State of New Jersey v. Rolando Terrell ( 2017 )

                                      SUPERIOR COURT OF NEW JERSEY
                                      APPELLATE DIVISION
                                      DOCKET NO. A-0492-11T4
         Plaintiff-Respondent,              APPROVED FOR PUBLICATION
                                               NOVEMBER 29, 2017
                                              APPELLATE DIVISION
             Submitted September 17, 2015 - Decided May 3, 2016
             Before Judges Lihotz, Fasciale and Higbee.
             On appeal from Superior Court of New Jersey,
             Law Division, Essex County, Indictment Nos.
             09-07-2029 and 09-07-2032.
             Joseph E. Krakora, Public Defender, attorney
             for appellant (Alison S. Perrone, Designated
             Counsel, on the brief).
             Carolyn A. Murray, Acting Essex County
             Prosecutor, attorney for respondent (Lucille
             M. Rosano, Special Deputy Attorney General/
             Acting Assistant Prosecutor, on the brief).
         Defendant Rolando Terrell appeals from convictions under
    two indictments.   The first, Indictment No. 09-07-2029, charged
    him with numerous crimes regarding the September 8, 2008 arson,
    robbery, and murders of four victims.   Co-defendant Lester Hayes
    was charged in the first fifteen counts of this indictment. 1                      The
    second, Indictment No. 09-07-2032, charged defendant with the
    single    count     of    second-degree       possession    of   a    weapon    by    a
    certain persons not to possess weapons, N.J.S.A. 2C:39-7(b).
          During defendant's trial, Hayes, who pled guilty pursuant
    to a negotiated plea agreement, testified on behalf of the State
    as   to   the    events      underlying   the    charges    against     defendant.
    Following       trial,   a   jury   acquitted     defendant      of   some   crimes,
    convicted him of others, and hung on the counts charging murder
    and one weapons offense.            Immediately thereafter, a second trial
    was held, limited to the certain persons offense in the separate
    indictment; the jury found defendant guilty.                  Defendant was then
    sentenced.         Defendant     appealed      from   the   final     judgment       of
         An Essex County Grand Jury charged defendant, under
    Indictment No. 09-07-2029, with: second-degree conspiracy to
    commit robbery, N.J.S.A. 2C:5-2 (count one); two counts of
    first-degree robbery, N.J.S.A. 2C:15-1 (counts two and three);
    four counts of first-degree knowing and/or purposeful murder,
    N.J.S.A. 2C:11-3(a)(1) and (2) (counts four, five, six and
    seven); four counts of first-degree felony murder, N.J.S.A.
    2C:11-3(a)(3) (counts eight, nine, ten and eleven); second-
    degree unlawful possession of a handgun on September 8, 2008,
    N.J.S.A. 2C:39-5(b) (count twelve); second-degree possession of
    a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count
    thirteen); second-degree conspiracy to commit aggravated arson,
    N.J.S.A. 2C:5-2 and 2C:17-1(a)(1) and (2) (count fourteen);
    second-degree aggravated arson, N.J.S.A. 2C:17-1(a)(1) and (2)
    (count fifteen); third-degree defacing a handgun, N.J.S.A.
    2C:39-9(e)   (count   sixteen);   and  second-degree   unlawful
    possession of a handgun, N.J.S.A. 2C:39-5(b) (count seventeen).
    Count seventeen was severed at trial.
                                              2                                  A-0492-11T4
    conviction and argued the sentence imposed was excessive.                       His
    challenges are presented under Docket No. A-0492-11.
        While this appeal was pending, the State retried defendant
    on the murder and weapons defacement charges.                       Defendant was
    convicted    of   the    four   murder       charges   and   acquitted    of    the
    weapons charge.       Defendant appeals from the convictions and the
    sentences imposed for these crimes.               The challenges raised are
    presented under Docket No. A-1593-12.
        We    calendared      the   matters      back-to-back     and    address    the
    issues raised in both appeals in one opinion.                       Following our
    review of the arguments, in light of the record and applicable
    law, we affirm.
        These facts are taken from the trial records.                      Initially,
    we recite the facts leading to defendant's indictment, followed
    by the results of the trial and retrial.                   Next, we separately
    discuss     defendant's     arguments        challenging     his     convictions.
    Additional    facts     specific   to    defendant's     arguments     raised    on
    appeal will be included in the discussion of each argument.
        Michael       Fields,   his    daughter,       his   girlfriend      (Fields'
    girlfriend), her daughters and grandchild lived at a residence
    on Columbia Avenue in Irvington.              Fields, an avowed member of a
                                             3                               A-0492-11T4
    gang, was a drug dealer and worked with gang associates James
    Williams and Kevin Wigfall.            Fields openly stated he kept drugs
    and sales proceeds in his home.
           Although Fields was imprisoned, he remained in contact with
    his    girlfriend,     Williams    and        Wigfall.        Fields    also     knew
    defendant.      Five days prior to the September 8, 2008 murders,
    Fields called his home and defendant answered the phone.
           Other witnesses confirmed defendant visited the Columbia
    Avenue residence prior to the murders and fire.                  One resident of
    the home (the survivor) testified regarding defendant's visit in
    early August, accompanied by Williams and Wigfall, and again
    approximately two weeks before the murders.                   During this latter
    meeting Fields' girlfriend, the survivor, and defendant sat in a
    1997   red    Jeep   Grand   Cherokee.         Defendant     questioned    Fields'
    girlfriend,     who    related     a     threatening        telephone    call    she
    received and stated she was considering moving.
           On the morning of September 8, 2008, Hayes was waiting at a
    bus    stop   when    defendant,       driving   a    red    Jeep,     stopped    and
    motioned him to get in the vehicle.                  Hayes knew defendant from
    prison and believed defendant was offering him a ride to his
    mother's home.        Once in the vehicle, defendant told Hayes, "we
    getting [sic] ready to go do this robbery now."                         Hayes told
    defendant he was not interested, but defendant replied, "Nah, we
                                              4                                A-0492-11T4
    getting [sic] ready to do it right now."              Hayes understood he
    was to accompany defendant.
          The pair drove to and parked across the street from the
    Columbia Avenue apartment.        Defendant told Hayes he intended to
    rob the home, admitting he knew "the girl that lives [t]here,"
    and   knew   her   boyfriend    was   in   prison.      Defendant    stated:
    "Everything is going to be all right, Mu.            You know, we going to
    go in here [sic], and get this money, and get this shit, and
    come out, and it's going to be real easy."
          Defendant handed Hayes an empty Corona bottle.                Next, he
    retrieved a gas container from the rear of the Jeep, took the
    bottle, filled it with liquid, put a sock around the top and
    handed the filled beer bottle back to Hayes.               Defendant also
    showed Hayes a loaded black automatic handgun.
          The pair exited the Jeep and headed to Fields' girlfriend's
    apartment.    As defendant followed Hayes up the stairs, he placed
    the beer bottle in Hayes' back pocket and covered the bottle
    with Hayes' shirt.       Fields' girlfriend answered the door and
    recognized defendant.     Defendant introduced Hayes as "Uncle Mu"
    and Fields' girlfriend         allowed them to enter.        Once inside,
    Hayes described defendant's interaction with Fields' girlfriend
    this way:
                 [Defendant] turned and asked, you know,
                 like, "Is everything still all right in
                                          5                              A-0492-11T4
                here," you know, inquiring about, you know,
                where's the drugs at, and stuff, if they're
                still here, and that's when it took a turn,
                because she was like, "Nah, they came and
                got it last night, yesterday," or whatever,
                and he was like, "Nah, it's still here,"
                like, he knew it was still in the house, and
                she was trying to tell him, like, no, it
                wasn't in there, and they . . . kept going
                back and forth, and he's, like, "I know it's
                in here," and she's like, "Nah, nah, it's
                not in here, it's not in here."
    Fields'    girlfriend   became   hysterical     and   defendant     grew   more
    aggressive    and   insistent    drugs   were   in    the   home.     As    the
    argument continued, defendant "reached behind him and pulled the
    gun out, and put it on her neck, and was like, 'I know it's in
    here.     Bitch, I know it's in here.'"         Hayes explained defendant
    continued to push Fields' girlfriend and hold the gun at her
    neck, demanding she turn over the drugs.
                [A]ll of a sudden . . . [w]hen [defendant]
                pushed her for the last time, she backed up,
                and reached and grabbed something, like a
                little bag, like a billfold or something
                like that, and said, "Here, take it."    She
                threw – she must have threw [sic] it at him,
                because it bounced, and it hit him, and it
                fell, and it was a little – some money. It
                just hit the floor.
    Defendant retrieved the object.
        Hayes believed defendant obtained what he wanted and moved
    to exit the residence.       Defendant grabbed the beer bottle from
    Hayes' rear pocket.      Hayes heard defendant say he was "tired of
    you bitches."       He turned and saw defendant pull the sock from
                                         6                                A-0492-11T4
    the bottle and splash its contents throughout the room.                       As
    Hayes left the house he heard a gunshot.             He walked across the
    street and recalled hearing a total of four or five gunshots.
    When he saw defendant exit, Hayes saw smoke coming from the
    windows of the home.
          The survivor, who had described the earlier meeting held in
    the Jeep with defendant and Fields' girlfriend, awoke and heard
    a man's voice saying "'Where's it at?             Where's it at?      You know
    what I'm looking for.'"        She told police she heard only one male
    voice,   which     "wasn't    old,    and    it   wasn't    young,"    perhaps
    belonging to someone in his twenties or thirties.              She described
    the voice as "anxious," and sounded like the man "was stopped
    up,   like   he   had   a   cold."    When    interviewed    that     day,   she
    believed the voice was familiar but she was unable to identify
    the person; she believed she could identify the voice if she
    heard it again because she heard the man talking throughout the
          During the altercation, the survivor hid in her closet and
    attempted to call for help.2         When she first tried to escape, she
    stopped after she heard the front door close.                 However, when
    smoke alarms sounded and smoke from the living room filled the
         The initial 9-1-1 call was disconnected and repeated calls
    were made, all of which were played for the jury.
                                           7                               A-0492-11T4
    apartment, she grabbed her young nephew, ran out the back door
    and began screaming for help.
             As Hayes stood across the street, he saw defendant leave
    the apartment and enter the Jeep.                 Defendant picked up Hayes and
    the two drove toward East Orange.                      Defendant told Hayes, "'I
    don't     need    no    codefendants,     Mu.'"         Defendant     told    Hayes   he
    wanted to go to Brooklyn, New York.                     Hayes agreed to get him
    there.     As they drove, defendant pointed to a tattoo on his neck
    and Hayes knew defendant was a gang member.                           Defendant told
    Hayes: "'Yeah, Mu, I love this shit right here, I'd die for
    it,'"     which    Hayes   realized       meant    he    "couldn't     tell   on   him,
    because he was part of the . . . gang, and they'll come get me
    if   I    did,    you   know,    'cause    they    –    they're   a   vicious      group
    . . . ."          Hayes testified he felt nervous, but did not want
    defendant to suspect he might inform authorities.                      While stopped
    in traffic, defendant told Hayes to toss the near empty Corona
    bottle from the Jeep window; defendant also threw out the sock.
             During the drive, Hayes received several calls from his
    girlfriend.         For defendant's benefit, he pretended the calls
    were from his mother and informed defendant he was late, as he
    promised his mother he would help her get to work.                            To avoid
    revealing his home address, Hayes asked defendant to stop at a
    location     other      than    his   residence.        As   he   exited     the   Jeep,
                                               8                                   A-0492-11T4
    defendant handed Hayes $200, repeating:         "'You know, I don't
    need no codefendants now.'"     Hayes took the money "so . . . it
    wouldn't look like, you know, like, I would tell on him or
    anything."      Hayes assured defendant: "'Yeah, all right, Man,
    I'll see you later . . . .'"
         The next day, after consulting with his attorney, Hayes
    voluntarily surrendered to police.     He did not know defendant's
    name, but described him and chose defendant's photograph from an
    array.   He also made an in-court identification.
         The State also presented evidence from neighbors.      One, who
    was across the street, heard two gunshots and observed "two or
    three" Afro-American men running from a residence and enter a
    red "truck."3    The witness reported the fire located in the house
    across the street from where the red vehicle was parked.          The
    following day, the witness was interviewed by police and chose
    defendant's photograph from an array, identifying him as one of
    the men observed running from the house after gunshots were
    heard.       During   trial,   the    witness   made   an   in-court
    identification of defendant and also identified a photograph of
    the red Jeep, stating it was the "red truck" she saw parked on
    Columbia Avenue on September 8, 2008.     On cross-examination, the
         The witness did not testify during defendant's retrial.
                                      9                         A-0492-11T4
    witness advised overhearing another neighbor refer to one of the
    men as "Mu."
           A different neighbor described seeing an orange Jeep at 7
    a.m. parked on Columbia Avenue on the morning of September 8,
    2008, as he exited his driveway.               The windows were tinted and he
    could tell only that someone was inside the vehicle.
           Firefighters      were   dispatched       between    7:40   and    7:50    a.m.
    Fields' girlfriend and another were dead, after being shot in
    the head; two others, although shot in the head, were alive;
    however, they later succumbed to their injuries.
           On September 10, 2008, while relating the events to her
    boyfriend,     the    survivor    suddenly       realized   she    recognized     the
    man's voice she heard on the morning of the shootings.                            The
    following day police brought her in for additional questioning.
    In a taped statement, she told police she was "a hundred percent
    positive that [she] knew who it was," naming defendant, whom she
    knew   as   "Unc."        She    was    shown     photographs      and    identified
    defendant's picture as "Unc."              She also identified photographs
    of Williams and Wigfall.               At trial, the survivor insisted she
    initially      told   police     she     could    recognize       the    voice,   but
    conceded that remark was not in her September 8, 2008 statement.
           Essex    County    Prosecutor's         Office   Detective        Christopher
    Smith testified regarding his involvement in law enforcement's
                                              10                                A-0492-11T4
    investigation, beginning on the morning of September 8, 2008.
    He confirmed he first spoke to the survivor that morning and she
    told him she recognized the voice, which was familiar, but was
    unable to identify the man.               He also confirmed the survivor
    subsequently identified defendant as the one she heard screaming
    at Fields' girlfriend.          Police obtained a search warrant for the
    Jeep and an arrest warrant for defendant.                Defendant surrendered
    to police on September 13, 2008.
          Detective     Kenneth     Dougherty    was   called    by   the     State    to
    testify regarding an unrelated Essex County Prosecutor's Office
    investigation conducted in conjunction with the Drug Enforcement
    Administration (DEA).          Police monitored an authorized wiretap of
    the phone of Bengie Davis, who engaged in calls with defendant,
    Williams,     and    Wigfall,     which      implicated     knowledge       of     or
    involvement in the murders.
          Davis   testified,       prior   to    September      8,    2008,    he     met
    defendant in a Newark bar, where the two were drinking.                          When
    defendant began "acting out of control" and firing a gun in the
    air, Davis took the weapon and kept it at his residence.                           He
    described the weapon as a black nine-millimeter handgun with a
    red dot on its side.           Davis said defendant "just kept calling
    me,   harassing     me   for    it,"   meaning     his   gun.      Specifically,
    defendant called Davis on September 7, 2008, when Davis told him
                                            11                                 A-0492-11T4
    he was "inpatient [sic] as hell."                       Defendant told Davis he was
    "meaning        .    .   .    to     come    through    and     get    it,"        which    Davis
    interpreted to mean defendant would be coming to get the gun.
    Davis confirmed defendant came to his apartment on September 7,
    2008,     and       Davis     returned       the   gun.       Also,        Davis    identified
    defendant's voice in calls he received that were played for the
           Davis further admitted he knew Williams and Wigfall and
    they were fellow gang members.                       He also knew defendant drove a
    Jeep     Cherokee,           which     he    believed     was     owned       by     Williams.
    Finally, he acknowledged he was testifying as a condition of a
    negotiated          plea      agreement        resolving        narcotics          trafficking
           Police        recovered         an     operable     defaced          Hi-Point        nine-
    millimeter          handgun        from     another    person.         Four       spent     shell
    casings recovered from Columbia Avenue were determined to have
    been     fired       from     the    handgun,      confirming         it    was    the     murder
         Among the wiretapped recordings played for the jury were:
    (1) session 2050: a September 7, 2008 call at 10:03 p.m. from "a
    gentleman who referred to himself as Uncle Rat in one of the
    prior sessions, and . . . Davis"; (2) session 2051: a September
    7, 2008 call at 10:05 p.m., between Davis and someone
    identifying himself as Uncle Rat; (3) session 2052: a September
    7, 2008 call at 10:08 p.m. between Davis and someone identifying
    himself as Uncle Rat; (4) session 2057: a September 7, 2008 call
    at 10:24 p.m., between Davis and "Mizi," who was Williams; (5)
    session 2058: a September 7, 2008 call at 10:25 p.m., between
    Williams and Davis.
                                                    12                                       A-0492-11T4
    weapon.        Davis testified this nine-millimeter handgun was the
    same gun with the red dot he had taken from and later returned
    to defendant on September 7, 2008.
          The State presented expert testimony regarding the fire,
    its origination and cause.             A forensic chemist, qualified as an
    expert    in    fire     debris     analysis,    identified     the   presence    of
    volatile substances on the victims' clothing, the clothing Hayes
    wore on September 8, 2008, and in the Jeep.                      The State also
    called a street gang expert.
          Defendant presented testimony from a private investigator,
    who had measured distances from the Columbia Avenue address to
    the testifying neighbor's homes.                  Although a pretrial ruling
    permitted       a    defense   expert      to    testify   in   specified     areas
    regarding the accuracy and reliability of voice identification
    evidence, defendant called no other witnesses and offered no
          On April 12, 2011, the jury rendered its verdict after
    considering the evidence presented over fifteen days of trial.
