State v. Darien Weston (073032) , 222 N.J. 277 ( 2015 )

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 of New Jersey v. Darien Weston (A-61-13) (073032)
Argued January 5, 2015 -- Decided June 25, 2015
PATTERSON, J., writing for a unanimous Court.
In this appeal, the Court considers the circumstances under which a jury’s viewing of the pretrial,
videotaped statements of certain witnesses constitutes plain error.
On July 10, 2007, a Newark police officer found Paul Phillips unresponsive and bleeding from his mouth in
a dumpster. Having sustained two gunshot wounds to the head, he was pronounced dead at a local hospital. Police
identified three witnesses, Nahaaj Hunter, D.C., and Q.M., who claimed to have witnessed the murder and made
statements identifying defendant as the shooter. Q.M. also claimed to have helped defendant dispose of the murder
weapon. D.C., who was ten years old at the time of the shooting, told police varying accounts of what he observed.
Defendant was charged with murder, unlawful possession of a weapon, possession of a weapon for an
unlawful purpose, carjacking, kidnapping, felony murder, terroristic threats, tampering with physical evidence,
hindering apprehension, and aggravated assault. At trial, Q.M. recanted his statement and claimed that he never
witnessed the murder, did not help dispose of the gun, and that a police officer had coerced him into lying. D.C.
testified unequivocally that he saw defendant order the victim into the dumpster and then shoot him. As a result of
Q.M.’s recantation, and the varying accounts D.C. offered in his pretrial statements, the court allowed videotapes of
both pretrial statements to be played for the jury in the courtroom.
At the charge conference, the State suggested, without defense objection, that a DVD player be made
available for jurors to view the videotaped statements during deliberations. The trial court granted the request and
during summation, the prosecutor urged the jury to watch the videotaped statements of both witnesses. Two days
into deliberations, defendant moved for a mistrial on the ground that a juror was tainted and stated that he may have
been mistaken when he declined to object to the State’s proposal to give jurors access to those statements during
deliberations. The court did not remove the DVDs from the jury room, suggesting that doing so after two days of
deliberations could be prejudicial to both parties. The jury returned a partial verdict, convicting defendant of
everything except murder, carjacking, felony murder and aggravated assault.
At defendant’s retrial on the remaining counts, Hunter, D.C., and Q.M. testified again. D.C. testified that
he witnessed the murder and identified defendant as the shooter, but added new details about an exchange between
defendant and Phillips before the murder. Q.M. testified that he never witnessed the murder, did not help dispose of
the gun, and that police had coerced him into identifying defendant. The court denied the State’s request to allow
D.C.’s pretrial statements to be allowed into evidence, but allowed the recording of Q.M.’s pretrial statement to be
played for the jury. The State later informed the court that it had arranged for the jury to have access to a DVD
player in the jury room. Defendant did not object to that procedure. In summation, the State urged the jury to watch
the DVD and to note the inconsistencies between Q.M.’s pretrial statement and his testimony on the stand. The jury
convicted defendant of murder, carjacking, and felony murder, but acquitted him of aggravated assault. The court
imposed an aggregate term of life plus thirty-five years, with a total period of parole ineligibility of more than
eighty-five years.
An appellate panel reversed, holding that both trial courts committed plain error when they permitted the
juries unrestricted access to videotaped statements during deliberations. The panel reasoned that the trial courts
failed to adhere to the procedures set forth in State v. Michaels, 264 N.J. Super. 579, 643-45 (App. Div. 1993), aff’d
on other grounds, 136 N.J. 299 (1994), and applied to pretrial statements by this Court in State v. Burr, 195 N.J. 119,
134 (2008). This Court granted the State’s petition for certification. 217 N.J. 287 (2014).
HELD: Given the content of the statements, and the strength of the other evidence presented by the State, the trial
courts’ decisions permitting the juries access to the pretrial statements did not constitute plain error.
1. In Michaels, supra, after deliberations began, the jury asked to view the videotaped testimony of certain victims.
The trial court permitted the jury to review the video in court under its supervision. On appeal, the Appellate
Division held that it was not error for the testimony to be replayed in open court, but recommended that trial judges
confronted with similar requests first offer a readback of the transcript of the testimony. If the jury still asks to see
the video, the court should exercise its discretion to balance that need against any possible prejudice. In Burr, supra,this Court applied the guidelines set forth in Michaels. There, during deliberations, the jury requested videotapes
that had been marked as exhibits and admitted into evidence. Over the defendant’s objection, the trial court
permitted the videotaped statements of a child victim to be replayed for the jury in open court. The Appellate
Division reversed defendant’s convictions, holding that the trial court abused its discretion by not inquiring into the
jury’s need for that replay and by not balancing that need against any prejudice to the defendant. This Court agreed
that the defendant in Burr was entitled to a new trial and remanded the case to the trial court. On remand, this Court
directed the trial court to inquire whether the jury would be satisfied by a readback of the testimony. In the event
that the jury persisted in its request for a video replay, the trial court was instructed to take into consideration
fairness to the defendant. The court was also charged to ensure that any video playback was accompanied by a
readback of direct and cross-examination of the witness necessary to provide context. The trial court would have the
discretion to deny the jury request upon a showing that the prejudice to the defendant from the playback could not
be ameliorated through other means. Finally, any playback, and accompanying readback, must occur in open court.
(pp. 17-20)
2. These cases, and the Court’s subsequent jurisprudence, consistently direct that, because a jury’s review of a
videotaped witness statement or testimony raises concerns that a particular segment will be overemphasized or
viewed out of context, any replay of such a statement or testimony must be conducted in open court, under the
careful supervision of the trial judge. The cases also instruct that a replay of a videotaped statement during
deliberations should only be conducted upon the jury’s request, and after a determination that the jury’s concerns
cannot be addressed with a readback of testimony. (pp. 21-22)
3. The judges who oversaw this defendant’s trials addressed most of the issues that arose in the course of the
proceedings, but did not follow the procedures set forth in Michaels, Burr, and the Court’s later authority. The jury
did not request a replay of the videotaped statements in dispute and the courts did not follow the guidelines
established to ensure that any jury review of the videotape was conducted in open court. The Court agrees that it
was error for the courts to permit the juries to have unsupervised access to the videotaped statements during
deliberations. However, defendant did not object, during either trial, to the juries’ unsupervised access to the
videotapes, which were properly admitted into evidence. Accordingly, the Court reviews whether the jury’s access
during deliberations to the D.C. and Q.M. videotaped pretrial statements constituted plain error. Plain error is that
which is clearly capable of producing an unjust result. The Court undertakes this analysis in light of the unusual
setting presented in this case, in which there is no possibility that the jury had access to inadmissible evidence that
might improperly affect the outcome of a trial. Instead, this case concerns the properly admitted pretrial statements
of two witnesses, both of whom testified before the jury and were cross-examined at trial. To make this
determination, the Court considers those statements in the context of the State’s evidence as a whole. (pp. 22-26)
4. The jury’s access to D.C.’s videotaped statement during deliberations in the first trial did not deprive defendant of
a fair trial. Defendant presented the statement to the jury, and his counsel affirmatively relied on it in summation.
