State v. Michael Ross II (077458) (Middlesex and Statewide)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2193-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL ROSS II,

Defendant-Appellant.

________________________________________________

Submitted February 8, 2012 – Decided December 28, 2012

Remanded by Supreme Court July 3, 2014

Resubmitted October 15, 2014 – Decided March 8, 2016

Before Judges Messano, Ostrer and Sumners.

On appeal from the Superior Court of New

Jersey, Law Division, Middlesex County,

Indictment No. 06-10-1640.

Joseph E. Krakora, Public Defender, attorney

for appellant (Jay L. Wilensky, Assistant

Deputy Public Defender, of counsel and on

the brief).

Andrew C. Carey, Middlesex County

Prosecutor, attorney for respondent (Nancy

A. Hulett, Assistant Prosecutor, of counsel

and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Following a jury trial, defendant Michael Ross II was

convicted of the first-degree murders of Alesky Bautin and

Sergey Barbashov, N.J.S.A. 2C:11-3(a)(1) and (2); second-degree

possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-

4(a); third-degree unlawful possession of a weapon, N.J.S.A.

2C:39-5(b); and third-degree hindering apprehension or

prosecution, N.J.S.A. 2C:29-3(b)(1). The judge sentenced

defendant on the murder counts to two consecutive life terms,

each subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-

7.2, and a consecutive five-year term on the hindering charge.

We reversed defendant's convictions, finding the trial

judge erred in substituting a juror after the jury had announced

it was deadlocked. State v. Ross, No. A-2193-08 (App. Div. Dec.

28, 2012) (Ross I). The Supreme Court reversed and remanded for

us to consider defendant's remaining points on appeal. State v.

Ross, 218 N.J. 130, 155 (2014).

Those contentions are:

POINT II1

THE DEFENDANT'S RIGHT TO A FAIR TRIAL BY

JURY WAS VIOLATED BY THE TRIAL COURT'S

EXCESSIVE AND PREJUDICIAL INTERVENTION IN

THE TRIAL, NECESSITATING REVERSAL. U.S.

CONST., AMENDS. VI, XIV; N.J. CONST. (1947),

ART. 1, PAR 9. (Not Raised Below).

POINT III

1 Defendant's first point on appeal pertained to the juror

substitution issue.

2 A-2193-08T4

THE DEFENDANT WAS PREJUDICED BY MISLEADING

TESTIMONY CONCERNING THE POLYGRAPH

EXAMINATION OF A KEY STATE'S WITNESS, AND

THE TRIAL COURT REFUSED TO ADEQUATELY REMEDY

THE HARM. U.S. CONST., AMENDS. VI, XIV;

N.J. CONST. (1947), ART. 1, PAR 10.

POINT IV

THE STATE COMMITTED PREJUDICIAL MISCONDUCT

BY FORCING DEFENDANT TO CHARACTERIZE STATE'S

WITNESSES AS HAVING "MADE UP" THEIR HIGHLY

INCRIMINATORY TESTIMONY. U.S. CONST.,

AMEND. XIV; N.J. CONST. (1947), ART. 1, PAR

10. (Not Raised Below).

POINT V

THE TRIAL COURT IMPOSED AN EXCESSIVE

SENTENCE, NECESSITATING REDUCTION.

A. The Aggregate Sentence Is Excessive.

B. The Consecutive Sentence for Hindering

Is Improper.

In a pro se supplemental brief, defendant raises the following

points:

POINT ONE

THE STATE'S WITNESS INVESTIGATOR CLEMENTS'

TESTIMONY BEFORE THE JURY, THAT HE KNEW THE

STATEMENT OF ANOTHER STATE'S WITNESS GREG

WAKEFIELD GIV[EN] TO THE POLICE TO BE

TRUTHFUL CONSTITUTED A PROHIBITED ASSESSMENT

OF WAKEFIELD'S CREDIBILITY WHICH DEPRIVED

DEFENDANT OF HIS DUE PROCESS RIGHT TO A FAIR

TRIAL[.] THEREFORE, THE DEFENDANT'S

CONVICTION SHOULD BE REVERSED.

POINT TWO

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THE NUMEROUS INFLAMMATORY AUTOPSY AND CRIME

SCENE PHOTOS OF THE VICTIMS REPEATEDLY SHOWN

TO THE JURY, AND THE PLAYING OF THE 911

PHONE CALL TO THE JURY OF ONE OF THE

VICTIM'S MOANING HIS LAST BREATHS DEPRIVED

DEFENDANT OF HIS DUE PROCESS RIGHT TO A FAIR

TRIAL[.] THEREFORE THE CONVICTION SHOULD BE

REVERSED.

We have considered these arguments in light of the record and

applicable legal standards. We affirm the convictions but

remand the matter for resentencing.

I.

We reviewed at length the underlying facts of the case in

our prior opinion. See Ross I, supra, slip op. at 3-12. It

suffices to say that the State contended defendant shot and

killed the victims after mistaking them for Mitchell "Mitch"

Wright, someone who had threatened defendant with a gun nearly

one month earlier on October 1, 2003. On October 1, defendant,

in an attempt to avoid the confrontation, backed his car into

another. He left the scene after parking his damaged vehicle

nearby and without notifying police. On October 2, defendant

voluntarily came to police headquarters and gave a statement

regarding the incident. Without providing any name, defendant

told police that the gun-waving assailant drove a burgundy or

maroon Ford Taurus or Mercury Sable that he had seen many times

before in the neighborhood.

4 A-2193-08T4

The State established that Mitch lived at the nearby Forest

View apartment complex in Woodbridge Township and owned a red

1988 Volkswagen Jetta. Late on the night of October 30, 2003,

both victims were killed while seated in the front seat of a

red, 1999 Volkswagen Passat parked outside Building 12 of the

apartment complex. The murders remained unsolved for years.

The State relied upon a veritable rogue's gallery of

witnesses to prove its case. The only eyewitness to the

homicides who testified was Jamil McKnight. McKnight admitted

that he was with defendant during the October 1, 2003 gun-waving

incident, and that defendant identified Mitch as the person with

the gun.

McKnight, who did not drive because of a condition that

seriously impaired his vision, testified that on October 30, he,

defendant, Sherrill Williams and Ron Huff were driving around

the neighborhood in McKnight's car when defendant said he

spotted the individuals who had threatened him weeks earlier

sitting in a parked car near the apartment complex. Defendant

insisted on returning to McKnight's house to retrieve a handgun

McKnight was holding for defendant. At that point, Huff left

the vehicle and Williams remained at McKnight's home.

McKnight accompanied defendant as he drove back to the

apartment complex past the car, made a u-turn and slowed down as

he approached it again. Defendant fired multiple shots through

5 A-2193-08T4

the passenger side window into the car from a distance of

approximately three to four feet. McKnight claimed he and

defendant discarded the gun before visiting a mutual friend,

Greg Wakefield. McKnight admitted retrieving the gun before

dawn on October 31, taking it to work with him in New York City,

and with Williams present, giving the gun to a man in Queens he

knew only as Dante.

Huff testified and corroborated much of McKnight's

testimony. He was not present during the October 1 incident,

however, on the night of the murders, he was driving with

defendant, McKnight and Williams when he heard defendant

repeatedly mention a "red Jetta," and "the same people from

Rahway Avenue," the site of the October 1 incident. Huff heard

defendant ask McKnight, "you still got that at your house," and,

after McKnight answered affirmatively, defendant said, "[l]et's

go get it." At that point, Huff grew concerned and asked to be

let out of the car. Shortly thereafter, as he walked alone in

the neighborhood near the apartment complex, he heard what he

thought were firecrackers and then police sirens. Huff saw a

car with its passenger window blown out. On approaching it, he

saw that the passenger was apparently dead but the driver was

still alive and badly injured. Huff told the man help was on

the way.

6 A-2193-08T4

The State also called Sharhi Roberts and Wakefield as

witnesses. Roberts was defendant's girlfriend in October 2003

and testified that on October 31, the day after the shootings,

defendant told her that he shot people at the Forest View

apartment complex. About one year later, she brought up the

shootings in conversation, and defendant again admitted to being

the shooter and explained that at the time of the shooting, he

believed the car he shot into was Mitch's car. Although not

mentioned in her prior statements to police, Roberts testified

that during a subsequent argument with defendant, she threatened

to tell police about the shooting. Defendant then told her that

he made up the story.

Wakefield was a reluctant witness, and the State ultimately

introduced his prior statements to police as substantive

evidence pursuant to State v. Gross, 216 N.J. Super. 98 (App.

Div.), certif. denied, 108 N.J. 194 (1987). Wakefield

acknowledged that defendant and McKnight visited his house on

the night of the shooting. He claimed an inability to recall

details of any conversation with defendant, but the prosecutor

confronted Wakefield with a prior sworn statement in which

Wakefield said that defendant appeared "jumpy" and said that he

was "popping off at Forest View," which Wakefield took to mean

shooting. Wakefield also told investigators that defendant

7 A-2193-08T4

owned a 9 mm. gun and had intended to shoot Mitch, but shot the

two victims by mistake.

Before the jury, Wakefield repeatedly disavowed his prior

statements to police. He asserted that police questioned him at

length, subjected him to a polygraph and continued until "they

got the one they wanted to hear." He characterized the

interrogation session as "torture." Wakefield confirmed that he

was present on October 1 during the gun waiving incident and

observed that the man with the gun was driving a red Taurus.

Wakefield knew Mitch drove an old Jetta, not a Taurus.

The defense suggested that McKnight alone, or with the

assistance of Williams, who did not testify, shot the victims.

Each of the above four witnesses was subjected to vigorous

cross-examination that focused on inconsistencies between their

respective accounts of events, inconsistencies between the

multiple statements each had provided to police, the aggressive

investigative techniques employed by police and the motives each

witness had to lie.

Roberts acknowledged that investigators harassed her and

her family. After she provided police with a statement, a

disorderly persons charge against Roberts for making false

public alarms was dismissed. Wakefield gave two statements in

April 2005, when he was facing criminal charges of terroristic

threats, resisting arrest and unlawful possession of a weapon.