    The   jury     acquitted     defendant     of    first-degree    robbery    of   one
    victim (count three) and second-degree aggravated arson (count
    fifteen), but convicted him of first-degree robbery of Fields'
    girlfriend          (count   two)    and   the    second-degree       offenses     of
    conspiracy to commit robbery (count one), unlawful possession of
                                               13                              A-0492-11T4
    a   handgun    (count      twelve),     possession         of     a    handgun    for    an
    unlawful   purpose      (count       thirteen),      and    conspiracy       to    commit
    arson (count fourteen).             The jury was unable to render a verdict
    on all murder charges (counts four through eleven), as well as
    possession of a defaced firearm (count sixteen).                          Finally, in a
    separate      trial,    the     same    jury      convicted          defendant    of    the
    separately       charged      certain      persons    not       to     possess    weapons
           At sentencing, on the State's motion, the judge determined
    defendant was a habitual offender.                   After merger, he imposed a
    life term of imprisonment on count two subject to the parole
    ineligibility      period      of    the     No   Early         Release    Act    (NERA),
    N.J.S.A. 2C:43-7.2; a concurrent twenty-year term, with a ten-
    year    period     of   parole       ineligibility         on     count    thirteen;       a
    concurrent ten-year term subject to NERA and a mandatory five-
    year parole supervision on count fourteen; and on the possession
    of a weapon by certain persons not to possess weapons conviction
    in the separate indictment, a consecutive ten-year term, subject
    to a five-year parole ineligibility period.                       Defendant filed an
    appeal from these convictions (Docket No. A-0492-11).
           Defendant was re-tried by a jury on the four murder, four
    felony murder and the firearm defilement charges (counts four
                                                14                                    A-0492-11T4
    through eleven and sixteen).         The State's evidence was largely
    identical to what was presented in the first trial.
        On July 11, 2012, the second jury found defendant guilty of
    all eight homicide counts, but acquitted him on the weapons-
    defilement    count.    After     merger,    he   was    sentenced     to   four
    consecutive seventy-five-year terms, subject to NERA, and five
    years of parole supervision upon release.                The sentences were
    ordered to be served consecutively to the life sentence imposed
    on the initial conviction.5        Defendant appealed (Docket No. A-
        On     appeal   defendant    raises     several     issues   for   review.
    First, in appealing his initial conviction, docketed at A-0492-
    11, he argues:
                POINT ONE
                EVIDENCE    REQUIRES    THE   REVERSAL    OF
                POINT TWO
                A FAIR TRIAL.
         The    State   moved   to   dismiss    count     seventeen,   which     was
                                         15                                A-0492-11T4
             POINT THREE
             AN ACCOMPLICE.
    Second, in appealing his initial conviction on retrial, docketed
    at A-1593-12, defendant argues:
             POINT ONE
             [RULE] 1:8-2(d), AND THE JURORS HAD ALREADY
             V, VI, XIV; N.J. CONST. (1947) ART. I, [¶¶]
             1, 9, 10.
             POINT TWO
             A FAIR TRIAL.
             POINT THREE
             POINT FOUR
             TOLUENE    AND     D5    WAS   IRRELEVANT   AND
             BEEN ADMITTED AT   TRIAL.
             POINT FIVE
                                      16                       A-0492-11T4
          We will address these issues seriatim.               Where appropriate,
    we will include additional factual context and combine similar
          Defendant asserts several arguments challenging evidentiary
    determinations made by the trial judge.               Specifically, defendant
    cites as error:       (1) the exclusion of defense expert testimony
    evaluating the reliability of voice identification evidence; (2)
    the   admission      of     what    he     characterizes      as   the    State's
    prejudicial,     irrelevant        gang    expert    evidence;     and   (3)    the
    admission of the State's misleading expert testimony pertaining
    to the chemicals Toluene and D5.
          Generally,     when    reviewing      the   admission   or   exclusion     of
    evidence, appellate courts afford "[c]onsiderable latitude" to a
    trial judge's determination, examining "the decision for abuse
    of discretion."       State v. Kuropchak, 
    221 N.J. 368
    , 385 (2015)
    (alteration in original) (quoting State v. Feaster, 
    156 N.J. 1
    82 (1998), cert. denied, 
    532 U.S. 932
    121 S. Ct. 1380
    , 149 L.
    Ed. 2d 306 (2001)); see also State v. Jenewicz, 
    193 N.J. 440
    456   (2008)     (stating     "the       abuse-of-discretion       standard"     is
    applied    "to   a   trial    court's      evidentiary   rulings     under     Rule
    702").     Importantly,       "[u]nder      th[is]   standard,     an    appellate
                                              17                              A-0492-11T4
    court should not substitute its own judgment for that of the
    trial court, unless 'the trial court's ruling was so wide of the
    mark that a manifest denial of justice resulted.'"                 Kuropchak,
    supra, 221 N.J. at 385-86 (quoting State v. Marerro, 
    148 N.J. 469
    , 484 (1997)).
                 Expert testimony is admissible if it meets
                 three criteria:
                     (1) the intended testimony must
                     concern a subject matter that is
                     beyond the ken of the average
                     juror; (2) the field testified to
                     must be at a state of the art such
                     that an expert's testimony could
                     be sufficiently reliable; and (3)
                     the witness must have sufficient
                     expertise to offer the intended
                 [State v. Henderson, 
    208 N.J. 208
    , 297
                 (2011) (quoting Jenewicz, supra, 193 N.J. at
          When   considering     proffered   expert    testimony,      the   trial
    court exercises discretion in determining "[t]he necessity for,
    or propriety of, the admission of expert testimony, and the
    competence of such testimony."       State v. Zola, 
    112 N.J. 384
    , 414
    (1988), cert. denied, 
    489 U.S. 1022
    109 S. Ct. 1146
    103 L. Ed. 2d
       205   (1989).    "The    qualifications      of   an    expert   and   the
    admissibility of opinion or similar expert testimony are matters
    left to the discretion of the trial court."                 State v. McGuire,
    419 N.J. Super. 88
    , 123 (App. Div.) (citing State v. Torres, 183
                                        18                                A-0492-11T4
    N.J. 554, 572 (2005)),       certif. denied, 
    208 N.J. 335
    State v. Summers, 
    176 N.J. 306
    , 312 (2003).
         Finally, "[t]he party offering the evidence has the burden
    of proof to establish its admissibility."         Torres, supra, 183
    N.J. at 567.
                The proponent of expert testimony must
                demonstrate that it would "enhance the
                knowledge and understanding of lay jurors
                with respect to other testimony of a special
                nature normally outside of the usual lay
                sphere."   State v. Kelly, 
    97 N.J. 178
    , 209
                (1984) (quoting State v. Griffin, 120 N.J.
                Super. 13, 20 (App. Div. 1972)).          In
                addition, the proponent must demonstrate
                that   the   expert's  testimony  would   be
                reliable. Id.
                [State v. J.Q., 
    252 N.J. Super. 11
    , 25 (App.
                Div. 1991), aff'd 
    130 N.J. 554
         On appeal, defendant does not contest the denial of his
    Wade challenges.6     Rather, defendant sought to introduce expert
    testimony from Steven Penrod, Ph.D., a research psychologist and
    licensed attorney, identifying factors affecting the reliability
    of   what   he   termed   "earwitness"   identification.   Defendant
         A separate Wade hearing was conducted to examine whether
    police   identification    procedures    undergirding    the   six
    identification    witnesses     suffered     from    impermissible
    suggestibility. See United States v. Wade, 
    388 U.S. 218
    , 87 S.
    Ct. 1926, 
    18 L. Ed. 2d 1149
     (1967).       Specifically, the judge
    considered defendant's challenges to the reliability of the
    survivor's testimony regarding her recognition of the voice she
    heard yelling at her mother on the morning of the murders.
                                      19                         A-0492-11T4
    proffered his expert would inform the jury of relevant social
    science studies and experiments conducted by others regarding
    the potential for misidentification, designed to aid evaluation
    of   the     reliability     of    the        survivor's    voice       recognition
          Following       an   N.J.R.E.      104      hearing    to       discern     the
    admissibility of the expert's proffered testimony, the judge, in
    a written opinion, reviewed each of the eleven areas set forth
    in   Dr.   Penrod's    report.7        The    judge   concluded       the   expert's
    opinion    was    admissible      in   part     to    address     the   scientific
    evidence     concerning      factors          affecting     the       accuracy     of
    identifications.           The     judge       determined       the     limits     of
    admissibility, deeming certain subjects inadmissible for reasons
    including: the expert was found not qualified to address the
    area; the testimony risked misleading the jury; the concepts
    related matters of common sense; and the opinion tended to tread
    on the jury's credibility determinations.
          Defendant argues "the limited nature of testimony permitted
    under the [c]ourt's ruling" neutralized the effectiveness of Dr.
    Penrod as an expert and amounted to reversible error.                        We are
    not persuaded.
          The report is not included in the appellate record.
                                             20                                 A-0492-11T4
         Reviewing whether the expert's proffered voice recognition
    testimony was admissible, the trial judge examined the areas Dr.
    Penrod     discussed.        First,         the    judge    disallowed      testimony
    designed    to   attack      a    witness's       credibility,      concluding      the
    latter subject rested solely within the province of the jury.
    The inclusion of testimony directed to the credibility of other
    witnesses is not permitted.                 Henderson, supra, 208 N.J. at 297
    ("[E]xperts may not opine on the credibility of a particular
    eyewitness.").       The judge did not suggest, nor do we infer, Dr.
    Penrod offered an opinion on whether the survivor's recognition
    was accurate.8
         Next,    the    judge       determined       Dr.   Penrod    was   permitted    to
    testify regarding the relationship of stress and perception, and
    specifically     address         the    effect     on   a    witness      experiencing
    stress,    extreme    duress,          or   danger.         The   judge    found    the
    information would aid the jurors and highlight flaws with the
    commonly held belief that a person's ability to perceive is
    heightened under highly stressful circumstances.                          However, he
    disallowed    testimony      regarding        voice     recognition       because   Dr.
         Among the areas of Dr. Penrod's asserted expertise was "a
    variety of jury issues," including "specialized issues on jury
    decision making," which amounted to sixty percent of his
    research grant funding.   We determine the judge's opinion was
    directed to testimony, which at times, related to the influence
    of a witness' statements.        These were correctly found
                                                21                                A-0492-11T4
    Penrod never offered an opinion, but only reviewed published
    research with which he was familiar.                              As the judge noted, Dr.
    Penrod       "did     not     provide        his       own    analysis       or    expertise."
    Further, Dr. Penrod related only a "minimal recitation of the
    facts and the process underlying the research" he reviewed and
    acknowledged some research did not reflect the identification
    circumstances presented at trial.                            Thus, the judge found the
    expert       could    not    testify         on   the    issue      because       the    expert's
    opinion was not validated by his reasoning or understanding of
    the underlying methodology of others as applied to the facts at
    hand.    The judge concluded such testimony "would present a risk
    of misleading the jury."
           Dr. Penrod was also permitted to opine on the relationship
    of a witness's confidence or level of certainty in making the
    identification and its accuracy.                        However, he was excluded from
    testifying          regarding          the    impact         of    subsequent          events     as
    affecting witness confidence because the issue was "a matter of
    common sense."
           Dr.     Penrod       next       discussed       the    small       body    of    research,
    although he did not name the researcher, suggesting when people
    view     a     face     and        a    voice      simultaneously           the        chance     of
    misidentification             increases.                The       judge     disallowed          this
    testimony, noting the doctor "did not apply his own analysis or
                                                      22                                      A-0492-11T4
    expertise" on the issue, but "merely repeated the results of the
    other researcher's studies" and the manner in which the study
    was conducted was not described.                  The judge concluded the expert
    "was unqualified" in this area and his "testimony would present
    a     risk   of        misleading    the     jury."9       Similarly,      regarding
    "unconscious transference," the act of transferring one person's
    identity to another "from a different setting, time or context,"
    the    judge   found       Dr.    Penrod    did    not   apply   his    analysis        or
    expertise to the research he reviewed, and his comments would
    risk misleading the jury.
           The   judge       also    found    inadmissible    opinion      regarding:      an
    individuals' ability to estimate duration of events; the idea
    that identifications are at times inaccurate; concepts stating
    the longer an individual hears a voice and alterations in the
    speaker's tone increases the accuracy of the identification; the
    fact that other competing voices overlaid with a speaker's makes
    identification           more     difficult;      and    the   longer     the      delay
    following         an     event,     the     less     accurate    the      subsequent
    identification.           All of these concepts were determined to be
         The suggestion the survivor viewed defendant's face when in
    his company two weeks earlier is not in the record.          The
    survivor only testified during this encounter she sat in the
    back seat of the Jeep while defendant sat in the front seat.
                                                23                                  A-0492-11T4
    within    an   average    juror's    common    knowledge    and   capable      of
    evaluation without need of an expert opinion.
         Finally,     on     reconsideration,      in   light   of    a   recently
    released special master's report presented to assist the Court's
    review in Henderson, the trial judge considered two additional
    areas sought to be presented by Dr. Penrod.             First, in light of
    the survivor's testimony, the judge concluded the expert could
    discuss the effect on identification when a witness is told by
    police    a    suspect     was      apprehended,     conditioned        on    his
    demonstration of expertise.          Second, the trial judge recognized
    "jurors   tend   to    underestimate     the   importance    of   the    memory
    retention interval."        However, he noted Dr. Penrod's testimony
    stated the "concept of memory decay falls within the area of
    common sense."     Consequently, the judge declined to disturb his
    prior ruling.     Defendant chose not to call Dr. Penrod at trial.10
         In the event of a Wade hearing, the accuracy of eyewitness
    identification, particularly cross-racial identification, has
    come under scrutiny.      Much research has been devoted to
    understanding   factors    influencing    such    identifications,
    concentrating on encounters between strangers.        In State v.
    Henderson, Chief Justice Rabner, writing for the unanimous
    Court, comprehensively discussed social science research as
    presented by a special master's report.     The Court reviewed in
    detail various "system variables," within the State's control,
    Henderson, supra, 208 N.J. at 248-61, and "estimator variables,"
    representing factors outside the control of the criminal justice
    system, affecting an eyewitness' ability to perceive and
    remember an event.   Id. at 261-72.    Henderson provides insight
    regarding research limited to eyewitness identifications and
                                           24                               A-0492-11T4
          Following our review, we note throughout his testimony Dr.
    Penrod        conflated           eyewitness          identification         with          voice
    recognition, often making no differentiation between the two.
    In   much     of     his    discussion,         Dr.    Penrod      listed    factors          and
    research affecting mistaken eyewitness testimony with little or
    no   correlation           to     how   these         concepts         applied     to      voice
    recognition        or      this     matter.           While      the    evidence        perhaps
    supported a theory that many identifications were mistaken, it
    did not clearly explain what analysis a juror should undergo to
    assess the State's voice identification evidence.
          Also, Dr. Penrod's testimony, generally, did not reveal the
    methodologies used by the researchers he cited to.                           This lack of
    foundation undermined the validity of wholesale acceptance of
    the restated conclusions.                Rather than offering his reasoning
    based    on    his      experience      and     study      regarding       the   impact        on
    memory, in turn affecting the accuracy of identification based
    on sight or hearing, Dr. Penrod was described by the trial judge
    as   "parroting"         the      research.11         To   the    point,     Dr.    Penrod's
    courts now have the benefit of a legal standard for assessing
    the suggestibility and reliability of eyewitness identification
    evidence.   Henderson announced a new rule of law and the Court
    directed its holding be applied "prospectively." Id. at 220.
         Dr. Penrod's testimony states the underlying nature of the
    studies he referenced were contained in his report, a document
                                                  25                                        A-0492-11T4
    testimony did not explain exactly what he relied on for voice
    recognition opinions.       We do not know whether he referred to
    empirical research, articles, or articles about research.                        In
    the absence of this analysis we cannot agree the judge clearly
    abused his discretion or embarked on a clear error in judgment
    by limiting Dr. Penrod's expert opinion testimony.                       State v.
    210 N.J. 281
    , 295 (2012).
         On some matters, Dr. Penrod was found not qualified to
    present an opinion because he failed to use his knowledge and
    experience,   and   apply   the    research       to    reach   the    opinion   he
    espoused.     For   example,      when    asked    on    cross-examination       to
    relate any details about the ten cases in which he had presented
    voice recognition expert testimony, he could not.                     Moreover, he
    not provided by defendant on appeal. Nevertheless, Dr. Penrod's
    testimony refers to voice recognition studies conducted by
    researchers in Canada and the United Kingdom. One 1994 study by
    Daniel Yarmey, Ph.D., involved voice identification from a voice
    line-up,   a  circumstance    not    relevant   here.    Moreover,
    introduction    of   Yarmey's     conclusion    would  necessitate
    introduction of the nature of his experiment as well as the
    instructions   given   to   his    college    student participants
    performing the evaluation, along with possible factors impacting
    their identification.    This problem is also illustrated by S.
    Pryke's study, also referred to by Dr. Penrod in his testimony.
    Dr. Penrod described this only as "look[ing] at multiple aspects
    of identification for one event[:] people who were able to
    identify voice, face, and . . . clothing." The judge's decision
    to exclude recitation of these conclusions as misleading because
    they were unaccompanied by the expert's analysis of the studies
    represents a proper exercise of discretion.
                                             26                               A-0492-11T4
    had limited information on the manner in which some studies he
    cited     were        conducted,          and     for    others        he     recognized       the
    conditions that diverged considerably from the facts at hand.
    For     instance,         a    study           determining      how         inaccurate      voice
    identifications           occur     when       subjects       listen     to     recorded    voice
    exemplars       of     strangers          is    significantly          dissimilar     to     what
    occurred here.
          The      weighing       of    the        admissibility        of    expert    testimony,
    which     is     focused       on     factors          that    may       produce    unreliable
    identifications, cannot be lightly undertaken.                                "By merely being
    labeled        as     a    specialist            in     eyewitness          [or    earwitness]
    identifications, an expert has the broad ability to mislead a
    jury through the 'education' process into believing a certain
    factor    in     an    eyewitness         [or     earwitness]        identification         makes
    that identification less reliable than it truly is."                                  State v.
    35 So. 3d 1042
    , 1050 (La. 2010) (citing United States v.
    269 F. Supp. 2d 868
    , 873-74 (S.D. Tex. 2003)).
          "The      necessity          for,    or     propriety      of,      the     admission     of
    expert    testimony,          and    the       competence      of    such      testimony,      are
    judgments within the discretion of the trial court."                                  State v.