D.C.’s confusing responses to police interrogation on videotape had the potential to undermine the child’s testimony
about defendant on the witness stand. D.C. testified at both trials that he personally witnessed the shooting. If jurors
in the first trial viewed D.C.’s videotaped statement and relied on it more than they relied on the witness’s trial
testimony, then that could only have weakened the State’s case. The trial court’s decision to allow the jury in the
first trial to have D.C.’s videotaped statement during deliberations did not constitute plain error. In the case of
Q.M., whose videotaped pretrial statement was in the juries’ possession in both trials, application of the plain error
standard requires a more detailed inquiry. In his pretrial statement, Q.M. incriminated defendant, but prior to the
first trial, Q.M. recanted and claimed that his statement had been prompted by police coercion. In both trials, Q.M.
disclaimed any knowledge of the murder. To determine whether the juries’ access to Q.M.’s pretrial statement
during deliberations was clearly capable of producing an unjust result, the Court considers the strength of the other
evidence presented by the State, some of which directly corroborated Q.M.’s pretrial statement, and none of which
supported his testimony at trial. Q.M.’s attempts to explain away the details contained in his pretrial statement, and
to account for other inconsistencies found no support in the other evidence in the trial record. (pp. 27-32)
5. As reflected by defendant’s affirmative use of D.C.’s pretrial statement, that statement was substantially less
incriminatory than D.C.’s testimony at trial. If the jury decided that Q.M.’s pretrial statement was more credible
than his trial testimony recanting his statement, such a determination found robust support in other evidence
admitted in both trials. It is virtually inconceivable that either verdict was driven by the jury’s unsupervised access
to the videotaped version of the properly admitted pretrial statements, rather than by the jury’s evaluation of the
evidence. In light of the evidence admitted in both of defendant’s trials, the jurors’ unsupervised access to D.C.’s
videotaped pretrial statement during deliberations in the first trial, and to Q.M.’s videotaped pretrial statement
during deliberations in both trials, was not clearly capable of producing an unjust result. Neither trial judge
committed plain error; in both cases, defendant received a fair trial. (p. 33)
2
6. Notwithstanding the Court’s review of defendant's trials under the plain error standard that governs this case, it
reiterates that when videotaped pretrial statements or trial testimony are admitted into evidence, deliberating juries
should view them only if they request to do so, and then only in open court under the supervision of the trial judge.
(pp. 33-34)
The judgment of the Appellate Division is REVERSED. The matter is REMANDED to the Appellate
Division for its consideration of the remaining issues raised by defendant on appeal from his convictions that were
not previously addressed.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, FERNANDEZ-VINA, and
SOLOMON; and JUDGE CUFF (temporarily assigned) join in JUSTICE PATTERSON’s opinion.
3
SUPREME COURT OF NEW JERSEY
A-61 September Term 2013
073032
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
DARIEN WESTON,
Defendant-Respondent.
Argued January 5, 2015 – Decided June 25, 2015
On certification to the Superior Court,
Appellate Division.
Brian J. Uzdavinis, Deputy Attorney General,
argued the cause for appellant (John J.
Hoffman, Acting Attorney General of New
Jersey, attorney).
Brian P. Keenan, Assistant Deputy Public
Defender, argued the cause for respondent
(Joseph E. Krakora, Public Defender,
attorney).
JUSTICE PATTERSON delivered the opinion of the Court.
In this appeal, we review the convictions of defendant
Darien Weston for first-degree murder and eight other offenses.
The charges arose from the 2007 murder of a young Newark
resident who was kidnapped, transported to a parking lot, forced
into a dumpster, and shot twice at close range. In a 2008
trial, a jury convicted defendant of six offenses, but was
unable to reach a verdict on four other charges. In 2009, a
1
second jury convicted defendant of three of the remaining four
charges. During deliberations in both trials, with no objection
from defendant prior to the start of deliberations, jurors were
permitted unsupervised access to videotaped recordings of
witness statements that had been admitted into evidence. The
record does not reveal whether either jury viewed the videotaped
statements in the jury room.
Following defendant’s appeal, an appellate panel held that
plain error occurred when the judges who each oversaw one of
defendant’s trials permitted the jurors access to the videotaped
statements in the jury room. The panel stated that it could not
conclude that, in either trial, the trial court’s error was
harmless. It reversed defendant’s convictions on all charges
and remanded the matter for a new trial.
We reverse the Appellate Division’s judgment of reversal.
Consistent with our prior jurisprudence, the Appellate Division
correctly perceived that, if a jury views a videotaped pretrial
statement or videotaped testimony during deliberations, it
should do so only in open court under the supervision of the
trial judge. We hold, however, that the trial courts’ decisions
to permit the juries access to the pretrial statements in
defendant’s trials did not constitute plain error in these
trials. Given the content of the two statements and the
strength of the other evidence presented by the State, we do not
2
find that the trial courts’ handling of the videotaped
statements during jury deliberations was “clearly capable of
producing an unjust result.” R. 2:10-2. Accordingly, we
reverse and remand this matter to the Appellate Division for its
consideration of the remaining issues raised by defendant in his
appeal from his convictions, that the panel did not address.
I.
On the evening of July 10, 2007, Paul Phillips, a twenty-
three-year-old employee of a utility company, attended a prayer
meeting at the Kingdom Hall of Jehovah’s Witnesses in Montclair.
He and his girlfriend, Erin King, planned to meet at Phillips’s
home in Newark after his return from the prayer meeting.
Phillips left Montclair at approximately 8:40 p.m., driving his
green Dodge Durango sports utility vehicle (SUV). As Phillips
departed, he called King to advise her that he was on his way to
meet her. In the hours that followed, she repeatedly tried to
reach him on his cell phone, but her calls went unanswered.
