State v. Anthony K. Cole (076255) (Middlesex and Statewide) , 229 N.J. 430 ( 2017 )

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)
State v. Anthony K. Cole (A-66-15) (076255)
Argued January 17, 2017 -- Decided June 27, 2017
PATTERSON, J., writing for the Court.
In this appeal, the Court reviews the trial court’s denial of defendant’s motion to bar the admission into
evidence of three segments of video, recorded during breaks from questioning at police headquarters, in which
defendant appeared alone in the interrogation room.
On the evening of September 7, 2009, David Donatelli was in Spring Lake Park, preparing for South
Plainfield’s annual Labor Day fireworks display. As he stood looking up to examine a light stanchion, Donatelli
was slashed. The laceration on the side of his neck exposed his carotid artery and jugular vein.
A police officer found two matching black-and-gray gloves. Blood identified by DNA analysis as
Donatelli’s was found on the outside of the glove. State Police forensic scientists then swabbed the interior of both
gloves and detected skin cells that matched defendant’s DNA profile in the database. Officers arrested defendant.
Police officers interrogated defendant in two sequential conversations, both video-recorded. Advised that
the officers had forensic evidence linking him to the crime, defendant maintained his innocence, provided an alibi,
and asked to be released. When the officers were in the room, defendant was gregarious and engaged. When briefly
left alone during three breaks from the questioning, however, defendant adopted a starkly different demeanor; he
muttered to himself, mouthed obscenities toward the location where the officers had been sitting and the video
camera, and placed his hand inside his pants.
Defendant was tried before a jury over six days. On the second day of trial, defense counsel stated that the
portions of the video recordings in which defendant appeared alone were unduly prejudicial under N.J.R.E. 403.
The trial court ruled that the contested sections were relevant because they reflected on defendant’s demeanor and
the accuracy of his statements. The court admitted the video recordings in their entirety. It invited defense counsel
to submit a proposed jury instruction addressing the limited purpose for which the jury should consider the segments
of the recordings in which defendant appeared alone.
During the State’s case, the contested video recordings were played for the jury. The trial court reiterated
its offer to give the jury a cautionary instruction. The record does not indicate that defense counsel proposed such
an instruction. The prosecutor specifically addressed defendant’s conduct when he was alone and suggested that
defendant’s “manipulation” of his presentation to police signaled his guilt. Defendant did not object.
In its jury charge, the trial court instructed the jurors that they were the sole and exclusive judges of the
evidence, including the credibility of witnesses, but did not specifically address the portions of the video recordings
in which defendant sat alone in the interrogation room. The jury convicted defendant of attempted murder, unlawful
possession of a weapon, possession of a weapon for an unlawful purpose, and hindering apprehension. In a separate
proceeding, the jury convicted defendant of the remaining offense, certain persons not to have a weapon.
An Appellate Division panel reversed defendant’s conviction and remanded for a new trial. The panel
deemed the contested segments too equivocal to be admitted as consciousness-of-guilt evidence, particularly without
a limiting instruction. The Court granted the State’s petition for certification. 224 N.J. 527 (2016).
HELD: The trial court properly exercised its broad discretion when it applied N.J.R.E. 401 and 403 to the contested
evidence and admitted the video recordings in their entirety. The lack of a limiting instruction and the prosecutor’s
comment on the evidence did not constitute plain error.
1
1. N.J.R.E. 401 defines “[r]elevant evidence” as “evidence having a tendency in reason to prove or disprove any
fact of consequence to the determination of the action.” Once a logical relevancy can be found to bridge the
evidence offered and a consequential issue in the case, the evidence is admissible, unless exclusion is warranted
under a specific evidence rule. N.J.R.E. 403 mandates the exclusion of evidence that is otherwise admissible “if its
probative value is substantially outweighed by the risk of . . . undue prejudice, confusion of issues, or misleading the
jury.” To determine the admissibility of evidence under N.J.R.E. 401 and 403, the trial court conducts a fact-
specific evaluation of the evidence in the setting of the individual case. On appellate review, considerable latitude is
afforded to the court’s ruling, which is reversed only if it constitutes an abuse of discretion. (pp. 17-21)
2. In this case, the conduct depicted in the video recordings was germane to the jury’s assessment of defendant’s
credibility in his statement to police and therefore relevant to its determination of pivotal issues. The portions of the
two video recordings in which defendant was alone in the interrogation room met N.J.R.E. 401’s standard of
relevancy. The segments at issue were potentially prejudicial to defendant; that evidence, however, was not
prejudicial to the point at which the risk of prejudice substantially outweighed the probative value of the evidence,
as N.J.R.E. 403 requires for the evidence to be excluded. The trial court did not abuse its discretion when it
admitted into evidence the video recordings, including the portions in which defendant was alone. (pp. 21-27)
3. The Appellate Division panel reversed defendant’s conviction based not on a relevance analysis, but on its
conclusion that the video segments were inadmissible as evidence of consciousness of guilt. The three video-
recorded segments were not offered or admitted as consciousness-of-guilt evidence but on the ground that they were
relevant to the jury’s evaluation of the credibility of defendant’s statement. Accordingly, the Court does not
determine whether the evidence in question was admissible as consciousness-of-guilt evidence. (pp. 27-28)
4. The Appellate Division noted that the trial court did not give a limiting instruction. The trial court twice offered
to give a limiting instruction. Defense counsel did not submit a proposed instruction and the trial court did not sua
sponte charge the jury regarding the video recordings. Given the brief duration of the video-recorded excerpts in a
six-day trial, it is unclear whether a limiting instruction would have clarified the limited purpose of the videotaped
segments or overemphasized the evidence. Moreover, the State presented overwhelming evidence of defendant’s
guilt, including DNA evidence linking defendant to a glove on which the victim’s blood was found shortly after the
crime, as well as testimony by defendant’s mother and friends that substantially undermined his account of his
activities during the critical time period. The trial court’s decision not to charge the jury on this issue was not
“clearly capable of producing an unjust result,” and was not plain error. R. 2:10-2. (pp. 28-31)
5. The prosecutor’s reference to defendant’s demeanor as proof of his guilt was beyond the scope of fair comment.
The prosecutor was free to discuss the video-recorded segments in which defendant was alone but should have
constrained any such discussion to the question of credibility. The Court cautions prosecutors that when evidence is
admitted for a limited purpose, comments in summation that exceed the bounds of that purpose must be avoided.
However, the comment was not clearly capable of producing an unjust result, giving rise to plain error. (pp. 31-34)
6. The Court addresses the issues raised in the concurrence, and stresses that its ruling is distinctly fact-sensitive and
based on the standard of review. (pp. 34-38)
The judgment of the Appellate Division is REVERSED, and the matter is REMANDED to the Appellate
Division for proceedings consistent with this opinion.
CHIEF JUSTICE RABNER, CONCURRING, is of the view that multiple reasonable inferences can be
drawn from defendant’s behavior after the interview and that no authority directly supports the use of evidence of a
witness’s demeanor after an interrogation has ended. According to Chief Justice Rabner, the video’s minimal
relevance was substantially outweighed by the risk of undue prejudice and the danger that the recording would
mislead the jury, and the evidence should have been excluded under N.J.R.E. 403. Chief Justice Rabner concurs in
the judgment because he finds the error was harmless in light of other strong evidence of defendant’s guilt.
JUSTICES LaVECCHIA, FERNANDEZ-VINA, and SOLOMON join in JUSTICE PATTERSON’s
opinion. CHIEF JUSTICE RABNER filed a separate, concurring opinion, in which JUSTICES ALBIN and
TIMPONE join.
2
SUPREME COURT OF NEW JERSEY
A-66 September Term 2015
076255
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
ANTHONY K. COLE,
Defendant-Respondent.
Argued January 17, 2017 – Decided June 27, 2017
On certification to the Superior Court,
Appellate Division.
Joie D. Piderit, Assistant Prosecutor,
argued the cause for appellant (Andrew C.
Carey, Middlesex County Prosecutor,
attorney).
Susan Brody, Deputy Public Defender, argued
the cause for respondent (Joseph E. Krakora,
Public Defender, attorney).
Jennifer E. Kmieciak, Deputy Attorney
General, argued the cause for amicus curiae
Attorney General of New Jersey (Christopher
S. Porrino, Attorney General, attorney).
JUSTICE PATTERSON delivered the opinion of the Court.
