think that is the best.
    Before playing the entire tape, the judge gave the following
    instruction to the jury.
    [COURT]: Folks, we have — what is being
    presented to you at this point is a CD or DVD
    of a recording of a statement provided by
    [D.C.] subsequent to when he first came down
    to talk to the police, but prior to his being
    charged; okay? . . . [T]here are going to be
    some remarks or responses or some verbiage
    that you're going to hear from [D.C.]'s
    mother. And at the consent of the attorneys
    in this case, I need to advise you, first,
    that anything you hear that the mother may say
    has to be disregarded by you as hearsay, as
    being unreliable, not subject to cross-
    examination and cannot be considered by you
    in any way, shape or form in your decision-
    making process as to whether or not the State
    has met its burden in proving the charges
    against Mr. Grant so to the extent that you
    11                           A-5023-13T2
    can, disregard, but note that you can't use
    anything that she said.
    For the most part, the dialogue you should
    focus . . . on is between the officer doing
    the questioning and [D.C.] in giving the
    responses.
    [(Emphasis added).]
    C.
    Three people could be seen and heard on the videotape: D.C.,
    his mother and Detective Britton, who later testified at trial.
    On the tape, D.C. acknowledged his chance encounter with defendant,
    but stated that as he was walking away toward his own home, he
    heard shots ring out close by, turned toward defendant, and saw
    him running.    D.C. then turned and ran in the opposite direction
    from defendant, toward his own home.    When he arrived, the house
    was locked.    He spent the night at his girlfriend's house nearby.
    The detective questioned D.C. about his sequencing of events
    and how D.C.'s timeframes presented problems with his story.       He
    told D.C. that the shooting was being attributed to him.
    The detective told D.C. repeatedly that "the streets were
    talking" and those "streets" were saying that D.C was involved.
    [DETECTIVE]: We've brought in enough people.
    We've come to sort of an idea about what
    happened out there. . . . The streets put the
    right people in the right spot. . . . People
    know you were there. . . . People have put you
    guys together out there.
    12                         A-5023-13T2
    And then:
    [DETECTIVE]: Everybody on the street isn't
    saying Ski,4 they saying Twin.
    [MOTHER]: They scared of Ski or something that
    they don't tell the truth. . . . I heard some
    gossip . . . . I heard something else about
    Ski. . . . There's a rumor saying, I don't put
    nobody's name on it, that [defendant] did it.
    This is between me and you [indicating the
    detective] . . . that he did it.
    . . . .
    [DETECTIVE]: This is what I'm trying to get
    to. Your mom knows the streets. . . . You're
    the only ones around. By the next morning,
    when this happens everyone thinks it's the
    craziest,   baddest   dude  on   the   block
    [indicating defendant]. Then as the day goes
    on, it becomes [you].
    The interview continues:
    [MOTHER]: What I heard today, three people
    came up to me and told me . . . that
    [defendant] was bragging about what he did.
    And that he's never going to be caught. . . .
    And all he was bragging about it, bragging
    about it, bragging about it. . . . Let me tell
    you what I heard about Ski today. . . . I
    thought he was a nice guy. . . . But what I
    heard today, you gotta watch it with him. . .
    . And I know he did it. . . . He say that he
    did it. He told three people. . . . And they
    said there's a lot of people out there that's
    scared, that Ski got a lot of people wrapped
    around his finger.
    [(Emphasis added).]
    4
    Defendant is known by the street name "J-Ski."
    13                         A-5023-13T2
    The detective said "somebody is talking correctly. The people
    that were in that deli were taking correctly.           Whatever they were
    saying, we followed it up and they were correct."                   At another
    point the detective said: "Somebody says that they heard you say
    you were out there and that you talked.               This is some of the
    evidence." "I have somebody that is going to stand up and say I
    heard [D.C.] say this."           At the end of the video, D.C. stated,
    "I'm sure he did it; sure he did it."         The detective replied, "I'm
    sure he did it, you're sure he did it, we're all sure he did it.
    I   wasn't   there    and   she    wasn't   there,"   and   stated    further,
    "[u]nfortunately we have witnesses that put you there and put him
    there."