Just before 10:00 p.m. that evening, Officer Juan Torres of
the Newark Police Department was dispatched in response to a 9-
1-1 call. The caller stated that there was an injured person in
a green dumpster in a parking lot behind a row of homes on
Peshine Avenue in Newark. Torres found Phillips in the
dumpster, unresponsive and bleeding from his mouth. Paramedics
3
arrived and took Phillips to the hospital, where he was
pronounced dead.
An autopsy revealed that Phillips’s death was caused by two
gunshot wounds to the head, one of which had been fired from a
range of less than one to one and a half feet from the victim.
Police found blood, matched by DNA analysis to Phillips, inside
the dumpster and a .25 mm shell casing nearby. Three days after
the shooting, Phillips’s vehicle was recovered in Irvington,
five miles from the scene.
In the weeks following the murder, three witnesses who said
that they were present at the scene of Phillips’s murder were
located by police. The first of the three was Nahaaj Hunter, a
nineteen-year-old man who was playing basketball near the
Peshine Avenue parking lot where the shooting occurred. Hunter
contacted a tip line, stated that he had witnessed Phillips’s
murder, and identified defendant as the shooter. He gave a
statement to police officers.
Police officers also learned that D.C., a ten-year-old boy
who lived near the scene of the shooting, said that he had been
present during the shooting. D.C. went to the police station
with his mother a month after Phillips’s death and gave a
statement that was recorded on audiotape and videotape. He
identified a photograph of defendant and stated that defendant
was the shooter. D.C.’s mother would later testify that, on the
4
evening of the murder, she heard shots. Her son ran to her,
crying and saying that someone had told someone else to get in a
dumpster. She also stated that her son identified defendant in
a yearbook photograph as the man who shot the victim in the
dumpster.
Police also obtained a videotaped statement from a third
witness, twelve-year-old Q.M., who spoke to two officers with
his mother present. In his statement, recorded on audio and
video and later transcribed, Q.M. recounted that he had been
acquainted with defendant for about two months before the murder
and that he and defendant spent time together daily during that
period. Q.M. stated that, on the evening of Phillips’s murder,
he saw a gray Durango pull up in the back of Peshine Avenue with
defendant in the front seat and someone else in the back.
Q.M. told police that as the car arrived, another local
resident whom Q.M. knew approached defendant, briefly spoke with
him, and nodded affirmatively. Q.M. said that defendant then
got out of the car, walked to the back door and opened it, and
ordered the man in the back out of the car and into the
dumpster. Q.M. said that defendant later told him that “it was
a carjacking” and that the victim had his head in his hands in
the dumpster and was crying just before he was killed.
According to Q.M.’s statement, defendant shot the victim twice
5
in the head. During his statement, Q.M. was shown a photograph
of defendant and identified him as the shooter.
Q.M. also told police about an encounter with defendant
about an hour and a half after Phillips’s murder. He said that
defendant, driving the Durango, pulled up to Q.M. and told Q.M.
to get into the car. According to Q.M., defendant threw a black
gun on Q.M.’s lap, ordered him to take it and “stash” it, and
threatened to kill Q.M.’s mother if he did not comply. Q.M.
told police that he took the gun as ordered by defendant and
disposed of it, and also took a pair of boxing gloves from the
vehicle. With the consent of Q.M.’s mother, police officers
searched his home and found the victim’s boxing gloves.
As a result of the officers’ investigation, defendant, who
was seventeen years old at the time of the murder, was arrested.
Following a hearing, defendant was waived to adult court
pursuant to N.J.S.A. 2A:4A-26.
II.
A grand jury indicted defendant for first-degree murder,
N.J.S.A. 2C:11-3(a)(1) or (2); third-degree unlawful possession
of a weapon, N.J.S.A. 2C:39-5(b); second-degree possession of a
weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); first-
degree carjacking, N.J.S.A. 2C:15-2(a)(1)-(4); first-degree
kidnapping, N.J.S.A. 2C:13-1(b)(1) or (2); first-degree felony
murder, N.J.S.A. 2C:11-3(a)(3); third-degree terroristic
6
threats, N.J.S.A. 2C:12-3(a); fourth-degree tampering with
physical evidence, N.J.S.A. 2C:28-6(1); two counts of third-
degree hindering apprehension, N.J.S.A. 2C:29-3(b)(3); and
fourth-degree aggravated assault (pointing a firearm), N.J.S.A.
2C:12-1(b)(4).
Defendant’s first trial took place over ten trial days in
September 2008. The State presented the testimony of Hunter,
D.C., Q.M., and twenty other witnesses.
Hunter testified that at the time of the murder, he had
known defendant for about five or six months. He stated that
three days before Phillips’s murder, he and defendant fought
over a woman, and defendant threatened to shoot him in the head
with a small handgun. Hunter identified a handgun that had been
recovered by police and linked to Phillips’s murder by
ballistics evidence as the weapon that defendant had used to
threaten him during their dispute three days before Phillips’s
murder.
Hunter testified that he witnessed Phillips’s shooting
while at a basketball court located approximately two hundred
feet from the location where Phillips was killed. He recalled
that a black SUV pulled up behind the row of homes on Peshine
Avenue, and defendant got out of the driver’s seat. According
to Hunter, defendant went to the back of the SUV, pulled
Phillips from the vehicle, forced him into the dumpster and
7
fired three shots at him from about two feet away. Hunter
stated that several children also witnessed the murder, and that
the children ran away immediately thereafter. Hunter identified
defendant in court as the individual who had killed Phillips.
He was extensively cross-examined, particularly with respect to
his history of criminal offenses, and admitted that he did not
like defendant.
D.C. also testified at defendant’s first trial.
Notwithstanding inconsistent versions of the Phillips murder
given in his videotaped statement to the police, D.C. provided
only a single account when he testified at trial. He said that
he watched as Phillips attempted to leave in his truck and
defendant and other men seized him. D.C. testified that he saw
defendant tell the victim to get out of the car and into the
dumpster, point a gun at the victim’s head, and shoot him. D.C.
said that he immediately ran to his mother and told her all that
he had seen.
On cross-examination, defense counsel impeached D.C. with
his videotaped statement, and D.C. denied making several
portions of that statement that conflicted with his testimony at
trial. Defendant was permitted to play that statement in its
entirety to the jury. The State provided a written transcript
to the jurors for their use while the statement was played, but
8
that transcript was not admitted into evidence or made available
to the jurors during deliberations.
Before defendant’s first trial commenced, Q.M. recanted his
pretrial statement. At defendant’s first trial, Q.M. insisted
that he did not witness Phillips’s murder, converse with
defendant in the victim’s vehicle, or dispose of the gun. Q.M.
claimed that in an encounter in the bathroom during a break from
his discussions with police officers, one of the officers
coerced him into repeating details that the officers provided to
him by threatening to arrest his mother if he did not comply.
