State v. Quinnizel J. Clark (085271) (Burlington County & Statewide) ( 2022 )


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  •                                      SYLLABUS
    This syllabus is not part of the Court’s opinion. It has been prepared by the Office
    of the Clerk for the convenience of the reader. It has been neither reviewed nor
    approved by the Court and may not summarize all portions of the opinion.
    State v. Quinnizel J. Clark (A-67-20/A-37-21) (085271)
    Argued January 18, 2022 and March 28, 2022 -- Decided June 29, 2022
    PIERRE-LOUIS, J., writing for a unanimous Court.
    In this appeal, the Court considers whether it was harmful error to allow the
    jury to hear the portion of defendant Quinnizel J. Clark’s statement to police after he
    invoked his right to counsel but the interrogation continued. The Court also
    considers certain remarks in the prosecutor’s summation -- including that the
    invocation was a sign of guilt -- as well as the admissibility of witness testimony.
    On January 3, 2016, police found James Dewyer without a pulse in his silver
    Dodge on the side of Kinkora Road in Mansfield. That morning, Dewyer had picked
    up defendant at a motel in Mansfield, and the men drove to a casino. Cameras in
    front of the motel showed defendant and Dewyer return to the motel and then depart
    in Dewyer’s car in the afternoon. Surveillance video showed defendant later return
    to the motel alone and then leave in different clothes.
    On January 13, 2016, Detective Wayne Raynor and another officer
    interviewed defendant about Dewyer’s death. Defendant was read his Miranda
    rights and waived those rights. After approximately 40 minutes, Detective Raynor
    began to confront defendant with his belief that defendant murdered Dewyer and
    pressed defendant about his alibi. Defendant responded, “charge me, call my
    attorney Mr. Keisler over here, charge me and let’s go.” The interrogation
    continued and Detective Raynor expressed that if he were in defendant’s shoes, he
    would tell the officers who he was with so that he is “not on the hook for [the
    murder].” Detective Raynor suggested that defendant did not want to tell them who
    he had been with during the time of the murder because he was lying. Defendant
    said, “[i]f it’s game over, charge me, go get my attorney, charge me, and let’s go to
    court.” The interrogation ended when defendant requested his attorney a third time.
    Defendant was charged with first-degree murder and weapons offenses. The
    trial court denied defendant’s motion to suppress his statement. When the statement
    was played at trial, the jury heard defendant’s invocation of his right to counsel as
    well as the officers’ continued questioning and their insinuations of his guilt. The
    State also offered into evidence surveillance footage from the motel and casino, and
    1
    called Jeffrey and Sandra Carver to testify. The Carvers testified that on January 3,
    2016, they saw a silver car parked on the side of Kinkora Road. The Carvers
    described a man they saw walking away from the car, who appeared to fit
    defendant’s description. They were never asked to identify defendant in a
    photographic or in-person lineup or even while in court during the trial.
    During summation, the prosecutor commented on defendant’s not being
    Dewyer’s friend because he did not help him into the casino; his changing clothes on
    the afternoon of the murder to avoid being identified; and the man the Carvers saw
    being defendant. The prosecutor also argued that Detective Raynor “practically
    begged” defendant to provide information regarding his alibi, but defendant refused,
    which suggested his guilt. The jury found defendant guilty on all counts.
    In a split decision, the Appellate Division vacated defendant’s conviction and
    remanded the matter for a new trial based on cumulative error. The majority ordered
    the trial court to conduct an N.J.R.E. Rule 104(a) hearing as to the admissibility of
    the Carvers’ testimony and appeared to take issue with several comments made by
    the prosecutor during summation. The majority noted, but took no issue with, the
    fact that the jury heard defendant’s invocation of his right to counsel. The dissent
    found no reversible error.
    The State appealed as of right, and the Court granted certification on whether
    defendant’s Fifth Amendment rights were violated. 
    249 N.J. 559
     (2022).
    HELD: Once defendant invoked his right to counsel, the interrogation should have
    stopped. Not only did the interrogation continue, but during the questioning, the
    detective strongly suggested that defendant would give them the information they
    sought if he were truly innocent. Allowing that entire exchange to be played for the
    jury was harmful error. In addition, the error was compounded when the prosecutor
    commented on that portion of the statement that should have never been before the
    jury in the first place. The Court discerns no error regarding the witness testimony
    or any of the prosecutor’s other comments during summation.
    1. There was never an identification in this case, so there was no need for a Rule
    104 hearing. The Carvers’ testimony is relevant and presumed admissible because it
    tends to prove that defendant was near the scene of the crime around the time of the
    crime, contrary to his alibi. Nothing in the record suggests that the probative value
    of their testimony is substantially outweighed by the risk of undue prejudice,
    confusion of issues, or misleading the jury. The trial court thoroughly instructed the
    jury as to the State’s burden and how to evaluate the credibility of witness
    testimony, so its failure to give a lack of identification charge did not possess a clear
    capacity to bring about an unjust result. The charge should be given on remand,
    however, because there was no identification by any witnesses. (pp. 23-25)
    2
    2. Prosecutors are afforded considerable leeway in closing arguments. As long as
    the prosecutor stays within the evidence and the legitimate inferences therefrom,
    there is no error. Here, the prosecutor’s comments in summation that defendant did
    not assist Dewyer in walking into the casino, regarding defendant changing his
    clothes when he returned to the motel without Dewyer, and that the person the
    Carvers saw the day of the murder was defendant were proper commentary on the
    evidence before the jury and not so egregious as to have deprived defendant of a fair
    trial. Those statements by the prosecutor were confined to the evidence revealed
    during the trial and inferences the prosecutor was allowed to draw from that
    evidence. Nothing in those comments amounted to reversible error. (pp. 25-28)
    3. Pursuant to Miranda v. Arizona, if an individual subjected to police interrogation
    while in custody “states that he wants an attorney, the interrogation must cease until
    an attorney is present.” 
    384 U.S. 436
    , 474 (1966). Under the state privilege against
    self-incrimination, any indication of a desire for counsel, however ambiguous, will
    trigger the entitlement to counsel. In situations in which a suspect has waived his or
    her Miranda rights and agreed to speak to law enforcement, but later invoked the
    right to counsel during the interrogation, trial courts should endeavor to excise any
    reference to a criminal defendant’s invocation of his right to counsel from the
    statement that the jury hears. When testimony explaining why an interview or
    interrogation was terminated is necessary, instruction should be provided that
    explains to the jury that people decline to speak with police for many reasons,
    emphasizing that a defendant’s invocation of his right to counsel or right to remain
    silent may not in any way be used to infer guilt. (pp. 28-32)
    4. When defendant invoked his right to counsel by stating, “call my attorney Mr.
    Keisler over here,” all questioning should have ceased and that portion of the
    recording should have been excised from the statement played for the jury. The jury
    not only heard the invocation and the detective’s comments thereafter, but also heard
    the prosecutor in summation note that Detective Raynor “practically begged”
    defendant for information on his alibi. Although the portion of the statement prior
    to invocation of the right to counsel is admissible and open for fair comment,
    nothing in that exchange can be characterized as the detective “begging” for more
    information. It was the post-invocation exchange to which the prosecutor’s
    comments referred. Given the State’s circumstantial case, it was harmful error for
    the jury to have heard defendant invoke his right to counsel and then hear the
    prosecutor insinuate defendant’s guilt based on his refusal to answer. (pp. 32-41)
    AFFIRMED AS MODIFIED and REMANDED for a new trial.