In this appeal, we review an evidentiary ruling made by the
trial court during defendant’s trial for attempted murder and
other offenses.
Several months after a municipal employee was assaulted and
seriously injured during a public event, defendant Anthony K.
Cole was linked by DNA analysis to evidence found at the scene.
1
Police officers arrested defendant, transported him to police
headquarters, and interrogated him in two sequential
conversations, both video-recorded. Advised that the officers
had forensic evidence linking him to the crime, defendant
maintained his innocence, provided an alibi, and asked to be
released. When the officers were in the room, defendant was
gregarious and engaged. When briefly left alone during three
breaks from the questioning, however, defendant adopted a
starkly different demeanor; he muttered to himself, mouthed
obscenities toward the location where the officers had been
sitting and the video camera, and placed his hand inside his
pants.
The trial court denied defendant’s motion to bar the
admission into evidence of the three segments of the video
recordings in which defendant appeared alone in the
interrogation room. The court ruled that the contested portions
of the video recordings were relevant to the credibility of
defendant’s statement denying involvement in the crime and that
they met the standard of N.J.R.E. 401. The court rejected
defendant’s argument that the evidence was unduly prejudicial
and should be excluded under N.J.R.E. 403.
At trial, the State presented the video recordings in their
entirety, along with substantial evidence of defendant’s guilt,
including DNA analysis and the testimony of witnesses who
2
contradicted defendant’s statement. The trial court offered to
give the jury a limiting instruction about the video-recorded
evidence upon defendant’s request; defendant did not seek such
an instruction. In summation, the prosecutor not only urged the
jury to consider the video recording in assessing defendant’s
credibility, but also suggested that defendant’s behavior when
the officers were out of the interrogation room signified his
guilt. The jury convicted defendant of all charges.
An Appellate Division panel reversed defendant’s
conviction. The panel did not determine whether the trial court
had properly admitted the video-recorded segments at issue as
relevant to the credibility of defendant’s statement to police.
It held, however, that those segments were inadmissible as
consciousness-of-guilt evidence.
We do not concur with the Appellate Division’s analysis of
this case. The trial court admitted the disputed video-recorded
segments not because they constituted proof of defendant’s
consciousness of guilt, but by virtue of their relevance to
defendant’s credibility when he denied involvement in the crime
immediately before and after those segments were recorded. We
conclude that the trial court properly exercised its broad
discretion when it applied N.J.R.E. 401 and 403 to the contested
evidence and admitted the video recordings in their entirety.
We further hold that the lack of a limiting instruction and the
3
prosecutor’s comment on the evidence did not constitute plain
error.
Accordingly, we reverse the Appellate Division’s judgment
and remand this matter to the panel for a determination of the
issues raised by defendant on appeal that remain unresolved.
I.
We derive our account of the facts from the trial record.
On the evening of September 7, 2009, David Donatelli, a
supervisor employed by the Borough of South Plainfield
Department of Public Works, was on duty in Spring Lake Park,
preparing for the Borough’s annual Labor Day fireworks display.
As he stood in the northeast portion of the park near its tennis
courts and an adjacent walking path, looking up to examine a
light stanchion, Donatelli sensed someone brushing up against
his shoulder. He felt as if his neck were struck by “a whip,”
began to bleed, and realized that he had been slashed with a
sharp object. Donatelli implored his fellow employees to help
him, laid down on the ground, and went into shock.
After a police officer rendered first aid, an ambulance
transported Donatelli to a trauma center. Physicians conducted
emergency surgery to close a laceration on the side of
Donatelli’s neck; the laceration measured six to eight inches in
length and was deep enough to expose, but not to sever, his
carotid artery and jugular vein. Donatelli was left with a
4
permanent scar and loss of sensation in the affected area. He
never returned to his job.
Two witnesses who had been in the park to attend the
fireworks display generally described a man whom they had seen
running near the path in the vicinity of the assault. Police
officers searched the area but did not locate a suspect. A K-9
dog led its handler along a scent trail near the path but
stopped abruptly on a nearby street, signaling that an
individual may have exited the park and departed in a vehicle.
The following morning, during a search of the path near the
location where Donatelli had been attacked, a police officer
found two matching black-and-gray gloves, one on the ground and
the other suspended from a tree thirteen feet above the ground.
The gloves were secured and delivered to the New Jersey State
Police forensic laboratory for DNA testing.
For several weeks, the investigation stalled as officers
interviewed various individuals but ruled them out as suspects.
Five weeks after the assault, however, the State Police
laboratory advised South Plainfield officers that blood
identified by DNA analysis as Donatelli’s had been found on the
outside of the glove, on the index finger portion of the glove.
State Police forensic scientists then swabbed the interior of
both gloves and detected skin cells. They submitted samples of
those cells for comparison with the statewide database of known
5
DNA profiles. That comparison revealed a match between DNA
extracted from the skin cells found in the gloves and
defendant’s DNA profile in the database.
On December 16, 2009, the State Police forensic laboratory
advised the South Plainfield Police Department that DNA evidence
connected defendant to the gloves. Several of the Borough’s
officers were acquainted with defendant through encounters with
him at the Police Athletic League (PAL) facility, where
defendant regularly lifted weights. An officer contacted
defendant by cellphone to determine his location. Several
officers arrested defendant and brought him to police
headquarters.
Defendant stated that he wanted to talk to police officers
and was immediately escorted to an interrogation room, where
video-recording equipment documented the proceedings.
After waiving his rights under Miranda v. Arizona, 384 U.S.
436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), defendant was
interviewed by two officers for approximately two hours.
Defendant was talkative and responsive during the conversation;
he addressed the officers in a familiar and friendly tone,
invoking his prior contacts with them while lifting weights at
the PAL facility. He admitted that he was in Spring Lake Park
the night of the incident but denied that he was in the section
of the park where the attack on Donatelli occurred. Defendant
6
told the officers that he was alone in the park that evening and
that he did not encounter anyone he knew. He stated that as the
fireworks were beginning, his mother called him and said that
she needed him to come home “to cut some boxes or something
stupid and take them out for recycling,” and that he “just
left.” Defendant gave the officers an incorrect cellphone
number for his mother.
Shown a photograph of gloves similar to the gloves found in
Spring Lake Park the morning after Donatelli was attacked,
defendant denied ever owning or wearing gloves of that type. He
offered to prove that contention by retrieving his own pair of
gloves from his home and bringing them to the officers. At the
officers’ request, defendant provided a DNA sample by buccal
swab.
As the interview progressed, the officers revealed to
defendant that “scientific” evidence connected him, as well as
the victim, to the gloves found in the park. Late in the
interview, an officer showed defendant an excerpt of the DNA
testing results provided by the State Police laboratory.
Defendant challenged the DNA evidence, reiterated his innocence,
and insisted that he should be permitted to leave the police
station. The officers declined to release defendant, offered to
resume the conversation at defendant’s request, and left the
room.
7
The video recording then displayed an abrupt change in
defendant’s demeanor. After a few seconds of silence, defendant
began to mutter to himself in an agitated manner. He put his
hand inside his pants and mouthed obscenities in the direction
of the seats where the officers had been sitting, and in the
direction of the camera. Approximately five minutes later,
defendant stood up and summoned an officer by knocking on the
door. When an officer responded, defendant addressed him in a
collegial manner. Defendant was escorted from the room. At
that point, the first of the two video recordings ended.
Minutes later, defendant spotted South Plainfield’s Chief
of Police, with whom he was acquainted, and asked to speak with
him. Defendant, the Chief of Police, and another officer
entered the interrogation room and the video-recorded
interrogation resumed.1 After waiving his Miranda rights for the
second time, defendant again denied involvement in the attack on
Donatelli and requested that the Chief of Police release him
from custody. The Chief told defendant that according to the
DNA evidence, defendant had worn the gloves found at the scene.
He offered to leave the room to give defendant an opportunity to
decide whether to explain the presence of his DNA in the gloves.
1 The second video recording admitted at trial began recording
approximately seventeen minutes after the completion of the
first video recording.
8
Left alone in the interrogation room for less than two minutes,
defendant became agitated and muttered to himself.