He testified that he regretted getting defendant into trouble.
In the wake of Q.M.’s recantation, the State sought to
admit his pretrial statement as substantive evidence. The trial
court held a hearing under N.J.R.E. 104 out of the presence of
the jury, and admitted Q.M.’s pretrial statement as a prior
inconsistent statement pursuant to N.J.R.E. 803(a)(1) and State
v. Gross, 121 N.J. 1 (1990). With Q.M. on the witness stand,
his pretrial statement was then played for the jury. As it did
with respect to D.C.’s statement, the State gave the jury a
written transcript of the statement to follow as the videotaped
version was played in open court. The transcript was not
admitted into evidence and was not provided to the jury for use
during deliberations.
9
At the charge conference, the State suggested, with no
objection from defendant, that a DVD player be made available to
the jurors so that they could view the videotaped statements.
The trial court stated that it had no objection to permitting
the jury to review the videotaped statements during
deliberations. During her summation, the prosecutor urged the
jury to watch the videotaped statements of both witnesses. The
trial court instructed the jury, in accordance with Model Jury
Charges (Criminal), “Prior Contradictory Statements of Witnesses
(Not Defendant)” (rev. May 23, 1994), regarding the special
considerations raised by the admission of the pretrial
statements of D.C. and Q.M.
After two days of deliberations, defendant moved for a
mistrial on the ground that a juror was tainted. After
requesting a mistrial, defense counsel stated that although he
could not make a principled argument against the admission into
evidence of the videotaped statements of D.C. and Q.M., he had
concluded he may have been mistaken when he declined to object
to the State’s proposal to give the jurors access to those
statements during deliberations. Defense counsel stated that he
would have preferred if the jury had been required to request a
statement before being allowed to play it, so in-court testimony
could be read back as well. The trial court declined to remove
10
the DVDs from the jury room, suggesting that doing so after two
days of deliberations could be prejudicial to both parties.
Shortly after that colloquy, the jury returned a partial
verdict. There were no questions from the jury regarding the
videotaped statements, and the jury gave no indication that it
watched the DVD of those statements during deliberations.
The jury in defendant’s first trial convicted him of six
offenses: first-degree kidnapping, second-degree possession of
a weapon for an unlawful purpose, third-degree possession of a
weapon without a permit, third-degree terroristic threats,
third-degree hindering apprehension, and fourth-degree tampering
with physical evidence. It was unable to reach a verdict with
respect to the other counts of defendant’s indictment.
Defendant’s retrial on those remaining counts, conducted
before a different judge, took place over seven trial days
during September and October 2009. Among the twenty witnesses
who testified were Hunter, D.C. and Q.M.1
With the exception of a discrepancy regarding the distance
from which he viewed Phillips’s murder, Hunter’s testimony at
defendant’s second trial was essentially consistent with his
1 Hunter testified at the second trial only after a material
witness warrant was issued. He was housed by police in a hotel
for his protection during the trial. He testified that since he
had identified defendant as the individual who shot Phillips, he
had been labeled a “snitch,” shot at, “jumped” three or four
times, and threatened.
11
testimony at the first trial. He identified defendant as the
individual who shot Phillips.
D.C. again testified that he witnessed Phillips’s murder
and identified defendant as the shooter, adding new details
regarding an exchange between defendant and Phillips immediately
preceding the murder. The trial court denied the State’s
request to move D.C.’s videotaped statement into evidence at the
second trial.
Q.M. was also a witness at the second trial. The trial
court held a hearing under N.J.R.E. 104 out of the presence of
the jury, and admitted Q.M.’s videotaped statement pursuant to
Gross, supra, 121 N.J. at 7-17. As he had during the first
trial, Q.M. denied that he had witnessed Phillips’s shooting,
that he had been in the victim’s vehicle with defendant, that he
had disposed of a handgun on defendant’s instructions, and that
defendant had threatened to kill Q.M.’s mother. The State then
played the DVD of Q.M.’s pretrial statement for the jury and
provided the jury with a transcript while the statement was
played in open court. That transcript was not admitted into
evidence and was not made available to jurors during
deliberations. Q.M. again claimed that his videotaped statement
incriminating defendant had been obtained by police coercion and
denied the truth of the contents of his statement on direct and
12
cross-examination. Q.M. further testified that he had attempted
suicide after hearing voices that told him to kill himself.
As did the judge in the first trial, the trial court
decided to permit the jury access to the DVD of Q.M.’s
videotaped statement during its deliberations in the second
trial. Subsequently, the State represented to the trial court
that it had arranged for the jury to have access to a DVD player
in the jury room. Defendant did not object to that procedure.
In summation, the State urged the jury to watch the DVD and to
note the inconsistencies between Q.M.’s pretrial statement and
his testimony on the stand.
During deliberations, the jurors did not ask questions
concerning the DVD. Like the jury in defendant’s first trial,
the jury in his second trial gave no indication that it viewed
the DVD of Q.M.’s statement in the jury room.2
In defendant’s second trial, the jury convicted him of
first-degree murder, first-degree carjacking, and first-degree
felony murder, and acquitted him of fourth-degree aggravated
assault. After hearing victim-impact statements from Phillips’s
2 The jurors in the second trial sent the court a single note
during the first afternoon of deliberations: “[c]an we end now
and come back tomorrow. Some of us want to think alone. P.S.
How did [Q.M.] come into play[?]” The trial court permitted
them to adjourn for the day, and, in response to the jurors’
inquiry about Q.M., the court instructed them to “rely on your
own recollection of the evidence for the answer to that
question.”
13
family members and friends pursuant to the Crime Victim’s Bill
of Rights, N.J.S.A. 52:4B-34 to -38, and making findings as to
aggravating and mitigating factors in accordance with N.J.S.A.