    D.
    Defendant      appeals   his   convictions   raising    the    following
    issues on appeal:
    POINT I. IN LIGHT OF THE GRAVE DANGER OF
    WRONGFUL CONVICTION POSED BY INHERENTLY
    UNRELIABLE JAILHOUSE SNITCH TESTIMONY, ITS
    INTRODUCTION AT TRIAL IS INCOMPATIBLE WITH THE
    DUE PROCESS RIGHTS GUARANTEED UNDER THE NEW
    JERSEY CONSTITUTION, AND THUS, THE STATE'S
    HEAVY RELIANCE ON SUCH TESTIMONY IN THIS CASE
    REQUIRES REVERSAL OF GRANT'S CONVICTIONS. IN
    THE ALTERNATIVE, REVERSAL IS REQUIRED BECAUSE
    THE COURT FAILED TO HOLD A PRETRIAL HEARING
    ON THE RELIABILITY OF THE JAILHOUSE SNITCH
    TESTIMONY AND FAILED TO PROPERLY INSTRUCT THE
    JURY ON HOW TO EVALUATE SUCH TESTIMONY. (Not
    Raised Below)
    14                               A-5023-13T2
    POINT TWO. THERE WAS NO EVIDENTIARY BASIS FOR
    THE   INTRODUCTION    OF   [D.C.]'S    TWO-HOUR
    VIDEOTAPED INTERVIEW DURING WHICH DETECTIVE
    BRITTON AND [D.C.]'S MOTHER, WHO WAS NOT A
    WITNESS AT TRIAL, MADE NUMEROUS STATEMENTS,
    BASED ENTIRELY ON INFORMATION RECEIVED FROM
    NON-TESTIFYING    WITNESSES,   ABOUT    GRANT'S
    GUILT. THE INTRODUCTION OF THIS PREJUDICAL
    [sic] VIDEOTAPE VIOLATED THE PROHIBITION
    AGAINST   HEARSAY    AND  GRANT'S    RIGHT   TO
    CONFRONTATION, AND REQUIRES REVERSAL OF
    GRANT'S CONVICTIONS.
    A. The Doctrine of Completeness Did not
    Apply.
    B. The Inadmissible Hearsay Statements
    Contained In the Videotape Violated Grant's
    Right to Confrontation.
    C. Reversal is Required.
    POINT   III.      REPEATED   INSTANCES  OF
    PROSECUTORIAL MISCONDUCT DENIED GRANT DUE
    PROCESS AND A FAIR TRIAL (Partially Raised
    Below)
    A. The Prosecutor Improperly Bolstered
    The Credibility Of The State's Witnesses.
    B. The Prosecutor Improperly Shifted The
    Burden Of Proof To The Defense.
    C. The Prosecutor Improperly Suggested
    That Grant Was A Gang Member.
    POINT IV.   IN THE EVENT OF REVERSAL, GRANT
    SHOULD BE PERMITTED TO WITHDRAW HIS GUILTY
    PLEA UNDER INDICTMENT NO. 13-02-0248.5
    5
    Defendant did not make a motion to withdraw his guilty plea in
    the trial court pursuant to Rule 3:9-3(e). As a result there is
    no order that is subject to review on appeal, R. 2:2-3.     This
    issue is not, therefore, properly before us.
    15                           A-5023-13T2
    III.
    The argument defendant raises in Point II requires us to
    review   the    trial        court's    evidentiary        ruling     to    permit      the
    unredacted videotape to be introduced into evidence.                            We grant
    substantial         deference    to     the       trial    judge's    discretion         on
    evidentiary rulings unless it is a clear error of judgment or so
    wide of the mark that a manifest denial of justice results.                             See,
    e.g., State v. Koedatich, 
    112 N.J. 225
    , 313 (1988), cert. denied,
    
    488 U.S. 1017
    , 
    109 S. Ct. 813
    , 
    102 L. Ed. 2d 803
    (1989); State v.
    Carter, 
    91 N.J. 86
    , 106 (1982); State v. Swint, 
    328 N.J. Super. 236
    , 253 (App. Div.), certif. denied, 
    165 N.J. 492
    (2000).