    CHIEF JUSTICE RABNER and JUSTICES ALBIN, PATTERSON, and
    SOLOMON join in JUSTICE PIERRE-LOUIS’s opinion. JUDGE FUENTES
    (temporarily assigned) did not participate.
    3
    SUPREME COURT OF NEW JERSEY
    A-67 September Term 2020
    A-37 September Term 2021
    085271
    State of New Jersey,
    Plaintiff-Appellant/Cross-Respondent,
    v.
    Quinnizel J. Clark,
    Defendant-Respondent/Cross-Appellant.
    On appeal from and certification to the Superior
    Court, Appellate Division.
    Argued                      Decided
    January 18, 2022 (A-67-20)         June 29, 2022
    March 28, 2022 (A-37-21)
    Valeria Dominguez, Deputy Attorney General, argued the
    cause for appellant/cross-respondent (Matthew J. Platkin,
    Acting Attorney General, attorney; Valeria Dominguez,
    of counsel and on the briefs).
    Daniel S. Rockoff, Assistant Deputy Public Defender,
    argued the cause for respondent/cross-appellant (Joseph
    E. Krakora, Public Defender, attorney; Daniel S.
    Rockoff, of counsel and on the briefs).
    JUSTICE PIERRE-LOUIS delivered the opinion of the Court.
    1
    Fifty-six years ago, the United States Supreme Court held that
    individuals subject to police interrogation must be advised of certain rights,
    including the right to remain silent and the right to have an attorney present, to
    safeguard the right against self-incrimination. Miranda v. Arizona, 
    384 U.S. 436
    , 477-79 (1966). Accordingly, it is well-established in federal and state
    jurisprudence that when a suspect invokes the right to counsel, law
    enforcement must cease the interrogation. 
    Id. at 473-74
    ; State v. Chew, 
    150 N.J. 30
    , 63 (1997). This appeal presents a case in which law enforcement
    officers failed to uphold that basic principle by not scrupulously honoring
    invocations of the right to counsel.
    Defendant Quinnizel Clark was convicted of murder and sentenced to
    life imprisonment. At trial, the State played for the jury Clark’s videotaped
    statement to police prior to his arrest. At one point during the statement,
    police pressed defendant about his alibi and confronted him with their theory
    that defendant killed James Dewyer. In response, defendant told officers,
    “charge me, call my attorney Mr. Keisler over here, charge me and let’s go.”
    Even though defendant twice advised officers to call his attorney, the
    interrogation continued. The officers continued to urge defendant to tell them
    who he had been with during the time of the murder and to suggest that he did
    not want to tell them because he was lying, and therefore guilty. Defendant
    2
    asked officers to call his attorney a third time, and the interrogation ended.
    When the statement was played for the jury at trial, the jury heard defendant’s
    invocation of his right to counsel as well as the officer’s continued questioning
    and their insinuations of his guilt. During summation, the State argued that the
    detective “practically begged” defendant to provide information regarding his
    alibi, but defendant refused, which again suggested his guilt.
    On appeal, in a split decision, the Appellate Division vacated
    defendant’s conviction and remanded the matter for further proceedings based
    on cumulative error. The court held that certain witness testimony was
    impermissibly suggestive of identification and prejudicial to defendant. The
    Appellate Division therefore ordered the trial court to conduct an N.J.R.E.
    104(a) hearing as to the admissibility of that testimony. The majority also
    appeared to take issue with several comments made by the prosecutor during
    summation. The court concluded that the cumulative effect of the errors
    rendered the trial unfair. The majority noted, but took no issue with, the fact
    that the jury heard defendant’s invocation of his right to counsel during the
    statement he gave to the police.
    The dissenting judge found no reversible error regarding the witness
    testimony or any of the prosecutor’s comments.
    3
    For the reasons stated below, we affirm as modified the Appellate
    Division’s decision vacating defendant’s conviction and remand for a new trial
    based on a violation of defendant’s Fifth Amendment rights. Once defendant
    invoked his right to counsel, the interrogation should have stopped. Not only
    did the interrogation continue, but during the questioning, the detective
    strongly suggested that defendant would give them the information they sought
    if he were truly innocent. Allowing that entire exchange to be played for the
    jury was harmful error. In addition, the error was compounded when the
    prosecutor commented on that portion of the statement that should have never
    been before the jury in the first place. Unlike the Appellate Division majority,
    we discern no error regarding the witness testimony or any of the prosecutor’s
    other comments during summation.
    I.
    A.
    We rely on the testimony at trial for the following factual summary. On
    January 3, 2016, at 4:17 p.m., Sergeant Daniel Pachuta responded to a report
    about an unresponsive man in a car on the side of Kinkora Road in Mansfield.
    At the scene, Sergeant Pachuta found James Dewyer without a pulse in the
    passenger’s seat of his silver Dodge Avenger. Dewyer was still warm to the
    touch at the time. Paramedics arrived shortly thereafter and, in attempting to
    4
    remove him from the car, observed that Dewyer had entry wounds from five
    close-range gunshots in his left abdomen. Dewyer was later pronounced dead
    at a local hospital.
    In searching Dewyer’s vehicle, officers found in the glove compartment
    a receipt that showed Dewyer paid $1,050 in October 2015 to bail defendant
    out of jail. In Dewyer’s wallet, law enforcement found, among other things, a
    receipt timestamped 9:52 a.m. on the morning of his death from Delaware Park
    Casino. The investigation revealed that at 7:00 a.m. on January 3, 2016,
    Dewyer picked up defendant at the Riverfront Motel on Route 130 in
    Mansfield and the men drove to the Delaware Park Casino in Wilmington,
    Delaware. Dewyer met defendant at the motel. Defendant stayed there at
    times and Dewyer frequented the motel, giving many of the residents there
    rides.
    Surveillance cameras at the Delaware Park Casino showed defendant and
    Dewyer arrive at the casino at approximately 8:34 a.m. and depart at
    approximately 11:00 a.m. Cameras in front of the Riverfront Motel showed
    defendant and Dewyer return to the motel at approximately 12:21 p.m.
    Defendant went inside the motel and exited sometime later with a red and
    black backpack. When defendant and Dewyer reentered the car, defendant was
    driving and Dewyer was in the passenger seat. The men departed the motel at
    5
    approximately 1:34 p.m. At 3:28 p.m., surveillance video showed defendant
    return to the motel with his backpack on his back, alone and on foot.
    On January 13, 2016, Detective Wayne Raynor of the Burlington County
    Prosecutor’s Office and another officer interviewed defendant about Dewyer’s
    death.1 Detective Raynor told defendant that he was not under arrest but read
    defendant his Miranda rights. Defendant waived his rights and agreed to
    provide a recorded statement.
    After obtaining background information on defendant, officers asked
    defendant what he knew about Dewyer. Defendant told officers that he called
    Dewyer “Jimmy Dean” and explained his friendship with Dewyer, referring to
    Dewyer as his “gambling buddy.” Defendant stated that he and Dewyer were
    close because they both enjoyed horse racing. Defendant stated that he and
    Dewyer went to a casino in Delaware every Sunday morning, including the day
    Dewyer was killed.