2C:44-1(a)-(b), the trial court sentenced defendant to an
aggregate term of life plus thirty-five years, with a total
period of parole ineligibility of more than eighty-five years.3
Defendant appealed his convictions and sentence. In an
unpublished per curiam opinion, an appellate panel reversed
defendant’s convictions. The panel held that both trial courts
committed plain error when they permitted the two juries
unrestricted access to videotaped statements during
deliberations. The panel reasoned that the trial courts failed
to adhere to the procedures set forth in State v. Michaels, 264
N.J. Super. 579, 643-45 (App. Div. 1993), aff’d on other
3 The trial court sentenced defendant to a life sentence for his
first-degree murder conviction. It sentenced defendant to a
term of thirty years’ imprisonment for his first-degree
kidnapping conviction and a term of five years’ imprisonment for
his conviction for third-degree terroristic threats, both terms
to run consecutively to defendant’s term of life imprisonment,
and both subject to the parole ineligibility provisions of the
No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The court
sentenced defendant to a term of thirty years’ imprisonment,
subject to NERA, for his first-degree carjacking conviction; a
term of five years’ imprisonment for his conviction for third-
degree possession of a weapon without a permit; a term of five
years’ imprisonment for his conviction for witness tampering;
and a term of five years for his conviction for hindering
apprehension. All terms were to be served concurrently with his
life term for first-degree murder. The remaining offenses were
merged into other offenses. Defendant was awarded 841 days in
jail credit toward his sentence.
14
grounds, 136 N.J. 299 (1994), and applied to pretrial statements
by this Court in State v. Burr, 195 N.J. 119, 134 (2008). It
held that the juries’ access to the videotaped statements may
have resulted in substantial prejudice to defendant and that, in
the absence of direct physical evidence linking defendant to
Phillips’s murder, the error was not harmless.4
We granted the State’s petition for certification. 217
N.J. 287 (2014).
III.
The State concedes that the trial courts in both trials
committed a “procedural lapse” when they allowed the two juries
unsupervised access to the videotaped statements during
deliberations. It contends, however, that the trial courts’
errors do not compel reversal of defendant’s convictions. The
State argues that the Appellate Division improperly applied the
plain error standard, which requires a finding that the error
was “clearly capable of producing an unjust result,” to this
4 The Appellate Division did not reach the remaining issues
raised by defendant: whether the jury instruction on
terroristic threats in defendant’s first trial failed to clearly
state the crime of violence threatened; whether defendant was
denied the effective assistance of trial counsel in both trials
because his counsel failed to file a motion for a hearing
pursuant to United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926,
18 L. Ed. 2d 1149 (1967), with respect to his identification by
D.C. and Q.M. based on a single photograph; and whether the
sentencing court improperly imposed consecutive sentences,
imposed an illegal sentence, and imposed a sentence that was
manifestly excessive.
15
case. It asserts that the panel ignored the strength of the
evidence independent of the statements that supported
defendant’s convictions.
Defendant argues that his right to a fair trial was
violated when the videotaped statements of D.C. and Q.M. in the
first trial, and the videotaped statement of Q.M. in the second
trial, were in the juries’ possession during deliberations. He
contends that both trial judges violated this Court’s directive
in Burr, supra, 195 N.J. at 134-35, and its progeny. Defendant
notes that neither jury requested a playback of the videotaped
statements, and that the trial courts apparently viewed the
juries’ access to those statements as a routine matter. He
argues that because his convictions turned on identification,
and the disputed videotaped statements contradicted the
testimony of two eyewitnesses, the juries’ unfettered access to
those statements was “clearly capable of producing an unjust
result,” and therefore constituted reversible error under both
the “plain error” and “harmful error” standards. Defendant
asserts that there was no forensic evidence supporting his
convictions and that the witnesses whose statements are at issue
were critically important in both trials.
IV.
A.
16
As the State and defendant agree, a trial court should not
permit a jury to have unrestricted access during deliberations
to the videotaped pretrial statements of witnesses. That rule
constitutes an exception to Rule 1:8-8(a), which broadly permits
a jury to “take into the jury room the exhibits received in
evidence . . . .” As this Court recently noted, “video-recorded
statements have been considered a different type of exhibit, a
hybrid that is both a demonstrative exhibit and testimony.”
State v. A.R., 213 N.J. 542, 560 (2013) (citing Burr, supra, 195
N.J. at 134). “The video recording is the functional equivalent
of a live witness and can be particularly persuasive.” Ibid.(citing United States v. Binder, 769 F.2d 595, 600 (9th Cir.
1985)). As such, a videotaped statement requires special
consideration by a court overseeing a trial that has reached the
deliberation stage.
Our appellate courts first confronted the question of jury
access to a videotape of a witness in the context of recorded
trial testimony in Michaels, supra, 264 N.J. Super. at 641-42.
There, shortly after it began deliberations in the trial of a
teacher charged with sexual misconduct allegedly involving
twenty of her students, the jury asked to view the videotaped
testimony of the child victims and to deliberate following its
review of each child’s testimony. Id. at 585, 642. The trial
court permitted the jury to review the videotaped testimony, in
17
open court and under the supervision of the judge. Id. at 642.
An appellate panel held that, although it would be error to
permit the jury to have the videotaped testimony in the jury
room during deliberations, it was not error for the testimony to
be replayed in open court. Id. at 643-44. It commented, “we
cannot say that the replay of child-testimonial videotapes is
prejudicial per se or that because of the impact of the visual
image, the trial judge should be divested of discretion to
accede to a jury’s request for a replay.” Id. at 644. The
panel recommended the following procedures to guide trial judges
confronted with a jury request such as the one made by the jury
in Michaels:
A trial judge should first seek to satisfy a
jury request for playback of videotaped
testimony by offering a reading of the
transcript of the testimony. The trial judge
should inquire of the jury as to whether there
is something the jurors are seeking from the
videotape which would be unavailable to them
from an impartial reading of the witness’
testimony. If it is determined that the
jury’s request for a replay of the tape
appears reasonably necessary to its
deliberations, then the trial judge should
exercise discretion to balance that need
against any possible prejudice in each
particular case.
[Id. at 644-45 (citations omitted).]
In Burr, supra, this Court applied the guidelines set forth
in Michaels to videotaped pretrial statements of child victims
in the trial of a defendant charged with second-degree sexual
18
assault, N.J.S.A. 2C:14-2(b), and third-degree endangering the
welfare of a child, N.J.S.A. 2C:24-4(a). 195 N.J. at 122, 132-
35. There, during its deliberations, the jury requested access
to videotapes that had been marked as exhibits and admitted into
evidence. Id. at 131-32. Over the defendant’s objection, the
trial court permitted the videotaped statements of a child
victim to be replayed for the jury in open court. Id. at 132.
The Appellate Division reversed defendant’s convictions on
several grounds, holding that the trial court abused its
discretion by permitting replay of the child’s testimony without
inquiring into the jury’s need for that replay and balancing
that need against any consequent prejudice to the defendant.
