STATE OF NEW JERSEY VS. OLAJUWAN HERBERT (12-11-2693, ESSEX COUNTY AND STATEWIDE) ( 2019 )


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  •                NOT FOR PUBLICATION WITHOUT THE
    APPROVAL OF THE APPELLATE DIVISION
    SUPERIOR COURT OF NEW JERSEY
    APPELLATE DIVISION
    DOCKET NO. A-5096-14T1
    STATE OF NEW JERSEY,
    Plaintiff-Respondent,
    v.
    OLAJUWAN HERBERT,
    Defendant-Appellant.
    _____________________________
    Argued February 12, 2018 – Decided January 10, 2019
    Before Judges Sabatino, Ostrer and Whipple (Judge
    Ostrer concurring).
    On appeal from Superior Court of New Jersey, Law
    Division, Essex County, Indictment No. 12-11-2693.
    James K. Smith, Jr., Assistant Deputy Public
    Defender, argued the cause for appellant (Joseph E.
    Krakora, Public Defender, attorney; Mark H.
    Friedman, Assistant Deputy Public Defender, of
    counsel and on the brief).
    Lucille M. Rosano, Special Deputy Attorney
    General/Acting Assistant Prosecutor, argued the cause
    for respondent (Robert D. Laurino, Acting Essex
    County Prosecutor, attorney; Lucille M. Rosano, of
    counsel and on the brief).
    Appellant filed a pro se supplemental brief.
    The opinion of the court was delivered by
    OSTRER, J.A.D.
    Convicted of purposeful murder and related firearms offenses, defendant
    Olajuwan Herbert principally contends his trial was irremediably tainted by a
    detective's reference to defendant's alleged gang membership, and by
    eyewitnesses' statements that they had been afraid to testify or identify
    themselves. The court sustained defendant's objection to the comment about
    gang membership, but denied his motion for a mistrial. The court held it cured
    any resulting prejudice by instructing the jury that there was no information in
    the case about gang involvement and that the jury should disregard the
    statement.   The court overruled defense objections to the eyewitnesses'
    continued use of pseudonyms and references to fear of testifying, relying on its
    instruction to the jury that the use of pseudonyms was simply a matter of
    police procedure and the witnesses' desire for privacy.
    We conclude a new trial is required because the court's instructions were
    inadequate to cure the prejudice caused by the gang reference. We therefore
    do not reach the issue of the eyewitnesses' repeated reference to pseudonyms
    and expressions of fear.
    A-5096-14T1
    2
    I.
    Harold Claudio was shot to death in an alley off Thomas Street in
    Newark. The alley runs between a school on one side and a playground and
    two basketball courts on the other. The homicide occurred on June 9, 2012, at
    around 8:30 p.m. The principal witnesses at the trial were an investigating
    detective, Tyrone Crawley, and two eyewitnesses, Lizaire Arce, a cousin of the
    victim, and Jessica Maldonado, who happened to be in the area but knew
    neither the victim nor defendant.
    Arce testified that the previous week, she saw Alberto Torres, a cousin
    of hers and the victim's, fight with defendant at the playground. Torres got the
    better of defendant, and Arce overheard her cousin call defendant by the
    nickname "Gunner" 1 as he chased him from the playground. It was the first
    time Arce had ever seen defendant.
    Arce said the next time she saw defendant, shortly before the murder, he
    entered the playground area with Claudio and two other men she did not know.
    Although it was around 8:30 p.m., Arce said it was bright out. She claimed
    she could identify defendant, although, as the parties later stipulated, she was
    1
    The defense did not register an objection to use of that nickname,
    notwithstanding that defendant was accused of gunning down the victim. See
    State v. Paduani, 
    307 N.J. Super. 134
    , 147 (App. Div. 1998) (stating that
    pejorative nicknames, such as "Marijuana" or "Trouble," should be kept from a
    jury unless relevant for some purpose).
    A-5096-14T1
    3
    sitting 107 feet, 11 inches from the place of the murder.        Also, several
    teenagers were playing ball on the basketball court in front of her, and chain-
    link fences stood between her and defendant. She testified that she observed
    defendant raise his left arm while stepping closer to Claudio, then heard three
    gunshots, although she did not actually see a gun in defendant's hand. Arce
    testified that she saw defendant and the two others run out of the playground,
    across Pennsylvania Avenue, and up the block to Brunswick Avenue, where
    defendant entered the rear seat of a 1993 or 1994 blue Honda Accord with a
    silver sunroof.
    Arce went to her cousin's side and saw that a bullet had struck the back
    of his head. Concluding he was "done," she left the area without calling 911.
    She spent time with a boyfriend and then a female friend but did not speak to
    police because, she said, she feared for herself and her family. However, she
    spoke to the police two days later, after her aunt, Claudio's mother, asked her
    to do so. Arce identified defendant from a photo array, and later identified
    him in court, as well.
    Arce signed defendant's photo as "Jane Doe" and initialed the others she
    viewed "J.D." At trial, she testified she did so for "her safety." The defense
    objected, contending there was no evidence that defendant did anything to
    cause her to be fearful, and asked for an instruction to that effect. The court
    A-5096-14T1
    4
    denied the request. Apparently referring to Arce's reasons for her two -day
    delay in speaking to police, as opposed to her reason for signing the photos as
    Jane Doe, the court said the State was entitled to explain why Arce "didn't do
    certain things" before the defense raised the matter on cross-examination.