When the Chief of Police returned, defendant resumed his
cooperative demeanor. He bantered with the Chief about
weightlifting and referred to one of the other officers as a
“cool guy.” Defendant offered to state his case to a judge,
provided that the Chief release him from custody. The Chief
asked defendant to explain what had happened at Spring Lake Park
on the evening of the crime. Defendant insisted that he was
alone that evening and that he was not by the tennis courts. He
again requested to be released and promised to explain his
innocence to “the judge.”
The Chief of Police again left the room. For about three
minutes, the camera recorded defendant as he reviewed a document
regarding the DNA test results and mouthed words. The Chief of
Police then returned and offered to call one of defendant’s
relatives regarding defendant’s status. Defendant insisted that
if the Chief of Police called someone on his behalf, that person
should be permitted to drive him home. Defendant told the Chief
of Police that he had “nothing to do” with Donatelli and “[did
not] even care about him.” The Chief departed, and the second
video recording concluded.
Police officers later conducted consent searches of the
rooms that defendant occupied in his parents’ homes but found no
9
evidence. Pursuant to a communications data warrant, officers
obtained records of cellphone calls to and from defendant and
his mother for September 7, 2009; those records revealed no
telephone conversation between defendant and his mother on that
date. Defendant’s cellphone records indicated that at 8:47 p.m.
that evening, shortly after Donatelli was assaulted, defendant
used his cellphone to call a local taxi service.
The State Police forensic laboratory advised the
investigating officers that the DNA sample taken by buccal swab
during defendant’s interrogation confirmed that defendant was
the source of the skin cells extracted from the gloves found in
Spring Lake Park the morning after Donatelli was assaulted.
According to the State’s forensic expert, defendant’s DNA sample
and the cells found in the left glove shared a DNA profile found
in “one in a quadrillion” individuals.2
II.
Defendant was indicted for first-degree attempted murder,
N.J.S.A. 2C:11-3(a)(1) and 2C:5-1; fourth-degree unlawful
possession of a weapon, N.J.S.A. 2C:39-5(d); third-degree
possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-
2 The comparison of defendant’s confirmed DNA sample with DNA
derived from skin cells found in the right glove also revealed a
match, but that match was substantially less definitive than the
match revealed by the left glove, because the skin cells in the
right glove generated only a partial DNA profile.
10
4(d); third-degree hindering apprehension, N.J.S.A. 2C:29-3(b);
and fourth-degree certain persons not to have weapons, N.J.S.A.
2C:39-7(a).
Defendant was tried before a jury over six days. On the
second day of trial, the trial court heard argument regarding
the admissibility of the two video recordings of defendant’s
conversations with the South Plainfield officers.3 Defense
counsel stated that the portions of the video recordings in
which defendant appeared alone were “weird” and “unsettling” and
objected to their admission as unduly prejudicial under N.J.R.E.
403. The State noted that when the officers left the
interrogation room, defendant abandoned his “guy next door . . .
persona” and put “his hand down his pants, MF’n the [o]fficers.”
The State argued that the contested video-recorded segments were
relevant and should be admitted so that the jury would have
complete information to evaluate defendant’s statement.
After reviewing the video recordings, the trial court ruled
that the contested sections were relevant because they included
“nonverbal . . . acts and facial expression[s,] . . . some
directly to the camera” that reflected on defendant’s demeanor
and the accuracy of his statements. The court admitted the
3 For reasons the record does not reveal, and with no objection
by defendant, the State redacted portions of the video
recordings. Those redactions are not at issue in this appeal.
11
video recordings in their entirety. It invited defense counsel
to submit a proposed jury instruction addressing the limited
purpose for which the jury should consider the segments of the
recordings in which defendant appeared alone.
During the State’s case at trial, the investigating
officers testified about the discovery of the gloves the day
after the assault of Donatelli and described the events that led
to defendant’s arrest. The two contested video recordings were
played for the jury during direct examination of the lead
investigator. The trial court reiterated its offer to give the
jury a cautionary instruction about the portions of the video
recording in which defendant was alone in the interrogation
room. The record does not indicate that defense counsel
proposed such an instruction.
The State also presented the testimony of forensic experts
to explain the DNA evidence that linked defendant and the victim
to the gloves. The witnesses who had seen a man running in the
vicinity of the crime testified about what they observed. A
late-disclosed witness, who described himself as a “good
acquaintance[]” of defendant, told the jury that he saw
defendant at the Labor Day fireworks that evening and that,
although defendant asked him for a ride home and told him that
he would see him later, he never saw defendant again.
12
The State also presented evidence to undermine defendant’s
contention that he left the fireworks event early to assist his
mother by cutting boxes for recycling. Defendant’s mother
testified that she was unsure whether she spoke with her son on
September 7, 2009, but was certain that she did not ask him to
help with her recycling; she noted that residents in her area
are not required to cut boxes to prepare them for recycling.
The State also presented the cellphone records indicating that
defendant and his mother did not speak by cellphone that
evening. Donatelli described the assault, and medical
professionals who treated him testified about the nature and
extent of his injuries.
Defendant declined to testify and presented no witnesses.
Relying in part on defendant’s video-recorded statements to
the officers, defense counsel argued in summation that defendant
was innocent and that the investigating officers ignored leads
that could have implicated another individual in the crime. The
prosecutor specifically addressed defendant’s video-recorded
conduct when he was alone in the interrogation room; he
initially focused on that conduct’s impact on the credibility of
defendant’s statement. He then suggested, however, that
defendant’s “manipulation” of his presentation to police
signaled his guilt. Defendant did not object to the State’s
summation.
13
In its jury charge, the trial court instructed the jurors
that they were the sole and exclusive judges of the evidence,
including the credibility of witnesses, but did not specifically
address the portions of the video recordings in which defendant
sat alone in the interrogation room. During deliberations, the
jury requested a playback of two excerpts of the video
recordings: the last five minutes of the first video recording,
in which defendant was alone in the interrogation room, and the
portion of the second video recording in which defendant
“state[d] he doesn’t care about the [victim.]”
The jury convicted defendant of attempted murder, unlawful
possession of a weapon, possession of a weapon for an unlawful
purpose, and hindering apprehension. In a separate proceeding,
the jury convicted defendant of the remaining offense, certain
persons not to have a weapon. The trial court sentenced
defendant to an aggregate term of incarceration of twenty-six
and a half years, subject to eighty-five percent parole
ineligibility in accordance with the No Early Release Act,
N.J.S.A. 2C:43-7.2(a).
Defendant appealed his conviction and sentence. An
Appellate Division panel reversed defendant’s conviction and
remanded for a new trial. The panel did not determine whether
the trial court had properly found that the contested segments
of the video were relevant to the jury’s assessment of
14
defendant’s credibility. Instead, the panel characterized those
segments as consciousness-of-guilt evidence, admissible only if
the conduct is intrinsically indicative of the defendant’s
guilty conscience. Citing the possibility that defendant’s
behavior reflected an innocent man’s anger at a false
allegation, the panel deemed the contested segments too
equivocal to be admitted as consciousness-of-guilt evidence,
particularly without a limiting instruction. The panel declined
to determine whether N.J.R.E. 403 would bar the evidence. The
panel stated that additional arguments raised by defendant were
either without merit or were obviated by the panel’s holding,
but did not specify which of the remaining issues had been
decided.
We granted the State’s petition for certification. 224
N.J. 527 (2016). We also granted the Attorney General’s motion
to appear as amicus curiae.
III.
The State argues that all of the video recordings of
defendant in the interrogation room were properly admitted as
relevant to his credibility. The State asserts that the
Appellate Division panel improperly focused its inquiry on the
standard for consciousness-of-guilt evidence, and applied that
standard too strictly. It notes that Rule 3:17(a) mandates the
videotaping of interrogations of some defendants if they are
15
conducted in a place of detention and asserts that the admission
of evidence video-recorded in conformance with that Rule
enhances a jury’s ability to assess the defendant’s credibility.
Finally, the State contends that in light of DNA evidence and
other proofs against defendant, any evidentiary error was
harmless.
Defendant counters that, by definition, a police
interrogation excludes any setting in which there are no
officers in the room. He characterizes the disputed video
segments as post-interrogation and distinguishes this case from
cases in which a video recording depicts a defendant briefly
alone in an interrogation room between questioning sessions.
Defendant contends that the Appellate Division panel properly
evaluated the evidence within the framework of consciousness of
guilt and that, even if the video recordings were admissible in
their entirety, the trial court should have issued a limiting
instruction. Defendant contends that the alleged error was not
harmless because the DNA found in the gloves was insufficient to
definitively identify defendant.