    119 N.J. 439
    , 495 (1990) (quoting Zola, supra, 112 N.J. at
    414).     "[A] trial judge has a responsibility to screen expert
    evidence for reliability and to determine the total effects of
                                                      27                                     A-0492-11T4
    proposed     evidence,       weighing        its      probative     value   against        its
    potential to (among other things) confuse the jury."                                  United
    States v. Schiro, 
    679 F.3d 521
    , 529 (7th Cir. 2012) ("If jurors
    are    merely      told     that     voice     identifications          frequently         are
    mistaken,     what     are    they    to     do       with   this   information?           The
    defendant's lawyer will argue mistaken identification and jurors
    told that such mistakes are common may be afraid to make their
    own judgment."); see also Landrigan v. Celotex Corp., 
    127 N.J. 404
    ,   414    (1992)      (noting     the     key      to    the    admissibility       of    a
    particular expert's testimony is "the validity of the expert's
    reasoning and methodology" and his or her ability to explain
    scientific principles and to apply them in such a way that he or
    she is not simply "self-validating").                         We defer to the trial
    judge, who had the benefit of reading Dr. Penrod's report, as
    well   as    observing       his   testimony,          and   nevertheless       found      the
    omission of analysis risked juror confusion.
           We will not interfere with the conclusion that aspects of
    Dr.    Penrod's      testimony       were     excluded        because    they    involved
    readily      known   and     understood       concepts,         not   aided     by    expert
    opinion.        Observations such as the longer a speaker hears a
    voice,       the     more      accurate           a     later       identification           is
    "unremarkable."           Angleton, supra, 269 F. Supp. 2d at 874 ("The
    proposition that increasing the length of the recorded speech
                                                 28                                      A-0492-11T4
    increases     the     accuracy   of        voice        identification      seems
    intuitive.").       So, too, the possible inaccuracy of a person's
    time estimation and the decrease in accuracy when voices are
    accompanied    by   other   distractions         are    also   self-evident    and
    intuitive.    See People v. Clark, 
    833 P.2d 561
    , 614 (Cal. 1992)
    ("[I]t is a matter of common experience that the ability to
    remember a perceptive experience diminishes over time.                     It is
    also generally known that voices may sound slightly different
    through different media."), cert. denied, 
    507 U.S. 993
    , 113 S.
    Ct. 1604, 
    123 L. Ed. 2d 166
     (1993).                    Identifications can be
    imperfect.      However, that alone will not render obsolete the
    factual analyses necessary for the admission of expert evidence.
          We agree with our dissenting colleague that a witness is
    not   disqualified     because   he        did    not     conduct   independent
    research.     See State v. Smith, 
    21 N.J. 326
    , 334 (1956) ("[A]n
    expert may be qualified by study without practice.").                     Nor is
    there dispute Dr. Penrod is a recognized expert in eyewitness
    identification.      However, an expert must provide the basis for
    his opinion and relate it to the facts of the case.                   While Dr.
    Penrod generally discussed concepts relating to the fallibility
    of eyewitness identification and related research regarding the
    reliability of voice recognition, oftentimes his focus was not
    on the factors aiding analysis of voice recognition that fell
                                          29                                 A-0492-11T4
    outside of common experience.             By merely reciting the findings
    of other researchers, Dr. Penrod did not adequately relate his
    specialized knowledge or analyze concepts he studied.                  Thus, his
    opinion did not aid the jury's ability to distinguish factors
    bearing on voice recognition.
           We also agree the judge inartfully suggested "if the jury
    were provided documentation of the study, they would be able to
    come      to   the    same   conclusion."       Following      our   review,    we
    understand this reference was directed to the underpinnings of
    the research, found to be either sparsely mentioned or involved
    circumstances differing from the voice identification of this
    case.      This is why our dissenting colleague's view as to the
    learned treatise exception, Rule 803(c)(18), misses the mark.12
           At its core, the purpose of the learned-treatise exception
    is   to    allow     statements   from   the   treatise   to   be    admitted   as
           The dissent argues:
                   [t]he trial judge made the inconsistent
                   finding that a distinguished expert in the
                   field of witness identification did not know
                   enough to explain the research, but the jury
                   would somehow know and understand it if
                   given the studies.    Jurors not only cannot
                   be given the studies, but are instructed to
                   not use the internet or do their own
                   research as they cannot consider studies
                   that are not in evidence through the
                   testimony of an expert.
                   [Post (slip op. at 17).]
                                             30                              A-0492-11T4
    substantive evidence, with the caveat that the expert be on the
    stand to explain the studies he or she relies on and testify to
    the methodology or assist in its application.                        See Jacober v.
    St. Peter's Med. Ctr., 
    128 N.J. 475
    , 491 (1992) (explaining that
    the learned-treatise exception is designed for "situations in
    which an expert is on the stand and available to explain and
    assist in the application of the treatise if desired").                              Thus,
    an expert may not be called for the sole purpose of qualifying a
    treatise, nor may a treatise be introduced as a substitute for
    expert    testimony.       Biunno,      Current          N.J.   Rules   of    Evidence,
    comment on N.J.R.E. 803(c)(18) (2015).                     Here, Dr. Penrod could
    not   adequately    explain     or   assist         in    the   application        of   the
    studies he introduced on voice identification.                      Instead, he only
    offered      the     conclusions        without            sufficient        supporting
    information    to    assist    the     jurors       in    analyzing     the       studies,
    rendering that testimony inadmissible.
          Importantly,       the   judge    did     not        reject    the     underlying
    scientific     research        regarding            the     accuracy         of      voice
    identification      as   suggested     by     our    dissenting       colleague,        see
    post (slip op. at 3).13         Rather, the judge disallowed testimony
         We consider our dissenting colleague's view as suggesting
    the trial judge found the expert's opinion on earwitness
    testimony unreliable, a subject warranting de novo review. See
    post (slip op. at 2-4).     Certainly, in a criminal trial the
                                             31                                       A-0492-11T4
    based    on    unexplained       research      conducted    under    circumstances
    unlike    those      presented     in    this     matter,   which        is   simply    a
    witness's later recall of a familiar voice, State v. Hackett,
    166 N.J. 66
    , 81 (2001) ("[T]he uncritical acceptance of expert
    testimony can becloud the issues." (quoting State v. R.W., 
    104 N.J. 14
    ,    30    (1986))),    and    found     other    opinions      unnecessary
    because       they   addressed     a    subject    understood       by    jurors     who
    utilized common judgment and experience, see State v. Sowell,
    admissibility of scientific test results is permitted only when
    shown to be generally accepted as reliable within the relevant
    scientific community.   State v. Chun, 
    194 N.J. 54
    , 91, cert.
    555 U.S. 825
    129 S. Ct. 158
    172 L. Ed. 2d 41
    State v. Harvey, 
    151 N.J. 117
    , 169-70 (1997); see also State v.
    188 N.J. 182
    , 206 (2006) (holding scientific theories are
    accepted as reliable when "based on a sound, adequately-founded
    scientific methodology involving data and information of the
    type reasonably relied on by experts in the scientific field"
    (quoting Rubanick v. Witco Chem. Corp., 
    125 N.J. 421
    , 449
    (1991))).     Further, we agree "[a]n appellate court may
    independently review scientific literature, judicial decisions,
    and other authorities to determine whether proposed expert
    testimony is scientifically reliable and has obtained general
    acceptance so that it may be admitted in our courts." McGuire,
    supra, 419 N.J. Super. at 123-24 (citing Torres, supra, 183 N.J.
    at 567). However, we do not agree the judge's determinations of
    admissibility turned on this issue.     Nor does the record on
    appeal contain evidence allowing such a review.
         For   the   reasons   discussed   in   our   opinion,   the
    inadmissibility of Dr. Penrod's expert opinion was found to turn
    on other bases, which we examined.        We also note expert
    testimony meeting the criteria for admission may nevertheless be
    excluded under other rules. See, e.g., N.J.R.E. 704 (excluding
    opinion embracing an ultimate issue); N.J.R.E. 403 (excluding
    opinion that would necessitate undue consumption of time or
    create substantial confusion).
                                              32                                   A-0492-11T4
    213 N.J. 89
    , 99 (2013) (noting expert testimony is unnecessary
    to     discuss      a     matter    within         the   jury's        competence      and
    understanding); Hackett, supra, 166 N.J. at 83 (rejecting expert
    testimony because the determination was not beyond the ken of
    the average juror or "so esoteric that jurors of common judgment
    and experience cannot form a valid judgment" (quoting Butler v.
    Acme Markets, 
    89 N.J. 270
    , 283 (1982))).
           We do not conclude the judge abused his discretion when
    limiting aspects of the proffered evidence.                     McGuire, supra, 419
    N.J. Super. at 123.             He satisfactorily detailed areas where the
    expert's         reasoning         and       methodology          on      "earwitness"
    identification testimony seemed self-validating or jumbled with
    eyewitness identifications, a topic the expert was admittedly
    more    familiar        with.      As    a   result,     the    expert's       proffered
    testimony not only risked juror confusion but also tended toward
    subjects where expert opinion would be unnecessary.                            Further,
    the    judge     did     not    preclude      the    totality     of     the   expert's
    testimony, which defendant chose not to present to the jury.
           Moreover, we underscore the identification at issue was the
    survivor's       recollection      it    was      defendant's     voice    she    heard.
    This identification was one of several introduced by the State
    and is not the sole identification evidence placing defendant at
    the    scene   of       the   murders.       The    survivor    was     familiar     with
                                                 33                                  A-0492-11T4
    defendant and had spent ten minutes talking with him in the Jeep
    two weeks earlier.         Police did not conduct a voice array from
    which the survivor matched the voice she heard.              See State v.
    286 N.J. Super. 1
    , 18 (App. Div. 1995) (using voice
    array to identify a defendant), certif. denied, 
    146 N.J. 569
    (1996).   Nor was the survivor's recollection prompted by police
    interrogation.     In fact, the day following the murders, as the
    survivor recounted the events to her boyfriend, unprompted, she
    realized the man in her home was defendant.14
         Next,   we   reject    as   lacking   merit   defendant's   additional
    suggestion of prosecutorial misconduct during summation, when
    referencing the survivor's reported recollection of defendant's
    voice.    Defendant directs his attack to this statement by the
    prosecutor: "A traumatic event like that, Ladies and Gentlemen,
    one could logically infer, reasonably, that she replayed that
         We disagree with our dissenting colleague's assertion
    stating a new trial is necessary because Dr. Penrod's testimony
    "undermined the testimony of, perhaps, the most credible witness
    to identify defendant, albeit by voice." See post (slip op. at
    1).   Further, we cannot abide the minimization of the State's
    evidence against defendant, characterized in the dissent as "two
    convicted felons who testified in exchange for sweetheart plea
    deals, and a young woman who survived the crimes by hiding in a
    closet." See post (slip op. 2). The State presented more than
    twenty   witnesses,   five   lay   individuals,   experts,   law
    enforcement, scientists from the State crime lab and fire
    officials.   Our role in reviewing this matter does not include
    making credibility assessments, as such a determination rests
    solely with the jury.
                                         34                            A-0492-11T4
    over and over in her mind, and she, by doing that, determined
    who that voice was."
          Not only was no objection made at trial, suggesting the
    statement was innocuous, but also evidential support for the
    statement was included in the survivor's testimony.                                See State
    v. Carter, 
    91 N.J. 86
    , 127 (1982) (stating a prosecutor may
    argue any conclusion rationally supported by evidence).                                    The
    prosecutor's       assertion       restated            facts     and       responded        to
    defendant's vigorous cross-examination attacking the survivor's
    ability to identify defendant's voice.                      No plain error is found.
    R. 2:10-2.
          Defendant      also       challenges         the        admission,           over    his
    objection,    of     the    State's     expert         on    gang-related          activity,
    Lieutenant    Earl    J.    Graves     of    the       Essex    County        Prosecutor's
    Office.       Defendant         contends     the        trial        judge    abused       his
    discretion by allowing testimony, which exceeded "even the broad
    boundaries" permitted for admission of such evidence.                              He argues
    defendant's involvement in a gang had no relevance to motive,
    opportunity, or the victims and co-defendant's involvement in
    the   crimes.        As     a    result,         its    admission          was     extremely
    prejudicial, warranting a new trial.                        During retrial, the same
    objection    was   raised       when   the   State          sought    to     use    the   same
                                                35                                       A-0492-11T4
    expert evidence and witness.             We have reviewed both transcripts
    and   note     the     State's        evidence   is   generally   consistent.
    Therefore, we have chosen to describe the issue as it unfolded
    in the first trial, understanding the same arguments arose on
          The    introduction        of     expert   testimony   regarding   gang
    behavior is guided by State v. Torres, 
    183 N.J. 554
     (2005).                 In
    Torres, the defendant was charged with first-degree murder as an
    accomplice in the killing of a member of his gang by fellow gang
    members.     Id. at 562-64.           Examining whether gang-related expert
    testimony was admissible under N.J.R.E. 702, the Court aligned
    with other jurisdictions and concluded "testimony explaining the
    structure, organization, and procedures of street gangs would be
    helpful to a jury's understanding of the relevant issues at
    trial."     Id. at 573.     However, the Court cautioned expert gang
                 must be restricted to those areas that fall
                 outside the common knowledge of jurors. For
                 example, a juror generally would not be
                 expected to be familiar with the structure
                 and organizational aspects of gangs or the
                 significance of particular gang symbols.
                 Those areas fall within the specialized
                 knowledge of the expert, who by virtue of
                 his training, experience, and skill can shed
                 light on such subjects.
                                              36                         A-0492-11T4
    In Torres, the expert testimony regarding a defendant's gang
    involvement       was       "relevant    to     show   the    connection       between
    defendant's actions as the leader of the gang and the actions of
    the   other     gang    members    who    actually      committed       the   murder."
          During a Rule 104 hearing, Lieutenant Graves testified as
    to the origination of the specific gang set to which defendant,
    Fields, Wigfall and Williams belonged.                     He identified the gang
    structure, explaining defendant's role as an "OG" or "original
    gangster" who headed a set, and the role of the soldiers in a
    gang, explaining the information was provided by defendant and
    recorded in prison classification documents.                       Also discussed was
    the significance of tattoos to identify gang affiliation and
    "intimidate" or "influence" others.                    Specifically linking his
    expertise to the facts in this matter, Lieutenant Graves noted
    his review of the wiretapped phone calls with Davis, revealed
    defendant's statements support the understanding that he holds a
    leadership position in a gang set and identified himself as a
    "Triple OG."
          In    a    comprehensive      oral        opinion,     the     judge    concluded
    Lieutenant Graves was qualified as an expert in street gangs and
    permitted       him    to    testify,    concluding        defendant's       claims   of
    prejudice were not outweighed by the probative value of the
                                               37                                  A-0492-11T4
    evidence.    In reaching this conclusion, the judge reviewed the
    evidence under the rigors of the four-factor test identified in
    State v. Cofield, 
    127 N.J. 328
    , 338 (1992), and evaluated its
    admissibility under N.J.R.E. 404(b).15     In doing so, the judge
    concluded the evidence was relevant to "defendant's opportunity,
    knowledge and motive" to commit the crimes targeted to this
    specific home and family.    The judge barred testimony regarding
    alleged gang habits for weapons used in criminal activity.
         In discussing the claimed prejudice to defendant, the judge
    noted there was clear and convincing evidence of defendant's
    gang involvement, including his own statements, the survivor's
    testimony stating Fields, Williams and Wigfall knew each other
         "In Cofield, the Court developed 'a rule of general
    application in order to avoid the over-use of extrinsic evidence
    of other crimes or wrongs[.]'"      State v. Sheppard, 437 N.J.
    Super. 171, 189 (App. Div. 2014) (alteration in original)
    (quoting Cofield, supra, 127 N.J. at 338), certif. denied, 
    221 N.J. 219
     (2015).    The four-pronged test for admissibility of
    other evidence of prior bad-acts includes:
                1. The evidence of the other crime must be
                admissible as relevant to a material issue;
                2. It must be similar in kind and reasonably
                close in time to the offense charged;
                3. The evidence of the other crime must be
                clear and convincing; and
                4. The probative value of the evidence must
                not be outweighed by its apparent prejudice.
                [Cofield, supra, 127 N.J. at 338.]
                                     38                        A-0492-11T4
    from their gang set, Hayes' compliance with defendant's requests
    and the significance of defendant showing Hayes his tattoo.                 The
    judge found the prejudice to defendant by the expert's testimony
    was not outweighed by the probative value supporting motive and
    opportunity for commission of the crimes, including defendant's
    access to Williams' red Jeep, defendant's knowledge of the drugs
    and money held by Fields' girlfriend, defendant's access to her
    home, and Hayes' reaction to defendant's tattoo.
        Defendant moved for reconsideration, arguing the testimony
    was unnecessary to explain other lay witness statements and duly
    prejudicial.       The   motion   was    denied.         Also,    defendant's
    objection during trial prior to the State's presentation of the
    witness was overruled.
        At trial, following voir dire, Lieutenant Graves was asked
    limited questions regarding the gang set, code names used for
    guns and weapons, the use and significance of tattoos, the set's
    structure,     enforcement   of   discipline,      and    use    of   personal
    property.      His testimony and expressed opinion was far more
    circumscribed than that presented in the Rule 104 hearing.                   He
    stated only that defendant was a member of the gang set based on
    his tattoo and statements during the wiretap.
                                        39                                A-0492-11T4
          On appeal, defendant maintains "the workings of the gang
    were not even marginally related to the crime and defendant's
    role in it."      We disagree.
          At   trial,       the   survivor     connected     Fields,       Williams      and
    Wigfall to the same gang and stated defendant "was in the gang
    as well" and "was . . . over all of them."                   Fields confirmed the
    gang relationship of the parties and that defendant told Hayes
    the   robbery     was    of     "his   man's    girl,"     referring      to    Fields.
    Lieutenant      Graves    also     confirmed      Davis'     testimony      regarding
    defendant's statements about "his girlfriend" were references to
    his gun, although Lieutenant Graves admitted the reference was
    not necessarily limited to gang members.                    In his conversations
    with Hayes, defendant conveyed a message by specifically drawing
    attention    to   his     set    tattoo.        Lieutenant      Graves    also    noted
    defendant's higher rank in the gang caused Williams to give
    defendant his Jeep when directed to do so.
          The limited areas covered by the expert aided the jury's
    understanding       of    defendant's      reference       to    his     tattoo    when
    telling Hayes he did not "want any co-defendants" as an implied
    threat to secure his silence, defendant's use of Williams' Jeep,
    and   defendant's        relationship      with    Davis,       Williams,      Wigfall,
    Fields and his girlfriend.             Moreover, as the trial judge noted,
    no other evidence could fully explain defendant's opportunity in
                                               40                                  A-0492-11T4
    committing these crimes, and why the events unfolded as they
           We also reject the notion defendant's convictions resulted
    because     of    evidence       of   his    gang    membership.          See    State    v.