Ibid.This Court concurred with the Appellate Division in Burr
that the defendant was entitled to a new trial, affirmed and
modified the panel’s judgment, and remanded the case to the
trial court. Id. at 133-35. The Court shared the Appellate
Division’s “concern that allowing a jury unfettered access to
video-taped witness statements could have much the same
prejudicial effect as allowing a jury unrestricted access to
videotaped testimony during deliberations.” Id. at 134. The
Court instructed the trial court, if faced on remand with a jury
request for a replay of the victim’s pretrial interview during
deliberations, to take specific steps. Id. at 135. First, the
19
trial court was directed to inquire whether the jury would be
satisfied by a readback of the testimony. Ibid. Second, in the
event that the jury persisted in its request for a video replay,
the trial court was instructed to “take into consideration
fairness to the defendant.” Ibid. Third, the court was charged
to ensure that any video playback was accompanied by a readback
of direct and cross-examination of the witness that is necessary
to provide context. Ibid. Fourth, the trial court would have
the discretion to deny the jury request upon a showing “that the
consequential prejudice to the defendant from the playback could
not be ameliorated through other means.” Ibid. Finally, this
Court required that any playback, and accompanying readback,
occur in open court. Ibid.In State v. Miller, 205 N.J. 109, 114 (2011), this Court
again considered a jury request to view a videotape during
deliberations, this time a recording of a witness’s trial
testimony. Finding no error in the trial court’s decision to
grant the jury’s request, the Court directed trial courts to
focus “on the proper controls and limits needed to ensure a fair
proceeding, not the medium used to create a record.” Id. at
121-22. The Court suggested several precautions for trial
courts to use if asked to play trial testimony before a
deliberating jury. Id. at 122-23.
20
Shortly after it decided Miller, the Court addressed the
different context of a videotaped confession in State v. W.B.,
205 N.J. 588, 622-23 (2011). There, the Court declined to find
an abuse of discretion in the trial court’s replay, in open
court, of the defendant’s videotaped confession, where no
transcript of the trial was available as a potential alternative
means of responding to the jury’s request. Id. at 623.
The Court’s most recent exploration of this issue is found
in A.R., supra, 213 N.J. at 552-64. In A.R., the trial court
had admitted into evidence videotaped interviews with the
defendant, accused of sexual assault, and with the child who was
his alleged victim. Id. at 549. With no objection from the
defendant or the State, the trial court permitted the jury to
view the videotapes in the jury room during deliberations. Id.
at 549-50. The Appellate Division reversed the conviction. Id.
at 551. This Court reaffirmed the message of its previous
jurisprudence: “a video-recorded statement must be replayed in
open court under the direct supervision of the judge.” Id. at
546. The Court noted that even when the testimony recorded is
“admissible evidence, playbacks of such testimony have the
capacity to permit a jury to place undue emphasis on a single
item of evidence.” Ibid. The Court held, however, that the
trial court’s error was “no more than a procedural lapse” and
that because defense counsel had urged the jury to view the
21
videotaped statements during deliberations, the doctrine of
invited error applied. Id. at 557, 562. Acknowledging “the
strength of the evidence adduced by the State in support of
defendant’s conviction and the nature of the error,” which “did
not constitute structural error and . . . did not compromise the
fairness of the trial,” this Court reversed the judgment of the
Appellate Division and reinstated the defendant’s conviction.
Id. at 563-64.
These cases state a consistent principle: because a jury’s
review of a videotaped witness statement or testimony raises
concerns that a particular segment will be overemphasized or
viewed out of context, any replay of such a statement or
testimony must be conducted in open court, under the careful
supervision of the trial judge. Id. at 546, 559-61; Miller,
supra, 205 N.J. at 122-23; Burr, supra, 195 N.J. at 131-33;
Michaels, supra, 264 N.J. Super. at 643-45. The case law also
instructs that a replay of a videotaped statement during
deliberations should only be conducted upon the jury’s request,
and after a determination that the jury’s concerns cannot be
addressed with a readback of testimony. A.R., supra, 213 N.J.
at 560-61; Burr, supra, 195 N.J. at 133-35; Michaels, supra, 264
N.J. Super. at 644-45.
The seasoned trial judges who oversaw defendant’s trials
effectively addressed most of the issues that arose in the
22
course of the proceedings, but they did not follow the
procedures set forth in Michaels, Burr, and the Court’s later
authority. First, the jury did not request a replay of the
videotaped statements in dispute. In the first trial, the jury
expressed no interest in reviewing the videotaped statements of
D.C. or Q.M.; the suggestion that it be permitted to do so came
from the State, which used a portion of its summation to
encourage the jury to watch the videotapes. In the second
trial, the State similarly proposed that the Court make the
videotaped statement of Q.M. available to the jurors; the jury
did not request to review that statement. Second, the trial
courts did not follow the guidelines established by our case law
to ensure that any jury review of the videotape was conducted in
open court, with the trial judge retaining control over the
replay process, and trial testimony read back as necessary to
provide context. See A.R., supra, 213 N.J. at 560-61; Miller,
supra, 205 N.J. at 122-23; Burr, supra, 195 N.J. at 133-35;
Michaels, supra, 264 N.J. Super. at 644-45.
We therefore agree with the Appellate Division that it was
error for the trial courts to permit the juries to have
unsupervised access to the videotaped statements during
deliberations. We reiterate that trial courts should make
videotaped statements and testimony available to jurors during
deliberations only in the event of a jury request, and solely in
23
accordance with the guidelines set forth in our prior law. See
A.R., supra, 213 N.J. at 546, 559-61; W.B., supra, 205 N.J. at
622; Miller, supra, 205 N.J. at 122-24; Burr, supra, 195 N.J. at
134-35; Michaels, supra, 264 N.J. Super. at 644-45.
B.
It is undisputed that defendant did not object in either of
his trials to the juries’ unsupervised access to the witnesses’
videotaped pretrial statements, which were properly admitted
into evidence.5 Accordingly, as did the Appellate Division, we
review whether the jury’s access during deliberations to the
D.C. and Q.M. videotaped pretrial statements constituted plain
error.
Plain error is error that “is ‘clearly capable of producing
an unjust result.’” State v. Singleton, 211 N.J. 157, 182-83
(2012) (quoting R. 2:10-2); State v. Reeds, 197 N.J. 280, 298
(2009). “The error must have been of sufficient magnitude to
5 Shortly before the jury in the first trial returned a verdict,
defense counsel raised a question about the trial court’s
handling of the videotaped statements, suggesting that his
decision not to object to the procedure used by the trial court
had been an error. He did so after urging the jury in summation
to view D.C.’s statement, declining to object to the procedure
before the jury was provided with the DVDs, and failing to raise
a question about the issue during two days of deliberation.
