State of New Jersey v. Ebenezer Byrd, Jerry J. Spraulding, and Gregory A. Jean-Baptiste

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NOS. A-4941-18

A-5095-18

A-1452-19

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EBENEZER BYRD, a/k/a

EBERNEZER BYRD,

E.B. BYRD,

EBENEZER BIRD,

DONALI BYRD, and

DANALL JOHNSON,

Defendant-Appellant.

_______________________

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JERRY J. SPRAULDING,

a/k/a GERRY SPRAULDING,

JERRY SPRAULDING,

GERALD J. SPRAULDING,

JERRY BATTER,

MICHAEL HARRIS,

MARK LOVE, and

GERALD SPAULDING,

Defendant-Appellant.

_______________________

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GREGORY A.

JEAN-BAPTISTE, a/k/a

GREGORY JEAN BAPTIST,

GREGORY BAPTITE,

and GU JEAN,

Defendant-Appellant.

_______________________

Argued (A-4941-18 and A-5095-18) and Submitted (A-

1452-19) November 30, 2022 – Decided May 20, 2024

Before Judges Haas and Gooden Brown.

On appeal from the Superior Court of New Jersey, Law

Division, Monmouth County, Indictment Nos. 16-04-

0718 and 18-06-0809.

Stephen William Kirsch, Designated Counsel, argued

the cause for appellant Ebenezer Byrd in A-4941-18

(Joseph E. Krakora, Public Defender, attorney; Stephen

William Kirsch, on the briefs).

Margaret Ruth McLane, Assistant Deputy Public

Defender, argued the cause for appellant Jerry

A-4941-18

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Spraulding in A-5095-18 (Joseph E. Krakora, Public

Defender, attorney; Margaret Ruth McLane, of counsel

and on the brief).

Joseph E. Krakora, Public Defender, attorney for

appellant Gregory A. Jean-Baptiste in A-1452-19

(Andrew Robert Burroughs, Designated Counsel, on

the briefs).

Daniel Ian Bornstein, Deputy Assistant Prosecutor,

argued the cause for respondent in A-4941-18 and A-

5095-18 (Raymond S. Santiago, Monmouth County

Prosecutor, attorney; Maura Kathryn Tully, Assistant

Prosecutor, of counsel and on the briefs).

Raymond S. Santiago, Monmouth County Prosecutor,

attorney for respondent in A-1452-19 (Monica do

Outeiro, Assistant Prosecutor, of counsel and on the

brief).

The opinion of the court was delivered by

GOODEN BROWN, P.J.A.D.

Following a months-long joint jury trial conducted in 2019, defendants

Ebenezer Byrd, Jerry Spraulding, and Gregory Jean-Baptiste were convicted of

first-degree felony murder and related offenses stemming from the 2009 brutal

beating and fatal shooting of Jonelle Melton in her Neptune City apartment.

James Fair was indicted along with defendants but pled guilty to a related

conspiracy charge prior to defendants' trial. At trial, the State's proofs included

DNA evidence placing Jean-Baptiste in Melton's apartment and an unindicted

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co-conspirator's testimony that supported the State's theory that defendants had

set out to rob Melton's neighbor, a suspected drug dealer who kept upwards of

sixteen-thousand dollars in his freezer. Instead, they mistakenly broke into

Melton's apartment. Melton was a fifth-grade school teacher who lived alone.

Byrd was sentenced to life in prison, subject to an eighty-five percent

period of parole ineligibility pursuant to the No Early Release Act (NERA),

N.J.S.A. 2C:43-7.2. He also received two consecutive twenty-year terms, each

with a ten-year period of parole ineligibility, and a consecutive five-year term,

all for witness tampering charges. Spraulding received a life term, subject to

NERA. Jean-Baptiste received an aggregate term of life plus twenty years, with

an eighty-five percent period of parole ineligibility and a ten-year period of

parole ineligibility, respectively. Jean-Baptiste's sentence was also consecutive

to sentences he was already serving on unrelated indictments.