The Attorney General asserts that the Appellate Division
panel improperly substituted its judgment for that of the trial
court. It contends that a jury should consider all evidence
that is relevant to a defendant’s credibility, and that the
16
State conformed with court rules when it presented a complete
video recording of the events in the interrogation room.
IV.
A.
In its ruling that the contested evidence was admissible,
the trial court applied two fundamental rules of evidence:
N.J.R.E 401, which prescribes the standard of relevancy, and
N.J.R.E. 403, which directs a court to bar the admission of
relevant evidence when the probative value of that evidence is
substantially outweighed by the risk of undue prejudice.
N.J.R.E. 401 defines “[r]elevant evidence” as “evidence
having a tendency in reason to prove or disprove any fact of
consequence to the determination of the action.” N.J.R.E 401;
see also State v. Perry, 225 N.J. 222, 236-37 (2016) (discussing
N.J.R.E. 401 analysis when considering Rape Shield Law); State
v. Jenewicz, 193 N.J. 440, 457-58 (2008) (considering N.J.R.E.
401 in determining whether testimony as to identity of initial
aggressor in previous fight was relevant to identity of initial
aggressor in fight at issue in case). When a court decides
whether evidence is relevant, “the inquiry should focus on the
logical connection between the proffered evidence and a fact in
issue.” State v. Bakka, 176 N.J. 533, 545 (2003) (internal
quotation marks omitted) (quoting State v. Darby, 174 N.J. 509,
519 (2002)).
17
“Courts consider evidence to be probative when it has a
tendency ‘to establish the proposition that it is offered to
prove.’” State v. Burr, 195 N.J. 119, 127 (2008) (quoting State
v. Allison, 208 N.J. Super. 9, 17 (App. Div.), certif. denied,
102 N.J. 370 (1985)). The evidence must be probative of a fact
that is “really in issue in the case,” as determined by
reference to the applicable substantive law. State v. Buckley,
216 N.J. 249, 261 (2013) (quoting State v. Hutchins, 241 N.J.
Super. 353, 359 (App. Div. 1990)).
Under N.J.R.E. 401, “[e]vidence need not be dispositive or
even strongly probative in order to clear the relevancy
bar.” Id. at 261. The proponent need not demonstrate that the
evidence can, in and of itself, establish or disprove a fact of
consequence in order to meet the benchmark of N.J.R.E. 401.
“Once a logical relevancy can be found to bridge the evidence
offered and a consequential issue in the case, the evidence is
admissible, unless exclusion is warranted under a specific
evidence rule.” Burr, supra, 195 N.J. at 127.
One such rule excluding relevant evidence is N.J.R.E. 403.
That rule mandates the exclusion of evidence that is otherwise
admissible “if its probative value is substantially outweighed
by the risk of (a) undue prejudice, confusion of issues, or
misleading the jury or (b) undue delay, waste of time, or
needless presentation of cumulative evidence.” N.J.R.E 403.
18
Here, defendant relies on the “undue prejudice” factor of
N.J.R.E. 403. As this Court has noted, the inquiry under that
provision of N.J.R.E. 403 is whether the probative value of the
evidence “is so significantly outweighed by [its] inherently
inflammatory potential as to have a probable capacity to divert
the minds of the jurors from a reasonable and fair evaluation of
the” issues. State v. Thompson, 59 N.J. 396, 421 (1971). It is
not enough for the opposing party to show that the evidence
could be prejudicial; “[d]amaging evidence usually is very
prejudicial but the question here is whether the risk of undue
prejudice was too high.” State v. Morton, 155 N.J. 383, 453-54
(1998) (quoting State v. Bowens, 219 N.J. Super. 290, 297 (App.
Div. 1987)); see also State v. Swint, 328 N.J. Super. 236, 253
(App. Div.) (“The mere possibility that evidence could be
prejudicial does not justify its exclusion.”), certif. denied,
165 N.J. 492 (2000).
To determine the admissibility of evidence under N.J.R.E.
401 and 403, the trial court conducts a fact-specific evaluation
of the evidence in the setting of the individual case. See,
e.g., State v. Cotto, 182 N.J. 316, 333 (2005) (stating that
ruling on admissibility of evidence of third-party guilt
“requires a fact-sensitive inquiry”); State v. Koedatich, 112
N.J. 225, 300 (1988) (noting “particularly fact-sensitive”
nature of relevancy determination when defendant asserts third-
19
party guilt), cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102
L. Ed. 2d 803 (1989).
In light of the broad discretion afforded to trial judges,
an appellate court evaluates a trial court’s evidentiary
determinations with substantial deference. State v. Kuropchak,
221 N.J. 368, 385 (2015). On appellate review, “[c]onsiderable
latitude is afforded” to the court’s ruling, which is reversed
“only if it constitutes an abuse of discretion.” Ibid.(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. Gorthy, 226 N.J. 516, 539
(2016) (citing State v. T.J.M., 220 N.J. 220, 233-34 (2015);
State v. Buda, 195 N.J. 278, 294 (2008)). When a trial court
weighs the probative value of evidence against its prejudicial
effect pursuant to N.J.R.E. 403, its ruling should be overturned
only if it constitutes “a clear error of judgment.” Koedatich,
supra, 112 N.J. at 313. As this Court observed, applying the
predecessor rule to N.J.R.E. 403, a trial court’s weighing of
probative value against prejudicial effect “must stand unless it
can be shown that the trial court palpably abused its
discretion, that is, that its finding was so wide of the mark
that a manifest denial of justice resulted.” State v. Carter,
91 N.J. 86, 106 (1982).
B.
20
In accordance with the deferential standard of review, we
apply N.J.R.E. 401 and 403 to the evidence that the trial court
admitted in defendant’s trial.
1.
We first consider whether the trial court abused its
discretion when it found that the contested evidence had “a
tendency in reason to prove or disprove any fact of
consequence,” and that it accordingly met the relevancy standard
of N.J.R.E. 401.
In his video-recorded statement, defendant addressed
several factual issues that would be disputed before the jury at
his trial. Defendant identified the time frame of his visit to
Spring Lake Park during the evening of September 7, 2009. He
described his location and activities in the park. Defendant
denied that he encountered anyone he knew at the fireworks
event, thus contradicting one of the State’s key witnesses. He
asserted an alibi, premised on a call from his mother summoning
him home to assist her. Defendant denied any connection to the
gloves found at the scene. Most critically, defendant
repeatedly and unequivocally denied any involvement in the
attack on Donatelli. Defendant’s video-recorded statement thus
challenged the State’s theory in significant respects. Not
surprisingly, both counsel discussed that statement in their
summations.
21
As the trial court properly instructed the jury, it was the
jury’s province to assess the credibility of all of the
evidence. “[C]redibility is an issue which is peculiarly within
the jury’s ken.” State v. Frisby, 174 N.J. 583, 595 (2002)
(quoting State v. J.Q., 252 N.J. Super. 11, 39 (App. Div. 1991),
aff’d, 130 N.J. 554 (1993)); see also Kansas v. Ventris, 556
U.S. 586, 594 n., 129 S. Ct. 1841, 1847 n., 173 L. Ed. 2d 801,
809 n. (2009) (“Our legal system . . . is built on the premise
that it is the province of the jury to weigh the credibility of
competing witnesses . . . .”). Here, that evidence included
defendant’s self-exculpatory statement. Our Model Jury Charges
admonish jurors, in considering whether or not a defendant’s
statement is credible, to “take into consideration the
circumstances and facts as to how the statement was made, as
well as all other evidence in this case relating to this issue.”
Model Jury Charges (Criminal), “Statements of Defendant” (June
14, 2010).
In that inquiry, a video recording is a valuable tool. As
this Court observed in State v. Cook, videotaping a statement
“enhance[s] a judge or juror’s assessment of credibility by
providing a more complete picture of what occurred.” 179 N.J.
533, 556 (2004) (quoting Heath S. Berger, Let’s Go to the
Videotape: A Proposal to Legislate Videotaping of Confessions,
22
3 Alb. L.J. Sci. & Tech. 165, 173-74 (1993)).4 Viewing the video
recording, the jury could assess defendant’s facial expressions
and gestures as well as his words and determine whether his
assertions of innocence were strategic or sincere.