8 A-2193-08T4

As part of his plea agreement, Wakefield agreed to give truthful

testimony on behalf of the State against defendant. However, by

the time of trial, Wakefield had served his sentence and

completed his parole. The implication was that Wakefield was

now free to tell the truth.

McKnight avoided prosecution for his role in the homicides

completely. He was charged with obstruction but permitted to

enter the Pre-trial Intervention Program (PTI). Although Huff

faced no charges during the relevant timeframe, defendant

demonstrated that when initially questioned by police, Huff did

not tell them about his car ride with defendant and the others,

nor did he tell them about the statements defendant made in the

car. Huff only provided those details when questioned years

later.

Defendant also asserted alibi through his testimony and

that of another witness. After acknowledging that he had been

convicted in 2006 of a fourth-degree crime for which he was

sentenced to eighteen months' incarceration without parole,2

defendant described the October 1 incident. He denied that

Mitch was involved and described the gun-waving assailant as

exiting a Taurus or Sable, as he told police on October 2, 2003.

2 Defendant was convicted of fourth-degree aggravated assault

with a firearm. The nature of the conviction was sanitized by

the court. See State v. Brunson, 132 N.J. 377, 387-88 (1993).

9 A-2193-08T4

Defendant acknowledged knowing that Mitch drove a 1988 red

Jetta.

Defendant testified that on the night of the murders, he

was driving with McKnight, Williams and Huff when they saw a

Taurus leaving the Forest View complex. McKnight suddenly asked

to return home. When they arrived there, Huff left and McKnight

entered his house, returning to the car with something wrapped

in a bandana. Defendant believed it was a gun. Defendant drove

to the house of a friend, LaToya McPhatter. Leaving McKnight

and Williams in the car, defendant stayed at McPhatter's house

briefly and then walked to Wakefield's house, where McKnight

arrived later. Defendant denied shooting the victims.

However, defendant's credibility was severely damaged on

cross-examination. It was revealed that a telephone

conversation defendant had with his father while incarcerated in

in 2006 after being arrested for the homicides was recorded

without defendant's knowledge. Defendant told his father that

he was not in Middlesex County at all on the night of the

murders. He also told his father that Mitch was, in fact,

involved in the October 1, 2003 incident.

Defendant also called LaToya McPhatter's younger sister in

support of his alibi. However, the young girl, only thirteen

years of age in 2003, testified that she thought she saw

defendant on the night of the killings but could not recall

10 A-2193-08T4

speaking with him. On cross-examination, the prosecutor

confronted her with a statement in which she told investigators

that she did not recall defendant visiting that night at all.

After summations and instructions from the judge, the jury

began its deliberations. On the fifth day, the jury indicated

it was unable to reach a unanimous verdict. Ross, supra, 218

N.J. at 136. After the judge provided the instructions approved

in State v. Czachor, 82 N.J. 392, 404-06 (1980), a juror became

ill. Ibid. After dismissing that juror the following day, the

judge substituted an alternate juror and instructed the jury to

begin deliberations anew. Ibid. The jury deliberated for more

than sixteen hours over the course of four additional days

before returning its guilty verdicts. Ibid.

II.

Defendant argues that the trial judge "engaged in an

impermissible amount of questioning of witnesses," which "in its

aggregate [was] highly prejudicial." We acknowledge that the

judge's questions far exceeded what was necessary to clarify

testimony, were in most instances gratuitous and added little to

the presentation of evidence. We do not condone the judge's

conduct.

However, we disagree with defendant and our dissenting

colleague that the judge's questions, none of which raised an

objection from defense counsel, were "clearly capable of

11 A-2193-08T4

producing an unjust result." R. 2:10-2. The judge's conduct,

while a mistaken exercise of discretion, does not "'raise a

reasonable doubt as to whether the error led the jury to a

result it otherwise might not have reached[.]'" State v.

Taffaro, 195 N.J. 442, 454 (2008) (quoting State v. Macon, 57

N.J. 325, 336 (1971)).

A.

We begin by recognizing that a trial judge, "in accordance

with law and subject to the right of a party to make timely

objection, . . . may interrogate any witness." N.J.R.E. 614.

The Rule is intended to promote the trial court's duty to insure

a fair trial. Taffaro, supra, 195 N.J. at 445, 450. A judge

may question a witness if necessary to protect the proceedings

or the rights of any party, clarify testimony, avoid unnecessary

delay or elicit material facts. State v. O'Brien, 200 N.J. 520,

534-35 (2009); Taffaro, supra, 195 N.J. at 445; State v. Guido,

40 N.J. 191, 207 (1963); State v. Medina, 349 N.J. Super. 108,

131 (App. Div.), certif. denied, 174 N.J. 193 (2002).

However, the judge "is an imposing figure," symbolic of

"experience, wisdom, and impartiality." Guido, supra, 40 N.J.

at 208. His or her ability to pose questions to witnesses

during a jury trial, therefore, must be exercised with "great

restraint . . . in order not to influence the jury." Taffaro,

supra, 195 N.J. at 451. The judge must "not telegraph to the

12 A-2193-08T4

jury any partiality to a given party's side." O'Brien, supra,

200 N.J. at 534 (citing Taffaro, supra, 195 N.J. at 451). A

judge may not "take over the cross-examination for the

government to merely emphasize the government's proof or to

question the credibility of the defendant and his witnesses."

Id. at 535 (quoting United States v. Bland, 697 F.2d 262, 265

(8th Cir. 1983)).

We must consider the entire record when deciding whether a

defendant was denied a fair trial as a result of the judge's

intervention. State v. Martinez, 387 N.J. Super. 129, 138 (App.

Div.), certif. denied, 188 N.J. 579 (2006). An appellate court

may assess "[t]he overall length of the questioning[,] . . .

[b]ut it is the impact of the court's questions, and not the

number of minutes they lasted, which matters most." Taffaro,

supra, 195 N.J. at 453-54.

With these standards in mind, we review the nature and

extent of the judge's intervention, particularly regarding those

instances that defendant claims require reversal.

B.

The judge posed questions to almost every witness called by

the State. The first two witnesses, police officers Vincent

Totka and Michael Ng, investigated the October 1, 2003 incident.

While questioning Ng, the judge asked how police became aware of

defendant's possible involvement, a fact that the prosecutor had

13 A-2193-08T4

not developed on direct. The answers revealed that police found

identifying documents in the damaged car, which engine was still

warm. Police contacted defendant's father who accompanied

defendant to police headquarters on October 2, at which time

defendant voluntarily provided a statement about the previous

night's events. Defendant argues the judge's questions served

to paint him as a lawless individual who failed to report his

involvement in a traffic accident.

The judge also posed limited questions to the industry

witness who authenticated the subscriber information for an

incoming 911 call made on the night of the murders by Barbashov,

the State police lieutenant who answered the call, Bautin's

brother, who heard the fatal shots from a nearby apartment he

shared with the decedent, and Barbashov's former girlfriend.

Christopher Lyons was the first officer to respond to the

scene of the murders. The judge asked some limited questions

about the conditions of the lighting at the time, and what Lyons

did to secure the scene. Lyons also testified about his efforts

after being assigned to investigate the case in late 2004.

Defendant points to some questions the judge asked regarding

Lyons' investigation of a "cold" case, and how law enforcement

never considers a cold case to be closed. Defendant contends

these questions served to justify, in the jurors' minds, the

14 A-2193-08T4

aggressive interrogation of the critical State's witnesses that

followed during the ensuing years leading to defendant's arrest.

The judge extensively questioned the State's ballistics

expert, two medical examiners who performed the autopsies and

the investigator who processed the crime scene. We agree that

the questions did little to clarify the testimony of these

witnesses and, in many respects, seemingly served only to

display the judge's personal knowledge of the subject matters

involved. Defendant contends that the sheer amount of

questioning lent credence to the State's theory of the case.

As to the four witnesses whose testimony we referenced

above, however, it is fair to say that the judge's questioning

was quite limited. The judge asked Huff about the lighting

conditions at the murder scene, something Lyons testified to,

and what Huff and the others were drinking on the night of the

murders. Defendant argues the judge supplied Huff, who knew

McKnight by his street name, "Sagacious," with McKnight's true

name, but that issue was broached during cross-examination.

Defendant posits no specific objection to the judge's

questioning of McKnight because no questions were asked. Nor

did the judge pose questions to Wakefield. However, the judge

intervened during the testimony of Investigator Mark Clements,

who took sworn statements from Wakefield and was the State's

15 A-2193-08T4

predicate witness to establish admissibility of those statements

pursuant to Gross.3

Clements denied that Wakefield was harassed, but

acknowledged that the investigators were aggressive because of

Wakefield's reluctance to cooperate. The judge interrupted

defendant's cross-examination of Clements as it related to how

much time Wakefield was in police custody before providing a

formal statement, and how much time Wakefield spent with the

polygraphist before providing the statement. At sidebar, the

judge indicated that Clements, who was not present during the

polygraph, could not possibly know about the procedures employed

by the polygraphist that night.

The prosecutor followed up on that theme during redirect

and established that Clements did not know how long a

polygraphist would spend explaining the test or administering

preliminary questions before beginning the actual examination.

Following redirect and brief recross, the judge asked if the

polygraph examination was administered in a separate room and

3 Prior inconsistent statements made by a witness may be offered

by the proponent of that witness only after a hearing at which

the judge is required to consider a number of factors. Gross,

supra, 216 N.J. Super. at 109-10. The judge conducted a hearing

outside the presence of the jury pursuant to N.J.R.E. 104.

Clements subsequently testified before the jury regarding the

circumstances under which Wakefield was questioned.

16 A-2193-08T4

established that Clements and Lyons were not present during the

administration of the test.

As our dissenting colleague notes, the judge's decision to

sua sponte call for a sidebar during cross-examination of

Clements was improper, and it served to disrupt development of

the timeline of Wakefield's questioning. However, the point of

defendant's line of questioning was on full display for the

jury, i.e., Wakefield was in police custody for an extensive

period of time, despite Clements' assertion that he was not, and

any inculpatory information Wakefield provided differed

significantly from what he initially told police, and its

disclosure only followed aggressive, repeated interrogation.