In these back-to-back appeals, which we consolidate for purposes of

issuing a single opinion, defendants assert multiple trial errors. They variously

raise evidentiary issues, question the trial court's handling of a juror issue,

challenge several jury instructions, dispute the denial of a motion for judgment

of acquittal, invoke ineffective assistance of counsel claims, and contest their

sentences as excessive.

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Specifically, Byrd raises the following points for our consideration:

POINT I

OUT-OF-COURT STATEMENTS BY JAMES FAIR

IN WHICH HE TOOK RESPONSIBILITY FOR

KILLING THE VICTIM, ACTING WITH OTHERS

WHO WERE NOT THE DEFENDANT OR THE

CODEFENDANTS, WERE ADMISSIBLE AS

EVIDENCE OF THIRD-PARTY GUILT AND THE

JUDGE COMMITTED REVERSIBLE ERROR IN

EXCLUDING THEM.

POINT II

THE STATE USED IMPROPER OPINION

TESTIMONY OF AN EXPERT WITNESS AND OF

LAY WITNESSES TO BOLSTER ITS THEORY OF

THE CASE REGARDING THE ULTIMATE ISSUE

FOR THE JURY TO DECIDE, AND ON MATTERS

CLEARLY NOT BEYOND THE KEN OF THE

AVERAGE JUROR. (NOT RAISED BELOW).

POINT III

NUMEROUS JURY INSTRUCTIONAL ERRORS

TAINTED THE VERDICT IN THIS CASE. (NOT

RAISED BELOW).

A. The Jury Instruction for Robbery

Omitted an Explanation of Attempted

Theft. (Not Raised Below).

B. The Improper Use of "And/Or"

Language, or The Functional Equivalent,

in The Instructions. (Not Raised Below).

A-4941-18

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C. The Instruction on [The Unindicted Co-

Conspirator's] Testimony. (Not Raised

Below).

D. The Instruction on Witness Tampering

Omitted Any Reference to Accomplice

Liability. (Not Raised Below).

POINT IV

IN THE PHASE-TWO TRIAL FOR "CERTAIN

PERSONS" WEAPONS POSSESSION, DEFENDANT

WAS DENIED THE EFFECTIVE

REPRESENTATION OF COUNSEL WHEN HIS

ATTORNEY LITERALLY DID NOTHING TO

DEFEND HIM. (NOT RAISED BELOW).

POINT V

THE SENTENCE IMPOSED IS MANIFESTLY

EXCESSIVE.

In a supplemental brief, Byrd adds the following point:

THE DEFENDANT'S RIGHTS TO DUE PROCESS

AND AN IMPARTIAL JURY WERE VIOLATED

WHEN THE COURT RECEIVED INFORMATION

MID-TRIAL THAT JUROR [NO.] 8 HAD

"ALREADY DECIDED SHE'S GOING TO FIND

THEM ALL GUILTY AND GOING TO BURN THEIR

ASSES," AND THE JUDGE FAILED TO CONDUCT

AN ADEQUATE INDIVIDUAL VOIR DIRE OF

THAT JUROR, AND FAILED TO CONDUCT ANY

VOIR DIRE OF THE REST OF THE JURORS.

Jean-Baptiste raises the following points for our consideration:

POINT I

A-4941-18

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THE TRIAL COURT PREJUDICIALLY ERRED

WHEN IT RULED INADMISSIBLE CERTAIN

EXCULPATORY OUT-OF-COURT STATEMENTS

MADE BY JAMES FAIR AND [HIS ASSOCIATE,]

KEVIN BROWN, AS THE COURT'S

MISAPPLICATION OF N.J.R.E. 803 (C) (25)

DENIED DEFENDANT A COMPLETE THIRD-

PARTY GUILT DEFENSE.

POINT II

THE TRIAL COURT PREJUDICIALLY ALLOWED

THE STATE TO RELY UPON IMPERMISSIBLE

LAY AND EXPERT OPINION TESTIMONY AS TO

THE ULTIMATE QUESTION OF GUILT.

(A) Lay Witness Testimony. (Not Raised

Below).

(B) Expert Witness Testimony.