    A.
    Defendant       contends        that    playing      the     entire   videotaped
    interview      of     D.C.    violated        his    Sixth    Amendment         right    to
    confrontation and the prohibition against hearsay.                      D.C.'s mother
    was never called as a witness at trial.                   Defendant had no ability
    to cross-examine her about her statements that indicated defendant
    was   guilty.         Moreover,       although      the    judge    gave    a    curative
    instruction prior to playing the videotape, defendant contends it
    was inadequate to address his inability to confront the witness
    on cross-examination.
    The   State      does     not    dispute      that     defendant's        right    of
    confrontation was implicated by showing the entire tape to the
    16                                   A-5023-13T2
    jury.    The State contends that the doctrine of invited error bars
    defendant from contending it was error to play the full videotape
    to the jury, because defendant chose to play the entire tape to
    the jury, even though the court had not definitively ruled on the
    issue.    Additionally, the State contends the curative instruction
    was sufficient to blunt any Confrontation Clause violation.                 We
    disagree with both contentions.
    Both the Sixth Amendment of the United States Constitution
    and Article I, Paragraph 10 of the New Jersey Constitution provide
    that the accused in a criminal prosecution has the right "to be
    confronted with the witnesses against him."            U.S. Const. amend.
    VI; N.J. Const. art. I, ¶ 10.          "These constitutional provisions
    express a clear preference for the taking of testimony subject to
    cross-examination."     State v. Cabbell, 
    207 N.J. 311
    , 328 (2011)
    (citing   State   ex   rel.   J.A.,    
    195 N.J. 324
    ,   342-43   (2008)).
    "Because '[t]he right of confrontation is an essential attribute
    of the right to a fair trial,' a defendant must be given 'a fair
    opportunity to defend against the State[']s accusations.'"             State
    v. Basil, 
    202 N.J. 570
    , 590-591 (2010) (alterations in original)
    (quoting State v. Branch, 
    182 N.J. 338
    , 348 (2005)).
    "The opportunity to cross-examine a witness is at the very
    core of the right of confrontation."         
    Cabbell, supra
    , 207 N.J. at
    328 (citing California v. Green, 
    399 U.S. 149
    , 158, 
    90 S. Ct. 17
                                A-5023-13T2
    1930, 1935, 
    26 L. Ed. 2d 489
    , 497 (1970)).        The Confrontation
    Clause prohibits the use of a witness's out-of-court testimonial
    hearsay statement when a defendant has not had the opportunity to
    cross-examine the witness.    
    J.A., supra
    , 195 N.J. at 342.      "[A]
    statement made to the police is testimonial when it is given in
    'circumstances objectively indicat[ing] that . . . the primary
    purpose of the interrogation is to establish or prove past events
    potentially relevant to later criminal prosecution.'"       
    Cabbell, supra
    , 207 N.J. at 329 (alterations in original) (quoting Davis
    v. Washington, 
    547 U.S. 813
    , 822, 
    126 S. Ct. 2266
    , 2273-74, 
    165 L. Ed. 2d 224
    , 237 (2006)).
    If the witness is absent from trial, a testimonial statement
    is admissible only where that witness "is unavailable, and . . .
    the defendant has had a prior opportunity to cross-examine."
    Crawford v. Washington, 
    541 U.S. 36
    , 59, 
    124 S. Ct. 1354
    , 1369,
    
    158 L. Ed. 2d 177
    , 197 (2004).    "The [Confrontation] Clause does
    not bar admission of a statement so long as the [witness] is
    present at trial to defend or explain it."       
    Cabbell, supra
    , 207
    N.J. at 329 (alterations in original) (quoting 
    Crawford, supra
    ,
    541 U.S. at 59 
    n.9, 124 S. Ct. at 1369
    n.9, 158 L. Ed. 2d at 197
    
    n.9).
    "The   government   bears    the   burden    of   proving    the
    constitutional admissibility of a statement in response to a
    18                          A-5023-13T2
    Confrontation Clause challenge."            
    Basil, supra
    , 202 N.J. at 596.