Defendant points to a testy exchange that occurred during

Roberts's testimony. Only days before the trial, Roberts told

defense counsel's investigator that defendant told her he

fabricated his involvement in the murders. During direct

examination, the prosecutor asked why Roberts had not divulged

that information in any of her statements to officers

investigating the crime. Roberts responded that she was

harassed by investigators and was telling them what they wanted

to hear.

Defense counsel asked Roberts to "describe for the jury the

manner in which [the investigators] harassed you with as much

specificity as you can." Roberts provided a rambling answer, in

17 A-2193-08T4

which she claimed to have been evicted as a result of

investigators constantly questioning her and other family

members. She reiterated that she had tried to tell

investigators that defendant told her he fabricated his earlier

confession, but they did not want to hear that information.

At a sidebar discussion that followed the prosecutor's

objection, the judge asked defense counsel how the eviction

claim was relevant. The judge directed counsel to carefully

structure his questions to elicit the chronology of the

investigator's alleged conduct. After the sidebar, the judge

gave the following directions to Roberts:

JUDGE: All right. Now, Miss Roberts, you

have to listen to the questions of [defense

counsel] very carefully. All right?

WITNESS: Okay.

JUDGE: You listen to the question and you

think and you only answer his question.

WITNESS: Okay.

JUDGE: Try to focus on his question and then

try to give a specific answer to that

question. Right? Could you do that?

WITNESS: Yes.

JUDGE: I appreciate it. Thank you very

much.

It suffices to say, however, that the judge grew impatient with

Roberts's continued failure to provide direct answers regarding

the circumstances of her eviction.

18 A-2193-08T4

Defendant argues that the judge's impatience telegraphed

his doubt regarding Roberts's claims of harassment by

investigators. However, our review of the record reveals that

the judge repeatedly overruled the prosecutor's objection to

this line of inquiry in an attempt to permit its full

development.

C.

Defendant relies extensively upon Taffaro and O'Brien,

although he concedes that the judge's questioning here "was not

as unabashedly partisan . . . ." Indeed, in both Taffaro and

O'Brien, the Court concluded that the judicial questioning was

partisan and effectively tilted the evidence in the State's

favor, thereby denying the defendants a fair trial.

In Taffaro, supra, 195 N.J. at 448, the judge posed a

relatively extensive amount of questions to the defendant. The

questions "did not help clarify [the] defendant's under-

standable testimony; instead, they underscored the weaknesses in

his defense." Id. at 452. The Court summarized:

[T]he questions had the effect of suggesting

to the jury that the court doubted

defendant's account in a case that rested

heavily on defendant's credibility. The

questions also covered, in part, terrain

that had already been crossed. Rather than

clarify points in a witness's testimony, the

court's questions had the capacity to signal

disbelief.

[Id. at 453.]

19 A-2193-08T4

In O'Brien, supra, 200 N.J. at 525, the defendant asserted

a diminished capacity defense to charges that he murdered his

parents. The Court cited the questions posed by the judge to

the defendant and the judge's extensive questioning of the

defense psychiatrist. Id. at 526-27. The Court also cited the

judicial questioning of one of the State's investigators, which

it characterized as "effectively hammer[ing] nails into defense

counsel's ongoing cross-examination and bolster[ing] the State's

witness." Id. at 539. The Court summarized the prejudicial

effect of the judge's questioning this way:

[T]he defense was made up of three prongs:

defendant's own testimony about his drug-

and depression-induced condition on the

night of the murder and at the time of the

confession; his expert's testimony regarding

the effects of defendant's condition; and

the neutralization of witnesses who saw

defendant and opined that he was not under

the influence of drugs. The judge intervened

on each of those prongs, by expressing

disbelief when defendant and his expert

testified, and by helping to counter

defendant's challenge to Investigator

Mitchell.

[Ibid.]

In Guido, supra, 40 N.J. at 208 n.2, a case cited by

defendant and the Court in Taffaro and O'Brien, among other

things, the judge's salacious questioning of the defendant had

the clear capacity to discredit her testimony before the jury

and resulted in reversal. In State v. Ray, 43 N.J. 19, 27

20 A-2193-08T4

(1964), cited by the Court in Taffaro, the judge conducted

"lengthy questioning of [the] defendant's key witness," a

defense pathologist. The judge also engaged in "frequent

interrogation of [the] defendant [that] improperly suggested his

doubts as to her credibility." Id. at 28.

Defendant has failed to bring to our attention any

published opinion in which our courts have reversed a

defendant's conviction based upon judicial questioning directed

solely to the State's witnesses.4 This is not to say that a

judge's improper questioning of the State's witnesses may compel

reversal if, for example, it serves to bolster the State's case.

The harm exceeds the impact of any actual answer provided by the

witness because it conveys that the judge is taking "one party's

side." Taffaro, supra, 195 N.J. at 451. Our point is simply

that when the judge's conduct is directed toward a defendant and

his witnesses, it carries a greater risk of not only conveying

4 In three of the federal cases cited by our dissenting

colleague, the questioning of the defendant or defense witnesses

figured prominently or exclusively in compelling reversal. See

United States v. Ottaviano, 738 F.3d 586, 596 (3d Cir. 2013);

United States v. Filani, 74 F.3d 378, 381 (2d Cir. 1996);

Bland, supra, 697 F.2d at 264-65. In United States v. Rivera-

Rodriguez, 761 F.3d 105, 111, 113 (1st Cir. 2014), cert. denied,

___ U.S. ___, 136 S. Ct. 1573, 191 L. Ed. 2d 656 (2015), the

offending questions were posed to the government's two

cooperating witnesses.

21 A-2193-08T4

impartiality to the jury but also negatively impacting the fair

presentation of a defense. O'Brien, supra, 200 N.J. at 534-35.

In this case, defendant concedes that the judge did not

pose questions to him or his alibi witness at all. He argues,

nonetheless, that this lack of questioning, when compared to the

extensive questioning of the State's witnesses, subtly

discredited the defense case. This argument might have merit,

except that, as we already noted, the judge posed few questions

to the four witnesses whose testimony mattered most in resolving

the single contested issue in the case, i.e., the identity of

the shooter.

The judge asked few questions of Huff. The testimony of

McKnight, the only eyewitness, was unfettered by any questions

from the judge. The same is true of Wakefield, who, in the end,

recanted any testimony that was damaging to defendant. Although

we cannot divine the impact of Wakefield's testimony on the

jury, it is difficult to imagine that the jury found any of it,

including his prior statements, to be credible. As to Roberts,

the judge expressed a level of frustration with her testimony,

but, on balance, defense counsel was able to fully impeach her

credibility regarding defendant's alleged admissions and also

obtained the benefit of Roberts's late-asserted claim that

defendant had recanted any prior admissions.

22 A-2193-08T4

In this case, therefore, we must part company with our

dissenting colleague and conclude that the impact of the

extensive and, in many instances, unnecessary questioning by the

judge does not "raise a reasonable doubt" that "the jury [was

led] to a result it otherwise might not have reached[.]"

Taffaro, supra, 195 N.J. at 454. We add some additional reasons

that support our conclusion.

We have recognized that "[c]laims of judicial misconduct

pose a severe problem to our appellate tribunals for 'it is

difficult to review a charge of unfairness upon a dry record.'"

Medina, supra, 349 N.J. Super. at 131 (quoting Guido, supra, 40

N.J. at 208). In this case, however, defense counsel, who was

"in the trenches" and best able to assess what, if any, impact

the judge's questioning was having, never posed a single

objection. We should not assume counsel was shy or reluctant

for fear of alienating the judge because, as we noted, the judge

repeatedly overruled the prosecutor's objections during defense

counsel's cross-examination of Roberts. Defense counsel's

decision not to object was quite rational, given that most of

the judge's questions were posed to witnesses that provided

23 A-2193-08T4

scant evidence of defendant's involvement in the murders and had

little impact on the defense strategy.5

Moreover, we cannot overemphasize the powerful effect that

the cross-examination of defendant must have had upon the jury.

After testifying that he was at McPhatter's house when the

shootings occurred, the State confronted defendant with his own

words to the contrary. At the time, defendant was not speaking

to a cellmate or some jailhouse "snitch." He was speaking with

his father, the man who accompanied him to police headquarters

to report the gun-waving incident of October 1, 2003.

Lastly, the jury in this case deliberated extensively

before indicating it was deadlocked. After a juror was excused

for illness, the reconstituted jury deliberated for many hours

over several more days. We acknowledge, without necessarily

accepting, the proposition that these lengthy deliberations

reflect that the State's evidence was not overwhelming, and that

in such a close case, there was fertile ground upon which the

judge's extensive questioning might sow mischief.

However, the last witness called by the State, and the last

witness to whom the judge posed any questions, testified on

April 10, 2008. The last witness — defendant — testified on

5 We further note that defendant's motion for a new trial decided

immediately before sentencing did not challenge the nature or

scope of the judge's questioning of witnesses.

24 A-2193-08T4

April 15, and the jury began its deliberations the next day.

The verdict was announced on April 29, 2008, nearly three weeks

after the judge interjected his last question. In our minds,

the jury's extensive deliberations indicate the judge's

questioning weeks earlier had little impact upon the fair

consideration of the evidence.

In sum, we find no basis to reverse defendant's conviction

on this ground.

III.

Defendant's remaining points warrant limited comment. We

find no error, let alone plain error, in the judge's refusal to

disclose to the jury the results of Wakefield's polygraph — that

he was not forthright — which preceded his first formal

statement. Our Court has consistently held that polygraph

results are generally inadmissible because they are unreliable.

State v. A.O., 198 N.J. 69, 86 (2009). Polygraph evidence may

also "receive undue weight and distract jurors from judging the

credibility of witnesses directly." Id. at 92. Moreover, the

record does not reflect what questions Wakefield allegedly

answered with a lack of candor. Consequently, the instruction

that defense counsel requested — informing the jury that

Wakefield had essentially failed the test — would only have

invited speculation.

25 A-2193-08T4

Nor are we convinced by defendant's argument that the jury

would likely have concluded that Wakefield was truthful to the

polygraphist, because the police subsequently took his

statement. The jury could have just as plausibly concluded that

Wakefield dissembled to the polygraphist, and only upon being

confronted with that result, decided to change his story,

without any assurance that the next version was any more

truthful than the previous one. Furthermore, as the defense

established, Wakefield gave yet another statement a few weeks

later, which deviated significantly from the first.