This untimely objection does not alter the standard of review.
See R. 1:7-2 (requiring objection “at the time the ruling or
order is made or sought”); Pressler & Verniero, Current N.J.
Court Rules, comment 2 on R. 1:7-2 (2015) (noting need to
provide court with basis of complaint to permit opportunity to
respond) (citing State v. Maisonet, 166 N.J. 9, 20 (2001)).
24
raise a reasonable doubt as to whether it led the jury to a
result it would otherwise not have reached.” Pressler &
Verniero, Current N.J. Court Rules, comment 2.1 on R. 2:10-2
(citations omitted); see also State v. Winder, 200 N.J. 231,
252-53 (2009) (considering substance of trial court’s voir dire
and finding no plain error). As the Court has held, “to rerun a
trial when the error could easily have been cured on request,
would reward the litigant who suffers an error for tactical
advantage either in the trial or on appeal.” State v. Macon, 57
N.J. 325, 333 (1971). It is defendant’s burden to demonstrate
that the trial courts’ procedures constituted plain error. See
State v. Morton, 155 N.J. 383, 421 (1998), cert. denied, 532
U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001); State v.
Chew, 150 N.J. 30, 82 (1997) (citing United States v. Olano, 507
U.S. 725, 734, 113 S. Ct. 1770, 1777, 123 L. Ed. 2d 508, 520
(1993)), cert. denied, 528 U.S. 1052, 120 S. Ct. 593, 145 L. Ed.
2d 493 (1999); State v. Tierney, 356 N.J. Super. 468, 477 (App.
Div.) (citations omitted), certif. denied, 176 N.J. 72 (2003).
In determining whether defendant has demonstrated that the
errors here had “‘a clear capacity to bring about an unjust
result,’” we assess “‘the overall strength of the State’s
case.’” State v. Nero, 195 N.J. 397, 407 (2008) (quoting State
v. Chapland, 187 N.J. 275, 288-89 (2006)); see also State v.
Sowell, 213 N.J. 89, 107-08 (2013) (affirming conviction given
25
strength of evidence against defendant despite admission of
improper expert testimony). We undertake that analysis in light
of the unusual setting presented in this case, in which there is
no possibility that the jury had access to inadmissible evidence
that might improperly affect the outcome of a trial. Cf. State
v. Kociolek, 20 N.J. 92, 103-05 (1955) (reversing conviction
because jury learned during deliberations of “illegal and
extraneous evidence” that defendant had been indicted on
unrelated matter); State v. Conigliaro, 356 N.J. Super. 54, 69-
70 (App. Div. 2002) (reversing conviction because jury had
access, during deliberations, to inadmissible statement written
by victim). Instead, this case concerns the properly admitted
pretrial statements of two witnesses, both of whom testified
before the jury and were cross-examined at trial. At most, the
trial courts’ procedural errors raise the possibility that the
jurors viewed the videotaped statements in the jury room, and
that in doing so, they afforded disproportionate attention to
those statements compared to other evidence admitted at trial.
Accordingly, to determine whether the jurors’ access to the
properly admitted videotaped pretrial statements was “clearly
capable of producing an unjust result,” we consider the import
of those statements in the context of the State’s evidence as a
whole.
26
The jury’s access to D.C.’s videotaped statement during
deliberations in the first trial clearly did not deprive
defendant of a fair trial. Defendant presented the statement to
the jury, and his counsel affirmatively relied on it in
summation; D.C.’s confusing responses to police interrogation on
videotape had the potential to undermine the child’s
incriminating testimony about defendant on the witness stand.
In his videotaped statement, D.C. gave three contradictory
accounts of Phillips’s murder. Initially, D.C. denied having
witnessed the murder, stating that his nine-year-old friend
Isaiah was present at the scene and told him about the shooting
after it occurred, and that the two boys then went to the
dumpster and saw the victim bleeding from the head. In other
portions of his statement, D.C. indicated that he himself had
witnessed the shooting. He recounted that the shooter and the
victim arrived in a green van or green truck, that the shooter
was holding a handgun, and that the victim was in the dumpster
on his knees. In the same videotaped statement, D.C. gave an
alternative version of the murder, in which the victim emerged
from a house and was shot after trying to escape from the
shooter in his vehicle. D.C. said that he recognized defendant
as the shooter because he had seen him on two prior occasions.
In contrast, D.C.’s trial testimony at both trials provided
a consistent account of the shooting, albeit one that diverged
27
from the accounts given by Hunter in his pretrial statement and
testimony, and Q.M. in his pretrial statement. D.C. testified
at both trials that he personally witnessed the shooting. He
stated that he thought Phillips had emerged from someone’s house
and tried to escape in his car, that Phillips was then accosted
by three men, two of whom left, and that defendant forced him
from his car into the dumpster and shot him.
If, as defendant suggests, jurors in the first trial may
have viewed D.C.’s videotaped statement and relied on it more
than they relied on the witness’s trial testimony, then that
could only have weakened the State’s case. The trial court’s
decision to allow the jury in the first trial to have D.C.’s
videotaped statement during deliberations did not constitute
plain error.
In the case of Q.M., whose videotaped pretrial statement
was in the juries’ possession in both trials, application of the
plain error standard requires a more detailed inquiry. In his
pretrial statement, Q.M. incriminated defendant. Prior to
defendant’s first trial, Q.M. recanted his statement and claimed
that it had been prompted by police coercion. Testifying in
both trials, Q.M. disclaimed any knowledge of Phillips’s murder
and contended that the details provided in his statement had
been supplied to him by police officers. In order to determine
whether the juries’ access to Q.M.’s pretrial statement during
28
deliberations was “clearly capable of producing an unjust
result,” we consider the strength of the other evidence
presented by the State, some of which directly corroborated
Q.M.’s pretrial statement, and none of which supported his
testimony at trial.
First, Hunter’s trial testimony substantially corroborated
the account of Phillips’s murder given by Q.M. in his pretrial
statement. As did Q.M. in his pretrial statement, Hunter
testified that defendant arrived at the crime scene driving an
SUV with Phillips in the back of the vehicle. Hunter stated
that defendant ordered the victim out of the car and into the
dumpster, and then shot him. In his pretrial statement, Q.M.
said that defendant got out of the driver’s seat, opened the
back, and told the victim to get into the dumpster; Q.M. said
that defendant told him that the victim “put his head down” in
his hands in the dumpster and “basically started crying.”6 There
were some discrepancies between their accounts. Hunter recalled
that the SUV was black, while Q.M. recalled a grey SUV. In the
first trial, Hunter recounted that three shots were fired; in
the second, he recalled three or four, while Q.M.’s statement
6 In his trial testimony in defendant’s first trial, after he had
recanted his pretrial statement, Q.M. told the jury that he had
“made up” his statement regarding the victim putting his head in
his hands in the dumpster because he “thought it would be
funny.”