    Goodman,      415    N.J.    Super.         210,    226    n.4     (App.    Div.       2010)
    (reaffirming a court "may not convict an individual merely for
    belonging to an organization that advocates illegal activity")
    (quoting United States v. Abel, 
    469 U.S. 45
    , 48, 
    105 S. Ct. 465
    83 L. Ed. 2d 450
    , 455 (1984)), certif. denied, 
    205 N.J. 78
    (2011). To reach such a result would require us to disregard the
    judge's      supported      findings         leading      to     his   conclusion        the
    proffered testimony was helpful for the jury's understanding or
    other witness testimony and not designed to enhance the State's
    evidence.        Moreover, such a conclusion gives no consideration to
    the jury selection voir dire16 and jury instructions issued by
    the trial judge limiting the use of the evidence.
           We   determine       no    basis      to     interfere      with    the     judge's
    exercised         discretion          in      admitting          Lieutenant        Graves'
    circumscribed       testimony,        which       provided     a   framework     for     the
    jury's      understanding        of    key    events,      testimony       by    the     lay
         A series of five questions issued during jury selection
    examined whether a prospective jury could remain fair and
    impartial in performing as a juror if evidence of defendant's
    gang involvement was presented.
                                                 41                                   A-0492-11T4
    witnesses    and    the    relationship    between   defendant   and    co-
    defendants.17      Finally, the judge mitigated possible prejudice
    through   the   use   of   direct   voir   dire   questions   during   jury
    selection.      Goodman, supra, 415 N.J. Super. at 234;          State v.
    145 N.J. 23
    , 52 (1996) (stating "there is no reason to
         Our dissenting colleague concludes the expert testimony is
    neither   relevant    nor   probative,   but    "significant[ly]"
    prejudicial. See post (slip op. at 40). We cannot accept this
    view, which appears to overstate the breadth of the ten pages
    containing Lieutenant Graves' sustentative direct and cross-
    examination testimony.    At trial, Lieutenant Graves did not
    opine that defendant was a higher ranking member than Fields,
    Williams and Wigfall, see post (slip op. at 38), or state
    defendant had no fear of retaliation from Fields because of gang
    hierarchy, see post (slip op. at 39). Rather, Lieutenant Graves
    succinctly related the general gang set hierarchy.          Facts
    regarding defendant's rank and authority in the gang were
    elicited by Hayes, Fields and the survivor.    Also, we note the
    dissent rejects the judge's factual findings in favor of an
    independent weighing of the evidence, including the credibility
    attached to facts asserted by other State witnesses.
         As to whether the testimony was unduly prejudicial, our
    colleague   emphasizes   that   gang   evidence   is   inherently
    prejudicial.   Certainly, "[o]ther-crimes evidence is considered
    highly prejudicial."     State v. Vallejo, 
    198 N.J. 122
    , 133
    (2009).   However, the trial judge considered all evidence and
    took appropriate steps at voir dire to mitigate possible
    prejudice.     The trial judge also crafted explicit jury
    instructions limiting the jury's use of the evidence as to
    motive. See Goodman, supra, 415 N.J. Super. at 230 (admitting
    gang evidence to prove motive).      "The mere possibility that
    evidence could be prejudicial does not justify its exclusion."
    State v. Long, 
    173 N.J. 138
    , 164 (2002).      The trial court is
    necessarily in the best position to balance possible resulting
    prejudice from the admission of this evidence.          State v.
    341 N.J. Super. 1
    , 40 (App. Div.), certif. denied,
    170 N.J. 206
     (2001), cert. denied, 
    535 U.S. 1012
    122 S. Ct. 1594
    152 L. Ed. 2d 510
                                         42                           A-0492-11T4
    believe that jurors will not act responsibly in performing their
           We also reject, as unfounded, defendant's claim Lieutenant
    Graves' testimony exceeded the bounds permitted by the judge and
    the Court in Torres.         Defendant identifies no specific statement
    or line of testimony to support this contention.                             His broad
    generalization is rejected as meritless.                   R. 2:11-3(e)(2).
           Defendant further cites as error the admission of testimony
    regarding the chemicals toluene and decamethylcyclopentasiloxane
    (D5) found at the crime scene, in the red Jeep, and on Hayes'
    clothing.     This issue was raised not only in the initial trial,
    but also on retrial.18
           On appeal, defendant argues, as he did before the trial
    judge, the testimony was not relevant because the existence of
    these substances failed to prove his guilt.                   We disagree.
           The   evidence    was      related      to    the    aggravated    arson      and
    conspiracy    to    commit     aggravated       arson      charges.      The   State's
    witness, a chemist who qualified as an expert in fire debris and
    hair    analysis,     explained         although      often    found     in    various
    household    products,       it   was    rare   to    find    these    two     volatile
         The same judge tried each matter.        His ruling during
    retrial remained consistent with his initial decision.        In
    presenting the issues, we describe it as presented initially.
                                              43                                   A-0492-11T4
    substances     together.             Yet    she       isolated         both     chemicals         on
    clothing    worn    by   the     victims,         in    the       Jeep,      and    on    several
    articles of Hayes' clothing.                Although not probative of how the
    fire started, the proofs tended to corroborate Hayes' version of
    events because the unusual combination of substances found in
    these   places     logically         linked      Hayes       to    Fields'         girlfriend's
    apartment and the Jeep.               See State v. Koskovich, 
    168 N.J. 448
    480-81 (2001).       Thus, there was a logical connection between the
    State's    proffered      evidence         and    a    fact       in    issue.           State    v.
    241 N.J. Super. 353
    , 358 (App. Div. 1990).
        We     conclude      the    judge      properly         analyzed         the    issues       and
    correctly noted defendant's challenges affected the weight of
    the evidence and not its admissibility.                       N.J.R.E. 403.              Further,
    the judge also noted the probative value outweighed any possible
    prejudice,     which      was        skillfully         borne          out    during       cross-
    examination,       and   which        perhaps         led    to     the       jury's      verdict
    acquitting    defendant         of    aggravated            arson.           See    Hisenaj       v.
    194 N.J. 6
    , 24-25 (2008) (deficiencies in expert report
    were explored during cross-examination and jury was charged with
    determining the opinion's weight).
        Defendant argues the judge erroneously denied his motion
    for a new trial on the first-degree robbery charge.                                    Defendant
                                                 44                                           A-0492-11T4
    suggests    the    jury's    questions         and   the     resultant    deadlock    on
    murder and felony murder shows some jurors likely relied on a
    theory of accomplice liability to support the related robbery
    conviction.       Defendant maintains the State's failure to include
    an    accomplice    liability         charge    precludes      his    conviction     for
    first-degree robbery.           We are not persuaded.
           After     receiving      the     charge,      which    included     Model   Jury
    Charge (Criminal), "Robbery in the First Degree (N.J.S.A. 2C:15-
    1)" (Sept. 10, 2012),19 and Model Jury Charge (Criminal), "Felony
    Murder-Slayer Participant (N.J.S.A. 2C:11-3(a)(3))" (March 22,
    2004),     the     jury    submitted       questions         during      deliberations
    including:        "Does felony murder mean the defendant killed the
    victims in this case, or does it mean that he was present during
    the   murders,     but    did     not   actually      kill     the   victims?"       The
    State's    theory    of     the    case    against      defendant     was   principal
    liability.       Defendant suggested the question showed the jury was
    considering defendant's guilt as an accomplice, which was never
         The model charge cited is the one provided by the State in
    its appendix, but the charge in effect at the time of trial in
    2011 was Model Jury Charge (Criminal), "Robbery in the First
    Degree (N.J.S.A. 2C:15-1)" (May 10, 2010).        Nevertheless,
    neither side claims the modification presents a meaningful
                                               45                                 A-0492-11T4
          The judge granted defendant's request to respond directly
    to the jury question and then reread the applicable charges.                   He
    informed the jury:
                 Okay, just so it's crystal clear, Ladies and
                 Gentlemen, I'm going to reread your question
                 number 2 and then answer it in two parts.
                 "Does felony murder mean that the defendant
                 killed the victims in this case?" In short,
                 the answer is yes.    In order to find the
                 defendant guilty of felony murder, you must
                 find beyond a reasonable doubt that this
                 defendant, Mr. Terrell, killed the victims
                 in this case.
                 And then the second part, "Or does it mean
                 that he was present during the murders and
                 did not actually kill the victims," the
                 short answer to that question is no.
    The judge elaborated on these direct answers, making it clear
    the   jury   could   not   find     defendant    guilty   of   felony    murder
    "unless you first find him guilty beyond a reasonable doubt of
    having committed . . . the robbery. . . .               [I]n summary, . . .
    in order for [defendant] to be found guilty of murder, the State
    must prove beyond a reasonable doubt that the defendant is the
    person   who    actually      killed    the     victims."       This     latter
    instruction was repeated when recharging felony murder, and the
    judge added "felony murder does not mean that the defendant was
    merely   present     during   the    murders,"    but   defendant   had     been
    "engaged in the commission of, or attempt to commit, or flight
                                           46                               A-0492-11T4
    after committing, or attempting to commit, the crime of robbery,
    as charged in counts 2 and 3."
          Deliberations       resumed   and    additional      questions     from      the
    jury issued.      One question asked whether, with respect to felony
    murder,     "a   person    would    have       to   directly     rob   the    person
    murdered, or does this merely mean that any one person within
    the   household    was    robbed    and    members    of   the    household      were
    murdered?    This seems to be a contradiction."
          The judge informed the jury that neither the indictment nor
    the verdict sheet were evidential.              He then instructed:
                In order for you to find the defendant . . .
                guilty of felony murder, you must find
                beyond a reasonable doubt that he killed the
                victims named in [the indictment] during the
                course of committing a robbery of . . .
                [Fields' girlfriend] and [the survivor]
                regardless of whether he did so purposely or
                even    knowingly,    or     recklessly   or
                unintentionally, or even by accident. . . .
                [Y]ou cannot find [defendant] guilty of
                felony murder unless you first find him
                guilty beyond a reasonable doubt of having
                committed the crime of robbery.
          The verdict sheet reflected the jury found defendant guilty
    of robbing Fields' girlfriend, but not guilty of robbing another
    victim.     The jury could not reach a verdict on the murder and
    felony murder counts.
          Ruling on defendant's motion for a new trial, the judge
    rejected defendant's argument the deadlock on the felony-murder
                                              47                                 A-0492-11T4
    charge     must    mean     "[a]t        least      one    of   the    jurors       must     have
    believed that defendant was an accomplice, not the principal,
    with respect to the killings."                     Defendant's argument, if he were
    the principal, assumed, as suggested by the guilty verdict on
    the robbery charge, he would have been convicted of felony-
    murder.     The judge found the State's evidence was sufficient to
    support the first-degree robbery conviction.
          A motion for a new trial is granted in the interests of
    justice, but the court shall not set aside a jury verdict as
    against the weight of the evidence "unless, having given due
    regard     to     the    opportunity          of    the     jury      to     pass    upon     the
    credibility       of     the      witnesses,         it    clearly         and    convincingly
    appears that there was a manifest denial of justice under the
    law."      R.     3:20-1.          The    motion      is    decided         in    the   court's
    discretion in light of the credible evidence and with deference
    to   the   trial        judge's    feel       for    the    case      and    observation       of
    witnesses.        State v. Brooks, 
    366 N.J. Super. 447
    , 454 (App. Div.
    2004).      In    our     review,        we   do    not    attempt      to       reconcile    the
    verdicts on the different counts nor do we speculate whether
    verdicts resulted from "jury lenity, mistake, or compromise,"
    and even inconsistent verdicts.                       State v. Muhammad, 
    182 N.J. 551
    , 578 (2005).           For purposes of appellate review, this court
    considers the evidence presented in support of each count as
                                                   48                                       A-0492-11T4
    though it were presented in a separate indictment.                  Ibid.     The
    jury verdict will be upheld where there is sufficient evidence
    to support the conviction on that charge.              Ibid.
        Here,       defendant   was    charged    under       N.J.S.A.    2C:15-1,
    providing a person is guilty of first-degree robbery when in the
    course of a theft he or she attempts to kill, purposely inflicts
    serious bodily injury, or uses or threatens the use of a deadly
    weapon.     Neither the State nor defendant sought an accomplice
    liability charge.
        Evidence from both the survivor and Hayes satisfied the
    requisite    proof   requirements    beyond    a       reasonable    doubt    for
    first-degree robbery.       Hayes described defendant's use of a gun
    held to Fields' girlfriend's neck, while demanding she turn over
    the drugs and money she held.         Defendant's attempt to view the
    robbery   and   felony-murder     verdicts    as   a    combined    offense    is
    rejected.    The evidence supporting first-degree robbery could be
    separated from the evidence of the murders.               These verdicts are
    not inconsistent.     The trial judge's analysis of the sufficiency
    of the evidence when denying defendant's motion for a new trial
    is well supported.
        After deliberations commenced in the retrial, two jurors
    requested to be excused.        Defendant contends the court erred in
                                         49                                A-0492-11T4
    handling    these        requests      by        not     properly    making        necessary
    findings before excusing one of the two jurors.                              He maintains
    the    judge's    inquiry      and    conclusory          findings    were       flawed    and
    dismissal       and     replacement         of     one    juror,     over        defendant's
    objection, rather than declaring a mistrial, was error.                                     We
    reject these arguments.
           The jury had deliberated for less than eight hours, spread
    over    three    days     (excluding        time       periods     spent     listening      to
    testimony       read    back),       when    the       judge      informed       counsel     he
    received a note stating:               "Two jurors, Number 2 and Number 6,
    would like to be replaced."                 Counsel was consulted regarding how
    to    proceed.         Defendant     argued       the     judge    should     "not    react"
    because the juror's note was not specific as to the hardship and
    "pulling them out now -- it might be premature."                                   The State
    disagreed and reminded the judge "Juror [2] was originally the
    juror that was perceived to have been spoken to.                              Whether you
    term it as a threat — but it was an outside communication to her
    on Friday morning as she walked into the courthouse."                              The State
    also    noted      juror       six     related          she    recorded       an     outside
    communication encounter.             Jurors two and six were actually being
    transported       to     and   from     the        courthouse       by     the     sheriff's
    department.       Following argument, the judge conducted separate
                                                 50                                      A-0492-11T4
    limited voir dire of the jurors.               As a result of the jurors'
    responses, the judge excused juror two and retained juror six.
          After explaining he "just want[ed] to broadly discuss the
    issue    of   why   a   note    indicating    that      you    would     like     to   be
    replaced      was   sent   out;   that's     the   focus      of   the   discussion,
    nothing having to do with the jury deliberations[,]" the judge
    engaged in the following colloquy with juror two:
                       THE COURT: Do you feel that there is
                  emotionally an inability for you to proceed
                  and perform your duties as a deliberating
                        THE JUROR:     Yes.
                       THE COURT: Do you feel that these
                  emotions that you have, again, would impact
                  upon your ability to perform your function
                  in this case?
                       THE JUROR: No.   I know it's not
                  balanced in what I'm saying, but there's
                  [sic] reasons why I can't speak without
                  giving away –
                       THE COURT: I don't want you to talk
                  about that.   But emotionally, you feel you
                  can't continue?
                        THE JUROR:     Correct.
                       THE COURT: I'm going            to    leave     it    at
                  that for now. Thank you.
          Similar questions were posed to juror six, who stated she
    had     neither     emotional     nor   personal        reasons     presenting         an
    inability to proceed and perform the duties of a deliberating
                                            51                                      A-0492-11T4
    juror.     The judge questioned whether something else prevented
    her from continuing to serve as a juror, without going into jury
    deliberations.        She replied:              "Without going into – it is very
    difficult to explain-"               The judge interrupted, warning: "I don't
    want to go there."              Juror six confirmed her reason for wanting
    to be excused was neither emotional nor physical.
           One of the two alternates replaced juror two.                               Juror six
    returned      to     the        panel.          The     judge   issued       supplemental
    instructions        and    directed       deliberations         begin   anew       with   the
    replacement        juror.        The     jury    then     retired   for      the    evening.
    Deliberations commenced the following morning.                            Approximately
    two-and-one-half hours following the replacement of juror two,
    the jury reached a verdict.
           "Our   review       of    a   trial      court's    decision     to    remove      and
    substitute a deliberating juror because of an 'inability to
    continue,' pursuant to Rule 1:8-2(d)(1), is deferential."                             State
    v. Musa, 
    222 N.J. 554
    , 564-565 (2015).                      "We will not reverse a
    conviction unless the court has abused its discretion."                              Id. at
           The substitution of a juror in the course of deliberations
    "does not in and of itself offend a defendant's constitutional
    guarantee of a trial by jury."                  State v. Ross, 
    218 N.J. 130
    , 146
    (2014) (quoting State v. Williams, 
    171 N.J. 151
    , 162 (2002)).
                                                    52                                  A-0492-11T4
    "Such a substitution, however, contravenes constitutional norms
    if it impairs the mutuality of deliberations — the 'joint or
    collective exchange of views among individual jurors.'"               Id.    at
    146-47   (quoting      Williams,   supra,   171   N.J.   at   163).   Indeed,
    "[b]ecause     juror    substitution    poses     a   clear   potential     for
    prejudicing the integrity of the jury's deliberative process, it
    should be invoked only as a last resort to avoid the deplorable
    waste of time, effort, money, and judicial resources inherent in
    a mistrial."    State v. Hightower, 
    146 N.J. 239
    , 254 (1996).
               The court must be prepared to declare a
               mistrial if a substitution would imperil the
               integrity of the jury's process.      [Id. at
               253-54.]     The   trial   judge's   task   is
               complicated   by  the   need   to  diligently
               protect   the    confidentiality    of    jury
               communications as he or she inquires about
               the status of the juror in question.        In
               short, the trial court must appraise the
               impact of a juror substitution on the jury
               process, without tainting that process with
               intrusive questions.     It must conduct any
               inquiry with respect to the juror in
               question . . . with caution and restraint.
               [Ross, supra, 218 N.J. at 147.]
        Accordingly, a trial judge "must determine the cause of the
    juror's concern and assess the impact of the juror's departure
    on the deliberative process."           Ibid.     Further, the judge must
    "ascertain whether a reconstituted jury will be in a position to
    conduct open-minded and fair deliberations."             Ibid.