Under these circumstances, the judge appropriately

instructed the jury not to speculate as to the results of the

polygraph; and to consider the fact that Wakefield submitted to

a polygraph only in connection with how long he was interrogated

by Clements and Lyons. We presume the jury was capable of

following these instructions.6 Ross, supra, 218 N.J. at 152.

As for defendant's claim of prosecutorial misconduct, it is

inappropriate for the State to ask a witness to opine whether

another witness was truthful. State v. Bunch, 180 N.J. 534, 549

(2004). Defense counsel could have objected when the prosecutor

asked defendant whether Wakefield and Roberts had lied. But no

6 We note that Roberts also testified that she submitted to a

"lie detector" during questioning. However, defense counsel did

not seek any instruction regarding that polygraph.

26 A-2193-08T4

objection was raised. Consequently, in reviewing the issue, we

must determine if there was plain error. We conclude there was

none, given that it was a principal defense theme that Wakefield

and Roberts had in fact lied.

In a similar vein, in his pro se filing, defendant argues

that an answer given by Clements during cross-examination, in

which the detective expressed his personal belief that

Wakefield's second statement as "truthful," requires reversal.

This answer was not appropriate, but defense counsel never

sought to strike the testimony, and, in light of our earlier

comments regarding Wakefield's credibility, this single answer

did not amount to plain error.

Also in his pro se filing, defendant contends the admission

of autopsy and crime scene photos, as well as the playing of the

Barbashov's 911 call to police, requires reversal. There were

repeated objections to the photographs, primarily because

defendant did not contest the cause and manner of death, or, for

that matter, any evidence from the crime scene. The judge

overruled these objections, tersely explaining that the

prosecutor had the right to prove her case. It is clear from

the record, however, that the judge limited the number of photos

that the prosecutor otherwise wished to publish to the jurors.

We ordinarily review the trial court's evidentiary rulings

to determine whether there was a mistaken exercise of

27 A-2193-08T4

discretion. State v. J.D., 211 N.J. 344, 354 (2012). Any

decision to admit or exclude crime scene photographs rests with

the sound discretion of the trial judge. State v. Johnson, 120

N.J. 263, 297 (1990). We apply the same standard to the

admission of autopsy photographs. State v. Morton, 155 N.J.

383, 455-56 (1998). Here, copies of the admitted photographs

are not included in the record, and we have no basis upon which

to conclude the judge's highly discretionary decision requires

reversal.

As to the recording of the 911 call, there was no objection

during the testimony from Barbashov's girlfriend, who identified

his voice on the tape. However, when the State rested, the

judge noted defense counsel's objection to its admission. We

acknowledge that the tape of the victim calling 911 after having

been shot and as he neared death lacked any significant

probative value and probably should not have been admitted.

However, we cannot conclude that this brief snippet of a phone

conversation denied defendant a fair trial.

IV.

Defendant was almost twenty-one years old at the time of

the homicides and nearly twenty-six years old at sentencing in

August 2008. The judge noted defendant's prior adjudications of

delinquency, as well as two adult convictions that took place

after the murders. As noted above, defendant's prior conviction

28 A-2193-08T4

for aggravated assault involved the pointing of a firearm; a

second adult conviction was for theft.

Citing State v. Yarbough, 100 N.J. 627, 643-44 (1985),

cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308

(1986), State v. Carey, 168 N.J. 413 (2001), and State v.

Molina, 168 N.J. 436 (2001), the judge concluded that

consecutive sentences were appropriate because there were "two

victims." The judge reviewed the tragic circumstances of the

victims' deaths and much of defendant's biographical information

before concluding that aggravating sentencing factors three, six

and nine applied. N.J.S.A. 2C:44-1(a)(3) (the risk of re-

offense); -1(a)(6) (the extent of prior criminal record and the

seriousness of the offense for which defendant was convicted);

and -1(a)(9) (the need to deter defendant and others). Although

the prosecutor urged application of other aggravating factors,

the judge rejected them without explanation, and he also

rejected defense counsel's argument that mitigating factor

eleven applied. See N.J.S.A. 2C:44-1(b)(11) (imprisonment would

entail an excessive hardship to defendant's family).

Concluding the aggravating factors "substantially

outweigh[ed]" the non-existent mitigating factors, the judge

stated that defendant "must be separated from normal society for

the rest of his natural life." The judge imposed two

consecutive life terms, both subject to NERA. The judge gave no

29 A-2193-08T4

explanation at all for the consecutive sentence imposed on the

hindering apprehension charge, which was premised on defendant's

concealment of the murder weapon.

Defendant essentially concedes that pursuant to Yarbough,

Carey and Molina, "consecutive terms of imprisonment are

virtually mandated in a case involving multiple homicides."

However, he contends the judge failed to consider the "real-time

consequences of NERA," although he acknowledges that the judge's

stated intention to "separate[] [defendant] from normal society

for the rest of his natural life," reflects a complete, albeit

inappropriate, understanding that defendant must now serve 127.5

years before he is eligible for parole. Defendant argues the

aggregate sentence is excessive. He also contends that the

judge gave no explanation for imposing a consecutive five-year

term on the hindering charge.

We begin by noting that "[a]ppellate review of the length

of a sentence is limited." State v. Miller, 205 N.J. 109, 127

(2011). As the Court has recently reiterated:

The appellate court must affirm the sentence

unless (1) the sentencing guidelines were

violated; (2) the aggravating and mitigating

factors found by the sentencing court were

not based upon competent and credible

evidence in the record; or (3) "the

application of the guidelines to the facts

of [the] case makes the sentence clearly

unreasonable so as to shock the judicial

conscience."

30 A-2193-08T4

[State v. Fuentes, 217 N.J. 57, 70 (2014)

(alteration in original) (quoting State v.

Roth, 95 N.J. 334, 364-65 (1984)).]

Furthermore, "trial judges have discretion to decide if

sentences should run concurrently or consecutively." Miller,

supra, 205 N.J. at 128.

In Yarbough, the Court identified the factors to be

considered in deciding whether to impose concurrent or

consecutive sentences:

(1) there can be no free crimes in a system

for which the punishment shall fit the

crime;

(2) the reasons for imposing either a

consecutive or concurrent sentence should be

separately stated in the sentencing

decision;

(3) some reasons to be considered by the

sentencing court should include facts

relating to the crimes, including whether or

not:

(a) the crimes and their

objectives were predominantly

independent of each other;

(b) the crimes involved separate

acts of violence or threats of

violence;

(c) the crimes were committed at

different times or separate

places, rather than being

committed so closely in time and

place as to indicate a single

period of aberrant behavior;

31 A-2193-08T4

(d) any of the crimes involved

multiple victims;

(e) the convictions for which the

sentences are to be imposed are

numerous;

(4) there should be no double counting of

aggravating factors;

(5) successive terms for the same offense

should not ordinarily be equal to the

punishment for the first offense[.]7

[Yarbough, supra, 100 N.J. at 643-44

(footnote omitted) (emphasis added).]

"When a sentencing court properly evaluates the Yarbough factors

in light of the record, the court's decision will not normally

be disturbed on appeal." Miller, supra, 205 N.J. at 129.

It is clear that pursuant to Carey, supra, 168 N.J. at 431,

and Molina, supra, even when the only Yarbough factor found by

the sentencing court is the multiplicity of victims, that factor

"is entitled to great weight and should ordinarily result in the

imposition of at least two consecutive sentences." 168 N.J. at

443. As a result, we find no reason to disturb the judge's

decision to impose consecutive sentences for the two murders.8

7 A sixth factor, imposing an overall outer limit on consecutive

sentences, was superseded by legislative action. See State v.

Eisenman, 153 N.J. 462 (1998).

8 We note, however, that the judge in this case never addressed

any of the other Yarbough factors at all. "[A] trial court is

expected to give 'a separate statement of reasons for its

decision to impose consecutive sentences.'" Molina, supra, 168

(continued)

32 A-2193-08T4

However, "[t]he fact that two consecutive terms of

imprisonment should ordinarily be imposed in multiple-victims

cases does not prevent the sentencing court from setting the

base term of each sentence below the maximum provided by the

Code." Carey, supra, 168 N.J. at 430. In Miller, supra, 108

N.J. at 122, a case that did not involve multiple victims, the

Court said that "[w]here the offenses are closely related, it

would ordinarily be inappropriate to sentence a defendant to the

maximum term for each offense and also require that those

sentences be served consecutively, especially where the second

offense did not pose an additional risk to the victim." In

State v. Pennington, 154 N.J. 344, 361-62 (1998), referring to

Yarbough factor five, the Court said in remanding for

resentencing after imposition of two consecutive maximum

sentences, the trial court was "required to explain why a

shorter second term for the same offense is not warranted if

consecutive terms are reimposed."

(continued)

N.J. at 442 (quoting State v. Miller, 108 N.J. 112, 122 (1987)).

As the Court has noted, although "[c]rimes involving multiple

deaths . . . represent especially suitable circumstances for the

imposition of consecutive sentences[,] . . . '[t]hat does not

mean that all consecutive sentencing criteria are to be

disregarded in favor of fashioning the longest sentence

possible.'" Carey, supra, 168 N.J. at 428 (quoting State v.

Louis, 117 N.J. 250, 258 (1989) (alteration in original)

(citations omitted).

33 A-2193-08T4

We have affirmed the imposition of two consecutive maximum

term sentences in a double homicide case. See, e.g., State v.

Kelly, 406 N.J. Super. 332, 353 (App. Div. 2009) (affirming

without discussion the imposition of two consecutive life

sentences based upon the murder of two victims), affirmed on

other grounds, 201 N.J. 471 (2010). However, we believe it is

incumbent upon the judge to explain fully the justification for

imposing such a sentence, particularly after, in this case,

rejecting the State's argument that other specific aggravating

factors were present and finding only the frequently-found

aggravating factors three, six and nine applied. We also agree

with defendant that the judge gave no explanation for the

imposition of a consecutive term on the hindering charge. As a

result, we remand the matter to the Law Division for re-

sentencing.