Defendant’s behavior during the brief intervals in which he
was alone in the interrogation room was closely intertwined with
his assertions of innocence. Each of the three disputed
segments immediately followed a conversation in which defendant
stressed his camaraderie with the officers as he disclaimed
involvement in the crime; each was followed by a similar
exchange between defendant and the officers. In the complete
video recordings, the jury was able to view defendant’s abrupt
changes in behavior -- attentive and communicative in the
officers’ presence, muttering and silently cursing in their
4 The Court’s opinion in Cook led to Rule 3:17, which addresses
the video recording of statements made by defendants. In Cook,
supra, the Court rejected the defendant’s due process challenge
based on the admission of his confession without a video
recording of that confession. 179 N.J. at 559-60. The Court
stated, however, that it intended to “evaluate fully the
protections that electronic recordation affords to both the
State and to criminal defendants.” Id. at 562. The Court
referred the issue to a committee and later adopted Rule 3:17.
With specific exceptions, that Rule requires the videotaping of
a defendant’s statement taken in a place of detention, if the
defendant is charged with one of the offenses enumerated in the
Rule. Rule 3:17(a). Thus, the video recordings at issue in
this case were prepared in conformance with a court rule
intended, among other objectives, to assist the jury in its
evaluation of a defendant’s credibility. See R. 3:17(d); Cook,
supra, 179 N.J. at 556.
23
direction after they departed, then resuming his congenial
demeanor when they returned. When the jury viewed defendant’s
account of the critical evening, the disputed video-recorded
segments provided important context for the factual assertions
that preceded them and for those that followed.
As the Appellate Division panel observed, the conduct
reflected in the disputed segments of the video recordings is
subject to more than one interpretation. The jury could infer
from the video recordings that when arrested and confronted with
forensic evidence months after the crime, defendant contrived an
affable demeanor and exculpatory account of the critical events
as a strategy to avoid prosecution. Alternatively, the jury
could infer that defendant was innocent and that he acted as he
did because he was shocked by his arrest and frustrated by the
officers’ skeptical responses to his truthful denials. The jury
could, of course, draw some alternative inference or none at
all. In this case, however, the conduct depicted in the video
recordings was germane to the jury’s assessment of defendant’s
credibility in his statement to police and therefore relevant to
its determination of pivotal issues in the case.
Accordingly, we concur with the trial court that the
portions of the two video recordings in which defendant was
alone in the interrogation room met N.J.R.E. 401’s standard of
relevancy.
24
2.
The trial court also found that the probative value of the
evidence was not substantially outweighed by the risk of undue
prejudice. N.J.R.E. 403. The court acknowledged that the
excerpts from the video recordings could have a negative impact
on defendant, but noted that the admission of any defendant’s
confession is also prejudicial. It did not find the specter of
prejudice to substantially outweigh the probative value of the
evidence.
We agree with the trial court that N.J.R.E. 403 does not
bar the admission of the video-recorded segments. As noted, the
evidence was pertinent to the jury’s credibility determination
and, consequently, was probative as to an array of factual
issues addressed by defendant in his video-recorded statement.
To be sure, the segments at issue were potentially prejudicial
to defendant; the jury learned that defendant’s demeanor in the
interview strikingly contrasted with his behavior when he was
alone. That evidence, however, was not prejudicial to the point
at which the risk of prejudice substantially outweighed the
probative value of the evidence, as N.J.R.E. 403 requires in
order for the evidence to be excluded. See Morton, supra, 155
N.J. at 453-54 (“The mere possibility that evidence could be
prejudicial does not justify its exclusion.” (citing Bowens,
supra, 219 N.J. Super. at 296-97)). Instead of “divert[ing] the
25
minds of the jurors” from their responsibility to fairly decide
the case, Thompson, supra, 59 N.J. at 421, the video-recorded
segments assisted the jury in conducting the credibility
assessment at the core of its charge. Thus, we do not find the
trial court’s application of N.J.R.E. 403 to represent a “clear
error of judgment,” Koedatich, supra, 112 N.J. at 313, or to be
“so wide of the mark that a manifest denial of justice
resulted,” Carter, supra, 91 N.J. at 106.5
In short, we conclude that the trial court did not abuse
its discretion when it admitted into evidence the video
recordings of defendant in the South Plainfield Police
Department’s interrogation room, including the portions of those
video recordings in which defendant was alone in the room, on
the ground that the evidence was relevant to the credibility of
5 There is no evidence in this case that the police officers
who interrogated defendant or the prosecutors who represented
the State deliberately protracted the videotaping in the hope
that defendant would behave in an aberrant manner when left
alone. To the contrary, it appears that the officers video-
recorded the interrogation using routine procedures. Nor is
there any evidence that defendant was led to believe that the
video camera was turned off when the police officers left the
room; indeed, defendant appeared at certain points in the video
to be looking directly at the camera. Accordingly, we need not
consider whether a video recording showing a defendant
temporarily alone in an interrogation room would be admissible
if there were evidence of misleading or otherwise improper
conduct on the part of the State.
26
defendant’s statement, and its probative value was not
substantially outweighed by the risk of undue prejudice.
C.
The Appellate Division panel reversed defendant’s
conviction based not on a relevance analysis, but on its
conclusion that the video segments were inadmissible as evidence
of consciousness of guilt. Our jurisprudence regarding
consciousness-of-guilt evidence derives from the principle that
certain conduct may be “intrinsically indicative of a
consciousness of guilt,” and may therefore be admitted as
substantive proof of the defendant’s guilt. State v. Phillips,
166 N.J. Super. 153, 160 (App. Div. 1979), certif. denied, 85
N.J. 93 (1980). Such conduct may include “unexplained flight,
or an unusual exhibition of remorse for the victim of the crime,
or the switching of clothes [with] a cellmate before a lineup.”
Ibid.; see also State v. Ingram, 196 N.J. 23, 46-50 (2008)
(holding that trial court abused discretion in allowing State to
argue that defendant’s absence from trial constituted
consciousness-of-guilt evidence); State v. Mann, 132 N.J. 410,
421-24 (1993) (considering evidence of defendant’s attempted
suicide as consciousness-of-guilt evidence); State v. Mills, 51
N.J. 277, 286 (holding that evidence that defendant, in
distraught state, visited victim’s grave was admissible
27
consciousness-of-guilt evidence), cert. denied, 393 U.S. 832, 89
S. Ct. 105, 21 L. Ed. 2d 104 (1968).
As this Court has noted, “[t]he potential for prejudice to
the defendant and the marginal probative value of evidence of
flight or escape mandate careful consideration of the nature of
the evidence to be admitted and the manner in which it is
presented.” Mann, supra, 132 N.J. at 420 (citing United States
v. Hankins, 931 F.2d 1256, 1261-62 (8th Cir.), cert. denied, 502
U.S. 886, 112 S. Ct. 243, 116 L. Ed. 2d 198 (1991)). In such
cases, the Court has mandated “a strong limiting instruction . .
. informing the jury that it should not draw any inference of
consciousness of guilt by defendant from his post-crime conduct
unless it believes that defendant acted to cover up a crime.”
State v. Williams, 190 N.J. 114, 134 (2007).
That jurisprudence does not govern this case. Here, the
three video-recorded segments were not offered or admitted as
consciousness-of-guilt evidence but on the ground that they were
relevant to the jury’s evaluation of the credibility of
defendant’s statement. Accordingly, we do not determine whether
the evidence in question was admissible as consciousness-of-
guilt evidence.
D.
The Appellate Division panel noted that the trial court
did not give a limiting instruction regarding the contested
28
evidence. Defendant argues before this Court that the trial
court’s failure to give such an instruction constituted error.
Because defendant did not request an instruction, the trial
court’s determination is reviewed under a plain error standard.
See State v. Montalvo, ___ N.J. ___, ___ (2017) (slip op. at 23)
(“Without an objection at the time a jury instruction is given .
. . this Court reviews the instruction for plain error.”