    Defendant stated that after he and Dewyer returned from the casino that
    morning, defendant went into the motel and then left with Dewyer about an
    hour later. According to defendant, Dewyer dropped him off in Roebling and
    1
    Although there were two officers in the room, Detective Raynor is the only
    one who spoke.
    6
    defendant believed Dewyer then proceeded to pick up a friend’s daughter.
    Defendant claimed that was the last time he saw Dewyer.
    When the officers asked defendant what he was doing in Roebling,
    defendant hesitated. After some initial back and forth about defendant not
    wanting to talk about why he was in Roebling, defendant asked the officers
    whether he could get in trouble for stating what he was doing there.
    Ultimately, defendant told police that he went to Roebling, met up with
    someone, and “traded something for something.” That entire conversation,
    wherein defendant insinuated he was in Roebling doing something illegal, was
    redacted from the videotaped statement played for the jury. 2
    After approximately 40 minutes of an arguably congenial interview with
    defendant, Detective Raynor began to confront defendant with his belief that
    defendant was involved in Dewyer’s murder. Raynor accused defendant of
    knowing more about Dewyer’s pension money than he had revealed. Detective
    Raynor also told defendant that it was obvious from their investigation that
    2
    Although the conversation was deleted from the video, the copies of the
    transcript the jurors received at trial to assist them in following along with the
    video inadvertently included five lines of the redacted video, including
    defendant’s statement that he “traded something for something.” Additionally,
    possibly because of the five lines inadvertently left in the transcript, during
    summation the prosecutor noted three times that defendant claimed he was in
    Roebling and “trade[d] something for something.”
    7
    defendant and Dewyer were together all day and that defendant walked back to
    the motel from the area where Dewyer’s body was found. Raynor told
    defendant “it’s game over.” Defendant responded, “[c]harge me and let’s go
    to court then. If it’s game over, charge me and let’s go to court.” Detective
    Raynor then pressed defendant for information on his alibi and the following
    exchange occurred, which we reproduce at length for context:3
    DETECTIVE: Tell us exactly where you were and I’ll, I’ll
    get you to shoot up and we’ll get you off --
    DEFENDANT: Listen.
    DETECTIVE: ****.
    DEFENDANT: I, I already told you where I was.
    DETECTIVE: But if you exonerate yourself. Who ****.
    DEFENDANT: ****
    DETECTIVE: We’ll go talk to them in an hour and say it
    was [Q] ****. I don’t care what you were doing with him,
    the answer is gonna be no [Q]. Because this is a game you
    can smile.
    DEFENDANT: **** because it wasn’t true.
    3
    As noted, the jury was provided a transcript of defendant’s videotaped
    statement to follow along with while watching the tape. The trial judge
    advised the jury that if they hear “something that is different than what is
    written in the transcript, [they were] to follow what [they] hear[d].” There are
    portions of the transcript that include a series of four asterisks. Those asterisks
    appear to denote undecipherable speech.
    8
    DETECTIVE: Because you weren’t **** that’s gonna say,
    oh yeah, [Q] was with me on Sunday. I’m not gonna ask
    you what you were doing. You have an out here. I’ll have it
    run down in an hour. We’ve got 50 guys out there.
    DEFENDANT: Listen, listen.
    DETECTIVE: All right.
    DEFENDANT: You say it’s game over, charge me, call my
    attorney Mr. Keisler over here, charge me and let’s go.
    Plain and simple. Plain and simple. Plain and simple.
    DETECTIVE: So you, so you want us to write that down?
    DEFENDANT: Plain and simple. Plain and simple.
    DETECTIVE: Do you want us to run that down[?]
    DEFENDANT: **** down.
    DETECTIVE: Who you were with so that we can move
    aside and say that he wasn’t, he was with who he said he
    was with.
    DEFENDANT: Listen, listen.
    DETECTIVE: But I know ****.
    DEFENDANT: ****.
    DETECTIVE: Why would you believe, if I were sitting in
    your seat and somebody was telling me that --
    DEFENDANT: **** believe --
    DETECTIVE: -- I’m good for murdering the guy, I would
    say, you know what, I was with this person. You can go
    checking ’cause I’m not on the hook for that.
    9
    DEFENDANT: Listen.
    ....
    DETECTIVE: You have absolutely no desire to tell us who
    you were with in Florence because it’s bullsh*t.
    DEFENDANT: I wasn’t in Florence.
    DETECTIVE: ****. Excuse me, excuse me, **** if I was
    on the hook for something like this, I would probably say --
    DEFENDANT: Officer.
    DETECTIVE: -- [W]ho I was with **** and let us run it
    down.
    DEFENDANT: Listen, listen. If it’s game over, charge me,
    go get my attorney, charge me, and let’s go to court.
    DETECTIVE: ****
    DEFENDANT: Plain and simple. You’re sure.
    DETECTIVE: I’m sure.
    DEFENDANT: ****
    DETECTIVE: I’m asking you ****.
    DEFENDANT: No, no. I just told you what’s gonna
    transpire. Go get my attorney.
    DETECTIVE: Okay.
    DEFENDANT: Charge me. And that’s it.
    [(emphases added.)]
    10
    After defendant’s third request for an attorney, Detective Raynor ended
    the interrogation. The officers then proceeded to arrest defendant on unrelated
    outstanding traffic warrants.
    B.
    On January 18, 2017, a Burlington County grand jury charged defendant
    with first-degree murder, second-degree possession of a weapon for an
    unlawful purpose, and second-degree unlawful possession of a weapon.
    Before trial, defendant moved to suppress his January 13, 2016
    statement, arguing that he did not knowingly waive his Miranda rights because
    police did not disclose the outstanding traffic warrants prior to questioning.
    The trial court denied the motion.
    On October 17, 2017, a jury trial proceeded. Among other things, the
    State offered into evidence defendant’s statement, surveillance footage from
    the motel and casino from January 3, 2016, and cell site data placing defendant
    in the area where Dewyer’s body was found. Regarding the January 13
    statement, defense counsel did not object to or seek redaction of defendant’s
    statements requesting counsel.4
    4
    Prior to trial, defense counsel and the assistant prosecutor discussed
    redacting the statement and agreed on numerous portions of the statement to be
    redacted. Neither the State nor the defense appeared to raise the issue of
    redacting the portion of the statement when defendant invoked his right to
    counsel.
    11
    After playing a recording of defendant’s statement to the jury, the
    prosecutor asked Detective Raynor, “did [defendant] tell you who he was with
    that day?” Detective Raynor responded, “No, sir.” On cross-examination,
    defense counsel asked Detective Raynor, “at the end of the video . . .
    [defendant] said to you a number of times . . . [‘]charge me with this, call my
    lawyer[’] . . . did you charge him that day?” Detective Raynor responded,
    “No, ma’am.”
    The State also called Detectives Anthony Mikulsi and David Kohler to
    testify as to their review of the surveillance footage. Detective Mikulsi
    testified that, despite driving together to the casino, defendant entered five to
    ten minutes before Dewyer, that Dewyer and defendant did not interact much
    while in the casino, and that Dewyer appeared to be following defendant
    around the casino while defendant gambled and Dewyer did not. Detective
    Kohler testified that on the morning of January 3, 2016, defendant wore dark
    pants, white shoes, and a dark hooded sweatshirt or jacket, and carried a two-
    toned backpack. Detective Kohler also testified that after defendant returned
    to the motel alone at approximately 3:28 p.m., after Dewyer was killed, he
    changed into different clothes, as shown on the video.