    Throughout the trial, the prosecutor and Detective Crawley, the State's
    key law enforcement witness, repeatedly referred to Arce as Jane Doe. The
    officer who presented the photo array to Arce also said he knew her only as
    Jane Doe. He testified, without an immediate objection, that he was informed
    she used the pseudonym to avoid identification and "retaliation." 2
    As the defense elicited, Arce testified inconsistently about the lighting
    conditions at the crime scene; the distance from which she observed defendant;
    and the presence of other persons in the area. Based on these inconsistencies,
    the defense challenged Arce's ability to accurately identify faces, and to
    observe defendant's alleged flight in a vehicle parked over a block away.
    The other eyewitness, Jessica Maldonado, testified that she heard what
    sounded like fireworks after she parked on Thomas Street. She was on her
    2
    Defense counsel later asked for a curative instruction that defendant never
    threatened retaliation, but the court noted that defense counsel had not timely
    objected. Defense counsel responded that she did not want to highlight the
    issue again, particularly in light of the court's refusal to provide an instruction
    on the topic during Arce's own testimony. The court asked defense counsel to
    submit a written instruction for its consideration, but counsel apparently did
    not pursue the matter further.
    A-5096-14T1
    5
    way to a baby shower at the church across the street, at the corner of Thomas
    Street and Pennsylvania Avenue. A passerby told her he thought the sound
    was gunshots. She grabbed her three-year-old daughter out of the car and
    headed down the block. On the other side of the street, Maldonado saw a
    group of four or five men running in the opposite direction, accompanied by a
    man on a bicycle. For a second, she made eye contact with one man as he
    turned to look back. He was holding his pants and shirt to cover an object.
    She could not see it, but it had the shape of a gun.
    Three days later, she selected defendant's photo from a photo array,
    signing the photo as "Jane Doe 2." At trial, the court overruled the defense's
    objection to any mention of Maldonado's use of the pseudonym, but prevented
    Maldonado from explaining why she used it. The State repeatedly referred to
    her as Jane Doe 2 thereafter.          Maldonado did not make an in-court
    identification.
    The defense elicited inconsistencies between Arce's and Maldonado's
    testimony. Arce alleged that a light-skinned man almost six feet tall with
    shoulder-length, orange-tipped dreadlocks accompanied defendant; yet,
    Maldonado saw no such person, testifying that all the men running from the
    scene had short hair and brown skin. Arce said defendant wore light-blue
    capri pants, a red-and-white shirt, and Air Force sneakers. Maldonado testified
    A-5096-14T1
    6
    that defendant wore baggy, regular-length blue jeans and a white or gray tee-
    shirt.     Arce said there were no cars parked on Thomas Street between
    Pennsylvania Avenue and Brunswick Avenue, which gave her an unobstructed
    view of defendant's flight.     She did not see a woman with a child.       Yet,
    Maldonado testified that it was difficult to find parking near the church, cars
    were parked on both sides of the street, and she was on the sidewalk with her
    child when the men fled past her. Arce said the four men all fled on foot.
    Maldonado said there was at least one man on a bicycle.
    Maldonado's out-of-court identification was also challenged.        She
    admitted that she found the identification procedure "hard"; the men in two
    other photos also looked "similar" to the man she had seen; and she selected
    defendant's photo only after the officer told her, in response to her question,
    that she had to pick just one photo. She testified that she ultimately picked
    defendant's photo because it depicted him with facial hair; however, in her
    2012 statement to Detective Crawley, she said she could not tell if the man she
    saw had facial hair because it was getting dark and she was not wearing her
    glasses.
    Detective Crawley testified that when defendant was taken into custody,
    he was wearing sneakers that fit Arce's description. However, there was no
    blood or other forensic evidence tying the sneakers to the homicide.
    A-5096-14T1
    7
    Subsequent searches of defendant's residence and cellphones were fruitless.
    The weapon was not recovered, and video surveillance in the vicinity was
    unilluminating.
    Crawley also admitted at trial that he had received information that
    someone else was responsible for the shooting.           Torres, Arce's cousin,
    reportedly told the detective that someone named Bibble had bragged he
    committed the murder. But, because the State was unable to secure Torres's
    presence at trial, the court barred any reference to Torres's statement on
    hearsay grounds.
    Also, before trial, a different judge, relying on State v. Goodman, 
    415 N.J. Super. 210
     (App. Div. 2010), had permitted Torres to testify that
    Claudio's murder arose from a gang conflict. But, with Torres absent, gang
    references were barred.
    Yet, despite the court's order, Crawley injected the subject of gangs
    twice.3 The first time, on direct examination, he was asked why he did not
    speak to the teenagers who were playing in the basketball court, though Arce
    had identified several of them by name. He answered it was a "high-crime,
    drug, gang area, and the people that live in that area are in fear of the police."
    3
    The prosecutor later said that Crawley's references to gangs were "totally
    inappropriate," and that "the State had gone out of its way to prep every
    witness not to go into any gang information."
    A-5096-14T1
    8
    The court sustained the defense's objection, denied a mistrial request, and
    instructed the jury to disregard the statement, which was complete "speculation
    and conjecture on [the detective's] part" as he had no information "as to why
    anyone didn't come forward, or if there were any people that could come
    forward." The judge did not address the statement that the crime occurred in a
    "gang area."