(citations omitted)); see also State v. Townsend, 186 N.J. 473,
498 (2006) (reviewing trial court’s lack of limiting instruction
on proper use of expert testimony under plain error standard set
forth in Rule 2:10-2 because defendant did not object at trial
and raised issue for first time on appeal); State v. Krivacska,
341 N.J. Super. 1, 42-43 (App. Div.) (finding that trial court’s
failure to provide limiting instruction was not plain error
because defendant failed to request one), certif. denied, 170
N.J. 206 (2001), cert. denied, 535 U.S. 1012, 122 S. Ct. 1594,
152 L. Ed. 2d 510 (2002).
When a party challenges relevant evidence pursuant to
N.J.R.E. 403, “[a]s an alternative to total exclusion of highly
prejudicial but also probative evidence, trial courts may use
the device of a limiting instruction under N.J.R.E. 105.”
Biunno, Current N.J. Rules of Evidence, comment 5 on N.J.R.E.
403 (2016); see also Ocasio v. Amtrak, 299 N.J. Super. 139, 159-
60 (App. Div. 1997) (holding that total exclusion of evidence is
29
error where prejudice can be minimized through limiting
instructions or other means). In some cases, a limiting
instruction may provide important guidance as the jury evaluates
a video recording and should constrain counsel from addressing
extraneous issues in summation. In other cases, such an
instruction could focus the jury’s attention on a fleeting
segment of video recording it might otherwise have ignored. We
urge judges to consider giving such an instruction in
appropriate circumstances, should they be confronted with an
issue similar to that presented by this case.
Here, the trial court twice offered to give a limiting
instruction, in a form to be submitted by defendant, to ensure
that the jury would not misconstrue the evidence. Defense
counsel did not submit a proposed instruction and the trial
court did not sua sponte charge the jury regarding the video
recordings. Given the brief duration of the video-recorded
excerpts in a six-day trial, it is unclear whether a limiting
instruction would have clarified the limited purpose of the
videotaped segments or overemphasized the evidence. Moreover,
the State presented overwhelming evidence of defendant’s guilt,
including DNA evidence linking defendant to a glove on which the
victim’s blood was found shortly after the crime, as well as
testimony by defendant’s mother and friends that substantially
30
undermined his account of his activities during the critical
time period.
We therefore hold that the trial court’s decision not to
charge the jury sua sponte on this issue was not “clearly
capable of producing an unjust result,” and was not plain error.
R. 2:10-2; see also State v. Mohammed, 226 N.J. 71, 89 (2016)
(holding that trial court’s determination that portion of trial
was inconsequential will be reviewed under Rule 2:10-2); State
v. Weston, 222 N.J. 277, 300 (2015) (noting that plain error was
proper standard of review); State v. Macon, 57 N.J. 325, 337-41
(1971) (defining bounds of plain error standard).
E.
Finally, we comment on a brief portion of the prosecutor’s
summation to the jury in which the prosecutor addressed the
video recordings.
With no objection from defendant, the prosecutor argued to
the jury:
All the statements that [defendant] made [during
the interview] are to be analyzed and considered
in the context of the level of anger and
disturbance that existed when the police leave
the room. You observed it, members of the
[j]ury. He’s the pillar of the community, the
Mayor of the metropolis throughout the whole
interview.
And on that board as soon as the [p]olice
[o]fficers leave, he knows they got him and
that’s when his hand goes down his pants and he’s
mouthing “M F’er” to the world because he knew
31
they got him. And you saw the switch and that’s
how you’re to analyze the credibility of the
statements made by the defendant on [that day].
Utilize those portions of his statement when law
enforcement was not in the room.
Able to turn it on and off at his leisure, and
unless guilty, there is no need to manipulate
your presentation, your appearance to law
enforcement. Manipulation is the process by
which a guilty party attempts to get over.
Thus, after commenting on the credibility question for
which the contested portions of the video recordings were
offered and admitted into evidence, the prosecutor ventured
beyond that limited purpose. The prosecutor suggested to the
jury that the distinction between defendant’s demeanor when
police officers were in the room, and his demeanor when he was
alone, indicated that defendant was a “guilty party” seeking to
mislead the officers.
This Court has long recognized that “[p]rosecutors are
afforded considerable leeway in closing arguments as long as
their comments are reasonably related to the scope of the
evidence.” State v. Frost, 158 N.J. 76, 82 (1999) (citing State
v. Harris, 141 N.J. 525, 559 (1995); State v. Williams, 113 N.J.
393, 447 (1988)); accord State v. Timmendequas, 161 N.J. 515,
587 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L.
Ed. 2d 89 (2001). Notwithstanding that latitude, prosecutors
should be mindful of the purpose for which evidence is admitted
when they comment on that evidence in summation. See, e.g.,
32
United States v. Gross, 511 F.2d 910, 919 (3d Cir.) (finding
that prosecutor’s suggestion, in summation, that evidence
admitted only on issue of credibility was probative of guilt was
“troublesome,” but did not give rise to plain error), cert.
denied, 423 U.S. 924, 96 S. Ct. 266, 46 L. Ed. 2d 249 (1975);
People v. Lang, 782 P.2d 627, 647 (Cal. 1989) (noting that
prosecutor’s “urging use of evidence for a purpose other than
the limited purpose for which it was admitted is improper
argument”), cert. denied, 498 U.S. 881, 111 S. Ct. 224, 112 L.
Ed. 2d 178 (1990); People v. Williams, 681 N.E.2d 115, 122 (Ill.
App. Ct.) (holding that prosecutor’s argument that defendant’s
guilt was proven by evidence admitted only to show police
officers’ investigative steps gave rise to error), appeal
denied, 686 N.E.2d 1172 (Ill. 1997).
We view the prosecutor’s brief reference to defendant’s
demeanor as proof of his guilt to be beyond the scope of fair
comment on the evidence. The prosecutor was free to discuss the
video-recorded segments in which defendant was alone but should
have constrained any such discussion to the question of
credibility. We caution prosecutors that when evidence is
admitted for a limited purpose, comments in summation that
exceed the bounds of that purpose must be avoided.
We do not conclude, however, that the comment was “clearly
capable of producing an unjust result” giving rise to plain
33
error. R. 2:10-2; see State v. Garrison, 228 N.J. 182, 201
(2017) (finding challenged jury instruction did not amount to
plain error). In light of the substantial evidence presented by
the State, the prosecutor’s brief comment on the video recording
did not give rise to an unjust result and does not warrant
reversal of defendant’s conviction.
V.
Our concurring colleagues diverge from our opinion on a
single point: whether the trial court abused its discretion
when it held that the probative value of the disputed evidence
for the jury’s assessment of defendant’s credibility was not
substantially outweighed by the risk of undue prejudice, and
declined to bar that evidence under N.J.R.E. 403. Post at ___
(slip op. at 11). They consider the trial court’s ruling under
N.J.R.E. 403 to be error, but find it to be harmless error in
light of the evidence presented by the State. Post at ___ (slip
op. at 11-12). We briefly address the issues raised in their
separate opinion.
Our colleagues are concerned about a broad application of
our ruling in this case to future trials. Our ruling is
distinctly fact-sensitive and based on our standard of review.
We do not determine, in this case, that every segment of video
recording that shows a defendant alone in an interrogation room
should be admitted under N.J.R.E. 401 and 403 for an assessment
34
of credibility, or on any other basis. Indeed, we would not
subscribe to such a bright-line rule. We too would be concerned
about the open-ended use of video recordings of a defendant,
ostensibly for the assessment of demeanor and credibility. A
careful balancing of probative value and prejudicial effect is
always required under N.J.R.E. 403. Based on the facts before
the court in this matter and the parties’ distinct arguments, we
view the trial court’s ruling to be a reasoned application of
N.J.R.E. 401 and 403 to a unique set of facts, not a “clear
error of judgment” that is “so wide of the mark” as to warrant
reversal. See Koedatich, supra, 112 N.J. at 313; Carter, supra,91 N.J. at 106.
The trial court made its ruling that the video recordings
would be useful in the jury’s assessment of this defendant’s
credibility in his interrogation in light of the sequence of
events that led to those recordings. The court did not confront
a case in which officers video-recorded a defendant after they,
or the defendant, terminated the interrogation. To the
contrary, immediately before they left the interrogation room,
the officers discussed with defendant the prospect of continuing
the discussion, if defendant wished to talk further.6 Minutes
6 After defendant said, “I might have a little secret in my mind
that proves I’m innocent,” and that he would not “say anything,”
the officer said that was “fine.” The officer added that if
defendant changed his mind and wanted to “reach out” he should
35
later, the interrogation resumed. Each of the disputed segments
-- the five-minute segment that is the focus of our colleagues’
concurring opinion, and the two shorter segments that followed -
- was recorded immediately after one phase of the interrogation,
and shortly before the next. That is the setting in which the
trial court made its case-specific ruling pursuant to N.J.R.E.