                                           53                             A-0492-11T4
           In Ross, the Court reviewed consideration of this issue and
    reaffirmed     that      when    "evaluating        the   cause    of     a    juror's
    departure,     our    courts     distinguish        between   reasons         that    are
    personal to the juror, which may permit a substitution under
    Rule     1:8-2(d)(1),      and     issues       derived    from    'the        juror's
    interaction with the other jurors or with the case itself,'
    which may not."           Ibid. (quoting Williams, supra, 171 N.J. at
    163).    Also, "a juror's psychological condition as a reason that
    he or she cannot continue to serve" has been addressed, noting
    "[t]he 'inability to continue' language of Rule 1:8-2(d)(1) 'has
    been invoked to remove a juror under circumstances that reveal
    the juror's emotional condition renders him or her unable to
    render a fair verdict.'"            Id. at 148 (quoting Williams, supra,
    171 N.J. at 164); see also State v. Miller, 
    76 N.J. 392
    , 406-07
    (1978)    (holding    judge      properly     substituted     an   alternate          for
    juror who explained because of "his then nervous and emotional
    condition, he did not think he could render a fair verdict").
    In conducting this examination, the judge must not permit the
    juror to reveal confidential jury communications.
           Defendant     argues     juror   two's    explanations      fell       short    of
    what     is   required     to    satisfy      the    "inability     to        continue"
    standard, stating the juror did not reveal she was unable to
    render a fair verdict.           He additionally infers from juror two's
                                             54                                    A-0492-11T4
    comments she was at odds with other jurors, a circumstance not
    justifying excusal.          See State v. Jenkins, 
    182 N.J. 112
    , 124-25
    (2004)   (holding     excusing       a    juror    cannot    be   based   on    juror
    interaction with other jurors).                   We cannot agree the juror's
    comments revealed she faced hostility from fellow jurors or, as
    defendant now suggests, she was "the lone holdout."                       See Ross,
    supra, 218 N.J. at 152.          We reject such presumptions following
    examination of the facts of record.
          Here,    the   trial    judge      sought    the     explanation    for   juror
    two's request to be excused.                    He directed the juror not to
    reveal juror interactions and deliberations.                      Jenkins, supra,
    182 N.J. at 134 ("We cannot overemphasize the importance of
    maintaining the secrecy of jury deliberations . . . .").                        After
    the inquiry, the judge explained the release of juror two: "I
    think she was pretty unequivocal that emotionally she cannot
    continue.     I even got that sense from her voice.                 Her voice was
    cracking . . . ."        This determination relied on not only the
    juror's verbal responses, identifying her emotional condition,
    but   more    importantly,     was       supported    by    observations       of   her
    physical demeanor, which revealed an obvious personal emotional
    condition, rendering her unable to continue.
          Regardless of whether we believe the inquiry could have
    been more probing to more firmly establish the juror's specific
                                               55                               A-0492-11T4
    reasons confirming her request was personal to her, we respect
    the trial judge's ability to assess the juror's demeanor to
    discern whether the concern was evoked from interaction with
    fellow jurors or an individualistic reaction in reviewing the
    matter.      See Musa, supra, 222 N.J. at 565 ("The deference that
    must be accorded to trial court fact-findings in this setting
    must guide our analysis . . . .").
          The trial judge was in the best position to make these
    determinations.        We conclude the trial judge properly carried
    out the delicate balancing function in exercising his reasoned
    judgment.      Indeed, he evaluated the testimony of two jurors,
    each seeking to be excused, and reached different conclusions
    based on their responses.          The judge gave particular attention
    to   each    juror's   demeanor.      The   conclusion    that   juror    two
    suffered emotional distress making her unable to continue was
    based   on    the   judge's   evaluation    of   her   statements   and   the
    judge's observations of her demeanor, which must be respected.
    Nothing in the record suggests juror two requested to be removed
    because of her interaction with other jurors or that she was a
    lone holdout.       As we discuss below, the record shows the jury
    was still evaluating evidence and had not progressed to a point
    where the determination of factual issues was reached.
                                         56                             A-0492-11T4
           We decline to conclude the judge abused his discretion in
    releasing juror two based on alternate possibilities developed
    in hindsight for the juror's expressed emotional condition, as
    advanced by defendant or the additional questions which could
    not have been posed to the juror as suggested by our dissenting
    colleague, see post (slip op. at 46).                      See Musa, supra, 222 N.J.
    at     572    ("Questioning,          if    not        properly    narrowed,      had    the
    potential to impermissibly infringe on the jury's deliberative
    process."); State v. Lipsky, 
    164 N.J. Super. 39
    , 44 (App. Div.
    1978) ("[D]espite our disagreement with the judgmental decision
    of   the     trial    judge,     we   cannot       conclude       that   his   failure    to
    utilize       better      alternatives        constitutes          an     abuse   of     the
    discretion vested in him in procedural matters of this kind.").
    Reversal is unwarranted.                   Goodman, supra, 415 N.J. Super. at
           We further conclude the deliberations had not proceeded to
    such    an    extent      that   declaring         a    mistrial    was    required.       A
    mistrial      is     an   extraordinary        remedy       used    when   necessary      to
    prevent a manifest injustice.                 Id. at 234.           The Court has also
    observed that granting a mistrial "imposes enormous costs on our
    judicial system," and the Court has noted its awareness that the
    prospect of a retrial after days or weeks of testimony creates a
    sense of futility.          Jenkins, supra, 182 N.J. at 124.
                                                  57                                  A-0492-11T4
           In Ross, the Court rejected imposition of an "inflexible
    rule" to preclude substitution of a juror after deliberations
    had been conducted over a specific period of time.                             Ross, supra,
    218    N.J.   at     151.     Instead,      a     trial    judge,         in   his    or    her
    discretion,         considers       whether       the     jury       appears         to     have
    progressed     to     the   point    where       issues    have       been     decided       and
    deliberations        cannot    commence      anew       with    a    substituted          juror.
           In this matter, although three days had elapsed from the
    time the case was submitted to the jury, deliberations had not
    been continuous.           The jury submitted numerous requests to review
    evidence and hours of read-backs were performed in the presence
    of the jury and the alternates.                  No prior communications denoted
    the jury had decided any factual or legal issue.                               Id. at 152.
    Viewing all events and circumstances, we conclude the judge's
    determination the jurors were in the process of sifting through
    the    evidence      and    deliberations        had     not    gone      so   far    that     a
    reformulated        jury    would    not    be    able     to       conduct     open-minded
    dialogue      to     determine      defendant's          guilt       or    innocence         was
    supported.         See Williams, supra, 171 N.J. at 169 (stating read-
    back    requests       demonstrate         uncertainty          concerning       guilt        or
    innocence and did not prohibit substitution of jurors).
                                                58                                        A-0492-11T4
           We   further   reject    defendant's       speculative    inferences     in
    support of a claim of prejudice, drawn from the shorter period
    of   deliberations     undertaken      by   the    reconstituted    jury.       No
    prejudice or other basis requiring we set aside the judge's
    substitution of the excused juror is presented.
           Defendant next identifies five comments by the State during
    summation as unsupported by evidence.              He asserts these improper
    statements amount to prosecutorial misconduct, the cumulative
    prejudice from which denied him a fair trial.
           Following the State's closing, defendant objected to these
    five    statements     as    unfounded:     (1)    suggesting    Williams      and
    Wigfall must have been the people who picked up the drugs from
    Fields' girlfriend; (2) stating Williams and Wigfall were gang
    members     with   defendant;    (3)    asking     whether,     after    spending
    eighteen     years    in    prison,   Hayes   really    knew    what     gasoline
    smelled like; (4) assuming "women are better at colors than men"
    to explain why a male witness stated the Jeep was orange not
    red; and (5) asserting defendant was not arrested when stopped
    for a motor vehicle infraction while driving the Jeep after the
    crimes because the officer did not have a warrant.                      The State
    responded to each of these, providing the facts from which these
    reasonable inferences were drawn, and conceded the judge could
                                           59                                A-0492-11T4
    give an instruction addressing the comment about women's ability
    to identify colors.
           Considering the arguments, the judge stated "looking at the
    five    you   mentioned,      I      don't    think    it     warrants     a     curative
    instruction       on    any     of     them."         He     emphasized        the   jury
    instructions were replete with references that it is the jury's
    decision "as to what the facts [we]re not what counsel says"
    and "summations are not evidence, [they are] the recollection of
    the    evidence   by    the   attorneys."         He       also   noted    the    overall
    instructions to the jury fully address their role and properly
    inform the jurors that summations include counsel's "comment" on
    what the State thinks was proven and what the defense thinks the
    State failed to prove.
           "Prosecutors are afforded considerable leeway in closing
    arguments as long as their comments are reasonably related to
    the scope of the evidence presented."                  State v. Frost, 
    158 N.J. 76
    , 82 (1999).          In determining whether comments in summation
    require reversal, an appellate court "must take into account the
    tenor of the trial and the degree of responsiveness of both
    counsel    and    the   court     to   improprieties         when   they    occurred."
    State v. Marshall, 
    123 N.J. 1
    , 153 (1991), cert. denied, 
    507 U.S. 929
    113 S. Ct. 1306
    122 L. Ed. 2d 694
                  Whether particular prosecutorial efforts can
                  be tolerated as vigorous advocacy or must be
                                                 60                                  A-0492-11T4
               condemned as misconduct is often a difficult
               determination to make.   In every instance,
               the performance must be evaluated in the
               context of the entire trial, the issues
               presented,   and   the  general   approaches
               [State v. Negron, 
    355 N.J. Super. 556
    , 576
               (App. Div. 2002).]
    Where    prosecutorial              misconduct   has     occurred,       to   justify
    reversal, the misconduct must have been "so egregious that it
    deprived the defendant of a fair trial."                  Frost, supra, 158 N.J.
    at 83.
        Judged        by        these    standards    and     also     considering      the
    comprehensive jury instructions presented to the jury by the
    trial    judge,        we    cannot     agree    these    five     comments    caused
    prejudice or in any way diminished the fairness of defendant's
    trial.    The prosecutor's explanation, responding to defendant's
    objection,   tied       testimonial       evidence      directly    to   support    the
    statements to show they presented a reasonable inference from
    the facts of the record.               McGuire, supra, 419 N.J. Super. at 140
    (stating the prosecutor is granted "wide latitude to make 'fair
    comment' on the evidence") (quoting State v. Mayberry, 
    52 N.J. 413
    , 437 (1968), cert. denied, 
    393 U.S. 1043
    89 S. Ct. 673
    21 L. Ed. 2d 593
     (1969)).                The only exception was item four, the
    prosecutor's comment on color identification.                      The inclusion of
    this statement had little or no impact on the trial.
                                                61                                A-0492-11T4
        Mindful that remarks in summation must be measured in the
    context of both closings and the trial as a whole, State v.
    31 N.J. 489
    , 513 (1960), we find no error.                   See State
    v. Mahoney, 
    188 N.J. 359
    , 376-77 (holding prosecutor's comments
    were fairly based on the facts and reasonable inferences to be
    drawn therefrom), cert. denied, 
    549 U.S. 995
    127 S. Ct. 507
    166 L. Ed. 2d 368
        Defendant's final challenge lodges a discovery violation.
    He maintains the State failed to timely disclose a possible
    exculpatory witness, that is, a woman who had contacted police
    three weeks before trial stating defendant was with her at the
    time of the murders.          During jury selection, defendant's mother
    called   the    judge's      chambers    advising    that   Detective    Robert
    Morris   of    the   Essex    County    Prosecutor's   Office   was     given    a
    statement from "Michele" who provided an alibi for defendant.
    Defendant had received similar information from his mother, but
    insisted the State failed to disclose an exculpatory witness.
        In    response     to    the   defendant's      application,   the     judge
    stated: "You're turning it on its head.              Your client would have
    had this information" because it related to where he allegedly
    was during the crime.          Defendant would have known had he been
    with the alibi witness.            However, he never gave notice of an
                                            62                              A-0492-11T4
    alibi.   Also, the judge aptly noted this was a retrial and an
    alibi was never before raised.          For these reasons, we conclude
    the   argument    lacks   sufficient    merit   to   warrant   additional
    discussion in our opinion.     R. 2:11-3(e)(2).
                                       63                            A-0492-11T4
    HIGBEE, J.A.D., dissenting.
          I     respectfully          disagree    with     the   majority         on    several
    issues.        The    trial       court   excluded     almost    all     of    a    defense
    expert's testimony describing the scientific research on voice
    identification, as well as the expert's opinions based on this
    research, for reasons that in some instances merely implicated
    the weight of the evidence, and in other instances were grounded
    in    unprecedented         and     unsupportable      precepts.          The       defense
    expert's     testimony        undermined      the    testimony     of,   perhaps,          the
    most credible witness to identify defendant, albeit by voice.
    Precluding defendant from presenting the evidence arguably in
    and of itself denied defendant a fair trial; but there was more.
          The    trial        court    admitted      all   but   one    of    the       State's
    expert's opinions about street gangs, even though the prejudice
    to defendant — primarily demonstrating he was a high ranking
    leader    of    a    dangerous       gang    —    substantially        outweighed          the
    purported probative value of explaining other testimony.                                    In
    addition,      the    trial       court   erred     during   the   second          trial    by
    replacing a deliberating juror based on a limited and inadequate
    inquiry into the juror's reasons for wanting to be excused.
          Any one of these errors had the clear capacity to affect
    the   outcome        of    the     trials.        Cumulatively,        they     leave       no
    reasonable doubt defendant was denied fair trials.
           It is undisputed that four women were fatally shot in the
    head    during      a   robbery        and   left        to     die    in        their    burning
    apartment.         The State accused defendant, Rolando Terrell, of
    perpetrating the robbery of two of the victims, the arson of
    their   apartment,        and    the    execution        of     all    four       women.        The
    State's three key lay witnesses were two convicted felons who
    testified in exchange for sweetheart plea deals, and a young
    woman   who    survived     the    crimes        by    hiding         in    a    closet.        She
    identified       defendant       solely       by       his      voice.             Because       my
    disagreement       with    the    majority       begins         with       the    exclusion      of
    expert testimony tending to undermine the voice identification,
    I begin with that issue and discuss in turn the two other issues
    on which I disagree with my colleagues.
           My disagreement with the majority on this issue involves
    both the appropriate standard of review and the trial court's
    application        of   legal    principles           governing        the        admission      of
    expert testimony.          The majority cites State v. Kuropchak, 
    221 N.J. 368
    , 385-86 (2015), for the proposition that our review of
    a trial court's evidential rulings is deferential.                                       Kuropchak
    involved      neither     the     admission         of        scientific         evidence       nor
    appellate review of a trial court's decision to bar a defense
    expert's scientific opinions in a criminal trial.
                                                 2                                            A-0492-11T4
           In State v. Torres, 
    183 N.J. 554
     (2005), the Supreme Court
    held   a   trial   court's   evidentiary   rulings    excluding    defense
    expert testimony in criminal trials are reviewed under an abuse
    of discretion standard, but with less deference than in other
    settings.     The Court explained that when reviewing the admission
    of scientific evidence, the appellate court must evaluate the
    reliability of the proffered scientific evidence, noting:
               While the trial court is in a better position to
               shape   the    record   and    make    credibility
               determinations, "appellate courts can digest
               expert testimony as well as review scientific
               literature,   judicial   decisions,    and   other
               authorities."      The appellate    court   should
               carefully review the relevant authorities in
               determining the correctness of the decision to
               admit or exclude the disputed testimony.        In
               short, the appellate court need not be as
               deferential to the trial court's ruling on the
               admissibility of expert scientific evidence as
               it should be with the admissibility of other
               forms of evidence.
               [Torres, supra,    183   N.J.   at   567   (citations
           There are other subtle variations in the standard of review
    of the admission of defense expert testimony in criminal cases.
    The admissibility of expert testimony is governed by N.J.R.E.
                 If    scientific,   technical,   or   other
                 specialized knowledge will assist the trier
                 of fact to understand the evidence or to
                                        3                              A-0492-11T4
                 determine a fact in issue, a witness
                 qualified as an expert by knowledge, skill,
                 experience,   training,  or   education  may
                 testify thereto in the form of an opinion or
    There    are   three     requirements         for    expert   testimony     to    be
    admissible:       "(1) the . . . subject matter [must be] beyond the
    ken of the average juror; (2) the field . . . must be at a state
    of   the    art    [such]   that     an       expert's    testimony   could      be
    sufficiently reliable; and (3) the witness must have sufficient
    expertise to . . . testi[fy]."            State v. Townsend, 
    186 N.J. 473
    491 (2006) (quoting Torres, supra, 183 N.J. at 567-68).
         Appellate review of the second prong has moved steadily
    closer to de novo review.          "An appellate court may independently
    review     scientific    literature,      judicial       decisions,   and    other
    authorities to determine whether proposed expert testimony is
    scientifically reliable and has obtained general acceptance so
    that it may be admitted in our courts."                  State v. McGuire, 
    419 N.J. Super. 88
    , 123-24 (App. Div.) (citing Torres, supra, 183
    N.J. at 567), certif. denied, 
    208 N.J. 335
     (2011)).                       Although
    appellate courts continue to review a trial court's rulings on
    prongs one and three for abuse of discretion, our review of a
    trial court's exclusion of defense expert testimony in criminal
    cases    requires      consideration      of        "[N.J.R.E.]   702's     liberal
    approach favoring admissibility."               State v. Jenewicz, 
    193 N.J. 4
    440,    456     (2008).         With   this    in      mind,    the    Supreme      Court
                   That   the   strength   of   an   individual's
                   qualifications may be undermined through
                   cross-examination is not a sound basis for
                   precluding an expert from testifying as part
                   of a defendant's defense, even if it likely
                   will affect the weight that the jury will
                   give the opinion.     Rather, a court should
                   simply be satisfied that the expert has a
                   basis   in   knowledge,    skill,   education,
                   training, or experience to be able to form
                   an opinion that can aid the jury on a
                   subject that is beyond its ken.
                   [Id. at 455.]
           Moreover, defendants in criminal cases have "a fundamental
    constitutional right to a fair trial, which necessarily includes
    the    right    to    present     witnesses      and   evidence       in   [their]     own
    defense."       Id. at 451 (citing Washington v. Texas, 
    388 U.S. 14
    87 S. Ct. 1920
    , 1923, 
    18 L. Ed. 2d 1019
    , 1023 (1967)).                             This
    "fundamental right . . . is protected not only by the Federal
    Constitution         but   also   by   Article    1,    paragraph      1   of    the   New
    Jersey Constitution."             Ibid.   For this reason, "the substantial
    liberty interest at stake for [a] defendant" is a factor that
    must be considered by a trial court in exercising its discretion
    to admit or deny expert testimony.                  Id. at 456.        Significantly,
    "[N.J.R.E.] 702's liberal approach favoring admissibility . . .
    and    the    substantial     liberty     interest       at    stake   for      defendant
    [may] tip the scales in favor of finding error in the trial
                                               5                                     A-0492-11T4
    court's preclusion of [a defense expert's] testimony."                                Ibid.