    The second time, on redirect, the prosecutor asked Detective Crawley if
    Arce had explained how she was able to identify defendant.           The court
    overruled a hearsay-based objection from the defense. Then, the detective
    stated, referring to the alleged previous altercation between defendant and
    Torres, "Yes, she told me, approximately a week ago, Gunner, who is a gang
    member . . . ."
    The court denied another defense request for a mistrial. Instead, in a
    curative instruction, the judge directed the jury to disregard the detective's
    answer. The judge asserted there was "no information" in the case that gangs
    were involved – without directly addressing the detective's assertion about
    defendant in particular. In the same instruction, the judge decided to issue a
    limiting instruction regarding the eyewitnesses' use of pseudonyms, asserting
    both that the witnesses wanted to shield their identity and that it was merely a
    matter of police procedure.
    A-5096-14T1
    9
    The judge stated:
    Ladies and Gentlemen, our function here -- I
    mean your function -- is to determine the guilt or
    innocence of Mr. Herbert fairly and impartially based
    upon the evidence.
    Sometimes during the course of the trial,
    information comes to the attention of the jury and it
    has no place in this trial. In other words, it's
    prejudicial. As I told you from the beginning, fair and
    impartial means not being prejudicial; it means fair.
    Now, Detective Crawley mentioned gangs a few
    minutes ago, unintentionally. I tell you now there's no
    information in this case whatsoever there's any gangs
    involved in this case whatsoever.              Nothing
    whatsoever. You've heard nothing beforehand, you've
    heard nothing now, and that statement by Detective
    Crawley obviously was unintentional, number one.
    Number two, I want to bring you to the -- to
    your attention again -- maybe I should have said this is
    before -- you know, the two witnesses we're [sic]
    giving [sic] John [sic] Doe 1 and John [sic] Doe 2; all
    right? There's no rationale for that other than the fact
    that they wanted to keep their identity private. All
    right?
    You should not conclude, because they had Jane
    Doe 1, and Jane Doe 2, that carries any kind of
    implication whatsoever. It does not; all right?
    So the gang situation, the John [sic] Doe
    situations are routine, -- the Jane Doe situation is
    routine police work repeatedly in these kind of cases,
    it's just done that way, and you can't consider that
    whatsoever. So you can't consider that, and you can't
    consider the gang situation.
    A-5096-14T1
    10
    I'm going to read you again what I read to you
    before. I direct that you not use this stricken
    testimony in your deliberations. By my striking the
    answer and directing that you disregard and not use
    this information, I'm not asking you to forget it. To
    the contrary, I'm asking that you remember what was
    stricken and understand that if, during your
    deliberations, you realize that the information is
    necessary to your decision, you may not use it.
    Okay? Are we on the right page?
    JURORS: Yes.
    [(Emphasis added).]
    In cross-examination of Crawley, the defense had pointed out
    inconsistencies between the testimony of Arce and Maldonado, suggesting that
    Crawley should have conducted a more thorough investigation. On redirect,
    the prosecutor was permitted to elicit why those inconsistencies did not deter
    him from seeking an arrest warrant. For example, regarding the inconsistent
    clothing descriptions, Crawley was permitted to offer his opinion that
    Maldonado was more focused on her child, while Arce was "affixed to"
    defendant, because of the previous incident.
    Defendant did not testify or call witnesses on his behalf. In summation,
    defense counsel responded to the eyewitnesses' use of pseudonyms, noting
    there was no evidence that defendant threatened or intimidated them. The
    defense also highlighted inconsistencies in the eyewitnesses' identifications.
    A-5096-14T1
    11
    The State, in its summation, minimized those inconsistencies, and suggested
    that defendant's motive was to retaliate for the incident the week earlier,
    although defendant's assailant was Torres and not the victim.
    The jury found defendant guilty of first-degree murder, N.J.S.A. 2C:11-
    3(a)(1), (2); second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-
    5(b)(1); and second-degree possession of a firearm for an unlawful purpose,
    N.J.S.A. 2C:39-5(a). The court sentenced defendant to life imprisonment on
    the murder conviction, subject to the No Early Release Act, N.J.S.A. 2C:43-
    7.2, and a concurrent five-year term, subject to the Graves Act, N.J.S.A.
    2C:43-6(c), on the conviction for unlawful possession of a handgun.       The
    remaining charge was merged.
    II.
    In his counseled brief, defendant raises the following points for our
    consideration:
    POINT I
    DEFENDANT WAS DENIED A FAIR TRIAL AND
    DUE PROCESS OF LAW WHEN DETECTIVE
    CRAWLEY IMPROPERLY TOLD THE JURY THAT
    "GUNNER [DEFENDANT] IS A GANG MEMBER"
    AND THE TRIAL COURT DENIED DEFENDANT'S
    MOTION FOR A MISTRIAL.
    A-5096-14T1
    12
    POINT II
    THE TRIAL COURT COMMITTED REVERSIBLE
    ERROR BY ALLOWING DETECTIVE CRAWLEY
    TO TESTIFY AS TO WHY HE OBTAINED AN
    ARREST     WARRANT      DESPITE    THE
    INCONSISTENCIES   BETWEEN    THE  TWO
    IDENTIFICATION WITNESSES REGARDING THE
    DESCRIPTIONS OF THE CLOTHING WORN BY
    THE SUSPECT.