POINT III

THE TRIAL COURT ERRED WHEN IT ALLOWED

CO-DEFENDANT'S COUNSEL TO ELICIT

PREJUDICIAL OTHER CRIMES EVIDENCE FROM

[THE UNINDICTED CO-CONSPIRATOR] OVER

DEFENDANT'S OBJECTION.

POINT IV

THE TRIAL COURT PREJUDICIALLY ERRED

WHEN IT GRANTED THE STATE'S MOTION TO

READ INTO THE RECORD CERTAIN

STATEMENTS MADE BY [THE UNINDICTED CO-

CONSPIRATOR] AS PRIOR CONSISTENT

STATEMENTS WHICH SERVED ONLY TO

A-4941-18

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BOLSTER THE STATE'S WITNESS AND THEREBY

ALLOWED IMPERMISSIBLE OTHER CRIMES

EVIDENCE TO BE PRESENTED TO THE JURY.

POINT V

IT WAS REVERSIBLE ERROR WHEN THE TRIAL

COURT FAILED TO PROPERLY VOIR DIRE

JUROR NUMBER 8 AND THE JURY AFTER IT

LEARNED THAT JUROR 8 HAD ALREADY

DECLARED DEFENDANT GUILTY BEFORE

DELIBERATIONS AND HAD BEEN

RESEARCHING ARTICLES ABOUT THE CASE.

POINT VI

THE TRIAL COURT'S INCOMPLETE AND

ERRONEOUS JURY INSTRUCTIONS DENIED

DEFENDANT A FAIR AND RELIABLE TRIAL.

(A) The Trial Court Erred When It Failed

To Instruct The Jury On Attempted Theft.

(Not Raised Below).

(B) The Trial Court Erred When It Failed

To Provide The Jury With A "False-In-

One, False-In-All" Charge.

(C) The Trial Court's Use Of "And/Or"

Language In The Jury Instruction Was

Confusing And Could Have Reasonably

Led The Jury To Non-Unanimous Verdicts.

(Not Raised Below).

(D) The Trial Court Prejudicially Erred In

Its Instruction As To The Burden Of Proof

Related To [The Unindicted Co-

A-4941-18

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Conspirator's] Testimony. (Not Raised

Below).

POINT VII

AS·THERE WAS INSUFFICIENT EVIDENCE TO

PROVE THAT DEFENDANT HAD ENGAGED IN

FIRST-DEGREE WITNESS TAMPERING, THE

TRIAL COURT ERRED WHEN IT DENIED

DEFENDANT'S MOTION FOR A JUDGMENT OF

ACQUITTAL.

POINT VIII

THE TRIAL COURT'S CUMULATIVE ERRORS

DENIED DEFENDANT A FAIR TRIAL. (NOT

RAISED BELOW).

POINT IX

THE SENTENCE IMPOSED WAS MANIFESTLY

EXCESSIVE.

Spraulding raises the following points for our consideration:

POINT I

THE TRIAL COURT’S FAILURE TO CONDUCT

ADEQUATE VOIR DIRE AFTER LEARNING MID-

TRIAL THAT A JUROR HAD ALREADY DECIDED

THAT THE DEFENDANTS WERE GUILTY AND

WAS "GOING TO BURN THEIR ASSES"

REQUIRES REVERSAL OF DEFENDANT'S

CONVICTIONS.

POINT II

A-4941-18

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THE ERRONEOUS EXCLUSION OF A THIRD-

PARTY'S STATEMENTS TAKING

RESPONSIBILITY FOR KILLING THE VICTIM

REQUIRES REVERSAL OF DEFENDANT'S

CONVICTIONS.

POINT III

THE ADMISSION OF IMPROPER LAY AND

EXPERT TESTIMONY REQUIRES REVERSAL.

(NOT RAISED BELOW).

A. Lay Opinion Testimony

B. Expert Opinion Testimony

POINT IV

NUMEROUS JURY INSTRUCTION ERRORS

REQUIRE REVERSAL OF DEFENDANT'S

CONVICTIONS. (NOT RAISED BELOW).

A. The Court Erroneously Failed To

Instruct The Jury On Attempted Theft.