    That should have been the result here.
           The trial judge held a pretrial hearing under N.J.R.E. 104
    to determine the admissibility of the opinions of defendant's
    expert,    Dr.    Steven      Penrod.        The     testimony     elicited       at    the
    hearing disclosed the following information.                       Dr. Penrod has a
    Bachelor's degree from Yale, a J.D. from Harvard University, and
    a Ph.D. in social psychology from Harvard.                    After completing his
    education,       Dr.    Penrod   served         as    an   assistant        and   a    full
    professor of psychology at the University of Wisconsin.                           He then
    became a faculty member at the University of Minnesota School Of
    Law    before     becoming     program      director       for    joint      degrees     in
    psychology and law at the University of Nebraska.                           At the time
    of the hearing, he held the title of distinguished professor in
    psychology at the John Jay College of Criminal Justice in New
    York City where he had worked since 2001.
           Dr. Penrod described himself as a research psychologist.
    He    testified    his      primary     areas    of    research       and    study     have
    focused on jury decision making and eye-witness identification.
    He has devoted much of his career to the study of law and
    psychology,       specifically        of     memory        encoding,        recall,     and
    identification         by   witnesses      particularly      in   a    criminal       trial
    context.        As a result, Dr. Penrod has been qualified as an
                                                6                                     A-0492-11T4
    expert    and    testified     about   memory   formation    and    eye-witness
    recognition in various State and Federal courts well over 100
    times.    He testified he has also been qualified as an expert in
    voice identification cases approximately ten times in various
    courts, although voice identification is relevant in criminal
    trials considerably less often than eye-witness identification.
    In 2009, the Supreme Court appointed Judge Geoffrey Gaulkin,
    P.J.A.D., (retired and temporarily assigned on recall), as a
    Special Master to preside over a hearing on the reliability of
    eye-witnesses and prepare a report on his findings.                     Dr. Penrod
    was chosen as one of the experts to testify and offer his expert
    opinions at the hearing.
        Within the scientific community that concentrates on the
    study of memory and witness identification, Dr. Penrod has been
    asked    to    speak   and   present   his   research    papers    at    over   200
    conferences involving psychologists from the United States and
    Europe.       He authored or co-authored five books on eye-witness
    identification and published over 140 articles on jury decision
    making and witness identification.              More than forty percent of
    his papers have been published in peer reviewed journals.
        His research for the last thirty years, and continuing at
    the time of the hearing, was primarily funded by the National
    Science       Foundation     (NSF).    He    explained    that    only     fifteen
                                            7                                 A-0492-11T4
    percent     of    proposals   submitted          to    the   NSF   are   approved     for
    grants yearly, and at the time of the hearing, his research was
    being funded by two separate NSF grants.
          Dr.    Penrod    has    done     his       own    independent      research     and
    studies      on      jury     decisions,              memory,      and       eye-witness
    identification; however, he acknowledged he had not conducted
    his own experiments or studies on voice identification.                                He
    studied the research on voice identification, and included the
    topic in one of the first articles he wrote after graduating
    from Harvard.        Dr. Penrod reviewed research on the subject from
    the 1930s and a published study from 1944.                         However, until the
    1970s, there had been little research in that specific field.
    He testified a "new flourishing body of research" was undertaken
    by psychologists on voice identification starting in the 1970s.
    He admitted there was still a much smaller body of research
    limited to voice identification than was devoted to eye-witness
    identification.       However, despite the smaller body of research,
    the   investigations         focused    on        the    same      factors    and   were
    "parallel streams of research."
          The doctor explained that recalling and identifying a face
    or a voice a witness has seen or heard before relies on the
    ability to encode and then reconstruct the memory.                       According to
    Dr. Penrod, a memory is not, as is commonly believed by jurors,
                                                 8                                  A-0492-11T4
    a photograph or a tape recording sitting in the brain waiting to
    be retrieved.     Rather, memory involves piecemeal construction
    and   reconstruction    and    is   fallible.       He   testified     that
    psychologists study the same factors affecting reliability of
    memory reconstruction and eye-witness identification as those
    studied on ear-witness identification.          Dr. Penrod provided a
    list of more than twenty scientific research papers specifically
    about ear-witness identification.         He particularly referenced
    the work of the leading researcher on the topic, a Canadian
    psychologist    named   Dan   Yarmey,   who   has   published   over    ten
    research papers specifically on witness voice identification.
          Dr. Penrod testified the opinions he gave in his report
    were based on scientific research on both eye-witness testimony
    and ear-witness testimony that were generally accepted in the
    scientific community.     He advised the court he would not comment
    on the witnesses or the specific facts, as he never opines on a
    particular witness's credibility.        He explained he would simply
    testify about the science that could be applied by the jury to
    evaluate the evidence.1
       The prosecutor, on one hand, argued for exclusion because Dr.
    Penrod's testimony would not address the facts of the case,
    while arguing on the other hand his testimony would invade the
    province of the jury to determine credibility.     The judge did
    not bar testimony based on either of these arguments.
                                        9                            A-0492-11T4
          Following the hearing, defendant argued Dr. Penrod was a
    qualified expert in the field of voice recognition and that his
    testimony would assist the jury in understanding and evaluating
    the ear-witness testimony.
          The    State     did     not    call       an     expert    to     challenge       the
    reliability of the science underlying Dr. Penrod's testimony;
    nor did it produce any evidence disputing the general acceptance
    by the scientific community of Dr. Penrod's opinions on face and
    voice identification.          The State moved to exclude the testimony
    of Dr. Penrod, arguing he was not qualified as an expert to give
    testimony on voice recognition; that the testimony he proffered
    was not outside the ken of the average juror; that he did not
    give an opinion about the facts of the case; and the jury should
    determine credibility without assistance.
          The    trial     judge     issued      a        written    opinion      and    order
    excluding almost all of Dr. Penrod's testimony.                               First, the
    judge acknowledged that although the evaluation of credibility
    of   any    witness   was    solely    within         the   province     of   the    jury,
    expert testimony in cases involving witness identification was
    admissible to demonstrate to the jury a witness may genuinely
    believe     their     identification         is       accurate    even     when     it    is
    incorrect.     The trial judge stated:
               In cases where expert testimony has been admitted
               to elucidate witness statements, it was therefore
                                              10                                      A-0492-11T4
             not to address whether the witness was giving
             truthful testimony, but rather to give the jury a
             "context in which to more realistically and fairly
             . . . appraise and consider the witness' perceptual
             accuracy."    The trend is toward admitting such
             testimony after ensuring that it meets the rules
             for the admissibility of expert testimony.
             [(Citations omitted).]
        The    trial      judge   proceeded    to   rule   specifically    on   the
    admissibility of each separate topic presented in Dr. Penrod's
    report based on the criteria set forth in State v. Kelly, 
    97 N.J. 178
    , 208 (1984), stating:
               (1) the intended testimony must concern a
               subject matter that is beyond the ken of the
               average juror; (2) the field testified to
               must be at a state of the art such that an
               expert's testimony could be sufficiently
               reliable; and (3) the witness must have
               sufficient expertise to offer the intended
        In his analysis of the admissibility of evidence, the trial
    judge did not exclude any of the testimony based on the second
    prong of the three prong test.            In fact, the prosecutor did not
    request exclusion of the testimony under prong two.                   Instead,
    the prosecutor and the trial judge — as does the majority -
    focused on an out-of-context quotation by the expert that he
    relied on "experimental" research.                The prosecutor and trial
    court   relied   on    this   quotation    when    discussing   the   expert's
    qualifications to testify, thus seemingly implying the science
    was in doubt, but making no finding that the subject of voice
                                         11                               A-0492-11T4
    identification       was    not    sufficiently     accepted   or    reliable    for
    admission.         In      fact,    Dr.    Penrod's    testimony      included     a
    description    of     studies      based   on    results   from     scientifically
    controlled experiments and other types of studies that gathered
    data   from   field      observations      or    statistical   databases.        Dr.
    Penrod at one point differentiated other types of research from
    "experimental"          research     where       experiments      were   actually
    conducted.     At no time did he use the word "experimental" in the
    context of "unproven."
           The following is a review of the rulings made by the trial
    judge on each of the reliability factors affecting ear-witness
    testimony as explained by Dr. Penrod.
           A.   STRESS
           The testimony proffered by the expert on stress was based
    on studies showing that when an individual is under "flight or
    fight" stress, which is when they believe they are in immediate
    danger, their perception and ability to construct an accurate
    memory of a face or a voice is diminished.                     Their subsequent
    recall of that face or voice, and thus their identification of a
    defendant, is less reliable than if they were not under stress.
           The judge barred Dr. Penrod from testifying on the effect
    of   stress   on     the   reliability      of   ear-witness      testimony,    thus
    significantly limiting the defendant's ability to challenge the
                                               12                             A-0492-11T4
    survivor's voice identification of defendant.                           The judge found
    the    stress    testimony     was      not   within      the     ken   of     the   average
    juror.       Specifically, he found "information concerning stress
    and perception appears to be of potential help to the trier of
    fact    in     understanding       the    identification           testimony         of    [the
    survivor]."       The judge made a general finding that the field of
    study     demonstrating         stress        diminishes          the     capacity          for
    perception      is   "at    such    a    state     of    the     art    that    it    can    be
    reasonably relied upon."                Indeed, Dr. Penrod testified at the
    hearing      there    is    general       acceptance           within    the    scientific
    community of the studies affecting both eye-witnesses and ear-
    witnesses.           The      judge       stated:         "cases        evaluating          the
    admissibility        of    expert       testimony        considering         'ear-witness'
    identifications have drawn correlations to, or seen it                                     as a
    subset of, expert testimony concerning eye witness testimony."
           However, the judge barred the testimony on stress's effect
    on voice identifications holding "it appears that Dr. Penrod is
    therefore       unqualified     to       testify    concerning          the    effects       of
    stress    on    voice      recognition,       and       that    such    testimony         would
    present a risk of misleading the jury."                        The judge reasoned Dr.
    Penrod    was     unqualified       because        he    never     conducted         his    own
    studies on voice identification.                   The State in their brief does
    not cite any precedential published case decided by any New
                                                  13                                     A-0492-11T4
    Jersey court that one must have conducted their own experiments
    or   studies       to   be     qualified      as    an    expert      witness.           To   the
    contrary, N.J.R.E. 702 states "a witness qualified as an expert
    by   knowledge,         skill,    experience,        training,            or    education     may
    testify      thereto      in     the   form    of        an    opinion         or    otherwise."
    (Emphasis added).              The rule does not require that an expert
    personally conduct experiments.
           The trial court cites to one case from 1992 where a federal
    judge barred Dr. Penrod's testimony on stress and eye-witness
    testimony.         In United States v. Nguyen, 
    793 F. Supp. 497
    , 515-16
    (D.N.J. 1992), the federal district court judge found one of the
    reasons      for    barring      his     testimony            was   Dr.    Penrod       had   not
    conducted his own experiments.                     Nguyen, which the State relied
    upon   and    which      the     trial   judge       discussed        at       length    in   his
    opinion,      presents          two    legally       unsupported               and    untenable
    assertions which fly in the face of legal precedent in this
    State and elsewhere.
           The first is the assertion that not having done original
    research or experiments on a particular scientific topic is a
    basis for finding an expert is not qualified to give an opinion
    in that field.           The second is the assertion that a subject is
    not outside the ken of the average juror if the jurors could
    read the scientific studies themselves, and understand them.
                                                  14                                        A-0492-11T4
           Both of those misguided assertions were repeated by the
    trial    judge     here   as   reasons   to      bar    Dr.   Penrod's      testimony.
    Nguyen, however, does not reflect New Jersey controlling law in
    1992 or in 2011, or the law in any other state.                    The trial judge
    here cited several other federal court decisions from the 1990's
    that    admitted    eye-witness     expert       testimony,     including      a   1991
    decision by the Third Circuit that admitted the testimony of Dr.
    Penrod.      See U.S. v. Stevens, 
    935 F.2d 1380
    , 1397 (3d Cir.
           The trial judge, again borrowing from the legally unsound
    reasoning of Nguyen, further held:                  "It is likely if the jury
    were provided documentation of the study, they would be able to
    come    to   the   same   conclusions       .   .   .   ."     This    reasoning     is
    incompatible with our Rules of Evidence.
           In 1991, the Supreme Court adopted the federal rule of
    evidence on the admission of learned treatises in Jacober v. St.
    Peter's Medical Ctr., 
    128 N.J. 475
    , 495 (1992).                          Before that
    decision,     published        textbooks,       research      papers   or    articles
    describing the current scientific knowledge in a field were not
    admissible except when used on cross-examination of a witness
    who acknowledged them as authoritative.                    In Jacober, the court
    adopted the federal evidence rule that allowed the admission
    into evidence of learned treatises.                 What prevents the jury from
                                             15                                   A-0492-11T4
    considering as evidence any article published by anyone anywhere
    is the requirement that the treatise be vouched for by an expert
    on the stand.
           As   Justice     Stein    wrote:        "Recently,     we     noted       that      in
    determining       reliability     '[t]he       focus   should       be    on    what      the
    experts in fact rely on, not on whether the court thinks they
    should so rely.'"            Jacober, supra, 128 N.J. at 495-96 (quoting
    Ryan   v.   KDI    Sylvan     Pools,    Inc.,    
    121 N.J. 276
    ,      289   (1990)).
    Thus, a jury can consider a learned treatise only when an expert
    can    testify    to    its    reliability,      explain      it,    and       be    cross-
    examined about it.            Justice Stein explained this principle as
    follows: "[t]he rule's emphasis on expert guidance, as well as
    its prohibition on the receipt of learned treatises as exhibits,
    limits the risk that factfinders will misunderstand or misapply
    learned-treatise statements and discourages the use of learned
    treatises as substitutes for expert testimony."                     Id. at 491.
           Following       the    Jacober   decision,      N.J.R.E.          803    (18)      was
    adopted and learned treatises were made an exception to the
    hearsay rule under the condition they be introduced by an expert
    on the stand and not be given directly to the jury.                             The Rule
                To the extent called to the attention of an
                expert witness upon cross-examination or relied
                upon by the expert in direct examination,
                statements contained in published treatises,
                                              16                                        A-0492-11T4
              periodicals, or pamphlets on a subject of
              history, medicine, or other science or art,
              established   as   a  reliable   authority  by
              testimony or by judicial notice. If admitted,
              the statements may not be received as exhibits
              but may be read into evidence or, if graphics,
              shown to the jury.
              [N.J.R.E. 803(18) (emphasis added).]
          The trial judge's statement that if the jurors were given
    the documentation they could come to the same conclusion as the
    expert as a reason to bar expert testimony is incomprehensible
    in light of N.J.R.E. 803(18)'s explicit preclusion of statements
    in learned treatises being received as exhibits.             The question
    is,   does   the   average   juror     know   the   information     and   the
    scientific acceptance of the information?           The trial judge made
    the   inconsistent   finding   that    a   distinguished   expert    in   the
    field of witness identification did not know enough to explain
    the research, but the jury would somehow know and understand it
    if given the studies.          Jurors not only cannot be given the
    studies, but are instructed to not use the internet or do their
    own research as they cannot consider studies that are not in
    evidence through the testimony of an expert.
          A finding that Dr. Penrod was not qualified in the face of
    the evidence that was presented on his qualifications was as
    unsound as the court's statement the jurors themselves could
                                          17                            A-0492-11T4
    read and understand the studies.              The ruling constituted a clear
    abuse of discretion.
          The survivor testified she heard defendant speak only once
    before the date of the crime.            She could not identify who he was
    by his voice when interviewed by police immediately after the
    crime.       The   next    day   she    spoke     to   her    boyfriend      and   she
    testified, while talking to him, she realized the voice she had
    heard was defendant's voice.              She did not report this to the
    police until they called her to come into the station two days
    after the crime.          At that point, the co-defendant had already
    identified defendant as the murderer to his friend, his brother,
    and the police.           The police advised the survivor they had a
    suspect.       The    police      did   not     provide       her   with    a   voice
    identification test similar to a line up or photo identification
    test.       The witness identified defendant's voice only by her
    stated recollection.        At trial she testified she was 100 percent
    certain about her identification of defendant.
          Dr.    Penrod   would      have   testified      that    studies      generally
    accepted by the scientific community demonstrate there was only
    a   very    modest    correlation       between    the    level     of     confidence
    asserted by a witness and the accuracy of their identification.
    Yet, research conducted by Dr. Penrod and others showed that
                                             18                                  A-0492-11T4
    jurors are systematically influenced by the level of confidence
    the     witness       displays     in    their        identification         and    do     not
    understand how little that means in terms of accuracy of the
          The doctor further opined that the level of confidence of a
    witness is influenced by subsequent events unbeknownst to the
    witness.         He    explained        even    a     response       as    slight    as    the
    researcher saying "good" when the identification was made would
    substantially increase the confidence of the witness.                                    Other
    studies     demonstrated         that    when       the    witness    became      aware   the
    person    they    identified       had    been       identified       by    someone      else,
    their     confidence       in     the     identification             was    substantially
          The trial judge ruled he would allow testimony regarding
    witness     confidence      being        only       modestly     correlated        with    the
    accuracy of an identification, but would not allow Dr. Penrod to
    testify that confidence was increased or decreased by feedback.
    The judge again discussed the decision in Nguyen pointing out
    that the federal judge had barred Dr. Penrod from giving any
    testimony about confidence and accuracy.
          The    trial       judge     explained:             "Dr.   Penrod's      [proffered]
    testimony     that       subsequent        events          may    effect      a     witness'
    confidence in her testimony is a matter of common sense, and is
                                                   19                                   A-0492-11T4
    not outside the knowledge of the average juror."                The evidence
    provides no support for this finding.
           To the contrary Dr. Penrod testified:
                 Well, there have been a number of surveys of
                 the general public and what they believe
                 about the influence of a variety of factors
                 that have been the subject of research
                 investigation, and whether they have the
                 same understanding of these effects as
                 research psychologists.
                      The common pattern of findings is that
                 some portion of the general public shares a
                 belief that matches the research findings,
                 but another substantial portion of the
                 general public doesn't share that belief.