    The     violation   of    a    defendant's     Sixth    Amendment        right    to
    confrontation "is a fatal error, mandating a new trial, unless we
    are 'able to declare a belief that it was harmless beyond a
    reasonable doubt.'"           
    Cabbell, supra
    , 207 N.J. at 338 (quoting
    Chapman v. California, 
    386 U.S. 18
    , 24, 
    87 S. Ct. 824
    , 828, 17 L.
    Ed. 2d 705, 710-11 (1967)).
    Here, the Confrontation Clause was clearly violated when the
    court permitted the entire videotape to be played to the jury,
    because it included statements by D.C.'s mother.                 She was not
    called as a witness.              There was no indication that she was
    unavailable for trial.         Defendant had no prior ability to cross-
    examine her.        Because this violation, admitted by the State,
    constitutes a "fatal error," a new trial is mandated unless we
    determine the error was "harmless beyond a reasonable doubt."
    
    Ibid. B. In making
    this determination, we first examine the statements
    made     by   D.C.'s     mother     that    defendant   sought      to     redact.
    Specifically, D.C.'s mother said she had heard certain things
    about the defendant.           She related that defendant "told three
    people" that he "did it"; he "was bragging about what he did[,]
    and that he's never gonna get caught"; and he had someone "talk
    19                                  A-5023-13T2
    [to one of the detectives], [and say] it was the twins . . . [a]nd
    that way the person can get the [reward] money and give it to
    [defendant]."      D.C.'s mother also said that "there's a lot of
    people out there that's scared" of [defendant]. She also expressed
    to the detective "then, you know, my house start getting shot up."
    We   agree   with   defendant   that   these     statements   all     were
    inadmissible hearsay.        D.C.'s mother was not called as a witness
    at trial; she was testifying about what others said, who also were
    not called as witnesses at trial.            This testimony clearly was
    prejudicial.       The statements by D.C.'s mother indicated that
    defendant had confessed, was to be feared, and was violent.
    The error in failing to redact the inadmissible statements
    by   D.C.'s   mother   was   compounded,     rather    than   cured,   by    the
    instruction the judge gave to the jury.         Although telling the jury
    that D.C.'s mother's testimony should be ignored entirely, this
    direction at the same time was qualified. The jury was instructed
    to disregard what the mother said "to the extent that you can,
    disregard," and that they should focus on the dialogue between
    D.C. and the officer "for the most part."             Moreover, there was no
    additional mention of the curative instruction in the judge's
    charge to the jury following summations.
    The error in the court's evidentiary ruling was further
    exacerbated by an incorrect ruling on a defense objection during
    20                               A-5023-13T2
    the State's closing statement.               The prosecutor referenced the
    mother's statement in the videotape by saying, "[a]nd what is
    interesting is his mother during the interview says, I'm afraid
    they are going to shoot up my . . . ." Defense counsel objected,
    reminding the judge that the jury had been "told to disregard her
    testimony, her statements," but defense counsel was overruled.
    This ruling effectively negated what was already a token effort
    to ameliorate the prejudice from D.C.'s mother's statements.
    C.
    At trial, defendant did not ask the court to redact the
    statements made by Detective Britton from the videotape.                           We
    consider them here, however, as essential pieces of the context
    for our review of the evidentiary ruling.
    In the unredacted videotape, the detective made numerous
    statements    in   which    he   vouched      for     the   correctness     of   the
    statements made by people on the streets and expressed his own
    belief   in   defendant's    guilt.          Responding     to   D.C.'s   mother's
    statements about what was being said on the street, the detective
    confirmed that people thought defendant did the shooting, that he
    was "the craziest, baddest dude on the block," and that their
    beliefs were correct.       Those statements included "The streets put
    the right people in the right spot" and "somebody is talking
    correctly.      The   people     that   were     in    that   deli   were    taking
    21                                  A-5023-13T2
    correctly.   Whatever they were saying, we followed it up and they
    were correct."      And, most damaging, the detective expressed his
    personal conviction that defendant was guilty: "I'm sure he did
    it, you're sure he did it, we're all sure he did it."