B. The Use of "And/Or" Language Was

Confusing And Could Have Led To Non-

Unanimous Verdicts.

C. The Court Lessened The Burden Of

Proof With Its Instruction on [The

Unindicted Co-Conspirator's] Testimony.

D. The Court Improperly Took "Judicial

Notice" Of An Element of The Certain

Persons Charge.

POINT V

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THE LIFE-TERM SENTENCE IS EXCESSIVE.

Having reviewed the points raised in light of the voluminous record and the

governing legal principles, we affirm the convictions and sentences.

I.

On April 25, 2016, Monmouth County Indictment No. 16-04-718 charged

Byrd, Spraulding, Jean-Baptiste, and Fair with second-degree conspiracy to

commit armed burglary, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:18-2 (count one);

second-degree armed burglary, N.J.S.A. 2C:18-2 (count two); first-degree

armed robbery, N.J.S.A. 2C:15-1 (count three); first-degree felony murder,

N.J.S.A. 2C:11-3(a)(3) (count four); second-degree possession of a weapon for

an unlawful purpose, N.J.S.A. 2C:39-4(a) (count five); and second-degree

unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count six). Count seven

of the indictment charged Byrd and Jean-Baptiste with first-degree witness

tampering, N.J.S.A. 2C:28-5(a); and counts eight and nine separately charged

Byrd and Spraulding with second-degree certain persons not to have weapons,

N.J.S.A. 2C:39-7(b)(1). Elizabeth Pinto was named as an unindicted co-

conspirator in counts one through six. In a separate indictment, No. 18-06-809,

Byrd was charged with an additional count of first-degree witness tampering,

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N.J.S.A. 2C:28-5(a) (count one); and one count of third-degree witness

tampering, N.J.S.A. 2C:28-5(a) (count two).

On November 2, 2017, co-defendant Fair entered a negotiated guilty plea

to count one of Indictment No. 16-04-718 (conspiracy to commit armed

burglary). He was sentenced in accordance with the plea agreement to ten years

in prison, subject to NERA, to be served concurrently with a sentence imposed

on an unrelated indictment. Byrd's, Spraulding's, and Jean-Baptiste's joint jury

trial on counts one through seven of Indictment No. 16-04-718 and counts one

and two of Indictment No. 18-06-809 began on January 17, 2019, and concluded

on March 12, 2019. The State produced forty-one witnesses, including civilians

and law enforcement personnel. Fair did not testify at the trial, but Pinto did.

We glean these facts from the trial record.

In 2008, following her separation from her husband and fellow Red Bank

Middle School teacher, Michael Melton, Jonelle1 was living alone in apartment

208-A in the Brighton Arms apartment complex in Neptune City. Michael

testified that he and Jonelle maintained a good relationship and spoke to each

1

Because of the common surname, we use first names to avoid confusion and

intend no disrespect.

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other daily. On the morning of September 14, 2009, Jonelle did not show up for

work. As a result, the school secretary asked Michael to check on her.

Michael testified that he drove to Jonelle's apartment and went inside

when he found the front door unlocked. Once inside, he found Jonelle

"laying . . . on the floor by the bed," next to a broken table. Believing Jonelle

had fallen and was unconscious, Michael called 911. However, when he

attempted to check Jonelle's pulse, he noticed blood on and around her neck, and

duct tape on her wrist. Michael moved the tape to check her vitals.

Neptune City Police Officer Michael Vollbrecht was the first officer to

respond to the scene. After he examined Jonelle, who was completely

unresponsive and "cold to the touch," he informed Michael that she was dead.

According to Vollbrecht, Jonelle's "bedroom was in disarray. There was

clothing on the floor and small furniture knocked over." Neptune City Police

Sergeants John Rose and Hoover Cano were next to arrive at the scene. Both

Vollbrecht and Cano observed evidence of a struggle and noted that the kitchen

cabinets, refrigerator doors, and living room's sliding glass door "were open."