    The average juror does not necessarily have any knowledge about
    the impact of even slight feedback.          The judge's decision to bar
    this testimony was arbitrary.          He did not examine the totality
    of Dr. Penrod's testimony and abused his discretion.
           C.    LISTENERS' VIEW OF FACE
           Dr. Penrod testified that there is an inherent level of
    unreliability in witness voice identification which is increased
    when a witness looks at the person while hearing their voice.
    He described studies where individuals listened to a voice and
    then   had    to   identify   the   voice.   In   the   other   arm   of    the
    studies, individuals saw a person's face as they spoke and then
    had to identify the voice.          The results demonstrated that when a
    person hears just a voice there is a better chance they will be
                                          20                              A-0492-11T4
    able to subsequently identify it than if they see the person and
    hear the voice simultaneously.       The reason proffered by Dr.
    Penrod is that people focus more on faces than on voices, and
    therefore do not create as accurate a memory of the voice.
         This is information the jury should have been allowed to
    hear because it could have assisted them in their evaluation of
    the identification of the defendant's voice by the survivor.
    The one time she heard defendant speak before the crime was
    committed, she was simultaneously looking at him.       She next
    heard his voice on the night of the crime.       It was from her
    memory of the prior occasion that she was able to identify his
    voice.   According to the research, the reliability of her memory
    could be affected if the memory of his voice was developed while
    viewing defendant.2
         The judge again used the language and reasoning of the
    district court judge in Nguyen to bar Dr. Penrod's testimony,
    finding he was not qualified to testify as an expert because he
       The record does not reflect whether the survivor was looking
    at defendant's face when he spoke because this area of testimony
    became irrelevant when the expert's testimony was barred.     It
    most certainly would have been probed during her examination if
    the expert's testimony was not already barred. Then, depending
    on her testimony, Dr. Penrod could have been cross-examined on
    the reliability of the research.    If the testimony established
    the survivor did not see defendant's face as he spoke, the State
    could have moved to bar this area of testimony. Significantly,
    this was not part of the trial court's reasoning for barring the
                                    21                       A-0492-11T4
    relied upon the studies of other researchers, did not provide
    his own analysis, and provided only a "minimal recitation of the
    facts and processes underlying the research."                         The judge also
    noted, "if the jury were provided documentation of the study,
    they    would       be   able   to   come    to   the    same   conclusions."      The
    indisputable error in that statement has already been discussed.
    Such a misunderstanding and misstatement clearly constitutes an
    abuse of discretion.            See Moraes v. Wesler, 
    439 N.J. Super. 375
    378 (App. Div. 2015) (noting abuse of discretion arises when,
    among       other    things,     a   decision       impermissibly      departs   from
    established policies, rests on an impermissible basis, or is
    based       upon     consideration          of    irrelevant     or    inappropriate
           Dr. Penrod testified that sometimes a witness is influenced
    to identify the wrong perpetrator when they have some limited
    prior exposure to that person.                    He described several studies
    including one where researchers staged thefts both in classroom
    and in street settings.               Witnesses were asked to identify the
    thief.       Twenty-five percent of witnesses wrongly identified an
    innocent bystander, unconsciously transferring a face they had
    some memory of to the perpetrator.                      The jury should have been
                                                 22                              A-0492-11T4
    permitted to consider unconscious transference in evaluating the
    reliability of the witness identification.
          The studies described by Dr. Penrod on this topic did not
    include    specific      studies    of   voice     identification         versus   eye-
    witness identification.             However, the judge did not find his
    opinions on voice identification were unscientific.                        Rather, he
    again   barred     the     testimony     finding     it     could    be    misleading
    because Dr. Penrod did not do his own studies or "apply his own
    analysis or expertise to it."             He also found the jury "would be
    able to come to the same conclusions" if they were given the
    studies to read.          Barring this testimony on that basis, which
    has no foundation in the law, was an abuse of discretion.
          Dr. Penrod testified at the hearing that studies show the
    longer a witness is exposed to a voice, the more accurate the
    witness identification of the voice.                  The trial court barred
    expert testimony on both factors.
          As to the proffer that the longer the exposure the more
    accurate    the     identification,          the    trial     judge       barred    the
    testimony and found this was common sense and within the ken of
    the   average     juror.      The    judge    was    correct    on    that    limited
    finding.     The    expert,    however,       was   actually        proffering     this
    testimony to explain the common understanding that duration of
                                             23                                   A-0492-11T4
    exposure     is    equated   to    accuracy   is   only   true    "if   all   other
    [factors] are equal."             Dr. Penrod referenced a study conducted
    on military personnel who were interrogated for forty minutes
    face-to-face in both high stress and low stress situations.                      The
    effect of very high stress was of such significance that even
    though the interrogation was of long duration the accuracy rate
    of subsequent identifications was only twenty-seven percent.
          Dr. Penrod also used the concept of duration of time to
    explain that although studies show that longer time exposure
    improved accuracy, if the exposure was broken up in several
    episodes, the observer would have better recall.                    For example,
    if one hears a voice for a period of time, then there is a break
    in   time,    and    then    exposure   begins     again,   the     witness    will
    usually have more accurate recall than if the exposure to the
    voice was for the same length of time but was continuous.                     Thus,
    Dr. Penrod had more to offer to the jury than the isolated
    concept that the longer one is exposed to a voice, the more
    accurate     the    identification.       For      this   reason,    the   judge's
    finding, which did not address the entirety of what was being
    proffered and took Dr. Penrod's testimony out-of-context, was
    made arbitrarily and was an abuse of discretion.
                                            24                                 A-0492-11T4
          F.    TIME ESTIMATIONS
          The    doctor's      second        opinion         about    time     of    exposure
    concerned the overestimation by test subjects of the length of
    time of non-routine brief events.                    A witness's description of
    how long a period of time an event lasted, and thus how long
    they were exposed to a persons' voice or face, according to Dr.
    Penrod, is almost always overestimated by a significant amount
    when the event is brief and not routine.                            Researchers found
    witness     time    estimates      are       significantly        more    accurate      for
    longer events than shorter events.                   The trial judge barred this
    testimony because it was within the ken of the average juror,
    but   offered      no   support    for       this    holding.       Some       jurors   may
    believe it to be true and others may not, but few, if any,
    jurors will have read the scientific literature and know what
    studies have demonstrated.              Nor could they use them in the jury
    room without expert testimony.
          The judge, in barring this testimony and several of the
    factors     that    follow,      also     held      that    the     accuracy      of    the
    witness's    testimony         could    be    tested      based    on    the    witness's
    demeanor and through cross-examination.                          This finding by the
    court demonstrates a lack of comprehension of the entire purpose
    of    allowing      expert       testimony          on    witness       identification.
    Normally     jurors      can     evaluate         credibility       because      deciding
                                                 25                                   A-0492-11T4
    whether someone is telling the truth is a skill learned through
    experience.           The problem with witness identification is it can
    be mistaken for reasons explained by Dr. Penrod, even in the
    absence      of   a     motive    to   lie    that    can   be   revealed    on     cross-
    examination.            The witness may be an honest person with good
    intentions        who     sincerely     but        mistakenly     believes    they       are
    telling the truth.               The witness's demeanor will be that of a
    truth teller if they believe they are being truthful.
      Finally, the judge again found the expert just recited the
    findings of others as opposed to doing original research, and
    that the jury could read and understand the studies themselves.
    These reasons are unsupported by the law and demonstrate an
    abuse of discretion.
           Dr.    Penrod      testified     another       factor     that   affects       voice
    recognition is whether the speaker's tone of voice is the same.
    He described a Canadian study where individuals were played a
    recording of a speaker talking in a normal non-emotional voice
    and subsequently were asked to identify that voice from other
    voice   recordings,         including        the    original     speaker   speaking       in
    very    emotional         tones.         Here,       the    survivor       first      heard
    defendant's voice in a conversation while sitting in a truck,
    then two weeks later at the crime scene where the speaker was
                                                  26                                   A-0492-11T4
    shouting and threatening in an angry voice.                The effect a change
    of tone can have on the reliability of an identification could
    be helpful to the jury in evaluating reliability.
          The trial judge barred it, however, because he found it was
    within the ken of the average juror that hearing a voice in a
    different tone would make it more difficult to identify.                       What
    the judge ignored is that the study described by the expert
    demonstrated statistically that subjects in the study who heard
    a voice in a different tone were no more statistically likely to
    identify the right voice than would have occurred by chance, or
    in   other    words,   just   guessing.    While      a    juror   might    assume
    through common sense that a change in tone might affect the
    accuracy     of   a   voice   identification,   the       experiments   and      the
    research demonstrate that tone of voice is very significant in
    terms of recollection.           The trial judge did not look at the
    totality of the information Dr. Penrod proffered.                   The barring
    of testimony applying this limited examination of the proffered
    testimony was an abuse of discretion.
          H.     COMPETING VOICES
          Dr. Penrod's proffered testimony on competing voices was
    that the reliability of voice identification is diminished when
    there are other voices and sounds heard at the same time.                          He
    offered no additional information.          The trial judge barred the
                                          27                                   A-0492-11T4
    testimony because he found this is common sense.                          There was no
    error in this ruling.
          The trial judge found Dr. Penrod's testimony on the effect
    of   the   duration         of    time    between    hearing   the    voice      and    the
    identification         of    the    voice    was    not   beyond    the    ken    of    the
    average juror, and he barred it as falling within the realm of
    common     sense.        The      trial     judge    oversimplified       Dr.    Penrod's
    testimony by describing it as simply an opinion that the longer
    the time period between the identification and the crime, the
    less accurate the identification.
          In fact, there are two time periods in this case possibly
    affecting the reliability of the identification.                            First, the
    survivor heard defendant's voice two weeks before she heard it
    during the crime.            Second, there was a different period of time
    following the crime before she was able to identify the voice as
    defendant's.          The studies Dr. Penrod described in his testimony
    relate     to   how    the       duration    of    time   between   first       hearing    a
    voice, and then hearing it a second time, impacts the accuracy
    of the identification.               Although the average juror would have a
    common sense understanding that the longer the time gap, the
    less accurate the identification will be, Dr. Penrod proffered
    more scientific information that is not common sense and does
                                                  28                                  A-0492-11T4
    fall    outside      the     ken     of       the       average    juror.      Dr.       Penrod
                  [M]ost people do recognize that, with the
                  passage of time, we lose information.  What
                  people typically will not understand, and
                  what the research shows — and, indeed this
                  is research dating back to the 1880s with
                  regard to memory – is that the loss of
                  memory is most rapid in the first few hours
                  and then days following an event.
           Dr. Penrod testified that he, along with other colleagues,
    have   done     a    meta-analysis            of    the    research    on   loss     of    face
    memory, which demonstrated that the most rapid loss of memory
    occurred      in    the     first       ten    hours.         Specifically,         in    voice
    recognition         studies,       he     testified         other     researchers         found
    between     a       nineteen        and       sixty-nine          percent     accuracy       in
    identifying a voice after two weeks.                          This is not information
    within the ken of the average juror, and it was an abuse of
    discretion to bar the testimony on this basis.
           The trial judge barred Dr. Penrod's testimony that voice
    identification         is     substantially               less     accurate     than      face
    identification, i.e., eye-witness versus ear-witness.                               The judge
    again found this was common sense and not beyond the ken of the
    average juror.         The fact that it is easier to identify a face
    than   a    voice     may    not        be    common       knowledge.         Dr.    Penrod's
    testimony went beyond the general knowledge the average juror
                                                       29                                A-0492-11T4
    might have as to the level of accuracy of voice identification.
    The     research      demonstrates,          according        to      Dr.    Penrod,
    "dramatically      worse"     results       for    voice     recognition.              He
    discussed    the   specific       differences      and    study    results       in   his
    pretrial testimony.        It was an abuse of discretion to bar all of
    his testimony because of a finding the average juror may have
    some information based on his or her own experience, without
    recognizing the average juror is unlikely to know the accepted
    scientific research that puts the juror's general understanding
    in    the   context   of    the    magnitude       of    difficulties       in    voice
           Dr. Penrod proffered testimony about a body of research
    that shows witness identification by both eye-witnesses and ear-
    witnesses is much more unreliable than the average juror would
    expect.     The three Kelly criteria were met by this proffer, but
    the trial judge barred the testimony finding inexplicably this
    could be explored on cross-examination.                  I disagree.
           There is no lay witness that can be cross-examined about
    the    research    that     has     found    the        reliability    of    witness
    identifications to be problematic.                 The judge's determination
    this was within the ken of the average juror is not supported by
    the studies relied on by the expert.                    According to Dr. Penrod,
                                            30                                   A-0492-11T4
    the research demonstrates that jurors have mixed understandings
    about the reliability of witness identification and the factors
    that affect it.         The trial judge barred this area of testimony
    because    he   found    that   "while    courts     have     allowed     testimony
    concerning special factors affecting identification accuracy, it
    does not appear that courts have admitted testimony concerning
    the   general     reliability      or         unreliability     of   eye-witness
    identifications."        It is understandable that this lack of prior
    precedent would cause a trial judge to pause and consider the
    reason    for   the   same.     However,       evidence     cannot   be   excluded
    because it has not been found admissible in prior cases.                      As we
    explained in State v. Burr, 
    392 N.J. Super. 538
    , 557 (App. Div.
    2007), aff'd as modified, 
    195 N.J. 119
                Our court rules allow the admission of "all
                relevant evidence" that is not otherwise
                excluded by law.       Relevant evidence is
                defined as any evidence that has "a tendency
                in reason to prove or disprove any fact of
                consequence to the determination of the
                action."    In determining whether proffered
                evidence is relevant, the trial court should
                inquire as to whether a "logical connection"
                exists between the evidence and a fact in
                issue.   Stated another way, if the evidence
                renders a desired inference more probable or
                logical,   then   the   evidence  should  be
                admitted. The test for relevancy is a broad
                one that generally favors admissibility.
                [(Citations omitted).]
                                             31                                A-0492-11T4
           Considering     this     standard       for    admissibility        of    relevant
    evidence, it was an abuse of discretion to preclude Dr. Penrod's
    testimony about studies on the general lack of reliability of
    witness identification.           Dr. Penrod could be cross-examined by
    the    State   about     any    flaws     in    the     studies        themselves,      his
    reasoning, and the applicability of eye-witness studies to voice
           After the judge ruled on the admissibility of Dr. Penrod's
    testimony, the Special Master's Study ordered by the Supreme
    Court was completed and released.                    Defendant made a motion for
    reconsideration on the admission of Dr. Penrod's testimony.                             The
    trial judge denied the motion, and stood by his prior decisions,
    except for one.
           The   judge   addressed     in     some       detail      two    specific     areas
    discussed in the report.           The Special Master found that jurors
    tend to underestimate the importance of memory decay.                           The trial
    judge acknowledged this contradicted his prior finding that this
    area   of    testimony    was    within    the       ken   of    the    average    juror.
    Nonetheless, he ruled it was barred as being common sense, based
    on one statement, taken out-of-context, where Dr. Penrod said
    the general principle was common sense.                         The judge overlooked
    the balance of the expert's testimony.
                                              32                                      A-0492-11T4
          The      second     area        the   judge       addressed    was    defendant's
    argument that because the witness was told by the police they
    had a suspect before she identified defendant, this might have
    tainted the identification.                 The judge applied the same flawed
    criteria he relied upon to bar other testimony, namely, he would
    only consider allowing the testimony into evidence if Dr. Penrod
    had conducted his own study on this factor.3                      Defense counsel did
    not contend Dr. Penrod performed such a study.
          In view of the trial judge's rulings — which eviscerated
    the expert's opinion — defendant did not call the expert as a
    trial witness to testify about two factors: (1) the effect of
    stress on eye-witness testimony, not including the effect of
    stress    on    voice     identification           or   the   crossover     between     the
    studies; and (2) studies showing a witness's confidence level
    and   the      accuracy     of        his    or    her    identification          are   not
    correlated,       not     including         the    studies      showing    how     outside
    factors can affect the witness' confidence level.                          The majority
    faults    defendant       for    not    presenting        his   expert's    eviscerated
    opinion,       stating:    "On    appeal,         defendant     claims     'the    limited
    nature of testimony that he would be permitted under the Court's
    ruling'     neutralized         its    effectiveness.           We   disagree."         Our
       The judge pointed out another psychologist had testified on
    this factor before the Special Master and not Dr. Penrod.
                                                  33                                  A-0492-11T4
    agreement       or     disagreement       with     defendant's            decision       is
    irrelevant.        The question is whether defendant was deprived of
    "a    fundamental      constitutional      right       to    a    fair    trial,      which
    necessarily includes the right to present witnesses and evidence
    in    his    own     defense."       Jenewicz,     supra,         193    N.J.    at    451.
    "[N.J.R.E.] 702's           liberal approach favoring admissibility . . .
    and    the   substantial      liberty     interest      at       stake   for    defendant
    [may] tip the scales in favor of finding error in the trial
    court's preclusion of [a defense expert's] testimony."                             Id. at
    456.         Here,    the    trial    judge      not    only        overlooked        these
    considerations, he barred defendant from presenting evidence in
    his    own     defense      based    on   unsupported            assumptions       and    a
    misunderstanding of the rules of evidence.
           The law in the          area of witness identification                   is still
    developing.        The Supreme Court's decision in State v. Henderson,
    208 N.J. 208
     (2009),4 is not retroactive, but the evidence that
    was wrongfully barred in this case was admissible under our case
    law at the time of the trial.             The trial court's rulings barring
    testimony of Dr. Penrod should be reversed for the reasons and
    with the exceptions set forth above.
         Dr. Penrod's testimony before the Special Master and his
    published work were quoted at length in the decision, which
    focused on eye-witness identification.
                                              34                                     A-0492-11T4
        The trial judge allowed the State to call Lieutenant Earl
    Grave as an expert on gangs.      Lieutenant Graves works for the
    Essex County Prosecutor's Office.     Defendant argues that while
    Lieutenant Graves' testimony may have been otherwise admissible,
    it should have been barred under N.J.R.E. 404(b), which states:
               Except as otherwise provided by Rule 608(b)
               evidence of other crimes, wrongs, or acts is
               not admissible to prove the disposition of a
               person in order to show that such person
               acted   in   conformity   therewith.      Such
               evidence may be admitted for other purposes,
               such   as   proof  of   motive,   opportunity,
               intent,    preparation,    plan,    knowledge,
               identity or absence of mistake or accident
               when such matters are relevant to a material
               issue in dispute.