    The admission of these statements was wholly improper.              The
    detective's references to defendant's reputation as "the craziest,
    baddest dude on the block" constituted evidence of other bad
    conduct that was presented to the jury without any assessment of
    its admissibility pursuant to N.J.R.E. 404(b) and the factors set
    forth in State v. Cofield, 
    127 N.J. 328
    , 338 (1992).                 "Other-
    crimes   evidence     is   considered     highly   prejudicial,"   State    v.
    Vallejo, 
    198 N.J. 122
    , 133 (2009), having "a unique tendency to
    turn a jury against the defendant[,]" State v. Hernandez, 334 N.J.
    Super. 264, 269-70 (App. Div. 2000), aff'd as mod., 
    170 N.J. 106
    (2001), quoting State v. Stevens, 
    115 N.J. 289
    , 305-06 (1989).
    That   effect   was    undoubtedly      exacerbated   by   the   detective's
    expression of his personal opinion that defendant was guilty.              See
    State v. Landeros, 
    20 N.J. 69
    , 74-75 (1955) (testimony at trial
    by Police Captain that defendant was "as guilty as Mrs. Murphy's
    pet pig" was so prejudicial that "fundamental fairness" required
    reversal of defendant's conviction.)           Even without any objection
    or request from the defendant, the highly prejudicial nature of
    these comments required action by the trial judge.
    22                              A-5023-13T2
    D.
    For    the   first   time    on    appeal,     defendant    contends    that
    Detective    Britton's    testimony          at   trial   also   violated     the
    Confrontation Clause by referring to an out-of-court witness.                  At
    trial, Britton was asked:
    [STATE]:   Based on information received in
    that conversation, did you develop a potential
    suspect in this case?
    [DETECTIVE]: In part and parcel to the other
    information, yes.
    [STATE]: Who was that?
    [DETECTIVE]: [D.C.]
    [STATE]: Later that day at 8:30 p.m. did you
    develop additional information related to your
    investigation?
    [DETECTIVE]: Yes.
    [STATE]: Based on that information, did you
    develop another suspect in your investigation?
    [DETECTIVE]: Yes.
    [STATE]: Who was that?
    [DETECTIVE]: James Grant.
    "[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."                 
    Branch, supra
    ,
    23                              
    A-5023-13T2 182 N.J. at 350
    .      The right is also violated where an officer
    "impl[ies] to the jury that he possesses superior knowledge,
    outside the record, that incriminates the defendant."           
    Id. at 351.
    However, "[i]t is well settled that the hearsay rule is not
    violated when a police officer explains the reason he approached
    a suspect or went to the scene of the crime by stating that he did
    so 'upon information received.'"         State v. Bankston, 
    63 N.J. 262
    ,
    268 (1973) (citation omitted).       However,
    [i]n contexts other than a photographic
    identification,   the    phrase   "based   on
    information received" may be used by police
    officers 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 by
    some unknown person.
    [
    Branch, supra
    , 182 N.J. at 352.]
    There was no suggestion that Detective Britton had acted
    arbitrarily or with ill motive.      At trial, the detective indicated
    he   "developed   information,"      and   he    did   not   indicate    that
    information    came   from   an   unidentified    informant    or   witness.
    However, on the videotape, Detective Britton specifically said
    that he had someone who could put both D.C. and defendant at the
    location.     He also said that he knew defendant was guilty.               He
    referenced multiple times that the "streets were talking" and the
    "people in the deli" were talking.         These statements implied that
    24                               A-5023-13T2
    the detective had one or more out-of-court witnesses that put
    defendant at the scene, and that the detective believed defendant
    was guilty based on that knowledge.   This is the type of inference
    of superior knowledge that is       not permitted under Branch or
    Bankston.
    E.
    Having reviewed the video statement within the context of
    trial as a whole, we cannot say that the introduction of the video
    statement was "harmless beyond a reasonable doubt."       