We affirm defendant's conviction and remand the matter to

the Law Division for re-sentencing.

34 A-2193-08T4

___________________________________

OSTRER, J.A.D., dissenting.

Upon review of the entire record, I am convinced the trial

judge exceeded the boundaries of permissible questioning under

N.J.R.E. 614 and our case law. The error was "clearly capable

of producing an unjust result." R. 2:10-2. That is, "the

possibility of injustice [was] 'sufficient to raise a reasonable

doubt as to whether the error led the jury to a result it

otherwise might not have reached.'" State v. Taffaro, 195 N.J.

442, 454 (2008) (quoting State v. Macon, 57 N.J. 325, 336

(1971)). Therefore, I respectfully dissent.

I.

I assume familiarity with the facts set forth in our prior

decision. The majority agrees that the trial presented

significant credibility issues for the jury. The State's

principal witnesses gave multiple, inconsistent statements.

They also had strong motives to curry favor from the State.

The State's theory was that defendant shot and killed

Alexey Bautin and Sergey Barbashov, two white men, after

mistaking them for a tall African-American man who had

threatened him with a gun almost a month earlier, on October 1,

2003. The State established Bautin and Barbashov were killed

while seated in a parked red 1999 Volkswagen Passat outside an

apartment complex in Woodbridge Township. The State's only

eyewitness to the homicides, Jamil McKnight, admitted he

retrieved the gun used, and accompanied defendant to the

shootings. Defendant's girlfriend Sharhi Roberts, and a friend,

Greg Wakefield, testified that defendant confessed to them. Ron

Huff claimed he was in the car when defendant first spotted the

men he thought were involved in the prior incident, and then

decided to retrieve a firearm. Huff claimed he left the car

before the homicides, but he later appeared at the scene.

The defense theory was that McKnight and another man,

Sherrill Williams, participated in the shooting. Defense

counsel argued that McKnight was threatened in the same early

October incident in which defendant was threatened; McKnight had

poor eyesight, making it more likely that he, not defendant,

misidentified the victims. Williams said in an out-of-court

statement that the gun removed from McKnight's house the night

of the shooting belonged to McKnight, not defendant. The

defense contended that each of the key incriminating witnesses

had motives to lie, in order to avoid prosecution related to the

homicides (in McKnight's case), or to curry favorable treatment

in connection with other charges (in Roberts's and Wakefield's

case).

II.

2 A-2193-08T4

The trial court's questioning must be considered against

this factual backdrop. At the risk of repetition with the

majority opinion, an extensive review of the record is necessary

to appreciate the full impact of the court's intervention.

The court's questioning fell into three major categories:

(1) bolstering State witnesses; (2) eliciting evidence that

supported the State's case, which the prosecutor herself did not

elicit; and (3) expressing impatience with a reluctant State

witness. The volume of the court's questioning was substantial.

The court interrogated fifteen of the State's seventeen

witnesses.1

The first two witnesses at trial were Woodbridge Police

officers Vincent Totka and Michael Ng. Totka took a statement

from defendant at the police station regarding the early October

incident in which someone driving a burgundy Ford or Mercury

pointed a handgun at defendant. Totka described defendant as a

crime victim who had voluntarily come forward to make a

statement. Totka noted defendant's father accompanied him to

1 The State presented its case through the testimony of (1) six

investigating officers — Vincent Totka, Michael Ng, Christopher

Reahm, Mark Clements, John Haley, and Christopher Lyons; (2)

three experts — ballistics expert Gary Mayer, and pathologists

Frederick J. DiCarlo and Andrew Falzon; (3) Verizon's records

custodian, Renada Lewis; and (4) seven other witnesses — Ronald

Gordon Huff, Alexander Bautin, Ekaterina Vodolatskaya, Sharhi

Roberts, David Robert Oakley, Jamil McKnight, and Greg

Wakefield.

3 A-2193-08T4

the police station, but defendant gave his statement without his

father present. The taped statement was played for the jury.

Cross-examination established that the gun was also pointed at

others at the scene, whom the police did not question.

The judge then asked Totka why defendant's father was not

present during the interview. Totka explained defendant was

twenty-one years old, and did not need parental consent to give

a statement. Although brief, the court's questioning may have

alleviated concerns jurors may have had about the police

behavior in taking defendant's statement without his father

present. There was nothing unclear about Totka's testimony

before the judge's questioning. The court simply chose to

elicit additional facts that assisted the State.

Ng's focus was the automobile accident. He testified that

defendant was asked to come in to discuss what Ng believed was

his involvement in an accident. Ng said defendant "came in to

report . . . that he was involved in a motor vehicle accident

that we were investigating the night before." Ng identified

motor vehicle accident reports, which were prepared based on

defendant's information. Defendant told Ng that he struck two

vehicles as he fled from the man who pointed a gun at him.

Defendant described the man as a "black male, approximately six-

two . . . ." Ng did not issue any summonses to defendant

because he did not believe defendant was driving carelessly

4 A-2193-08T4

under the circumstances. The defense asked one question on

cross-examination, to establish that the Ford Taurus and Mercury

Sable had similar body styles.

The judge then engaged Ng in questioning that lasted almost

half the length of the State's direct examination. The judge

elicited how Ng came to invite defendant into the station for

questioning. In response to the court's numerous questions, Ng

described his investigation, step by step. Ng testified he was

dispatched to the scene of the motor vehicle accidents. He

spoke to a witness, examined the two vehicles defendant struck,

and then found a parked vehicle nearby that appeared to have

been in a collision. After impounding the vehicle, a police

search of the vehicle disclosed defendant's identification.

Police then went to defendant's house, spoke to his father, and

asked him to come into the police station for questioning.

These additional facts emphasized that defendant failed to

report the incident immediately or voluntarily. See N.J.S.A.

39:4-130 (making it a motor vehicle violation to fail to report

an accident involving, among other things, property damage of

$500 or more). The questioning also highlighted that defendant

did not take the initiative to report to police that he was

threatened with a gun, a serious crime, which may have created

the inference that defendant intended to address the threat

himself. The judge's questioning established that police

5 A-2193-08T4

effectively had to track defendant down to obtain his accident

report.

In sum, with the first two witnesses, the judge established

himself as an active questioner whose questions tended to

support the State's case. Notably, the court gave no mid-trial

instruction to the jury to disregard any implication that he

favored the State's case.

The court elicited additional factual details from the next

four witnesses: the Verizon records custodian Renada Lewis, who

identified records of the 911 call; New Jersey State Police

trooper Christopher Reahm, who presented the 911 recording, and

described its method of storage; Alexander Bautin, who was in

his apartment when he heard the shooting of his brother Alexey

and his friend Sergey Barbashov; and Barbashov's girlfriend,

Katerina Vodolatskaya, who testified about the victim's

whereabouts before the shooting. Defense counsel declined

cross-examination of Lewis and Reahm; posed one question to

Bautin, to identify that his brother's car was a 1999 Volkswagen

Passat; and briefly questioned Vodolatskaya to establish that

Bautin had money problems with his business partner, who owned a

gun.

The court pursued separate lines of questioning after

defense counsel's turn. Many of the judge's questions were

leading, which established the judge as a knowledgeable

6 A-2193-08T4

questioner. The information did not directly reflect negatively

on defendant. It was undisputed that a drive-by shooter killed

Bautin and Barbashov. However, the questioning maintained the

judge's role as an active questioner who supplemented evidence

in the State's case.

In questioning Huff for five pages of transcript, the judge

addressed an apparent inconsistency in Huff's testimony, and

emphasized facts that supported the State's theory of the case.

Huff initially identified the occupants of the vehicle by their

nicknames — "360" or "60," who was Ross; Sagacious, who was

McKnight; and Boo, who was Williams. He was asked on direct

regarding Sagacious, "Do you know that person's real name?"

Huff said he did not. On cross-examination, counsel referred to

"Jamil McKnight, a man you knew as Sagacious," but Huff repeated

that he did not know Sagacious's or Boo's real names. The judge

then interjected, "You don't know their real names?" and Huff

again said no. Later in cross-examination, counsel questioned

Huff referring only to McKnight, not Sagacious, and Huff had no

difficulty responding. In the judge's separate examination, he

returned to the issue, and allowed Huff to reiterate that he did

not know Sagacious's real name, but thought that was his real

name based on defense counsel's prompting.

The court's questioning also elicited details about the

lighting around the apartments where the shooting took place.

7 A-2193-08T4

These questions reinforced already clear and unambiguous

testimony that the State had elicited on direct, and which the

defense did not challenge on cross-examination. In so doing,

the judge elicited testimony that supported the State's theory

of the case: that defendant thought he was getting revenge on a

man named Mitch, who pulled a gun on him on October 1, but

instead accidentally shot two innocent men sitting in their car

that night.

Sharhi Roberts was one of the two witnesses to whom

defendant allegedly confessed. Roberts testified that the day

after the shooting, defendant told her he shot the two men.

About a year later, he again confessed to her, adding he

intended to shoot Mitch, but shot the victims by mistake. She

also asserted that defendant told her that Mitch previously

threatened him with a gun. However, she also claimed that

subsequent to the two confessions, defendant told her that he

did not shoot the two men, and he only made up that he did.

The prosecutor confronted Roberts on direct examination

with a prior statement to police, in which she did not mention

the third conversation. She claimed that she did not disclose

the conversation "because the officers [Lyons and Clements]

didn't want to hear that" and her lawyer, David Oakley, told her

"to tell them what they wanted to know and that's that." She

asserted the officers "were harassing" her for her statement.

8 A-2193-08T4

In return for her testimony, the officers informed the

prosecutor of Roberts's cooperation, and the pending charges

against her were dismissed. The prosecutor also elicited that

Roberts testified at a trial of a different defendant in August

2007 — over which the same trial judge presided — and confirmed

her statement to police, but did not mention the third

conversation.

On cross-examination, defense counsel elicited Roberts's

claim that Lyons and Clements harassed her. The court

intervened in counsel's questioning, expressing impatience, and

at one point stating that "we" need specifics.

Q Okay. So you've been dealing with

Clements and Lyons for a while, haven't you?

A Yes.

Q Okay. Have they harassed you in the

past?

A Yes.

Q Can you describe for the jury the

manner in which they harassed you with as

much specificity as you can.