    POINT III
    DEFENDANT'S SENTENCE IS MANIFESTLY
    EXCESSIVE AND UNDULY PUNITIVE.
    In a supplemental pro se brief, defendant argues:
    POINT I
    DEFENDANT'S    STATE      AND FEDERAL
    CONSTITUTIONAL RIGHTS TO A FAIR TRIAL
    BY AN IMPARTIAL JURY AND DUE PROCESS
    OF LAW WERE VIOLATED WHEN THE
    PROSECUTOR ENGAGED IN A CONVERSATION
    WITH ONE OF THE JUROR[]S.
    POINT II
    THE TRIAL COURT ERRED IN ADMITTING
    DETECTIVE CRAWLEY'S TESTIMONY AS TO
    WHY HE OBTAINED AN ARREST WARRANT
    DESPITE THE INCONSISTENCIES BETWEEN
    THE TWO I[]DENTIFICATION WITNESSES
    REGARDING THE DESCRIPTIONS OF THE
    CLOTHING       WORN         BY     THE      SUSPECT
    (Supplemented to Point II of Primary Brief).
    A-5096-14T1
    13
    POINT III
    THE IDENTIFICATION PROCEDURES USED BY
    THE    POLICE    WERE     IMPERMISSIBLY
    SUGGESTIVE LEADING TO A SUBSTANTIAL
    LIKELIHOOD OF MISIDENTIFICATION.
    POINT IV
    TRIAL COURT COMMITTED REVERSIBLE
    ERROR BY ALLOWING THE PROSECUTION TO
    INTRODUCE    EVIDENCE   VIA   IMPROPER
    IDENTIFICATION PROCEDURE THAT DEPRIVED
    DEFENDANT SUBSTANTIVE DUE PROCESS OF
    LAW AND RIGHT TO A FAIR TRIAL (Not Raised
    Below).
    POINT V
    THE TRIAL COURT'S CHARGE ON THE ISSUE
    OF      IDENTIFICATION WAS    FLAWED,
    THEREFORE VIOLATING DEFENDANT'S STATE
    AND FEDERAL CONSTITUTIONAL RIGHTS (Not
    Raised Below).
    POINT VI
    THE TRIAL COURT ERRED IN DENYING
    DEFENDANT A NEW TRIAL ON THE GROUNDS
    THAT THE VERDICT WAS AGAINST THE
    WEIGHT OF THE EVIDENCE.
    POINT VII
    THE TRIAL COURT'S FAILURE TO CHARGE THE
    JURY ON THE LESSER-INCLUDED OFFENSES
    OF ASSAULT DEPRIVED DEFENDANT OF DUE
    PROCESS AND HIS RIGHT TO A FAIR TRIAL.
    U.S. CONST. AMEND. VI, XIV, N.J. CONST. ART.
    I, ¶ 1, 10 (Not Raised Below).
    A-5096-14T1
    14
    III.
    A.
    The Court in State v. Winter, 
    96 N.J. 640
    , 646-47 (1984), addressed the
    specific issue posed here – "whether inadmissible evidence is of such a nature
    as to be susceptible of being cured by a cautionary or limiting instruction, or
    instead requires the more severe response of a mistrial." The Court held the
    decision "is one that is peculiarly within the competence of the trial judge, who
    has the feel of the case and is best equipped to gauge the effect of a prejudicial
    comment on the jury in the overall setting." 
    Id. at 647
    . Consequently, "[a]
    motion for a mistrial is addressed to the sound discretion of the [trial] court;
    and the denial of the motion is reviewable only for an abuse of discretion."
    
    Ibid.
     (quoting State v. Witte, 
    13 N.J. 598
    , 611 (1953)); see also State v.
    Yough, 
    208 N.J. 385
    , 397 (2011) (stating that whether a curative instruction
    can neutralize a prejudicial remark is within the trial court's competence);
    State v. Harvey, 
    151 N.J. 117
    , 205 (1997) (stating an appellate court must find
    "an abuse of discretion that results in a manifest injustice" to overturn a trial
    court's mistrial ruling).
    The same deferential standard that applies to the mistrial-or-no-mistrial
    decision applies to review of the curative instruction itself. Winter, 
    96 N.J. at 647
    . In particular, a trial court is in the best position to assess the impact of an
    A-5096-14T1
    15
    evidentiary ruling. See Crawn v. Campo, 
    136 N.J. 494
    , 512 (1994) (stating
    that "[d]eference should be accorded to the trial court's conclusion concerning
    the prejudice attributable to the" trial court's rulings and "the extent to which
    that prejudice contributed to an unjust result").
    B.
    There is tension in our case law governing curative and limiting
    instructions.   The authority is abundant that courts presume juries follow
    instructions. For example, in State v. Loftin, 
    146 N.J. 295
    , 390 (1996), the
    Court stated, "That the jury will follow the instructions given is presumed."
    The presumption is founded in part on necessity. "[T]he courts must rely upon
    the jurors' ability and willingness to follow the limiting instruction without
    cavil or question." State v. Manley, 
    54 N.J. 259
    , 270 (1969). The presumption
    is "[o]ne of the foundations of our jury system." State v. Burns, 
    192 N.J. 312
    ,
    335 (2007).
    Yet, some view the presumption skeptically. As Justice Jackson stated,
    "The naive assumption that prejudicial effects can be overcome by instructions
    to the jury . . . all practicing lawyers know to be unmitigated fiction."