        It is accepted that even when the jurors are instructed
    that prior crimes or bad acts are being admitted into evidence
    for reasons other than demonstrating defendant's propensity to
    engage   in   criminal   activity,   such   evidence   is   uniquely
    prejudicial and inflammatory.   The Supreme Court recognized this
    as we acknowledged in State v Hernandez, 
    334 N.J. Super. 264
    269-70 (2000), aff'd as modified, 
    170 N.J. 106
               Because of the "widespread agreement that
               other-crimes evidence has a unique tendency
               to turn a jury against the defendant . . .
               ," State v. Stevens, 
    115 N.J. 289
    , 302
               (1989),    the   compromise   between   the
               antagonistic interests that the Rule seeks
               to effect can be achieved only by the most
               delicate balancing.   As Stevens, supra, at
               303, explains, "[i]t is this inflammatory
                                    35                           A-0492-11T4
              characteristic of other-crimes evidence that
              mandates a careful and pragmatic evaluation
              by trial courts, based on the specific
              context in which the evidence is offered, to
              determine whether the probative worth of the
              evidence outweighs its potential for undue
              prejudice."     The tension between undue
              prejudice to the defendant and probative
              value   to  the   State  to  prove   a  fact
              legitimately in issue induced the Supreme
              Court in State v. Cofield, 
    127 N.J. 328
    , 338
              (1992), to articulate further the conditions
              of admissibility of other-crimes evidence,
              the Court defining those conditions as
                      1. The evidence of the other crime
                      must be admissible as relevant to
                      a material issue;
                      2. It must be similar in kind and
                      reasonably close in time to the
                      offense charged;
                      3. The evidence of the other crime
                      must be clear and convincing; and
                      4. The probative value of the
                      evidence must not be outweighed by
                      its apparent prejudice.
              [(Alteration in original).]
        Defendant argued under the first and last Cofield prongs
    the admission of the prosecution's gang expert's testimony in
    both trials was error.        Lieutenant Graves' testimony was of
    little or no probative value, and had such a strong potential
    for prejudice it should have been excluded.
        The   State    argues   the   testimony   by   the   gang   expert   was
    admissible as relevant to several material issues in dispute.
                                        36                             A-0492-11T4
          A. "GIRLFRIEND" AS GUN
          Defendant was intercepted on a wiretap telling a man he was
    coming by the next day to pick up his "girlfriend."                    The man
    testified for the State that he had a gun belonging to defendant
    and   the   gun   was   the    "girlfriend."      He    further   testified    he
    returned the gun to defendant the day before the murder.                      One
    reason the State gave for calling the gang expert was to explain
    that on the street, "girlfriend" means gun.              This could have been
    explained    without    a     reference   to   gangs.    Instead,   Lieutenant
    Graves was asked:
                Prosecutor: In your experience, have blood
                gang members, or gang members in general,
                used coded words to, I guess, hide their
                Expert: Absolutely, code words.
                      . . . .
                Prosecutor: How about the weapons? Do they
                use any code words to hide the meaning of a
                handgun or any weapon?
                Expert: Yes.
                Prosecutor: What code words or phrases do
                they use?
                Expert: Girlfriend or wifey.
                      . . . .
                Prosecutor: And what is the purpose of using
                these coded words?
                                          37                             A-0492-11T4
               Expert:   To,  uh,   conceal  it          from    law
               enforcement, or just hide it.
        These references to illegal gang activity were unnecessary
    and had limited probative value.        The jury heard the tape.             The
    same testimony offered by the expert about slang used for guns
    came in from the man who had the gun.          No one on the jury had any
    reason to think defendant had left his actual girlfriend with the
    man for days and wanted to pick her up.
        B.    USE OF JEEP
        Lieutenant     Graves   testified   that    a   lower    ranking      gang
    member had to lend his personal property to a higher ranking
    member of the gang:
               Prosecutor: What      about personal property
               within the gang?       How is that shared or
               Expert: It's shared with other members, and,
               of course, the higher you are up the food
               chain, the hierarchy, the more power you
               would have and influence and use of whatever
               you want, just as – – I'm a captain.    If I
               want something, you know, I'll use something
               one of my – – one of my lieutenants or
               detectives have, I'll just tell them to give
               it to me, order 'em.
        Because the red Jeep that was identified as being driven to
    and from the crime by defendant was not owned by defendant, the
    State   asserts   the   expert   testimony   was    needed   to    show    why
    defendant had use of the Jeep, even though the expert did not
    mention the Jeep directly.         However, there was testimony by
                                       38                               A-0492-11T4
    other witnesses that defendant was seen driving the Jeep on
    other occasions, and that it was owned by a man who let him use
    it.   There was no need to show this was because of gang ties.
    Additionally, there was testimony that the police had stopped
    defendant for traffic violations while in the Jeep.                  There was
    no dispute defendant frequently drove the Jeep.                 The gang expert
    testimony had little or no probative value because defendant's
    use of the Jeep was available and given by other witnesses and
    not   even    directly       addressed   by    the    expert.     Under   these
    circumstances, the references by the gang expert did little more
    than remind the jury defendant was a high ranking gang member.
          C.    OPPORTUNITY
          The victim, who defendant was convicted of robbing in the
    first trial and murdering in the second, was the girlfriend of a
    man in jail.         The boyfriend and victim were drug dealers.             The
    co-defendant testified defendant told him he was going to rob
    the victim and it would be easy.              The State established through
    testimony that defendant had been to the victims' home before
    the murder.      The State claims the gang expert was called to
    explain that defendant had the opportunity to gain entry into
    the residence.         The State asserts that since defendant was a
    higher     ranking    gang   member   than    the    victim's   boyfriend,   the
    victim, who was not a gang member, had to admit defendant into
                                             39                            A-0492-11T4
    her home.        The gang expert never gave this proffered testimony
    and it would have been unnecessary as there was other testimony
    defendant     was      allowed       in   the     home        and    knew     the       victim's
    boyfriend was in jail.
        D. TATOOS
        Lastly, the State asserts the gang expert's testimony about
    gang tattoos had probative value.                       The co-defendant testified
    defendant    showed       him   a    tattoo      on     his    neck       after    the       crime,
    telling     the     co-defendant          that     he     did       not    need        any     "co-
    defendants."        The co-defendant testified he knew defendant was a
    gang member after seeing the tattoo.                       He also testified seeing
    the tattoo made him nervous because he knew the defendant's gang
    was vicious, and he feared for his family's safety.                                         It was
    unnecessary, therefore, for the gang expert to explain that gang
    members   had      tattoos      to    identify          them    as    part        of    a    gang.
    Defendant presented no evidence he was not part of a gang or the
    tattoo was not a gang symbol.
        The     gang       expert   testimony        simply        repeated      facts          already
    established       by    the   lay    witnesses.           The       probative          value   was
    limited     or      non-existent.                The     prejudice,          however,           was
    significant because the gang expert testimony was not limited by
    the judge to the testimony the State claims was relevant.
                                                40                                           A-0492-11T4
          The error in the admission of expert testimony is that it
    included prejudicial testimony of defendant's involvement with
    the     "Bloods"     and    specifically     included     Lieutenant     Graves'
    history    and     habits    of   the   Bloods.      This   history    included
    references to the Bloods' feud with the Crips, which had no
    relevance to the crime.            This testimony was followed by the
    expert's identification of defendant as a top leader of the
    Bloods gang, or as he described it, an original gangster or
    founder of the gang.          These gang names are well known, and the
    public perception is that people who belong to these groups are
    bad people with a propensity to commit crimes.                Even if any of
    the jury had not heard of the Bloods before the trial, they knew
    about their involvement with law enforcement by the trial's end;
    a fact relevant to no material issue in dispute.                     Defendant's
    gang membership would have come before the jury, but not with
    the same impact as when a member of law enforcement testifies
    about     the      gang,    its   history,     its      hierarchy,     and    law
    enforcement's prior focus on and encounters with gang members.
          The probative value of the references to defendant's gang
    ties were substantially outweighed by its undue prejudice.                    See
    N.J.R.E. 403 ("evidence may be excluded if its probative value
    is substantially outweighed by the risk of [] undue prejudice").
                                            41                              A-0492-11T4
    Gang    references      are   admissible        only    if    N.J.R.E.    404(b)       is
    satisfied.          "Other    crimes       evidence      is    considered        highly
    prejudicial."       State v. Vallejo, 
    198 N.J. 122
    , 133 (2009).                      "The
    prejudice of other-crime evidence is its tendency to demonstrate
    a criminal predisposition; therefore, it poses a distinct risk
    that it will distract a jury from an independent consideration
    of the evidence that bears directly on guilt itself."                          State v.
    145 N.J. 460
    ,   468    (1996).       An    individual      may    not    be
    convicted merely for belonging to an organization that advocates
    crime.    Scales v. United States, 
    367 U.S. 203
    , 220-21, 
    81 S. Ct. 1469
    , 1481-82, 
    6 L. Ed. 2d 782
    , 796, reh'g denied. 
    366 U.S. 978
    81 S. Ct. 1912
    6 L. Ed. 2d 1267
           After deliberations commenced in the retrial, two jurors
    requested to be excused.            Defendant contends the judge's inquiry
    and    conclusory      findings     were   flawed,      and   replacement       of    one
    juror,    over    defendant's       objection,     rather      than   declaring         a
    mistrial, was error.
           A court's substitution of an alternate juror is limited by
    Rule 1:8-2(d)(1), which provides in relevant part:
                   Following the drawing of the names of jurors to
                   determine the issues, the court may in its
                   discretion order that the alternate jurors not be
                   discharged, in which event the alternate jurors
                   shall be sequestered apart from the other jurors
                   and shall be subject to the same orders and
                                               42                                  A-0492-11T4
                 instructions of the court, with respect to
                 sequestration and other matters, as the other
                 jurors.     If the alternate jurors are not
                 discharged and if at any time after submission of
                 the case to the jury, a juror dies or is
                 discharged by the court because of illness or
                 other inability to continue, the court may direct
                 the clerk to draw the name of an alternate juror
                 to take the place of the juror who is deceased or
                 discharged.    When such a substitution of an
                 alternate juror is made, the court shall instruct
                 the jury to recommence deliberations and shall
                 give    the   jury    such   other   supplemental
                 instructions as may be appropriate.
          We     review   a   trial      court's      decision     to    substitute      an
    alternate juror for an abuse of discretion.                    State v. Musa, 
    222 N.J. 554
    , 564-65 (2015).          We are guided by certain principles in
    applying this standard; Rule 1:8-2(d)(1) "delicately balances
    two important goals:          judicial economy and the right to a fair
    jury trial."      State v. Jenkins, 
    182 N.J. 112
    , 124 (2004).                       The
    Supreme Court has explained that juror substitution should only
    be invoked as a last resort because it "poses a clear potential
    for   prejudicing      the    integrity      of    the   deliberation      process."
    State v. Hightower, 
    146 N.J. 239
    , 254 (1996).                         With this in
    mind, "[t]he court must be prepared to declare a mistrial if a
    substitution would imperil the integrity of the jury's process."
    State   v.    Ross,    
    218 N.J. 130
    ,    147    (2014).         In   making    its
    decision,     "the    trial   court    must       determine    the    cause   of    the
    juror's concern and assess the impact of the juror's departure
    on the deliberative process."                Ibid.       Additionally, the court
                                             43                                   A-0492-11T4
    "must   ascertain      whether        a     reconstituted          jury        will    be     in    a
    position to conduct open-minded and fair deliberations."                                   Ibid.
          Here, the trial judge was confronted with the difficult
    task of learning the source of the juror's distress without
    asking a question that might elicit information about the jury's
    deliberations.       To avoid such disclosure, "[j]udges must caution
    a juror at the outset of the colloquy that she must not reveal
    the way in which any juror plans to vote, or the vote tally on a
    verdict."     Jenkins, supra, 182 N.J. at 134.
          The Supreme Court has "restrictively interpreted the phrase
    'inability     to    continue'         in     Rule        1:8-2(d)(1)          to     protect       a
    defendant's     right      to     a    fair        jury     trial,    forbidding              juror
    substitution when a deliberating juror's removal is in any way
    related to the deliberative process."                       Jenkins, supra, 182 N.J.
    at   124.     "A    deliberating            juror    may     not     be     discharged           and
    replaced     with    an     alternate            unless     the     record           'adequately
    establish[es]       that    the       juror      suffers      from     an       inability          to
    function     that    is     personal          and     unrelated           to     the       juror's
    interaction    with       the   other        jury    members.'"                Id.    at    124-25
    (quoting Hightower, supra, 146 N.J. at 254).
          In    Jenkins,      the   Supreme          Court      strongly       emphasized            the
    importance     of   not     removing         a     juror     because       of        inter-juror
                                                  44                                           A-0492-11T4
             A juror cannot be removed merely because she is
             taking a position at odds with other juror's
             views. A juror has the unassailable right to see
             the evidence in her own way and to reach her own
             conclusions, regardless of how overwhelming the
             evidence or how illogical her view may appear to
             other jurors.    "If a court suspects that the
             problems with the juror are due to interactions
             with other jurors, the court should instruct the
             jury to resume deliberations."
             [Id. at 125 (citations omitted).]
        We review what the judge did in this case in light of the
    controlling law.    Here, jurors two and six asked to be excused
    via a note sent to the court.     The judge interviewed juror two
    who was described as clearly upset and emotional.      The judge
    described the juror's voice as cracking.
        The judge first told juror two she could not discuss the
    deliberations.     This was appropriate, but the interview itself
    was extremely short consisting of only three questions to which
    the juror gave conflicting answers.   Most importantly, the juror
    was never asked to explain her reason for being upset.          The
    judge was required to ascertain why the juror was upset and
    asking to be removed from the jury.   He never achieved this goal
    and made very little effort to get the information he needed.
    His finding she was upset and emotional is undoubtedly true.
    However, if her reasons for being upset were personal, she could
    be removed and replaced, but if she was upset because of how
    deliberations were going or because of interactions with other
                                     45                       A-0492-11T4
    jurors during deliberations, she either had to continue or the
    court was obligated to declare a mistrial.               That decision could
    not be made without information about the cause of her distress.
        The colloquy between the court and the juror follows:
             THE COURT: Do you feel that there is
             emotionally an inability for you to proceed
             and perform your duties as a deliberating
             THE JUROR: Yes.
             THE COURT: Do you feel that these emotions
             that you have, again, would impact upon your
             ability to perform your function in this
             THE JUROR: No. I know it's not balanced in
             what I'm saying, but there's [sic] reasons
             why I can't speak without giving away —
             THE COURT: I don't want you to talk about
             that.   But emotionally, you feel you can't
             THE JUROR:     Correct.
             THE COURT:  I'm going to leave it at that
             for now. Thank you.
        It is difficult to reconcile that limited exchange with the
    majority's    conclusion      that   "the        trial   judge   sought      the
    explanation for juror two's request to be excused."                 Ante at 55.
    The judge appears to have avoided eliciting an explanation that
    could require a mistrial, at the cost of wrongfully replacing a
    juror.   The juror never said she could not be fair to both
    sides.   In   her   limited    response     to    question   two,    the   juror
                                         46                                A-0492-11T4
    denied that was the situation, but was prevented from giving an
    explanation.         She agreed in response to question one and three
    that she did not feel she could continue with the deliberations
    but gave no explanation as to why.
        The majority opinion states:
                  He [defendant] additionally infers from
                  juror two's comments she was at odds with
                  other jurors, a circumstance not justifying
                  excusal.   See []Jenkins, [supra,] 182 N.J.
                  [at] 124-25 [] (holding excusing a juror
                  cannot be based on juror interaction with
                  other jurors).   We cannot agree the juror's
                  comments revealed she faced hostility from
                  fellow jurors . . . .
                  [Ante at 54-55.]
        We do not know, based on this record, if the juror was
    upset because she was at odds with other jurors since the juror
    was never given the opportunity to reveal the reason for her
    distress.      Moreover, her assertion that "there's [sic] reasons
    why I can't speak without giving away –" does reasonably imply
    that she needs to discuss her emotional state in the context of
    something relating to jury deliberations, which was the only
    thing   she    was    instructed    not    to   mention.         The    trial   judge
    discharged     juror     two   on   a   record    that     did    not    adequately
    establish her inability to function.
        The trial court's inquiry was insufficient to determine the
    cause of the juror's unwillingness to continue deliberations.
                                              47                                A-0492-11T4
    The juror started a statement that gave the trial court reason
    to suspect the juror's problem was due to interactions with
    other jurors, but he stopped her before she could complete her
    answer.      Even   if    there       is   some     other    way    to    interpret       the
    juror's     statement,         the    trial        record    does       not    adequately
    establish    the    juror      suffered       from    an     inability        to    function
    personal to her and unrelated to her interaction with other jury
          Although it is clear the trial court's effort was designed
    to preserve the verdict and "avoid the deplorable waste of time,
    effort, money, and judicial resources inherent in a mistrial,"
    Hightower, supra, 146 N.J. at 254, the cause of juror two's
    emotional    distress         could    have        been    attributable        to     either
    personal problems or her interaction with other jurors.                                   The
    record does not adequately establish the cause. For that reason,
    it   is   necessary      to    conclude      the     trial    court      misapplied       its
    discretion by replacing juror number two.5
          Our Supreme Court has explained the doctrine of cumulative
    error:    "the   rule     is    that       where    any     one    of    several      errors
       The judge could have simply sent the jury home for the day to
    allow the juror to calm down or could have asked whether her
    reasons were related to other juror's interactions with her,
    after telling her to limit her initial response to yes or no.
                                                 48                                     A-0492-11T4
    assigned    would    not    in    itself      be    sufficient    to    warrant     a
    reversal,     yet    if    all   of    them    taken    together       justify    the
    conclusion that defendant was not accorded a fair trial, it
    becomes the duty of this court to reverse."                   State v. Orecchio,
    16 N.J. 125
    , 134 (1954) (quoting State v. Dolliver, 
    184 N.W. 849
    (Minn. 1921)).        Here, the trial court excluded relevant and
    potentially    exculpatory       testimony,        admitted   mostly     irrelevant
    testimony    about    gangs,     and   improperly      excused   a     deliberating
    juror.     In my view, each of these errors deprived defendant of a
    fair trial.     Their cumulative effect clearly did so.                    For the
    reasons set forth above, I would reverse the convictions in both
    trials and remand for a new trial on all remaining charges.
                                            49                                 A-0492-11T4