    12
    The State also called Jeffrey and Sandra Carver to testify. 5 The Carvers
    testified that at approximately 2:30 p.m. on January 3, 2016, they were driving
    their tractor on Kinkora Road in Mansfield when they saw a silver car parked
    oddly on the side of the road. The Carvers slowed down but continued to drive
    and soon thereafter saw a man walking away from the silver car. The man
    kept looking back at them as he walked. Jeffrey described the man as wearing
    “dark pants” and a “dark jacket” with “a little bit of red or [a] bright color
    around the neck area” possibly from a “hooded sweatshirt,” and carrying a
    “black backpack” with “silver trim.” He further described the man as “not a
    white person” and recalled that he had “light tan” skin. Sandra described the
    man as “over six f[ee]t and over 200 pounds,” in “blue jeans,” carrying a
    “black backpack,” and possibly wearing a “red,” “orange,” or “yellow”
    hoodie.6 She further described the man as “brown.” The Carvers were never
    asked to identify defendant in a photographic or in-person lineup or even while
    in court during the trial.
    5
    We refer to Jeffrey and Sandra Carver collectively as “the Carvers” and
    individually by their first names to avoid confusion. We do not intend any
    disrespect.
    6
    In summation, the prosecutor referenced defendant’s fingerprint card in
    evidence that purportedly listed his weight as 265 pounds and his height as six
    feet, three inches tall.
    13
    Defense counsel cross-examined the Carvers, impeaching their
    credibility and uncertainty over the man’s appearance, particularly the
    difference between Sandra’s initial statement and her trial testimony. During
    her initial audio-recorded statement to police on January 7, 2016, four days
    after the murder, Sandra stated that the man she saw walking away from the
    silver car “definitely was not black.” When the interviewing officer asked,
    “he’s absolutely not black, 100%?” Sandra responded “no.” In Jeffrey’s initial
    January 12, 2016 statement, he recalled that the man had “light tan” skin and
    “wasn’t a white person,” consistent with his trial testimony.
    During summation, the prosecutor made various arguments to the jury,
    including the following comments relevant to this appeal. Regarding
    defendant and Dewyer arriving at the casino, the prosecutor remarked:
    [Defendant] acknowledges James Dewyer has these bad
    legs, he could hardly get around. But does his good
    friend, [defendant], drop [Dewyer] off at the front door
    of that casino? No . . . . [Defendant] doesn’t try to help
    him into the casino. He doesn’t try to walk with him.
    He doesn’t stay with him. He’s not his friend. He’s
    using him.
    As to defendant’s change of clothes, the prosecutor stated that,
    after the defendant returns to the motel at 3:28 p.m. on
    that day . . . nine minutes after . . . he comes out, his
    clothing is changed. A lot was made during cross-
    examination about that. Well could they be the same
    pants? Detective Kohler told you no, he had dark
    colored pants on when he came back to the motel and a
    14
    dark colored sweatshirt. And when he came out he had
    like pajama pants on . . . . And then he had a white shirt
    on . . . . Well, I submit to you, he just killed [Dewyer]
    and he’s trying not to be seen in the same clothes so he
    can’t be identified.
    Next, as to the Carvers’ testimony, the prosecutor noted:
    It’s not a coincidence. The person that the Carvers saw
    that day was the defendant. They couldn’t identify him
    and say yes, that’s him, I see his face, it’s definitely him
    but the general description matches. It’s too much of a
    coincidence to not be him.
    Finally, as to defendant’s January 13, 2016 statement to police, the prosecutor
    argued:
    [Defendant] tells Detective Raynor he’s down there
    doing business in Roebling, Detective Raynor
    practically begged him, well, who you were with, tell
    us [who] you’re with, we’ll go out, track it down and
    talk to this person. No, I’m not gonna tell you who I
    was with.
    ....
    We’re investigating this murder and then they proceed
    to read him his Miranda rights. Yet he still won’t give
    up this person who he’s doing business with. Ask
    yourself why. And I’ll tell you what the reason is,
    because this person doesn’t exist. It didn't happen.
    Defense counsel did not object to any of the State’s summation statements.
    After summations, the trial court instructed the jury as to the elements of
    first-degree murder; defendant’s presumption of innocence, including that his
    decision not to testify may not be used against him; and the State’s burden to
    15
    prove defendant’s guilt beyond a reasonable doubt. The court also explained
    that the jury can consider some or all the following factors when evaluating
    witness testimony:
    The interest or lack of interest that any witness has in
    the outcome of the trial; the bias or prejudice of a
    witness, if any; the witness’ mental capacity for
    knowing that about which he or she speaks . . . [;] any
    prior inconsistent statements or discrepancies in the
    testimony of a witness; the reasonableness or
    unreasonableness of the testimony; the manner in
    which the witness testified; the witness’ demeanor on
    the stand; the willingness or the reluctance to answer
    questions.
    In addition, the court explained that the jury may “disregard all of the
    testimony” of a witness. Defense counsel did not object or request additional
    instructions.
    On November 2, 2017, the jury found defendant guilty on all counts. On
    December 14, 2017, the trial court sentenced defendant to life in prison with
    an eighty-five percent parole-ineligibility term, pursuant to the No Early
    Release Act, N.J.S.A. 2C:43-7.2.
    C.
    Defendant appealed his conviction, submitting both counseled and pro se
    briefs. In his counseled brief, defendant made the following arguments: (1)
    the court erred in not giving an identification instruction regarding the
    Carvers’ testimony; (2) the cell site location data testimony should not have
    16
    been admitted; (3) the court erred in allowing the jury to hear that defendant
    exercised his right to counsel, that defendant was out on bail at the time of the
    offense, and kept a firearm in his home; and (4) the case should be remanded
    for resentencing because the court did not explain why the thirty-year statutory
    minimum, instead of a life sentence, did not suffice. In his pro se brief,
    defendant raised additional arguments not relevant to this appeal.
    In an unpublished split opinion, the Appellate Division reversed
    defendant’s conviction, vacated his sentence, and remanded the matter for a
    new trial. The majority found that “the cumulative effect of errors committed
    during the trial,” including various comments made by the prosecutor in
    summation, “rendered the trial unfair.” Specifically, the majority was
    concerned that the Carvers’ testimony was “impermissibly suggestive and
    prejudicial to defendant, and [that] the jury may have erroneously drawn a
    conclusion that he was the perpetrator.” Although this issue was not briefed
    by the parties, the majority sua sponte directed the trial court on remand to
    conduct a hearing pursuant to N.J.R.E. 104(a) to determine the admissibility of
    the Carvers’ testimony, citing this Court’s decision in State v. Henderson, 
    208 N.J. 208
    , 289 (2011). The majority stated that the Rule 104(a) hearing was
    necessary for the trial court “to ascertain if the proffered testimony by the
    Carvers would aid the jury as the trier of fact in deciding the merits of the
    17
    controversy or whether the Carvers’ testimony may cause undue prejudice in
    the minds of the jurors and should be barred.” The majority ordered the trial
    court, if the evidence were found admissible, to “provide appropriate, tailored
    jury instructions explaining how the evidence is to be considered” by the jury.