    Krulewitch v. United States, 
    336 U.S. 440
    , 453 (1949) (Jackson, J.,
    concurring). Noting, if not adopting, that skeptical view, our Supreme Court
    has found, "There are undoubtedly situations in which notwithstanding the
    A-5096-14T1
    16
    most exemplary charge, a juror will find it impossible to disregard such a
    prejudicial statement."    State v. Boone, 
    66 N.J. 38
    , 48 (1974) (citing
    Krulewitch, 
    336 U.S. at 453
    ). For example, the Court found that a limiting
    instruction could never cure the prejudicial effect from the admission of a
    defendant's prior but withdrawn guilty plea. Id. at 50.
    The United States Supreme Court reached the same conclusion regarding
    the admission of a co-conspirator's confession that implicates a defendant.
    "[T]here are some contexts in which the risk that the jury will not, or cannot,
    follow instructions is so great, and the consequences of failure so vital to the
    defendant, that the practical and human limitations of the jury system cannot
    be ignored." Bruton v. United States, 
    391 U.S. 123
    , 135 (1968).
    Without delving into the many empirical studies on jury behavior, we
    believe that jury compliance with curative and limiting instructions is neither
    all truth nor all fiction. The answer is somewhere in between. See David A.
    Sklansky, Evidentiary Instructions and the Jury as Other, 
    65 Stan. L. Rev. 407
    ,
    423-39 (2013) (Evidentiary Instructions) (analyzing various empirical studies).
    As Professor Sklansky has noted, "The reality is . . . that evidentiary
    instructions probably do work, but imperfectly, and better under some
    conditions than others." Id. at 409.
    A-5096-14T1
    17
    The decision to opt for a curative or limiting instruction, instead of a
    mistrial or new trial, depends on at least three factors. First, a court should
    consider the nature of the inadmissible evidence the jury heard, and its
    prejudicial effect. "The adequacy of a curative instruction necessarily focuses
    on the capacity of the offending evidence to lead to a verdict that could not
    otherwise be justly reached." Winter, 
    96 N.J. at 647
    . Additionally, while a
    general charge may suffice to cure "only slightly improper" remarks, "a single
    curative instruction may not be sufficient to cure the prejudice resulting from
    cumulative errors at trial." State v. Vallejo, 
    198 N.J. 122
    , 136 (2009) (quoting
    State v. Frost, 
    158 N.J. 76
    , 86-87 (1999)).
    Evidence that bears directly on the ultimate issue before the jury may be
    less suitable to curative or limiting instructions than evidence that is indirect
    and that requires additional logical linkages.     For example, distinguishi ng
    between a co-conspirator's confession that directly implicates a defendant and
    a confession that only inferentially does so, the United States Supreme Court
    noted that "[s]pecific testimony that 'the defendant helped me commit the
    crime' is more vivid than inferential incrimination, and hence more difficult to
    thrust out of mind."     Richardson v. Marsh, 
    481 U.S. 200
    , 208 (1987).
    Consequently, "with regard to inferential incrimination[,] the judge's
    instruction may well be successful in dissuading the jury from entering onto
    A-5096-14T1
    18
    the path of inference in the first place, so that there is no incrimination to
    forget." 
    Ibid.
     Likewise, in Harvey, 
    151 N.J. at 205-06
    , the Court held that a
    curative instruction was sufficient to avoid a mistrial where the stricken
    testimony pertained to polygraph results of an earlier suspect, and there was
    substantial evidence to eliminate that suspect, rendering the prejudice to
    defendant "minimal." The Court emphasized that the evidence that the earlier
    suspect passed a polygraph did not directly prove defendant's guilt. 
    Id. at 205
    .
    Second, an instruction's timing and substance affect its likelihood of
    success. As for timing, our Court has held that a swift and firm instruction is
    better than a delayed one. Winter, 
    96 N.J. at 648
     (noting the importance of an
    immediate and firm instruction to disregard an offending remark); see also
    Vallejo, 
    198 N.J. at
    134-35 (citing cases finding effective curative
    instructions). Delay may allow prejudicial evidence to become cemented into
    a storyline the jurors create in their minds during the course of the trial. See
    Evidentiary Instructions at 422 n.52; see also id. at 451 (stating "[t]he timing
    . . . of instructions [is] likely to matter"). That is why our Supreme Court has
    stated – in the context of admitting evidence of other crimes under N.J.R.E.
    404(b) – it is the "better practice" to give limiting instructions at the time the
    evidence is presented and again in the final jury charge. State v. Blakney, 
    189 N.J. 88
    , 93 (2006). It is thought that repeating the instruction prevents the
    A-5096-14T1
    19
    jurors from "indelibly brand[ing] the defendant as a bad person" and blinding
    them from careful consideration of all the evidence in deliberations. 
    Ibid.
    As for substance, a specific and explanatory instruction is often more
    effective than a general, conclusory one. The "Court has consistently stressed
    the importance of . . . specificity when trial judges provide curative
    instructions to alleviate potential prejudice to a defendant from inadmissible
    evidence that has seeped into a trial." Vallejo, 
    198 N.J. at 135
    . "[B]ecause
    'the inherently prejudicial nature of [404(b)] evidence casts doubt on a jury's
    ability to follow even the most precise limiting instruction,' the court's
    instruction 'should be formulated carefully to explain precisely the permitted
    and prohibited purposes of the evidence . . . .'" State v. Fortin, 
    162 N.J. 517
    ,
    534 (2000) (quoting State v. Stevens, 
    115 N.J. 289
    , 309, 304 (1989)); see also
    State v. Cofield, 
    127 N.J. 328
    , 341 (1992).