403. That ruling is the only determination that we review for
abuse of discretion.
Our colleagues note that the trial court did not
specifically refer to N.J.R.E. 403 when it made its ruling.
However, the absence of a specific reference to the Rule in the
trial court’s oral decision does not signal that the court was
call the officer “from the County Jail tell your attorney to
reach out to me. That’s where it’s going.” Defendant asked why
he was going to jail and was told he was going to be charged.
He questioned the fact that he was being charged and said that
“[t]his is a joke because I know I’m not guilty.” The officer
told defendant again that he would be going “in the cell for the
time being” but that if defendant thought about it and decided
he wanted to talk to the detectives, “[t]hen by all means talk
to an Officer get someone’s attention and say I don’t want to
remain silent anymore I want to talk. And talk to someone.”
Defendant asked the officer’s name, and the officer provided it.
Defendant then stated, “[i]f I was to make a statement you know
what I would say. I’m not guilty.” The officer responded that
if defendant changed his mind, “[y]ou know where to find us.”
Defendant then asked, “[i]s it almost over? Can I leave?” The
officer said “No. You’re not leaving,” and left the room, at
which point defendant shouted toward the door that his detention
was “against the law.” A few minutes later, defendant knocked
on the door and summoned an officer, who escorted him from the
room. Defendant then requested to speak to the Chief of Police,
and the interrogation resumed.
36
not applying N.J.R.E. 403’s balancing test. It is clear that
the court weighed the probative value of the evidence against
its potential for prejudice in accordance with that Rule.
When the parties initially raised the issue before the
trial judge and defense counsel generally expressed concerns
about the video recordings, the judge specifically asked whether
defendant’s objection was based on N.J.R.E. 403, and was told
that it was. In its decision the following day, the trial court
expressly applied both components of the standard of that Rule.
The court discussed the video recordings’ probative value in the
jury’s assessment of credibility. It found that while the video
recordings depicting defendant’s demeanor while alone in the
interrogation, like a defendant’s confession, were prejudicial,
they were not so prejudicial as to mandate exclusion. The trial
court, in sum, applied N.J.R.E. 403’s standard to this case and
made a ruling that clearly fell within its discretion.
Our colleagues suggest that following our opinion, judges
will admit any evidence showing changes in a defendant’s
demeanor on the ground that it is relevant to the defendant’s
credibility. If, in another matter, the State offers into
evidence video recordings such as those at issue in this case,
our trial judges can assess that evidence in accordance with
N.J.R.E. 401’s standard of relevancy, in light of the
circumstances of the specific case.
37
Finally, our colleagues suggest that in summations in
future cases, prosecutors may overstate the significance of a
defendant’s change in demeanor or otherwise mischaracterize the
video-recorded evidence. Post at ___ (slip op. at 10-11). We
do not share our colleague’s concerns. This Court has defined
what constitutes a prosecutor’s proper comment on the evidence
in summation, and what does not. See, e.g., State v. Bradshaw,
195 N.J. 493, 510 (2008); State v. R.B., 183 N.J. 308, 331-34
(2005); Timmendequas, supra, 161 N.J. at 584-89. Guided by that
jurisprudence, our experienced criminal trial judges routinely
scrutinize prosecutors’ comments in summation, and appellate
courts review those determinations. We respectfully note that
if a summation in a future case raises the concerns identified
by our colleagues, the trial court charged to oversee that case,
guided by this Court’s case law on prosecutorial misconduct and
in accordance with the specific purpose of the evidence, will
rule on the propriety of the prosecutor’s comments. Here, we
conclude that the prosecutor briefly exceeded the boundaries of
proper comment on the evidence by suggesting that defendant’s
demeanor signified his guilt, but that the remarks in summation
did not give rise to plain error.
VI.
38
The judgment of the Appellate Division is reversed, and the
matter is remanded to the Appellate Division panel for
determination of any issues that the panel did not resolve.
JUSTICES LaVECCHIA, FERNANDEZ-VINA, and SOLOMON join in
JUSTICE PATTERSON’s opinion. CHIEF JUSTICE RABNER filed a
separate, concurring opinion, in which JUSTICES ALBIN and
TIMPONE join.
39
SUPREME COURT OF NEW JERSEY
A-66 September Term 2015
076255
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
ANTHONY K. COLE,
Defendant-Respondent.
CHIEF JUSTICE RABNER, concurring.
In this case, officers interrogated defendant Anthony Cole
for two hours and ended the interview. Defendant cooperated
throughout; he calmly answered questions and denied that he had
committed a crime. At the very end of the interview, defendant
repeated that he was innocent and asked to be released. The
officers instead told him that he was headed to the county jail.
They then left the room.
Over the objection of defense counsel, the jury watched a
six-minute video recording of what happened next -- while
defendant sat alone in the interrogation room after the
interview had ended. He was visibly upset, muttered to himself,
and cursed. Based on that evidence, the prosecution argued in
summation that defendant manipulated his appearance during the
interview because he was guilty.
1
The Appellate Division concluded that it was error for the
trial court to admit the video in evidence. The majority
disagrees. In my judgment, the jury should not have seen the
video based on a straightforward application of the rules of
evidence.
Under the circumstances, the video’s probative value was
limited. Its minimal relevance was substantially outweighed by
the risk of undue prejudice and the danger that the recording
would mislead the jury. As a result, the evidence should have
been excluded under N.J.R.E. 403. Because the error was
harmless in light of other strong evidence of defendant’s guilt,
I concur in the judgment.
I.
The facts are not in dispute. On December 16, 2009, the
police arrested defendant for the attempted murder of David
Donatelli several months earlier. Donatelli, a long-time
employee of the South Plainfield Public Works Department, had
been at the park preparing for the town’s Labor Day fireworks
display when someone slashed his neck with a knife. Because of
the severe nature of the wound, Donatelli faced a substantial
risk of death and was rushed to the hospital. After emergency
surgery, he fortunately survived.
The police brought defendant to headquarters, where he
waived his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.
2
Ct. 1602, 16 L. Ed. 2d 694 (1966). At trial, the jury watched
the recorded statement of the interview that followed.
Defendant responded to questions that two detectives posed and
admitted that he went to the park on the night of the fireworks
display. But he repeatedly denied that he attacked Donatelli.
During the interview, defendant was responsive, talkative, and
in control.
The interview lasted about two hours. At the end,
defendant insisted that he was innocent, as he had throughout
the interrogation. A detective then said the following: “[I]f
you change your mind and you do want to reach out back to me[,]
[c]all me from the County Jail[;] tell your attorney to reach
out to me. That’s where it’s going.” (emphases added).
Defendant replied, “Why am I going to jail? . . . I’m not
guilty.” In response, the detective told defendant he was
headed to “the cell for the time being” but, if he “want[ed] to
talk to the detectives,” he could “talk to an officer,” “get
someone’s attention,” and “talk to someone.” Defendant again
insisted that he was not guilty and asked, “Can I leave?” When
he was told, “[y]ou’re not leaving,” he protested again. At
that point, the detectives walked out of the interview room and
the interview ended. Nothing in the record suggests this marked
the start of a short break with more questions to follow; the
interview was over.
3
The detectives left defendant alone in the room, and a
camera continued to record him for almost six minutes. While
alone, defendant appeared angry and distraught; he cursed,
gestured, and muttered quietly to himself.
Defendant was then moved back to the booking room and, when
the chief of police walked by in the hallway, defendant asked to
speak with him. Defendant was escorted back to the interview
room where a second interview took place. The jury watched a
video of that statement as well. In it, defendant continued to
insist that he was innocent. The police left defendant alone
for ninety seconds during the second interview and for another
two minutes at the end. Each time, he again muttered quietly to
himself.
At trial, defense counsel argued that the State should not
be allowed to introduce the six-minute portion of the video
taken when defendant was alone. Counsel stressed that the
evidence had no probative value and was prejudicial. He also
argued that the jury was “not going to know what to do with” the
ambiguous evidence. The State countered that the evidence
offered context and would enable jurors to determine the
witness’s credibility during the prior statement.
The trial judge overruled the objection. He reasoned that,
although the evidence
4
is subject to interpretation, I have to agree
with the State that it’s clearly conduct which
relates to the statements previously made by
this defendant.