    The Appellate Division majority also appeared to take issue with some
    of the prosecutor’s comments during summation but did not analyze the
    comments beyond detailing them in its factual recitation. The court’s majority
    discerned no error in defendant’s remaining arguments, including the
    admission of the cell site location data testimony by the FBI agent. Regarding
    defendant’s statement to police, the majority held that the “limited exchange”
    between defendant and the interviewing detectives after defendant invoked his
    right to counsel, during which the officer continued to ask defendant for his
    alibi, could not have produced an unjust result.
    The dissenting judge found no reversible error, noting that “the majority
    seemingly suggests four of the prosecutor’s closing remarks exceeded the
    bounds of fair comment,” but did not analyze the comments in context with
    governing law. The dissent found all four comments addressed by the majority
    to be supported by the record and that “no unjust result occurred from those
    remarks -- in part or in combination.”
    18
    As for the order to conduct a Rule 104(a) hearing, the dissent argued that
    “the majority’s outcome departs from well-established evidentiary principles”
    because “there was no identification procedure here, [so] there was no basis
    for the trial court to conduct a . . . preliminary hearing to determine the
    admissibility of the Carvers’ testimony in the present trial.” In addition, the
    dissenting judge agreed that the trial court should have provided a lack-of-
    identification charge to the jury but nonetheless found no reversible error
    because “the jury was more generally advised of the State’s burden to prove all
    elements of the charged offenses beyond a reasonable doubt.”
    The State appealed as of right pursuant to Rule 2:2-1(a)(2).7 Defendant
    also filed a petition for certification raising issues beyond the limited scope of
    the State’s appeal, including whether his Fifth Amendment rights were
    violated when officers continued the interrogation after defendant’s invocation
    of his right to counsel. We initially denied defendant’s petition. On January
    18, 2022, we heard oral argument on the State’s appeal. After oral argument,
    we sua sponte reconsidered defendant’s petition and granted certification,
    limited to whether defendant’s Fifth Amendment rights were violated by the
    admission of evidence that he requested an attorney when Detective Raynor
    7
    Rule 2:2-1(a)(2) provides a right to appeal to this Court from final judgments
    “with regard to those issues as to which, there is a dissent in the Appellate
    Division.”
    19
    asked for his alibi. 
    249 N.J. 559
     (2022). A second oral argument was held
    regarding the issue granted on certification.
    II.
    Regarding the appeal as of right, the State argues that the Appellate
    Division improperly reversed defendant’s conviction on grounds not raised or
    briefed. The State contends that no reversible error occurred. The State
    asserts that the admission of the Carvers’ testimony was not plain error
    because the testimony tended to prove a fact in dispute, namely defendant’s
    whereabouts on January 3, 2016. The State also argues that the risk of unfair
    prejudice was minimal because the Carvers did not identify defendant and
    were cross-examined by defense counsel.
    Moreover, the State argues the trial court’s failure to provide a lack -of-
    identification instruction was not reversible error. The State first notes that
    defendant did not raise this argument at trial. Further, according to the State,
    the trial court provided the jury with sufficient instructions to consider the
    Carvers’ testimony. The State argues that because the Carvers did not identify
    defendant, the enhanced jury instructions in Henderson were unnecessary.
    On the Fifth Amendment issue, the State responds that neither the
    admission of defendant’s statement nor the prosecutor’s comments are
    reversible error. Moreover, the State maintains that each of the prosecutor’s
    20
    comments were based on evidence in the record and within the bounds of fair
    comment. Specifically, the State contends that the prosecutor’s comment that
    Detective Raynor “practically begged” defendant for information did not
    exploit defendant’s invocations of counsel, but rather “acknowledged”
    defendant’s refusal to elaborate on his alleged alibi. The State also argues that
    the weight of the evidence against defendant outweighs any alleged comment
    on his invocation. Finally, the State notes that, at trial, defense counsel did not
    raise the argument above and used the invocations to defendant’s advantage.
    Therefore, the State argues that any error arising from the admission of
    defendant’s invocation was invited.
    Defendant argues that his Fifth Amendment rights were violated when
    the trial court admitted into evidence the portions of his statement that
    included his invocations of the right to counsel. Defendant maintains that the
    admission of that portion of the statement without a limiting instruction ran the
    risk of the jury inferring guilt from his invocations. Defendant further argues
    that the prosecutor’s questioning of Detective Raynor after the statement was
    played for the jury, as well as the prosecutor’s comments in summation that
    defendant refused to provide exculpatory evidence after Detective Raynor
    “practically begged” him to do so, improperly suggested that the jury should
    infer guilt from the invocations.
    21
    Regarding the State’s appeal, defendant responds that the Appellate
    Division properly found cumulative error. First, defendant submits that the
    Appellate Division “unanimously . . . agreed that the trial court erred by not
    instructing the jury to evaluate the sufficiency and reliability of eyewitness
    proofs of identity” and “h[e]ld that the trial court erred by admitting
    eyewitness evidence of [defendant’s] identity without any jury instruction.”
    Specifically, defendant maintains that the Carvers’ testimony amounts to
    “eyewitness identifications,” and that “a model identification charge should be
    given in every case in which identification is a legitimate issue.” (quoting
    State v. Davis, 
    363 N.J. Super. 556
    , 561 (App. Div. 2003)). Accordingly,
    defendant asserts that the trial court permitted the risk of the jury believing
    that he carried the burden to prove his innocence.
    III.
    As defendant did not object to any of the trial court rulings that he
    contends were error, we review the issues presented for plain error. See R.
    2:10-2. Under that standard, an unchallenged error constitutes plain error if it
    was “clearly capable of producing an unjust result.” 
    Ibid.
     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.” State v.
    Melvin, 
    65 N.J. 1
    , 18-19 (1974) (quoting State v. Macon, 
    57 N.J. 325
    , 336
    22
    (1971)). To determine whether an alleged error rises to the level of plain error,
    it “must be evaluated ‘in light of the overall strength of the State’s case.’”
    State v. Sanchez-Medina, 
    231 N.J. 452
    , 468 (2018) (quoting State v. Galicia,
    
    210 N.J. 364
    , 388 (2012)).
    A.
    We first address the issues raised in the State’s appeal as of right. The
    Appellate Division reversed defendant’s conviction and directed that the trial
    court hold a Rule 104(a) hearing on remand to determine the admissibility of
    the Carvers’ testimony. In dissenting, Judge Rose concluded that there was no
    basis for a Rule 104 hearing because the Carvers never identified defendant,
    either in or out of court.
    N.J.R.E. 104(a) states:
    (a) In General.
    (1) The court shall decide any preliminary question about
    whether a witness is qualified, a privilege exists, or evidence
    is admissible. In so deciding, the court is not bound by
    evidence rules, except those on privilege and Rule 403.
    (2) The court may hear and determine such matters out of the
    presence or hearing of the jury.