    An instruction also can be more effective when it explains itself.
    "Because I said so" is likely to be even less effective from a judge to a jury
    than it is from a parent to an eight-year-old. See Evidentiary Instructions at
    439 (stating, based on a review of empirical research, that instructions "work
    better when the judge gives the jury a reason to follow them"); 
    id. at 452
    (noting, subject to exception, that "[o]n the whole, mock jury studies do
    A-5096-14T1
    20
    suggest that evidentiary instructions are more apt to be followed if the judge
    explains the reason for the underlying rule"). 4
    Although trial judges may understandably try to avoid repeating and
    thereby reinforcing an offending remark, a court must describe it with enough
    specificity to enable the jury to follow the instruction. The instruction must be
    "clear enough [and] sharp enough to achieve its goal." Vallejo, 
    198 N.J. at 136-37
     (holding that an "instruction did not fulfill its purpose" where judge
    referred too generally to "things . . . blurted out that have nothing to do with
    this case").
    Third, a court must ultimately consider its tolerance for the risk of
    imperfect compliance.        See Bruton, 
    391 U.S. at 135
     (referring to
    "consequences of failure so vital to" a criminal defendant).       Yet, even in
    criminal cases involving errors of constitutional dimension, "not 'any'
    4
    Some of our evidence rules, such as those pertaining to hearsay, are designed
    to exclude inherently unreliable evidence. N.J.R.E. 802; State v. White, 
    158 N.J. 230
    , 238 (1999). Others, such as privileges, exclude probative evidence
    in service of other policy goals. See State v. Briley, 
    53 N.J. 498
    , 505-06
    (1969). This difference may affect compliance with a curative instruction. For
    example, a judge could explain in detail why our system excludes an
    incriminatory patient-to-physician statement – to encourage candor and protect
    privacy in the health-care relationship. See Snyder v. Mekhjian, 
    125 N.J. 328
    ,
    337 (1991). However, inasmuch as that explanation does not pertain to the
    evidence's probative value, it may be less successful in persuading a jury to
    disregard it, than, say, an explanation as to why a hearsay statement is
    inherently unreliable and should be disregarded.
    A-5096-14T1
    21
    possibility [of an unjust result] can be enough for a rerun of the trial." Winter,
    
    96 N.J. at 647
     (quoting State v. Macon, 
    57 N.J. 325
    , 336 (1971)).            "The
    possibility must be real, one sufficient to raise a reasonable doubt as to
    whether the error led the jury to a result it otherwise might not have reached."
    
    Ibid.
     (quoting Macon, 
    57 N.J. at 336
    ). By contrast, a non-constitutional error
    "shall be disregarded by the appellate court 'unless it is of a nature as to have
    been clearly capable of producing an unjust result.'" Id. at 648 (quoting State
    v. LaPorte, 
    62 N.J. 312
    , 318-19 (1973)).
    The United States Supreme Court has required an "overwhelming
    probability" that the jury cannot comply, in order to conclude a curative
    instruction was inadequate. Greer v. Miller, 
    483 U.S. 756
    , 766 n.8 (1987)
    ("We normally presume that a jury will follow an instruction to disregard
    inadmissible evidence inadvertently presented to it, unless there is an
    'overwhelming probability' that the jury will be unable to follow the court's
    instructions, and a strong likelihood that the effect of the evidence would be
    'devastating' to the defendant." (citing Richardson, 
    481 U.S. at 208
    ; then citing
    Bruton, 
    391 U.S. at 136
    )). We note that our own Supreme Court has not
    expressly adopted the "overwhelming probability" standard.
    A-5096-14T1
    22
    C.
    Applying these principles, we are constrained to conclude that the court's
    instructions did not cure the prejudicial impact of the detective's inadmissible
    statements that defendant was a gang member and the homicide occurred in a
    gang area.    We reach this conclusion in large part because the judge's
    instructions missed the mark. It is one thing to assume jury compliance with a
    well-crafted curative or limiting instruction.     It is quite another to assume
    compliance with an instruction that fails to clearly and sharply address the
    prejudicial aspect of the inadmissible evidence. An instruction can be curative
    only if the judicial medicine suits the ailment.
    The detective's gang references were prejudicial.       They may not be
    minimized as "fleeting comments" that likely escaped the jury's notice. Cf.
    Jackowitz v. Lang, 
    408 N.J. Super. 495
    , 505 (App. Div. 2009) ("Fleeting
    comments, even if improper, may not warrant a new trial, particularly when
    the verdict is fair."). Each time the detective referred to gangs, the trial came
    to an abrupt halt. The second time, when the detective called defendant a gang
    member, the jury gasped, according to defense counsel at sidebar.            The
    assistant prosecutor contended the gasp followed his own loud reaction to the
    detective's statement. Either way, the detective's comment was not missed.
    A-5096-14T1
    23
    The comments filled a hole in the State's case: defendant's motive for
    killing Claudio. The State argued that defendant was retaliating for the beating
    he received a week earlier. But, that theory had a problem. The target was not
    the person who did the beating. Inserting the gang element provided a reason
    for the killing. The jury could conclude that the homicide arose out of a gang
    conflict involving both Claudio and Torres.