    Chapman, supra
    , 386 U.S. at 
    24, 87 S. Ct. at 828
    , 17 L. Ed. 2d at 710-11;
    see also State v. Taffaro, 
    195 N.J. 442
    , 454 (2008) (noting that
    the standard for plain error is whether the error was "sufficient
    to raise a reasonable doubt as to whether the error led the jury
    to a result it otherwise might not have reached" (quoting State
    v. Macon, 
    57 N.J. 325
    , 336 (1971))).       All the witnesses were
    cooperating with the State for more favorable sentences.        There
    was no physical evidence that tied defendant to the crimes.     There
    was testimony that "[m]any, many [witnesses] fear retaliation. It
    is a big problem[,]" and that defendant in fact had retaliated by
    arranging to have someone shoot D.C., but that his grandmother was
    shot instead.   The detective indicated he had superior knowledge
    from out-of-court witnesses, but the implication was that those
    25                             A-5023-13T2
    witnesses may be afraid to come forward.          Defendant had no ability
    to confront this implication.
    On this record, "the possibility of injustice" by playing the
    tape was "sufficient to raise a reasonable doubt as to whether the
    error led the jury to a result it otherwise might not have
    reached[.]" 
    Taffaro, supra
    , 195 N.J. at 454 (quoting 
    Macon, supra
    ,
    57 N.J. at 336.       Thus, we are constrained to conclude that the
    Confrontation Clause was violated by playing the entire tape,
    which   had   the    clear   capacity    to   cause   an   unjust    result    by
    corroborating through out-of-court witnesses the testimony of
    those who did testify.         We are therefore compelled to overturn
    defendant's convictions and remand for a new trial.
    F.
    We   also      reject   the    State's   argument     that     defendant's
    contention is barred as invited error.          The defense sought to play
    very limited excerpts of the tape for the specific purpose of
    impeaching D.C.'s testimony with his prior inconsistent statement
    pursuant to N.J.R.E. 607.          It was the State that objected to that,
    indicating that the whole tape had to be played because the taped
    interview was more in the nature of a discussion rather than an
    interrogation.      Although contending the whole videotape had to be
    played, the State failed to articulate how any additional portion
    26                               A-5023-13T2
    of the videotape was required to be admitted "in fairness" as
    permitted by N.J.R.E. 106.
    The doctrine of invited error operates to bar a "disappointed
    litigant" from arguing on appeal that an adverse decision below
    was the product of error, "when that party urged the lower court
    to adopt the proposition now alleged to be error."                   State v.
    Munafo, 
    222 N.J. 480
    , 487 (2015) (quoting State v. A.R., 
    213 N.J. 542
    ,   561    (2013)).    The   doctrine    "is   implicated   only   when    a
    defendant in some way has led the court into error," State v.
    Jenkins, 
    178 N.J. 347
    , 359 (2004), "while pursuing a tactical
    advantage that does not work as planned." State v. Williams, 
    219 N.J. 89
    , 100 (2014) (citation omitted).           "The doctrine of invited
    error 'is based on considerations of fairness and preservation of
    the integrity of the litigation process.'"           N.J. Div. of Youth &
    Family Servs. v. M.C. III, 
    201 N.J. 328
    , 340 (2010) (quoting Brett
    v. Great Am. Recreation, Inc., 
    144 N.J. 479
    , 503 (1996)).               "Some
    measure of reliance by the court is necessary for the invited-
    error doctrine to come into play."           
    Jenkins, supra
    , 178 N.J. at
    359.
    Although it was error to play the entire tape, it was not
    invited error by defense counsel.          The State asked for the entire
    tape to be played to the jury, not the defense.           We disagree that
    defense      counsel's   eventual   capitulation,     given    the    State's
    27                                A-5023-13T2
    position    and   indecision   by     the    court,      is    the   type    of    error
    contemplated by the invited error doctrine.                   There was no apparent
    tactical advantage to the defense given the comments by D.C.'s
    mother that incriminated defendant.                Playing the whole tape was
    prompted by the State, which at the end asked for a curative
    instruction.       Although    the    State       contends the       court    did    not
    indicate any preliminary ruling, the court stated repeatedly it
    was inclined to play the whole tape given the State's assertion
    this was the only way the tape could be handled.                     In a situation
    such as this, the court should have taken the time to listen to
    the tape in order to make a proper ruling. It was not sufficient
    for the court to simply allow the parties to do what they wanted
    and then "clean up" afterwards.