    Much of this Court’s case law analyzing the necessity of a Rule 104
    hearing to determine the admissibility of witness identification testimony has
    arisen from cases in which a witness actually identified the defendant or
    23
    suspect pursuant to an identification procedure such as a photo array. See,
    e.g., State v. Chen, 
    208 N.J. 307
    , 329-30 (2011) (holding that a Rule 104
    hearing was necessary to determine whether a private party’s suggestive
    behavior tainted the reliability of the witness’s identification of defendant’s
    picture).
    Here, police never conducted a photo array for either Jeffrey or Susan
    Carver to have them attempt to identify defendant as the person they saw on
    the day of the murder walking down Kinkora Road. The Carvers also did not
    participate in a show up or lineup or attempt to identify defendant in court.
    There was never an identification in this case, so there was no need for a Rule
    104 hearing.
    As the State readily conceded, this was a circumstantial evidence case.
    No one was able to identify defendant as the perpetrator, so the State has
    pieced together evidence that tends to show defendant committed the murder.
    The Carvers’ testimony is one of those pieces. Their testimony is relevant and
    presumed admissible because it tends to prove that defendant was near the
    scene of the crime around the time of the crime, contrary to his alibi. See
    N.J.R.E. 401, 402. Furthermore, nothing in the record suggests that the
    probative value of their testimony is “substantially outweighed by the risk of
    . . . [u]ndue prejudice, confusion of issues, or misleading the jury .” N.J.R.E.
    24
    403(a). The Carvers never once identified defendant as the person they saw.
    Their testimony simply shed light on a person, who appears to fit defendant’s
    description, being present in the same area and at approximately the same time
    that Dewyer was killed. There is nothing about that testimony that requires a
    Rule 104 hearing.
    On the issue of the lack of identification charge, we agree with the
    Appellate Division that the charge should be given to the jury on remand. See
    Model Jury Charges (Criminal), “Identification: No In-or Out-of-Court
    Identification” (approved Oct. 26, 2015). The trial court did thoroughly
    instruct the jury as to the State’s burden and how to evaluate the credibility of
    witness testimony, in accordance with the spirit of the model charges. So
    although the trial court’s failure to give the charge, standing alone, did not
    “possess[] a clear capacity to bring about an unjust result,” State v. Afanador,
    
    151 N.J. 41
    , 54 (1997) (alteration in original) (quoting State v. Jordan, 
    147 N.J. 409
    , 422 (1997)), the charge should be given on remand because this is a
    case in which there was no identification by any witnesses.
    B.
    As for the prosecutor’s comments in summation, it is unclear from the
    majority opinion whether the court found the statements referenced in its
    factual recitation to have exceeded the bounds of proper conduct, thereby
    25
    contributing to the cumulative error that the court found. The dissent noted
    that the extent of the cumulative error found by the majority was not fully
    analyzed in the opinion, but discerned that the summation comments, along
    with the Carvers’ testimony, contributed to the majority’s finding that the trial
    was unfair. Because the dissent discusses the issue of the summation
    comments at length in departing from the majority, we do so as well.
    In detailing the facts of the case, the majority highlighted the following
    four comments made by the State during summation: (1) comments “intended
    to malign defendant’s character” when the prosecutor pointed out that
    defendant did not assist Dewyer in walking into the casino; (2) statements
    regarding defendant changing his clothes when he returned to the Riverfront
    Motel without Dewyer; (3) the prosecutor’s comment that the person the
    Carvers saw the day of the murder was defendant; and (4) “without defendant
    having the benefit of counsel,” the prosecutor’s statement that the detective
    “practically begged” defendant for defendant’s alibi but he refused to tell
    police who he was with that afternoon.
    “[P]rosecutors in criminal cases are expected to make vigorous and
    forceful closing arguments to juries . . . .” State v. Williams, 
    244 N.J. 592
    ,
    607 (2021) (quoting State v. Frost, 
    158 N.J. 76
    , 82 (1999)). “Prosecutors are
    afforded considerable leeway in closing arguments as long as their comments
    26
    are reasonably related to the scope of the evidence presented.” Frost, 
    158 N.J. at 82
    . “[A]s long as the prosecutor stays within the evidence and the
    legitimate inferences therefrom, [t]here is no error.” Williams, 244 N.J. at 607
    (second alteration in original) (quotation marks omitted) (quoting State v.
    McNeil-Thomas, 
    238 N.J. 256
    , 275 (2019)). If defense counsel fails to object
    contemporaneously to the prosecutor’s comments, “the reviewing court may
    infer that counsel did not consider the remarks to be inappropriate.” State v.
    Vasquez, 
    265 N.J. Super. 528
    , 560 (App. Div. 1993) (citing State v. Johnson,
    
    31 N.J. 489
    , 511 (1960)).
    We will discuss the fourth summation comment below in our discussion
    of defendant’s statement and invocation of his right to counsel. Regarding the
    first three statements, we find that those comments in summation were proper
    commentary on the evidence before the jury and not “so egregious as to [have]
    deprive[d] defendant of a fair trial.” McNeil-Thomas, 238 N.J. at 275 (quoting
    State v. Wakefield, 
    190 N.J. 397
    , 437 (2007)). Those statements by the
    prosecutor were confined “to the evidence revealed during the trial .” State v.
    Smith, 
    167 N.J. 158
    , 178 (2001). The video of defendant and Dewyer entering
    the casino was in evidence. At trial, the defense made much of the close
    friendship between defendant and Dewyer. In his statement to police,
    defendant talked about the trouble Dewyer had with his legs, and even stated
    27
    that he often drove Dewyer’s car because of the pain the victim experienced.
    The State’s comments about defendant not helping Dewyer were fair comment
    on the record.
    The same holds true for the comment about defendant changing his
    clothes on the afternoon of the murder. The surveillance evidence of
    defendant arriving at the Riverfront Motel without Dewyer and then later
    exiting the motel in different clothes was in evidence before the jury. It was
    not improper for the prosecutor to point out this change and infer that
    defendant allegedly sought to evade detection by changing his clothes.
    Lastly, regarding the comment that the person the Carvers saw was
    defendant even though the Carvers never identified defendant, the prosecutor
    was once again allowed to draw an inference from the evidence presented.
    The prosecutor was even careful to remind the jury that the Carvers “couldn’t
    identify him,” but noted that their general description of the person they saw
    matched defendant. Nothing in those comments amounted to reversible error.
    IV.
    We now turn to the issue of whether defendant’s Fifth Amendment rights
    were violated by the admission of and comment on his invocations of his right
    to counsel. Again, because defendant did not raise this issue below, we review
    the trial court’s ruling for plain error. --
    R. 2:10-2.
    28
    A.
    The Fifth Amendment of the United States Constitution, applicable to
    the States through the Fourteenth Amendment, see State in Int. of A.A., 
    240 N.J. 341
    , 351 (2020), guarantees that “[n]o person . . . shall be compelled in
    any criminal case to be a witness against himself,” U.S. Const. amend. V.
    Although not included in the New Jersey Constitution, the right against self-
    incrimination is deeply rooted in New Jersey common law and is codified by
    statute and the Rules of Evidence. See N.J.S.A. 2A:84A-19; N.J.R.E. 503.
    In Miranda v. Arizona, the United States Supreme Court held that
    individuals who are “subjected to police interrogation while in custody . . . or
    otherwise deprived of [their] freedom of action in any significant way” must
    be appropriately advised of certain rights so as to not offend the right against
    self-incrimination. 