The ability of a defendant to maintain
control of himself, to respond in the manner
in which he responded to police questions, to
be demonstrative in his -- and appropriately
demonstrative to questioning, and then when
the defendant believes, I assume, knows that
police aren’t there, knows that it’s being
recorded, he mouths some of the curse words
directly to the camera. Clearly, that’s an
indication of his demeanor and his conduct,
and I think it is something that a jury should
see in helping them understand [the] full
tenor and context of the defendant’s
statement.
Aside from noting generally that “when a [d]efendant confesses,
that also impacts negatively on a [d]efendant,” the trial court
did not reference N.J.R.E. 403 or weigh the disputed evidence’s
probative value against its risk of undue prejudice or of
misleading the jury. The court ruled that both videos could be
viewed in their entirety “with appropriate limiting
instructions.” The judge invited defense counsel to present an
instruction. Counsel did not submit one, and the court did not
give one to the jury.
The prosecution, in summation, stressed the importance of
defendant’s demeanor after the first interview, when he sat
alone in the interview room. The State’s arguments, repeated
below, were more than a stray, passing reference:
5
All the statements that he made on that
day, December 16th, are to be analyzed and
considered in the context of the level of
anger and disturbance that existed when the
police leave the room. You observed it,
members of the jury. He’s the pillar of the
community, the Mayor of the metropolis
throughout the whole interview.
And on that board as soon as the police
officers leave, he knows they got him and
that’s when his hand goes down his pants and
he’s mouthing “M F’er” to the world because he
knew they got him. And you saw the switch and
that’s how you’re to analyze the credibility
of the statements made by the defendant on
December 16th. Utilize those portions of his
statement when law enforcement was not in the
room.
Able to turn it on and off at his leisure,
and unless guilty, there is no need to
manipulate your presentation, your appearance
to law enforcement. Manipulation is the
process by which a guilty party attempts to
get over.
II.
Relevant evidence is generally admissible. See N.J.R.E.
402. The threshold for relevancy is not high; to be “relevant,”
evidence must have “a tendency in reason to prove or disprove
any fact of consequence to the determination of the action.”
N.J.R.E. 401.
Evidence of a person’s demeanor will ordinarily meet that
standard for a simple reason: how a person behaves can reveal
whether he or she should be believed. If an individual reacts
to an officer’s questions in a hostile, defensive, or evasive
6
way, for example, a juror might reasonably think that the
person’s answers are not credible. That type of evidence is
plainly relevant.
In this case, it is questionable whether evidence of
defendant’s demeanor during the six minutes he was alone after
the interview can satisfy the relevancy test. The State
contends that defendant’s marked change in demeanor bears on
credibility. But it can also mean a number of other things. In
fact, there are multiple reasonable inferences that can be drawn
from defendant’s behavior after the interview.
As the State argues, defendant’s change in mood may be a
sign that his denials during the interrogation were not
credible. In essence, as the State suggests, defendant may have
been upset because he realized he had been caught, and he only
revealed his true beliefs when left alone. Yet defendant may
also have been upset because he believed he was innocent and law
enforcement officers decided not to release him. Or the
evidence could prove that he has a habit of mumbling to himself
when alone -- as he did three times in the span of an hour.
Under the circumstances, the evidence is not powerful proof
of defendant’s guilt. At most, it is minimally probative.
If evidence is relevant, trial courts may be asked to
assess whether “its probative value is substantially outweighed
by the risk of . . . undue prejudice, confusion of issues, or
7
misleading the jury.” N.J.R.E. 403. To be sure, the video
portrays defendant in a very unflattering light, which
underscores the risk of undue prejudice the video presented.
Even more problematic, though, the type of evidence in question
could well mislead a jury.
We trust jurors to evaluate a witness’s credibility. When
they hear trial testimony or review a suspect’s recorded
statement, jurors evaluate not only what the witness has said
but also how he spoke. This case is different. Defendant was
no longer being questioned; he was alone after an interview had
ended. He did not make audible comments that might be
admissible; he was agitated and upset.
Jurors, as factfinders, are routinely asked to decide what
evidence means and choose among conflicting inferences. But
there are no standards to guide a jury and help it understand a
witness’s ambiguous change of mood after an interrogation has
ended. Left on its own, as the jury was in this case, this type
of equivocal evidence could easily mislead a jury. Even with a
limiting instruction, the jury could not interpret defendant’s
behavior after the interview without speculating about its
meaning. It was therefore error to admit the evidence. In my
view, that ruling was an abuse of discretion. See State v.
Gorthy, 226 N.J. 516, 539 (2016).
8
Today’s opinion expands the law but cites no authority that
directly supports the broader approach it adopts. The
prosecution has not identified any case law that approves the
use of evidence of a witness’s demeanor after an interrogation
has ended. Nor does the majority rely on any such precedent.
The State and the Attorney General, as amicus, discuss
State v. Cook, 179 N.J. 533 (2004). That important decision
considered the benefits of recording custodial interrogations
and announced that the Court would establish a committee to
“study and make recommendations on the use of electronic
recordation of custodial interrogations.” Id. at 562. The
ruling in no way addressed the particular issue this appeal
raises. A year later, the Court adopted Rule 3:17 on
“electronic recordation.” That rule, as well, does not answer
the question now before the Court.
The State’s reliance on State v. Diaz-Bridges, 208 N.J. 544(2012), is also unavailing. Diaz-Bridges analyzed a pretrial
ruling that suppressed a defendant’s taped statement. The case
turned on whether the defendant’s request to speak with his
mother during an interrogation amounted to an assertion of the
right to silence. Id. at 548. The defendant spoke with the
police on two separate occasions. At different times during the
lengthy second interrogation, the police took breaks and left
defendant alone. Id. at 554-55. During a break after six
9
hours, with the recording equipment running, defendant began to
cry and said he wanted to go home. Id. at 555.
The trial court suppressed the entire second statement; the
Appellate Division suppressed part of it. Id. at 558. The
Court reversed after it concluded that, under all of the
circumstances, defendant’s request did not “constitute [an]
invocation of his right to silence.” Id. at 572.
The State maintains that the Court’s reversal of the
suppression order in Diaz-Bridges amounted to a finding that the
entire video should be admitted at trial. But no party argued
about whether portions of the video when defendant was alone --
during breaks in an interrogation -- should be played for the
jury. And the opinion simply does not consider the issue.
In short, neither Cook nor Diaz-Bridges supports the
majority’s ruling.
Today’s outcome also leaves a number of unanswered
questions. Will it become common at trial for prosecutors to
play recordings of defendants after an interview has ended --
while defendants sit alone in an interrogation room? What will
qualify as relevant evidence of demeanor in those instances? If
a witness responds to questioning in a pleasant tone but turns
sullen when alone afterward, can that be presented to assail the
witness’s credibility? Suppose a witness starts to cross his
10
arms and look about nervously after an interview? Can
prosecutors refer to that to offer context?
In my judgment, the risk of undue prejudice and of
misleading the jury substantially outweighed the probative value
of the six-minute video. As a result, it should have been
excluded under N.J.R.E. 403, and it was an abuse of discretion
to admit the evidence.1
III.
The majority ably recounts the strong evidence in the
record against defendant: police found gloves near the scene of
the crime with both the victim’s blood on the outside and skin
cells on the inside that matched defendant’s DNA; defendant’s
mother contradicted his alibi; and a friend testified that
defendant had asked if he could get a ride home from the
fireworks display, said he would be back in a few minutes, and
never reappeared. In light of that and other evidence, I do not
believe the admission of the six-minute video “raise[s] a
reasonable doubt as to whether [the error] led the jury to a
1
The Appellate Division remanded for a new trial and suggested
in a footnote that N.J.R.E. 403 posed a “formidable barrier.”
The panel, though, analyzed the disputed evidence under a line
of authority about consciousness of guilt. See State v.
Williams, 190 N.J. 114, 125-29 (2007). Because I believe the
evidence was inadmissible in the first place, I do not reach
that question. That said, the prosecutor’s arguments in
summation went beyond his stated purpose in seeking to admit the
evidence.
11
verdict it otherwise might not have reached.” See State v.
Sterling, 215 N.J. 65, 101 (2013). The error was harmless.
I therefore respectfully concur in the judgment.
12