29
reflected that defendant shot Phillips twice. Their accounts of
the shooting, however, were essentially consistent.
Significantly, both witnesses were extensively cross-examined
before the trial juries.
Second, testimony about Phillips’s boxing gloves
substantially buttressed Q.M.’s pretrial statement and
undermined the credibility of his recantation at trial. Q.M.
told police in his pretrial statement that, after defendant
ordered him into the victim’s Durango and directed him to
dispose of the gun, he took boxing gloves from the vehicle, and
that the gloves were currently at his home. Following Q.M.’s
statement, Phillips’s boxing gloves were found by police in a
consent search of Q.M.’s home. In both trials, Phillips’s
girlfriend identified the boxing gloves found in Q.M.’s home as
his; in the second trial, she added that she had previously seen
the boxing gloves in Phillips’s vehicle. Thus, the officers’
recovery of the boxing gloves in Q.M.’s home, and the victim’s
girlfriend’s identification of those gloves, corroborated Q.M.’s
pretrial statement in this critical respect. In contrast,
Q.M.’s testimony at trial about the boxing gloves -- that he had
not obtained them from the victim’s vehicle, but instead found
the gloves “in the park one day” -- was not corroborated by any
other evidence admitted at trial.
30
Third, Q.M.’s discussion, in his pretrial statement, of the
gun used to kill Phillips was substantially corroborated by
other evidence. Q.M. stated that approximately an hour and a
half after the murder, defendant pulled over in the victim’s
SUV, dropped a gun in Q.M.’s lap and ordered him to “stash” it.
Q.M. testified that he threw the gun in a field near a tree.7 He
said that defendant later told him that he retrieved the gun. A
gun was later recovered from an individual arrested in Newark
for possession of a firearm, who stated that his cousin and he
had found the gun a few minutes before his arrest in the grass
in Ivy Hill Park. The gun was identified by Hunter, with more
certainty in the first trial than in the second, as the weapon
used by defendant to threaten Hunter three days before
Phillips’s murder. On the basis of a shell casing found at the
scene and two projectiles removed during Phillips’s autopsy, the
gun found in Ivy Hill Park was identified by a ballistics expert
as the weapon used in Phillips’s murder. Thus, Q.M.’s account
of his disposal of the gun, given in his pretrial statement and
later recanted, is consistent with other evidence admitted at
both trials.
7 The transcript of Q.M.’s statement quotes Q.M. as stating that
he “threw [the gun] in the field on Harriman,” which the court
reporter noted was a phonetic transcription of a street
identified by Q.M. It is unclear from the transcript where the
field described by Q.M. was actually located.
31
Finally, Q.M. told police in his pretrial statement that
defendant told Q.M. that defendant had taken from Phillips a
cell phone, described by Q.M. as a blue “I.A. 60” phone that was
a “chirp.” At trial, Phillips’s girlfriend testified that the
victim had a blue, black and silver Nextel flip cell phone. The
cell phone was not recovered. In the testimony that he gave
after recanting his statement in the first trial, Q.M. stated
that although other details of his statement had been dictated
by police officers, he “made up” his description of the color of
the victim’s cell phone. The consistency between Q.M.’s
description of the cell phone, and the description provided by
the victim’s girlfriend in her testimony, supports the
credibility of Q.M.’s pretrial statement, and undermines his
explanation at trial.
In short, to the extent that the jury weighed the
credibility of Q.M.’s pretrial statement against the credibility
of his trial testimony recanting that statement, substantial
evidence, independent of Q.M., corroborated the account that he
originally gave police. In contrast, Q.M.’s attempts to explain
away the details contained in his pretrial statement, and to
account for his possession of the victim’s boxing gloves, found
no support in the other evidence in the trial record. The
juries saw Q.M. testify, heard his account, and had ample
opportunity to form a judgment about his credibility that need
32
not be interfered with on the basis of any other evidence
presenting a clear capacity that an unjust result was reached.
As reflected by defendant’s affirmative use of D.C.’s
pretrial statement, that statement was substantially less
incriminatory than D.C.’s testimony at trial. If the jury
decided that Q.M.’s pretrial statement was more credible than
his trial testimony recanting his statement, such a
determination found robust support in other evidence admitted in
both trials. It is not only unlikely, but virtually
inconceivable, that either verdict was driven by the jury’s
unsupervised access to the videotaped version of the properly
admitted pretrial statements, rather than by the jury’s
evaluation of the evidence. In light of the evidence admitted
in both of defendant’s trials, the jurors’ unsupervised access
to D.C.’s videotaped pretrial statement during deliberations in
the first trial, and to Q.M.’s videotaped pretrial statement
during deliberations in both trials, was not “clearly capable of
producing an unjust result.” R. 2:10-2. Neither trial judge
committed plain error; in both cases, defendant received a fair
trial.
Notwithstanding our review of defendant’s trials under the
plain error standard that governs this case, we reiterate our
adherence to the rule of Michaels, supra, 264 N.J. Super. at
644-45, Burr, supra, 195 N.J. at 132-34, Miller, supra, 205 N.J.
33at 122-23, and A.R., supra, 213 N.J. at 546, 559-61. When
videotaped pretrial statements or trial testimony are admitted
into evidence, deliberating juries should view them only if they
request to do so, and then only in open court under the
supervision of the trial judge.
V.
The judgment of the Appellate Division is reversed. The
matter is remanded to the Appellate Division for consideration
of the issues that it did not reach in its opinion in this case.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, FERNANDEZ-
VINA, and SOLOMON; and JUDGE CUFF (temporarily assigned) join in
JUSTICE PATTERSON’s opinion.
34
SUPREME COURT OF NEW JERSEY
NO. A-61 SEPTEMBER TERM 2013
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
DARIEN WESTON,
Defendant-Respondent.
DECIDED June 25, 2015
Chief Justice Rabner PRESIDING
OPINION BY Justice Patterson
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
REVERSE AND
CHECKLIST
REMAND
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA X
JUSTICE SOLOMON X
JUDGE CUFF (t/a) X
TOTALS 7