A Okay. They came to my house.

I've been evicted from places.

THE COURT: I'm sorry. Came to your house

and what?

A They came to my house. Harassed

me numerous times.

THE COURT: In other words, the question is

we need specifics. What did they do?

9 A-2193-08T4

Specifically what did they do? What did

they say? What did they do?

A Well --

THE COURT: Okay.

A They --

THE COURT: They came to your house. What

else?

. . . .

Q All right. Sharhi, describe how you

were harassed. I don't just mean the cops

showed up. How many times did they come,

what did they say to you and so forth,

things like that.

. . . .

Q Where were you working at the time?

A Perth Amboy Shop-Rite on Convery

Boulevard.

Q Okay. So when's the first time that

you can remember the police coming to you

and harassing you?

A The first time I remember was my

father's house, on 19 Walter Drive,

Woodbridge.

THE COURT: When? When? When? When? Not

where.

THE WITNESS: I can't remember the

exact day.

THE COURT: Well, was it like -- was it

before August -- before October 30th, 2003,

or was it after October 30th?

THE WITNESS: It was after.

10 A-2193-08T4

THE COURT: Was it a month after, a year

after?

THE WITNESS: A year, a year -- almost

two years -- it was a little after

November, I want to say -- I want to

say '05 --

THE COURT: Okay.

THE WITNESS: -- 6, November.

THE COURT: November 2005.

Q Did the police ever offer you anything

for your testimony?

A Yes. Yes. Numerous times.

The court intervened during cross-examination about the

pre-interview, in which defense counsel sought to establish that

officers told Roberts to discuss only the two confessions, and

not the subsequent denial.

Q Earlier you mentioned that when talking

to the police, and by the police I mean

basically the Woodbridge police, the

Middlesex County Prosecutor's Office, there

were portions of your conversations that

were unrecorded?

A Yes.

Q Was there some sort of preinterview

that occurred before the recording begins?

A Yes. He stated that he wanted me

--

THE COURT: No. No. No. Question was was

there portions of the interview that was

unrecorded. Yes?

THE WITNESS: yes.

11 A-2193-08T4

THE COURT: Next question.

Q That was during the preinterview?

THE COURT: The preinterview is -- in other

words, did they talk to you before they

actually put the machine on and recorded

your statement?

THE WITNESS: Yes.

THE COURT: Okay. So you had a

preinterview?

THE WITNESS: Yes.

THE COURT: Okay.

Q What did they tell you in the

preinterview or at any time when the

recorder wasn't on?

MS. DAVISON: Again, Judge, this is

hearsay.

THE COURT: Overruled.

A At the time, the day -- the day I

made -- the day of January --

THE COURT: This is January 26th, 2006, your

attorney was there?

THE WITNESS: Yes.

THE COURT: And what did they tell you?

A They asked me to go back to the

time that my sister had stated -- made

the statement previous. They wanted me

to go back to that time and recall of

those two times that my sister had

mentioned originally to Chris Lyons and

Woodbridge Police Department of

November -- in November. They wanted -

-

12 A-2193-08T4

Q Is it fair to say you were limited to

those two times?

A Yes.

Q And then -- and then you were told that

there would be consequences if you changed

your story out of what was just said?

A Yes.

Officer Lyons initially testified on direct regarding his

arrival on the scene of the homicides, and his initial

observations of the two victims and their car. He testified he

secured Huff for questioning by detectives. The judge

interjected several friendly questions, in the midst of the

direct examination, prompting the witness to clarify a point,

spell a name, describe a location, explain an acronym, indicate

the meaning of a gesture, and expand upon a comment. In so

doing, the court appeared to work in tandem with the prosecutor.

Lyons's cross-examination was brief. It focused on the

fact that police did not test Huff for gunpowder residue. The

court sustained the State's objection when defense counsel

inquired about other aspects of the State's investigation, which

were outside the scope of direct.

The judge then engaged Lyons in over six pages of

questioning. By contrast, the direct examination consumed

nineteen pages of transcript, including the judge's interjected

questioning. He elicited additional details about the officer's

13 A-2193-08T4

efforts to secure the crime scene. Most significantly, the

judge elicited testimony regarding the lighting conditions at

the scene of the crime. Lyons testified the area was "[f]airly

dark," there were no streetlights in the area, and "very little"

light was coming from a nearby building. These facts supported

the State's theory that the shooter misidentified the victims in

part because of the dark conditions.

Officer Haley testified about his crime scene

investigation, including his collection of bullets and spent

shells, and provided a critique of gunshot residue testing.

During the direct examination, the judge repeatedly interjected

questions to clarify or supplement information elicited by the

State. The judge also engaged in two separate rounds of

friendly questioning of the witness, consuming over twelve pages

of transcript. Although the information elicited did not appear

to be directly damaging to defendant, the judge did highlight

the depth of the witness's experience, and again appeared to be

in sync with the prosecution.

The State called Lyons again to testify about how the

investigation of the dual homicides, which had turned cold after

failing to uncover any suspects, was revived in 2005, after the

police received information in early November 2004. The same

week, Lyons interviewed Roberts and her sister. He discussed

his subsequent efforts during 2005 and 2006 to obtain statements

14 A-2193-08T4

from Roberts, Huff, McKnight, Wakefield, and Williams. After

police arrested defendant and charged him with the murders in

September 2006, Lyons continued his efforts with the five.

Cross-examination was vigorous, and highlighted

inconsistencies in the statements of the State's witnesses.

Defense counsel also established that Lyons threatened some

witnesses, telling them they could be witnesses or they could be

defendants. Lyons admitted that such tactics were coercive, but

justified, because he was "using leverage against people who had

lesser charges or lesser crimes to get the information about

this double homicide."

At the end of cross-examination, the judge engaged Lyons in

a line of questioning premised on his assumption that Roberts

had been charged with making a false report to police before the

State suspected defendant committed the murders. Lyons

corrected the judge stating that defendant became a suspect in

late 2004; the charges were lodged against Roberts in 2005; and

she thereafter gave her formal statement incriminating

defendant, which prompted Lyons to contact the municipal

prosecutor on her behalf. Nonetheless, the judge's effort —

albeit unsuccessful — to establish the lack of a connection

between the charges against Roberts and efforts to secure her

cooperation, constituted another effort to establish facts

favorable to the State's case. Moreover, the friendly tenor of

15 A-2193-08T4

the judge's questions of Lyons contrasted with his impatience in

questioning Roberts.

The judge asked no questions of David Oakley, Roberts's

attorney. Oakley denied he told his client to tell officers

what they wanted to hear, but he testified that Roberts received

harsher treatment — in terms of the bail set, and the State's

willingness to prosecute — for her own alleged offense, because

the State was interested in securing her cooperation.

During the direct examination and extensive cross-

examination of Jamil McKnight, who claimed to have witnessed the

shooting, the judge's involvement was limited to interjecting

brief clarifying questions. The judge also overruled several

State objections on cross-examination.

The judge played a similar role during the testimony of

Greg Wakefield. While separate gun charges were pending against

Wakefield, he told police in two formal statements in April 2005

that defendant confessed to him. When the charges were resolved

in March 2008, Wakefield recanted.

Ballistics expert Gary Mayer testified that the collection

of spent shell casings found at the scene matched each other and

were fired from the same gun. Over the course of fifteen pages

of transcript, the court asked both clarifying and substantive

questions, some leading, assisting in Mayer's presentation.

16 A-2193-08T4

Mayer testified that he had also tested a separate group of

shells from another case. He determined they matched each

other, but not the shells of the other group. The judge asked,

"So then you're saying that there were two different weapons

used, is that right?" After Mayer answered affirmatively, the

judge called counsel to sidebar. The prosecutor explained that

the State's position was that only one gun was used in the

homicides of Bautin and Barbashov, and the second group of

shells were from a different investigation. The judge then

advised the prosecutor that the jury was likely confused, and

advised the prosecutor that she pose clarifying questions.

However, before the prosecutor did so on redirect, the court

continued with over thirteen pages of questioning, focusing on

the properties of semi-automatic weapons — the type used in the

homicides — and the differences between them and revolvers. At

one point, the judge used the collective pronoun "us" in

responding to an answer from Mayer, stating, "Okay. Okay. All

right. That's not going to help us. You'll have to —

Prosecutor will have to explain that."

The trial judge also took an active role in the questioning

of DiCarlo, who performed the autopsy of Bautin, and Falzon, who

performed the autopsy of Barbashov. A key point of the medical

examiners' testimony was that the victims were hit by bullets

shot from the victims' height — which was consistent with a

17 A-2193-08T4

drive-by shooting. The judge interjected questions with

increasing frequency during the State's examination. In

addition to clarifying DiCarlo's testimony, the court elicited

supplementary information, often through leading questions.

Defense counsel declined cross-examination of both witnesses,

yet the court engaged in six pages of additional questioning of

DiCarlo and one page of additional questioning of Falzon.

A principal focus of Clements's testimony was his response

to Wakefield's claim that he was unduly pressured by the

officers during the interrogation preceding his April 7, 2005

statement. The interrogation began in the late afternoon, and

Wakefield gave his formal statement shortly before midnight.

Wakefield also mentioned that he was subjected to a polygraph

test. Clements defended his interrogation techniques, and also

asserted that Wakefield was not subject to his intense

questioning for the whole time period, because he was before the

polygrapher for about four hours.

The judge was restrained during most of the direct

examination of Clements. However, at one point during the

direct examination, the judge overruled a well-founded, albeit

belated objection, and interjected a properly phrased question:

Q Was Mr. Wakefield upset during the

preinterview or the actual formal statement?

A Yeah. Mr. Wakefield did cry. He

was crying at times during the

18 A-2193-08T4

interview process based on the fact

that it was our belief because he was

implicating his friend in the double

murder.

THE COURT: Sir, they can't hear you.

You're going to have to get into that

microphone and don't worry about looking at

the jury. Look – speak into the microphone

so they can hear you. Start again.

THE WITNESS: My apology.

THE COURT: Thank you.

A Could I have the question again

please?

THE COURT: Sure.

Q Was Mr. Wakefield upset at any time

during the preinterview or during the formal

statement?