    384 U.S. at 477-79
    . Miranda warnings include advice as to
    the right to remain silent and of the right to the presence of an attorney during
    any questioning. 
    Id. at 479
    . Pursuant to Miranda, if an “individual indicates
    in any manner, at any time prior to or during questioning, that he wishes to
    remain silent, the interrogation must cease.” 
    Id. at 473-74
    . Furthermore, “[i]f
    the individual states that he wants an attorney, the interrogation must cease
    until an attorney is present.” 
    Id. at 474
    .
    29
    This Court has reaffirmed time and time again that “[t]he privilege
    against self-incrimination . . . is one of the most important protections of the
    criminal law,” State v. Presha, 
    163 N.J. 304
    , 312 (2000), and has afforded the
    state privilege broader protection than its Fifth Amendment counterpart , see,
    e.g., State v. O’Neill, 
    193 N.J. 148
    , 176-77 (2007). That broader protection
    includes the principle that “a suspect need not be articulate, clear, or explicit in
    requesting counsel; any indication of a desire for counsel, however ambiguous,
    will trigger the entitlement to counsel.” State v. Reed, 
    133 N.J. 237
    , 253
    (1993); see also Chew, 
    150 N.J. at 63
     (rejecting the federal law standard under
    which the invocation of counsel must be “unambiguous or unequivocal” in
    order for officers to stop the questioning and holding instead that, “[b]ecause
    the right to counsel is so fundamental, an equivocal request for an attorney is
    to be interpreted in a light most favorable to the defendant”).
    In situations in which a suspect has waived his or her Miranda rights and
    agreed to speak to law enforcement, but later invoked the right to counsel
    during the interrogation, this Court has held that “trial courts should endeavor
    to excise any reference to a criminal defendant’s invocation of his right to
    counsel” from the statement that the jury hears. State v. Feaster, 
    156 N.J. 1
    ,
    75-76 (1998). “[A] trial court’s failure to follow the Feaster stricture of
    excision or a cautionary instruction does not necessarily equate to reversible or
    30
    plain error”; rather, a harmful error analysis is warranted to determine whether
    the defendant was deprived of a fair trial. State v. Tung, 
    460 N.J. Super. 75
    ,
    94-95 (App. Div. 2019) (holding that allowing the jury to hear the two
    instances of defendant’s invocation of counsel constituted plain error).
    In Feaster, the Court found that the error was harmless because of “the
    fleeting nature of the reference to defendant’s invocation of his right to
    counsel” and the fact that “the prosecutor did not comment on the matter
    during summation.” Feaster, 
    156 N.J. at 77
    . The Court further noted that
    when “testimony explaining why an interview or interrogation was terminated”
    is necessary, “instruction should be provided that explains to the jury that
    people decline to speak with police for many reasons, emphasizing that a
    defendant’s invocation of his right to counsel or right to remain silent may not
    in any way be used to infer guilt.” 
    Id. at 76
    .
    In Doyle v. Ohio, the Supreme Court held that although “the Miranda
    warnings contain no express assurance that silence will carry no penalty, such
    assurance is implicit to any person who receives the warnings.” 
    426 U.S. 610
    ,
    618 (1976). Indeed, it would be counterintuitive for suspects to be told that
    they have the right to not speak, to ask for an attorney, and to stop the
    interrogation at any time, if at the same time their invocation of those rights
    could be used against them at trial. See United States v. Hale, 
    422 U.S. 171
    ,
    31
    182-83 (1975) (White, J., concurring in the judgment) (“[W]hen a person
    under arrest is informed, as Miranda requires, that he may remain silent, . . .
    and that he may have an attorney if he wishes, . . . it does not comport with
    due process to permit the prosecution during trial to call attention to his silence
    . . . and to insist that . . . an unfavorable inference might be drawn . . . . ”). And
    as the Supreme Court noted in Wainwright v. Greenfield, post-Miranda
    “silence does not mean only muteness; it includes the statement of a desire to
    remain silent, as well as of a desire to remain silent until an attorney has been
    consulted.” 
    474 U.S. 284
    , 295 n.13 (1986).
    B.
    In the present case, we find that it was error to play for the jury the
    portion of the statement wherein defendant invoked his right to counsel and
    Detective Raynor continued questioning him. That error was further
    emphasized by the prosecutor’s comments in summation. Given the State’s
    circumstantial case, allowing all that to go before the jury was clearly capable
    of producing an unjust result.
    Defendant’s statement to police, as played for the jury, was
    approximately 48 minutes long. Most of that interview was conducted in a
    friendly atmosphere; defendant told officers about his friendship with Dewyer,
    32
    his interest in betting on racehorses, and even the date defendant went on the
    night of the murder.
    At approximately 41 minutes into the interview, Detective Raynor
    confronted defendant for the first time with the State’s theory that defendant
    murdered Dewyer. It was at that time that defendant invoked his right to
    counsel by stating, “charge me, call my attorney Mr. Keisler over here, charge
    me and let’s go.” At that moment, all questioning should have ceased.
    Defendant, by specifically naming his attorney and telling officers to call him,
    invoked his right to counsel. However, even if his invocation could be viewed
    as equivocal or ambiguous, the detectives were not justified in continuing the
    interrogation under New Jersey law. There is no question that the
    interrogation should have ended at that point and that portion of the recording
    should have been excised from the statement played, not once, but twice for
    the jury.8
    The interrogation, however, did not end there. Instead, Detective
    Raynor continued to press defendant about his alibi, continuously asking
    defendant whether he wanted the detective to “run that down,” in reference to
    the person defendant stated he was with in Roebling. Defendant, for the most
    8
    During deliberations, the jury asked to view defendant’s statement again and
    it was played for them in open court.
    33
    part, said little during this exchange, except to tell the officers to “call my
    attorney” and then twice telling them “go get my attorney.” During the
    exchange, Detective Raynor expressed that if he were in defendant’s shoes, he
    would tell the officers who he was with so that he is “not on the hook for [the
    murder].”
    The jury not only heard the invocation and the detective’s comments
    thereafter, but also heard the prosecutor give a summation that compounded
    the error by commenting on the discussion that took place after the
    invocations. The prosecutor noted that Detective Raynor “practically begged”
    defendant for information on his alibi. The State argues that defendant
    willingly provided an alibi during his statement and, therefore, the
    prosecutor’s statements were fair comment on defendant’s alibi statements.
    Certainly, the portion of defendant’s statement prior to invocation of his
    right to counsel is admissible. During that portion of the statement, he
    provided officers with an alibi when he stated that Dewyer dropped him off in
    Roebling where he met with someone. Defendant was hesitant to tell the
    officers exactly what he did in Roebling and with whom. The videotaped
    statement the jury heard was redacted to remove approximately one minute and
    48 seconds of that portion of the interview during which defendant implied to
    police that he met with someone in Roebling to apparently complete a drug
    34
    deal. The jury, however, only heard the following exchange in the redacted
    video:
    DETECTIVE: Where, where does he drop you off in
    Robley?
    DEFENDANT: Uh, right there by the, uh, by the um,
    the store. In between the store and, um what is that, uh,
    Lou’s, Doctor Lou’s.
    DETECTIVE: Doctor Lou’s okay.
    DEFENDANT: Mm hmm.