    IV.
    We comment briefly on the other issues raised on appeal.
    Defendant contends that his right to due process was violated by
    the   "inherent    unreliability"      of     "jailhouse        snitch      testimony"
    offered by the testimony of Hickmond and Black.                        However, the
    Supreme Court has considered this question and determined that the
    federal    constitution   does       not    bar    the   introduction         of    such
    evidence.    See Kansas v. Ventris, 
    556 U.S. 586
    , 594, 
    129 S. Ct. 1841
    , 1847, 
    173 L. Ed. 2d 801
    , 809 (2009).                     Defendant offers no
    support for the proposition that such testimony should be barred
    28                                      A-5023-13T2
    under our Constitution.         Moreover, there was evidence here that
    the testimony of Hickmond and Black was corroborated by extrinsic
    details and by the timing of their statements.
    The court provided the jury with the cooperating witness
    charge.      See    Model   Jury    Charge      (Criminal),        "Testimony       of    a
    Cooperating Co-Defendant or Witness" (2006).                       Additionally, it
    instructed the jury on credibility.              These instructions were more
    than adequate to address the potential credibility issues raised
    by the testimony of a cooperating witness.                    Thus, there was no
    error in permitting the testimony of cooperating witnesses, nor
    in the charge that was given to the jury about those cooperating
    witnesses.
    Defendant     contends      that    the        prosecutor     bolstered       the
    credibility of the witnesses through testimony and in summation
    that    described    the    process       for    evaluating        whether    to     use
    cooperating    witness      testimony.          "It    is   within   the     sole    and
    exclusive province of the jury to determine the credibility of the
    testimony of a witness."           State v. Vandeweaghe, 
    351 N.J. Super. 467
    , 481 (App. Div. 2002), aff’d, 
    177 N.J. 229
    (2003).                                   "A
    prosecutor may argue that a witness [should be found] credible,
    so long as the prosecutor does not personally vouch for the
    witness's credibility or refer to matters outside the record as
    support for the witness's credibility."                 State v. Walden, 
    370 N.J. 29
                                      A-5023-13T2
    Super. 549, 560 (App. Div.), certif. denied, 
    182 N.J. 148
    (2004);
    State v. Scherzer, 
    301 N.J. Super. 363
    , 445 (App. Div.), certif.
    denied, 
    151 N.J. 466
    (1997).
    Because defense counsel did not timely object, this weighs
    against a finding of prosecutorial misconduct.                    State v. Echols,
    
    199 N.J. 344
    , 360 (2009) ("Failure to make a timely objection
    indicates that defense counsel did not believe the remarks were
    prejudicial     at    the   time    they     were    made."    (quoting     State    v.
    Timmendequas, 
    161 N.J. 515
    , 576 (1999))).                   The criticized line of
    questioning did not constitute a personal voucher for the jailhouse
    witnesses   but      related   to     the    process    used    for   verification.
    Moreover, another comment made in closing about the detective's
    fairness did not vouch for his truthfulness.
    There was no improper shifting of the burden of proof as
    alleged    by   defendant      when    the       prosecutor    commented,    without
    objection, about a newspaper article that was referenced by the
    defense.    The State did not suggest defendant had an obligation
    to produce the newspaper, but merely "revealed [a] gap[] in the
    defense's case."       
    Timmendequas, supra
    , 161 N.J. at 593.
    Similarly,       there     was     no       improper     reference     to    gang
    membership.     The court was careful to avoid all reference to this
    and cautioned counsel to avoid that issue.                    We are not persuaded
    that the one isolated reference in the State's summation to a
    30                                A-5023-13T2
    "professional shooter" over the course of a multiday trial was
    error.6   None of these statements were "of such a nature as to
    have been clearly capable of producing an unjust result[.]"      R.
    2:10-2.
    Defendant's convictions under Indictment No. 12-09-0849 are
    reversed and remanded for a new trial.
    6
    Although defense counsel objected to a power point presentation,
    which was playing simultaneously, because it used the word
    "associate," there was no actual objection to the phrase
    "professional shooter."
    31                         A-5023-13T2