DEFENSE COUNSEL: Objection, Judge.

Calls for Mr. Wakefield's state of

mind.

THE COURT: No. Did he appear to be

upset?

THE WITNESS: Yes, sir.

THE COURT: Thank you. Go ahead. Tell

the jury how he appeared.

A He was crying at times during the

interview. And it was our belief that

he was crying because he was

implicating his friend in the double

murder.

During cross-examination, defense counsel presented

evidence that tended to establish that Wakefield was with the

polygrapher significantly less time than Clements claimed.

19 A-2193-08T4

Defense counsel elicited that a Miranda card was executed by

Wakefield and the polygrapher at 8:38, and the polygraph ended

at shortly before 11:00, meaning Wakefield was gone for slightly

over two hours.

The judge then called a sidebar, and curtailed the cross-

examination after noting the possibility that the polygrapher

could have been engaged in various discussions with Wakefield

before he signed the Miranda card. Consistent with this point,

during the judge's own line of questioning, he established that

the polygrapher and Wakefield were in a separate room, and

Clements was not privy to what transpired there. The

implication was created that the polygrapher may have spent a

significant amount of time explaining the polygraph process

before obtaining Wakefield's Miranda waiver and beginning

questioning.

During the defense case, the judge was restrained. He did

not pursue a separate line of questioning of McPhatter or

defendant, and his interjections were largely for the purpose of

clarification.

III.

A trial judge's "broad discretion" to participate in the

questioning of a witness, State v. Ray, 43 N.J. 19, 25 (1964),

is limited by the court's obligation to maintain the appearance

and reality of impartiality. Taffaro, supra, 195 N.J. at 445.

20 A-2193-08T4

"[I]n exercising their discretionary power, judges must take

care not to influence the jury by signaling doubt about a

witness's credibility. To do otherwise might place the court's

impartiality in question and affect the trial's outcome."

Ibid.; see also State v. O'Brien, 200 N.J. 520, 534 (2009)

("[P]articularly in the context of a jury trial" a judge must

ensure that he "does not telegraph to the jury any partiality to

a given party's side."); Ray, supra, 43 N.J. at 24 (discussing

the "necessity of judicial self-restraint and the maintenance of

an atmosphere of impartiality.") (internal quotation marks and

citation omitted); State v. Guido, 40 N.J. 191, 207-08 (1963).

A trial judge must scrupulously avoid crossing the line

separating appropriate and inappropriate questioning. On the

one hand, the court's questioning may serve a salutary purpose.

The Court has identified four goals of a judge's questioning:

[I]t is proper, and even encouraged, for a

trial judge to step in [1] when a party's

basic rights are being threatened, [2] when

expedition is necessary to prevent a waste

of judicial time/resources, [3] when

testimony requires clarification, or [4]

when a witness appears to be in distress or

is having trouble articulating his/her

testimony.

[O'Brien, supra, 200 N.J. at 534 (internal

citations omitted).]

On the other hand, a trial judge must avoid "'undue

interference, impatience, or participation in the examination of

21 A-2193-08T4

witnesses, or a severe attitude . . . toward witnesses . . . .'"

Ibid. (quoting Guido, supra, 40 N.J. at 207). A judge may not

"take over the cross-examination for the government to merely

emphasize the government's proof or to question the credibility

of the defendant and his witnesses." Id. at 535 (quoting United

States v. Bland, 697 F.2d 262, 265 (8th Cir. 1983)). A judge

"should not press defendant when the meaning of their responses

is 'perfectly plain'". Taffaro, supra, 195 N.J. at 451 (quoting

Guido, supra, 40 N.J. at 208-09 n.2). Such questioning "may

express incredulity and prejudice a defendant." Just as a

court's questioning should not express incredulity in one side's

witness, it should not bolster or rehabilitate a witness on the

other side. O'Brien, supra, 200 N.J. at 539-40 (criticizing

trial judge's questioning that "help[ed] to counter defendant's

challenge" to a State witness).

Our Court has recognized that when a judge violates these

limitations, the risk of prejudice is great. See Guido, supra,

40 N.J. at 208. "The trial judge is an imposing figure. To the

jurors he is a symbol of experience, wisdom, and impartiality.

If he so intervenes as to suggest disbelief, the impact upon the

jurors may be critical." Ibid. "A judge's slightest indication

that he favors the government's case can have an immeasurable

effect upon a jury." O'Brien, supra, 200 N.J. at 535 (quoting

Bland, supra, 697 F.2d at 265-66).

22 A-2193-08T4

"When a judge questions a witness in such a way that he

takes over the role of the prosecutor, it can give the jury the

impression that the judge does not believe the witness, and that

impression can deny the defendant his right to a fair trial."

Ibid. (citing United States v. Filani, 74 F.3d 378, 385 (2d Cir.

1996)). "Where the court takes over the role of the prosecutor"

and displays bias, reversal is required." Filani, supra, 74

F.3d at 385 (internal citations omitted). If it appears to the

jury that the judge believes the accused is guilty, the

defendant will be "deprive[d] of the fair trial to which he is

entitled." Ibid.

In Taffaro and O'Brien, our court found that the trial

judge's inappropriate questioning constituted plain error.

Taffaro, supra, 195 N.J. at 454; O'Brien, supra, 200 N.J. at

539-40 (reversing based on plain error). "In light of the trial

judge's esteemed position in the courtroom and the central role

that defendant's credibility played in this trial, suggesting

disbelief of defendant's testimony could well have had a

critical impact on the verdict." Taffaro, supra, 195 N.J. at

454. Furthermore, our Court has repeatedly held that

instructing a jury, in accord with the model jury charge, not to

be influenced by the judge's questioning is insufficient to

23 A-2193-08T4

"cure the harm" of inappropriate questioning.2 O'Brien, supra,

200 N.J. at 539 (repeated mid-trial instructions that judge's

questions were not intended to favor one side were

insufficient); Taffaro, supra, 195 N.J. at 454 ("We are not

persuaded that the jury instruction was sufficient to cure the

harm."); Guido, supra, 40 N.J. at 208.

In assessing whether a judge's intervention constitutes

plain error, a reviewing court must consider the judge's

interventions in the context of the record as a whole. See,

e.g., United States v. Rivera-Rodriguez, 761 F.3d 105, 111, 113

(1st Cir. 2014), cert. denied, ___ U.S. ___, 135 S. Ct. 1573,

191 L. Ed. 2d 656 (2015); United States v. Ottaviano, 738 F.3d

586, 596 (3d Cir. 2013), cert. denied, ___ U.S. ___, 134 S. Ct.

1922, 188 L. Ed. 2d 945 (2014). In so doing, the court weighs

the cumulative impact of multiple interventions, yet avoids

2 Model Jury Charge (Criminal), "Criminal Final Charge" (June

2015) states:

The fact that I may have asked questions of

a witness in the case must not influence you

in any way in your deliberations. The fact

that I asked such questions does not

indicate that I hold any opinion one way or

the other as to the testimony given by the

witness. Any remarks made by me to counsel

or by counsel to me or between counsel, are

not evidence and should not affect or play

any part in your deliberations.

24 A-2193-08T4

magnifying the impact of isolated instances. Rivera-Rodriguez,

supra, 761 F.3d at 113, 122.

The appellate court must consider the impact of the judge's

questioning on the key issues before the jury. For example,

prejudice is heightened when the success of the State's case

depends on the jury's credibility determinations, and the judge

conveys a view on that issue. See Taffaro, supra, 195 N.J. at

451 (internal quotation marks and citation omitted) ("[I]f a

judge's questions suggest disbelief, the impact upon the juror

may be critical. This is especially true when the outcome of a

case rests primarily and necessarily on the jury believing or

rejecting a defendant's version of events."). A reviewing court

may consider the weight of other evidence in the case to

determine whether the judge's interventions were prejudicial.

See Ottaviano, supra, 738 F.3d at 597 (finding judge erred in

its questioning of the defendant, but declining to reverse in

light of "overwhelming documentary and testimonial evidence of

guilt . . . .").

The volume of a judge's questioning is also relevant in

assessing whether it improperly influenced the jury. Taffaro,

supra, 195 N.J. at 453; see also Ottaviano, supra, 738 F.3d at

596 (stating a court may consider "the portion of the trial

record affected . . . ."). However, "it is the impact of the

25 A-2193-08T4

court's questions, and not the number of minutes they lasted,

which matters most." Taffaro, supra, 195 N.J. at 454.

"Whether the judge appeared to treat both sides

evenhandedly" is a factor as well. Ottaviano, supra, 738 F.3d

at 596. If a judge intervened actively, but evenhandedly, the

impact on the jury may be less significant than when the judge

appears to intervene disproportionately on behalf of one side.

See Rivera-Rodriguez, 761 F.3d at 113 ("[W]e have stressed that

where the judge participates actively, the judge's participation

must be balanced . . . .") (internal quotation marks and

citation omitted); Ottaviano, supra, 738 F.3d at 596 (the court

must balance the degree of questioning in each side's case-in-

chief "to determine whether the trial judge's comments have

pervaded the overall fairness of the proceeding.") (quoting

United States v. Wilensky, 757 F.2d 594, 598 (3d Cir. 1985)).

The prejudicial impact of a judge's intervention extends

not only to the evidence the judge elicits, but also to the

elicitation itself. By intervening in questioning, a judge may

convey to the jury that he finds a witness credible and

trustworthy, or the opposite; he finds one side's case more

persuasive than the other; and he expects the jury to return a

verdict in accord with his apparent preference. Whether the

judge subjectively intends to convey these messages is not

relevant to the analysis.

26 A-2193-08T4

[T]he judge's participation, whether in the

form of questions or of comments, is likely

to have a disproportionate and distorting

impact. The jury is likely to discern

hints, a point of view, a suggested

direction, even if none is intended and

quite without regard to the judge's efforts

to modulate and minimize his role.

[Marvin E. Frankel, The Search for Truth: An

Umpireal View, 123 U.Pa.L.Rev. 1031, 1043

(1975).]

The extent to which the judge used leading questions is

also a factor, because a judge's leading questions may convey to

the jury that he already is aware of certain facts, and seeks

only the witness's confirmation. Under such circumstances,

jurors may view the judge as more knowledgeable about the facts

in issue than they are. As a result, the judge's questioning

may infect the fairness of the trial as a whole.3

IV.