    DETECTIVE: He drops you off over there.
    DEFENDANT: Mm hmm.
    DETECTIVE: Um, what’s goin’ on down there?
    DEFENDANT: Uh --
    DETECTIVE: I can see you’re hesitating, I mean, I’m
    not, I’m less concerned about what was going on and
    just, you know, where he goes, who he’s with and then,
    you know, what’s goin’ on with you down there. Does
    he, does he hang around with you?
    DEFENDANT: No, no, he didn’t hang around. I, um,
    to see I’m hesitant because this is involving, it, it --
    DETECTIVE: It’s something you don’t wanna talk
    about.
    DEFENDANT: Right.
    DETECTIVE: Okay.
    DEFENDANT: You know.
    35
    DETECTIVE: All right.
    DEFENDANT: That I, that I did, you know.
    DETECTIVE: Okay, um.
    DEFENDANT: Uh.
    DETECTIVE: And like I said, I’m trying to word this
    where it’s not, um, it would be helpful, uh, you know
    for us to just have an understanding of, in piecing this
    together.
    DEFENDANT: Okay, I --
    DETECTIVE: You know, was he with somebody else
    or did you guys meet up --
    DEFENDANT: No.
    DETECTIVE: With somebody else or, or what?
    DEFENDANT: No.
    DETECTIVE: Okay.
    DETECTIVE: All right, so you met with somebody.
    DEFENDANT: Right.
    DETECTIVE: Okay. All right, down there near Dr.
    Lou’s?
    DEFENDANT: Mm hmm.
    DETECTIVE: All right. Um, do, were you, when he
    dropped you off at Dr. Lou’s, um do you go any, like
    does somebody else pick you up and you go somewhere
    and what?
    36
    DEFENDANT: Uh, we take a walk.
    DETECTIVE: You and whoever take a walk.
    DEFENDANT: Yeah, mm hmm.
    DETECTIVE: Okay. You and whoever take a walk.
    DEFENDANT: Mm hmm.
    DETECTIVE: Um, do whatever it is you have to do.
    DEFENDANT: Mm hmm.
    DETECTIVE: Okay and then what?
    DEFENDANT: And that’s it.
    DETECTIVE: Okay.
    DEFENDANT: And well after he drops me off, I
    would suspect he went to pick up Judy’s daughter.
    DETECTIVE: Okay.
    DEFENDANT: Other than that, you know, that’s okay
    of what I needed to take care --
    DETECTIVE: Mm hmm.
    DEFENDANT: And I made my way back up to my
    room.
    That portion of the statement was certainly open for fair comment
    because defendant had waived his Miranda rights and told police during the
    interview that followed that he was in Roebling during the time of the murder.
    37
    But when the prosecutor in summation stated, “Detective Raynor practically
    begged him, well, who were you with, tell us [who] you’re with, we’ll go out,
    track it down and talk to this person,” it cannot be logically concluded that the
    prosecutor was referencing that pre-invocation portion of the statement.
    Nothing in that exchange can be reasonably characterized as the detective
    “begging” defendant for more information on his alibi and imploring him to
    allow the police to track the person he was with down and talk to them.
    Contrast that, however, with the exchange between Detective Raynor
    and defendant after defendant invoked his right to counsel. Detective Raynor
    continued to ask defendant questions as quoted above, see supra pp. 9-11.
    After defendant first invoked his right to counsel by stating, “You say it’s
    game over, charge me, call my attorney Mr. Keisler over here, charge me and
    let’s go,” Detective Raynor asked defendant no fewer than four times whether
    defendant wanted the officers to run his alibi down. As already discussed,
    Detective Raynor further commented that if he was in defendant’s shoes, he
    would readily give the officers all the information about his alibi so as not to
    be “on the hook” for a murder. The prosecutor in summation characterized
    that exchange as “begging” defendant for the alibi information. Surely, it was
    that exchange, after defendant had already invoked his right to counsel, to
    which the prosecutor’s comments harkened back. It was during that exchange
    38
    that Detective Raynor repeatedly mentioned tracking or running down the alibi
    information.
    The exchange, however, took place after defendant had already invoked
    his right to counsel and the interrogation should have ended. Although that
    portion of the statement should not have been in evidence or before the jury, it
    was introduced. The prosecutor thus likely believed he was free to comment
    on it, and his comments certainly do not rise to the level of misconduct.
    Nevertheless, those comments fueled the original error of allowing in the
    invocation of defendant’s right to counsel. And although the prosecutor did
    not directly comment on defendant’s invocation of his right to counsel , the
    prosecutor’s inference that defendant was guilty because he did not provide the
    name of the person he was with in response to the detective’s “begging” was
    improper.
    Prior to trial, the prosecutor and defense counsel discussed redactions to
    the statement to ensure that all references to defendant’s criminal history and
    the alleged illegal activity in Roebling defendant discussed would not be
    played for the jury. Somehow, all the parties to this matter at trial -- the State,
    defense counsel, and the court -- missed the necessary redaction of defendant’s
    invocation of his right to counsel. When defendant invoked his right to
    counsel by specifically naming his attorney, alarm bells should have gone off
    39
    signaling to all parties that the information should have been redacted.9
    Unfortunately, everyone missed it.
    We find that allowing the jury to hear defendant’s invocation of his right
    to counsel, the detective’s statements thereafter, and the prosecutor’s
    comments in summation could have led the jury to a result it otherwise might
    not have reached. The State concedes that its case against defendant was
    circumstantial. There were no eyewitnesses to the murder, no murder weapon
    was ever recovered, and defendant never confessed to killing Dewyer. It was
    therefore harmful for the jury to have improperly heard defendant invoke his
    right to counsel at the moment he was confronted with murdering Dewyer and
    9
    The State argues that defendant invited this error because he did not seek to
    redact the invocation portion of the video when he requested redaction of other
    portions of the statement. Under the invited error doctrine, “trial errors that
    ‘were induced, encouraged or acquiesced in or consented to by defense counsel
    ordinarily are not a basis for reversal on appeal.’” State v. A.R., 
    213 N.J. 542
    ,
    561 (2013) (quoting State v. Corsaro, 
    107 N.J. 339
    , 345 (1987)). Unlike most
    cases with invited error, in which the court is encouraged to take a particular
    course of action, defense counsel here initially, but unsuccessfully, sought to
    suppress the entire statement, not use it to defendant’s advantage. Once the
    offending portions of the statement were in and were played for the jury,
    defense counsel had no choice but to deal with the reality of all that the jury
    had heard and made a fleeting reference to defendant’s invocations as a means
    of pointing out to the jury that officers did not charge defendant with the
    murder on the day he gave his statement, despite his assertions for them to do
    so. We cannot find from this record that defense counsel invited the error.
    40
    then hear the prosecutor insinuate defendant’s guilt based on defendant’s
    refusal to tell the officers who he was with in Roebling.
    V.
    For the foregoing reasons, we affirm the judgment of the Appellate
    Division as modified, and we remand the matter for a new trial consistent with
    this opinion.
    CHIEF JUSTICE RABNER and JUSTICES ALBIN, PATTERSON, and
    SOLOMON join in JUSTICE PIERRE-LOUIS’s opinion. JUDGE FUENTES
    (temporarily assigned) did not participate.
    41