    The second comment was particularly prejudicial because it directly
    tarred defendant as a gang member.         In holding that evidence of gang
    membership was properly analyzed under N.J.R.E. 404(b) as evidence of other
    crimes and wrongs, we observed that "membership in a street gang . . . is at the
    very least strongly suggestive of" criminal activity. Goodman, 
    415 N.J. Super. at 227
    . A "mere . . . allegation[] of gang membership carries a strong taint of
    criminality." 
    Ibid.
     (quoting United States v. Acosta, 
    110 F. Supp. 2d 918
    , 931
    (E.D. Wis. 2000)). Evidence of past criminality risks conviction because the
    jury may conclude defendant is a bad person with a propensity to commit
    crimes. State v. Skinner, 
    218 N.J. 496
    , 514 (2014); State v. Rose, 
    206 N.J. 141
    , 180 (2011) (citing United States v. Green, 
    617 F.3d 233
    , 248-49 (3d Cir.
    2010)).   "There is widespread agreement that other-crime evidence has a
    unique tendency to turn a jury against the defendant.       'The likelihood of
    prejudice is acute when the proffered evidence is proof of a defendant's
    A-5096-14T1
    24
    uncharged misconduct.'"      Stevens, 
    115 N.J. at 302
     (quoting Edward J.
    Imwinkelried, The Need to Amend Federal Rule of Evidence 404(b): The
    Threat to the Future of the Federal Rules of Evidence, 
    30 Vill. L. Rev. 1465
    ,
    1487 (1985)).
    The judge's instructions following the gang references missed the target.
    In response to Crawley's first mention of gangs, the court did not address the
    issue at all. Rather, the judge focused on the fact that Crawley was speculating
    about why teenagers did not, or would not, want to cooperate. So, the jury was
    free to use the testimony that gangs were rampant in the area for another
    purpose: that the crime charged was somehow related to gangs.
    The judge's instruction following the second mention only partly
    addressed the prejudice of Crawley's comment that defendant was a gang
    member. The judge said, "[T]here's no information in this case whatsoever
    there's any gangs involved in this case." First, this statement was inaccurate,
    because the detective testified both that the playground was a gang area –
    which the court did not strike – and that defendant, a gang member, was
    involved. Also, the court's assertion that there was "no information in this
    case" about gang involvement did not contradict the truth of the detective's
    statement.
    A-5096-14T1
    25
    At best, the jury could understand the judge's statement to mean there
    was no evidence that a gang had ordered the homicide or the homicide arose
    out of a gang rivalry.    But the judge's statement did not directly address
    defendant's membership, which conveyed the taint of criminality and
    propensity to commit crimes. 5 Further, the court's direction that the jury not
    consider the "gang situation" suffered from vagueness.
    The judge also asserted, as a fact, that Detective Crawley's statement
    about defendant was "unintentional."        But the court's fact-finding lacked
    evidence in the record. 6 It was also inappropriate, because it bolstered the
    detective's credibility in the juror's minds.    The jury was more likely to
    consider the statement to be true because it was unintentional.7
    5
    In other words, even if the instructions effectively removed the shadow of
    gang involvement from the homicide, it did not remove it from the defendant
    himself. To illustrate, if a defendant were charged with domestic violence
    against his girlfriend, mentioning the defendant's involvement in a gang –
    though totally unrelated to the alleged violence – would still prejudice the
    defendant. It would convey to the jury that he was a bad person who regularly
    engaged in acts of criminality and violence – that is, a person capable and
    prone to commit the crime charged.
    6
    If anything, the record would have supported the opposite conclusion, given
    the prosecutor's statement that he expressly warned each witness to avoid the
    subject of gangs, and the detective's reference to defendant's alleged gang
    membership was his second misstep.
    7
    To increase the likelihood the jurors would actually disregard the detective's
    statement, the judge could have explained that giving it weight would disserve
    (continued)
    A-5096-14T1
    26
    (continued)
    the fact-finding function, and would unfairly prejudice their view of defendant.
    To further guard against misuse, the court should have provided a warning
    akin to that accompanying admissible Rule 404(b) evidence. For example, the
    judge could have stated:
    Ladies and gentlemen, you just heard Detective
    Crawley mention that defendant is a member of a
    gang. I am striking that statement, and direct you to
    disregard it and give it no weight whatsoever. Let me
    explain why.
    First, the statement is unsupported by any evidence in
    this case. Regardless of whether the detective actually
    believes what he says, his statement may be based on
    hearsay, or rumor, or mistaken information. It would
    be unfair to defendant, and wrong for you to credit the
    detective's statement without proof, without evidence.
    Without proof, it is nothing more than an allegation.
    You are obliged to make fact-findings based not on
    allegations, but on the evidence presented in this
    courtroom, and only that evidence, in accord with the
    instructions I give you. There has been, and will be
    no evidence that gangs were involved in this
    homicide, or defendant is himself a gang member.
    The detective's statement by itself is not evidence.
    Second, because we knew in advance that there would
    be no evidence in this trial to support the detective's
    statement, the detective was directed not to mention
    gangs. He did so anyway, in violation of my
    direction. You should disregard his statement.