The judge's extensive questioning did not further any of

the four purposes identified in O'Brien, supra, 200 N.J. at 534.

No party's rights were threatened, necessitating court

intervention. Rather than conserve judicial time or resources,

the court's questioning generally extended the length of

3 We recognize the inherent difficulty in assessing the impact of

a judge's excessive intervention based on a cold transcript.

One commentator has argued that "[t]he effect of a trial judge's

improper intervention is immeasurable." Michael Pinard,

Limitations on Judicial Activism, 33 Conn.L.Rev. 243, 293

(2000). Consequently, he and others advocate a per se rule of

reversal where a judge intervenes improperly. Id. at 298-99.

27 A-2193-08T4

testimony. No witness, such as a child, appeared to be in

distress. Cf. State v. Riley, 28 N.J. 188, 201, cert. denied,

361 U.S. 879 (1959). Finally, although the court did ask

questions to clarify some answers, or to assure that a witness

could be heard, the overwhelming majority of the questions

served an inappropriate purpose.

The evidence elicited through the court's questioning

generally supplemented or reinforced evidence presented by the

State. The court alone established that officers had to ask

defendant to visit the station to report his multiple

collisions, and only then did defendant report that a person

pointed a gun at him. This left the jury free to infer that

defendant did not intend to seek police assistance in addressing

the gun pointing. The judge's questioning excused the

interrogation of defendant without his father and highlighted

the poor lighting in the area where defendant allegedly

mistakenly identified the victims. The judge gave Huff the

opportunity to rehabilitate himself, after Huff denied knowing

Sagacious's real name, yet responded to questions referring only

to Jamil McKnight. The court also elicited testimony to support

an inference that Wakefield may have been in the presence of the

polygrapher longer than the Miranda cards emphasized by the

defense might have indicated.

28 A-2193-08T4

The court's questioning was far from evenhanded. The court

did not subject the State's witnesses to rigorous or challenging

questions. In one instance, in which defense counsel raised a

well-founded, although belated objection to a question posed to

Clements, the judge himself rephrased the prosecutor's question

and elicited a response from the witness. The court's questions

for the State's witnesses were consistently friendly, with the

glaring exception of the court's questioning of Roberts, who

testified that Ross recanted his prior confessions. The court

expressed impatience and irritation, if not outright

incredulity.

The judge repeatedly interjected substantive questions

during the prosecutor's direct or redirect examination — but not

during the defense's cross-examination. The judge thereby

placed himself in a position where the jury might have viewed

him as working in tandem with the State. The judge's use of the

pronoun "we" and "us" in questioning was at best ambiguous, and

at worst, an unconscious alignment of himself with the State.

Even when the testimony elicited by the judge did not directly

implicate defendant, the court's separate examinations

supplemented the State's case. The sheer volume of the court's

questioning was substantial.

The overall impact of the judge's participation was to

convey partiality in favor of the State's case. I am confident

29 A-2193-08T4

that this was not the judge's intent; his purpose was to elicit

facts in the search for the truth. However, viewed objectively,

the jurors could have reasonably concluded, based on the extent

and nature of the judge's questioning, that the judge favored

the State's case. Enhancing the judge's already significant

position before the jury, the judge also frequently asked

leading questions, reflecting that the judge possessed prior

knowledge of relevant facts.

V.

It is not easy to determine whether a judge's excessive and

inappropriate questioning constitutes plain error. See United

States v. Hickman, 592 F.2d 931, 932 (6th Cir. 1979) ("The law

in this area is as easy to state as it is difficult to apply.").

A defendant is entitled to a "fair trial, but not a perfect

one." State v. R.B., 183 N.J. 308, 333-34 (2005) (internal

quotation marks and citation omitted).

I recognize, as the majority highlights, the judge's

intervention here was unlike that which compelled reversal in

Taffaro or O'Brien. In O'Brien, supra, 200 N.J. at 526-31, the

trial judge engaged in an incisive cross-examination of the

defendant and his expert. Similarly, in Taffaro, supra, 195

N.J. at 453-54, the court cross-examined the defendant himself,

suggesting the court disbelieved him.

30 A-2193-08T4

Here, the judge did not directly challenge defendant or his

alibi witness. Nonetheless, viewing the record as a whole and

weighing the cumulative impact of the judge's intervention, I

believe prejudicial error resulted. The judge did not intervene

in isolated instances. Rather, he assumed an activist role from

the start, interjecting questions during the State's direct

examination, and pursuing his own separate lines of questioning

of numerous State witnesses. Further, there is nothing in

O'Brien or Taffaro that should serve to exclude their

applicability to cases where the trial judge participates

extensively in the State's case, but does not interfere directly

with defense witnesses. The fact that the judge here chose not

to question defendant or his alibi witnesses does not dispose of

defendant's claim he was not afforded a fair trial.

The judge elicited evidence that tended to support the

State's case, including the appropriateness of excluding

defendant's father from defendant's interrogation; defendant's

disinclination to seek the police's help after the gun-pointing

incident; the lighting conditions at the murder scene; and the

possibility that Wakefield was present with the polygrapher

longer than the Miranda cards may have indicated.

The prejudice caused by the judge's intervention goes

beyond the substantive evidence elicited. As a consequence of

the judge's intervention, the jury likely perceived him to favor

31 A-2193-08T4

the State's case. The judge created this perception by

intervening in tandem with the prosecution, posing friendly

questions to the State's witnesses, eliciting information

consistently favorable to the State's case, and bolstering the

credibility of State witnesses. As a consequence of the judge's

leading questions, and his prior involvement in apparently

related proceedings, the jury likely viewed the judge as privy

to facts that the jury was not.

The perception of partiality may be created as much by

constructive questioning during the State's case, as damaging

questions in the defense case. The judge did not challenge

defendant or his alibi witness, as did the judge in Taffaro and

O'Brien. Nonetheless, by his extensive and unwarranted

participation in the questioning of the State's witnesses, the

judge created the impression of favoring the State in a close

case.

The evidence of defendant's guilt was not insignificant.

Neither was it overwhelming. The State's case depended on the

jury finding credible a group of witnesses who had strong

motives to lie, and who gave inconsistent statements. The

defense plausibly argued that the sole alleged eyewitness to the

homicides — McKnight — had a similar motive to seek revenge

against Mitch. Because of his poor eyesight, he was more likely

to mistake the victims for his intended target. Further, he

32 A-2193-08T4

admittedly took steps to destroy evidence of homicides he

claimed he did not commit. And, perhaps most importantly, he

was admitted to the pre-trial intervention program in return for

his cooperation.

The two witnesses who claimed defendant confessed to them —

Roberts and Wakefield — gave inconsistent statements and alleged

police harassed or pressured them. At the same time, the two

had an interest in currying favor with the State in connection

with separate charges pending against them. Moreover, the

pending charge against Roberts was for making false accusations

against defendant's family.

Defendant's credibility was not helped by his inconsistent

statement to his father from the jail after his arrest. Yet,

the inconsistency may not have been as harmful as the majority

perceives. The jury may have found understandable a son's

initial unwillingness to admit to his father involvement in the

events leading to a homicide.

Certainly, we are obliged to consider "that the failure to

object may suggest the error was of no moment in the actual

setting of the trial." Macon, supra, 57 N.J. at 341. However,

I do not view defense counsel's failure to object as a strong

indication that the judge's questioning was harmless. With the

exception of his interrogation of Roberts, the judge's

questioning may not have seemed so antagonistic towards

33 A-2193-08T4

defendant as to prompt an objection. Rather, the court's

questioning had a cumulatively prejudicial impact.

Furthermore, a defense attorney may have a natural

hesitancy to object to a judge's own questions to avoid

alienating the judge or jury, especially if the judge responded

critically to the objection. The opportunity to repeatedly seek

a sidebar would not necessarily alleviate an attorney's concern.

See United States v. Lanham, 416 F.2d 1140, 1145 (5th Cir. 1969)

(reversing conviction based on court's inappropriate

questioning, noting that defendant's counsel "might hesitate to

make objections and reserve exceptions to the judge's

examination, because, if they make objections . . . it will

appear to the jury that there is direct conflict between them

and the court.") (internal quotation marks and citation

omitted); Pollard v. Fennell, 400 F.2d 421, 424 (4th Cir. 1968)

(noting "the natural reluctance of counsel to object to the

court's questions"); United States v. Hill, 332 F.2d 105, 106

(7th Cir. 1964) (describing "difficult and hazardous

predicament" of defense counsel who needs to object to judge's

questions in the presence of the jury); In re United States, 286

F.2d 556, 561 (1st Cir. 1961) (stating counsel may "think twice"

before objecting to a judge's question, and "counsel runs the

risk . . . of comment by the judge before the jury implying that

he is seeking to cut off legitimate inquiry"), rev'd sub nom on

34 A-2193-08T4

other grounds, Fong Foo v. United States, 369 U.S. 141, 82 S.

Ct. 671, 7 L. Ed. 2d 629 (1962); Kennedy v. State, 280 N.E.2d

611 (Ind. 1972).

The jury was much better positioned than this court, with

its reliance on a cold written record, to assess the credibility

of these witnesses. The jury apparently found the issue

challenging, based on the length of the jury's deliberations,

and the extensive readbacks it requested of Roberts's and

Oakley's testimony. I do not share the majority's view that the

judge's influence may have dissipated during the jury's lengthy

deliberations. The greater risk is that the judge's questioning

firmly shaped the jurors' perspectives, which remained a

continuing factor throughout the deliberations.

In sum, when a judge sheds the mantle of impartiality, the

defendant's right to a fair trial is at risk. The measurement

of prejudice is a delicate task. Under the circumstances of

this case, I conclude that the judge's extensive and

inappropriate questioning, and the resulting appearance that he

favored the State's case, raises a "reasonable doubt as to

whether the error led the jury to a result it otherwise might

not have reached." Macon, supra, 57 N.J. at 336. Consequently,

his conviction should be reversed and he should be granted a new

trial.

Therefore, I respectfully dissent.

35 A-2193-08T4

36 A-2193-08T4