    Third, you must not conclude, based on the detective's
    unsupported statement, that defendant is a bad person,
    or that he was more likely to commit the crimes
    charged based on the detective's characterization of
    (continued)
    A-5096-14T1
    27
    As a result of these deficiencies, the risk of the jury's non-compliance
    with the court's instructions was intolerably high. The State's case was far
    from overwhelming, as it depended on the often-inconsistent testimony of two
    eyewitnesses.     The trial judge recognized, in the course of one side-bar
    discussion, that this was a "very close case."       And in the colloquy after
    Crawley's second gang reference, specifically alleging defendant was a gang
    member, the judge stated that if there were further errors, the State would be
    "bordering on a mistrial."
    The question before us is not whether comprehensive and well-targeted
    instructions could have cured the taint of the inadmissible references to gangs
    (continued)
    him. The statement is unsupported and should be
    given no weight.
    While I am on the subject, I also direct you to
    disregard and give no weight to the detective's
    statement that the neighborhood near the school is a
    "high gang area." The detective provided no evidence
    to support that statement. That statement also violated
    my direction that unsupported statements about gangs
    were prohibited. It would be unfair and wrong for you
    to conclude that the alleged presence of gangs in the
    area provided a reason for the homicide, or supported
    a finding that defendant committed it.
    To repeat, the statements regarding gangs are
    unsupported; it would be unfair and wrong if you gave
    them any weight; and I direct you to disregard them.
    A-5096-14T1
    28
    and to defendant's gang membership. The instructions did not fully and clearly
    address the prejudicial aspects of the testimony.
    Therefore, we conclude that the gang references caused substantial
    prejudice, which the judge's instructions did not cure. On this basis, we are
    constrained to reverse the conviction. Given our conclusion on this point, we
    need not address in this opinion whether the court erred in its instructions on
    the subject of the eyewitnesses' use of pseudonyms and expressions of fear. 8
    As for the other issues raised on appeal in the counseled and pro se
    briefs challenging the conviction, we find they lack sufficient merit to warrant
    discussion.    R. 2:11-3(e)(2).   We add that Crawley's explanation for the
    differences in the eyewitnesses' description would have been inappropriate
    opinion testimony; but defense counsel opened the door to the subject by
    challenging Crawley's reasons for obtaining an arrest warrant despite the
    differences.
    Reversed and remanded for a new trial. We do not retain jurisdiction.
    8
    However, Judge Ostrer comments on this subject in an unpublished
    concurrence.
    A-5096-14T1
    29
    ___________________________________
    OSTRER, J.A.D., concurring.
    The gang references provide a sufficient basis for reversal.       I write
    separately because I believe the prejudice from the gang references was
    compounded by the repeated references to Arce and Maldonado as "Jane Doe";
    and Arce's testimony that she delayed speaking to police and used a
    pseudonym because she feared retaliation against her and her family. When
    supported by competent evidence, attempts to tamper or intimidate a witness
    may well establish a consciousness of guilt that is probative of the underlying
    charges. Goodman, 
    415 N.J. Super. at 232
    . Although the State presented no
    evidence that defendant did anything to intimidate either witness, the use of
    pseudonyms and testimony about fear created the risk that the jury would find
    that such intimidation occurred here.
    The timing and specificity of the judge's instructions were also ill-suited
    to the prejudice created. As a matter of timing, the judge refused to provide
    any instruction in response to the use of "Jane Doe" or Arce's expression of
    fear while Arce and Maldonado testified. Only after the two eyewitnesses
    were off the stand, in the midst of the curative instruction prompted by
    Crawley's second gang reference, did the judge add an instruction about the
    use of pseudonyms. The judge himself conceded that perhaps he should have
    addressed the issue earlier. By that time, jurors may have cemented in their
    minds the ideas that (1) defendant did something to cause fear and to prompt
    the eyewitnesses to seek anonymity; and (2) defendant acted that way because
    he was conscious of his guilt.
    The judge's instruction was also poorly focused. The judge said the
    eyewitnesses simply "wanted to keep their identity private," but then seemed
    to attribute the use of pseudonyms to police procedure, stating "the Jane Doe
    situation is routine police work repeatedly in these kind of cases, it's just done
    that way." The judge did not address the reasons why the witnesses wanted
    anonymity. Arce said she was afraid. An officer testified he heard she was
    afraid of retaliation.
    Nor did the judge explain why police routinely gave witnesses
    pseudonyms.     The factual basis for the court's statement is unclear, as the
    police officers who presented the photo arrays to Arce and Maldonado did not
    testify that the use of pseudonyms was "routine." Most importantly, the judge
    did not instruct the jury that there was no evidence that defendant had
    intimidated or tampered with the witnesses, and they should not use the
    evidence of the witnesses' desire for anonymity, and any fear they experienced,
    as evidence of defendant's consciousness of guilt.
    A-5096-14T1
    2
    The repeated use of the pseudonyms, and the references to fear of
    retaliation, provided indirect support for the statements that defendant
    belonged to a gang, and gangs were present in the area. Jurors did not need to
    hear from an expert to know that gang members might intimidate those who
    assist the police against them.
    Once the court permitted the testimony that Arce delayed going to police
    out of fear and both witnesses utilized pseudonyms, it was incumbent upon the
    court to limit the use of such testimony, by instructing the jury that there was
    no evidence that defendant had intimidated or threatened them. The court's
    omission provides additional grounds for granting defendant a new t rial.
    A-5096-14T1
    3