Monmouth County Prosecutor's Office (MCPO) Detective Shannon

Kavanaugh, who was qualified without objection as an expert in "the field of

crime scene processing" and "fingerprinting" analysis, testified that there was

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"no sign[] of forced entry" at the front door of the apartment, but there was

"blood transfer" near the deadbolt and on the door frame. Kavanaugh said that

the screen was cut from a window in the rear of the apartment, allowing someone

"to pop the lock and open the window . . . without breaking the glass."

Kavanaugh described it as the "point of entry." Underneath the window was a

chair with "a few" "dusty partial footwear impression[s]." A lighter was also

found on the ground by the chair.

Kavanaugh opined that there had been three intruders in Jonelle's

apartment, and "probably two" entered through the window. Kavanaugh

believed "that someone crawled in first," possibly unwittingly dropping the

lighter from a pocket, and "that the chair was then pushed to the window,"

allowing "a second person" to come inside. According to Kavanaugh, "the third

person was let in through the sliding glass door." Noting that "vegetation" and

soil were found in the hallway leading to the bedroom, Kavanaugh opined that

the three intruders encountered Jonelle in her bedroom after entering the

apartment.

Kavanaugh testified that the open kitchen cabinet, refrigerator, and freezer

doors "stood out to [her]" because it appeared as if the intruders "were in there

searching for something." She also noted that many potential valuables,

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including jewelry, a laptop, and a TV, were not taken from the apartment. A

torn latex glove was located under Jonelle's left wrist, and a latex glove was

found behind the rear patio of Jonelle's apartment. There was also "a piece of

used duct tape" on the hallway floor, just outside Jonelle's bedroom. Kavanaugh

commented that there were "tremendous signs of struggle" in the bedroom,

consistent with "the violent nature of what was done to th[e] victim."

Kavanaugh observed overturned furniture, items strewn about, and blood spatter

throughout the bedroom. Kavanaugh believed the intruders "exited through the

front."

An autopsy revealed that Jonelle suffered numerous "blunt force traumatic

injuries" and "sharp force injuries." Her jaw was broken in two places and she

had cuts on her scalp, right temple, above her right ear, and on her cheek and

lips, as well as bruises on both arms, her right leg, and her face. Jonelle was

shot twice, once in the right shoulder and once in the back of the head. The

latter was the fatal shot. The medical examiner estimated that Jonelle died

between 1:00 a.m. and 5:00 a.m. on September 14, 2019.

A witness who lived in the apartment above Jonelle's testified that he woke

up at around 4:00 a.m. on September 14, 2009, when his dog started barking.

He heard "muffled noises," that "sounded like maybe things being moved

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around." He also heard a "metallic clang" that sounded like "a metal object"

being dropped "on the floor." Another neighbor, who lived on the first floor

near Jonelle's apartment, testified that she was awakened that morning when her

two dogs started barking at the rear sliding door around 2:30 or 3:00 a.m. The

witness looked out the sliding doors and saw "a black male" with "[s]hort hair"

wearing "all black clothing" standing "at the corner of the building directly

behind [her] building." She described the man as about twenty-eight to thirty-

one years of age, "anywhere from" 5' 10" to 5' 11" in height, and "solid" in size

but "not by being fat." The witness watched the man standing there for about

fifteen minutes before she left to use the bathroom. When she returned, the man

was gone.

Initially, police investigated Michael, who was the beneficiary of Jonelle's

life insurance policy, as a possible suspect. However, police ruled him out as a

suspect once his alibi that he had not left his girlfriend's house on the night of

the murder was confirmed. Cano, who was the lead Neptune City detective,

further explained that Michael "was very cooperative," "his phone records were

all corroborated," and "he had a good relationship with Jonelle, even though they

were in the process of getting divorced." Police also investigated Jason Davis,

the boyfriend of Jonelle's close friend and co-worker. Davis had called Jonelle

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the night of the murder. However, Cano testified that he also ruled Davis out as

a suspect because there were "no forensics" or "witnesses . . . linking him to the

crime scene," and he remained "cooperative" throughout the investigation.

The case remained unsolved for some time. Eventually, through

investigative leads, law enforcement identified Byrd (a.k.a. "E.B."), Spraulding

(a.k.a. "B. Me"), and Jean-Baptiste (a.k.a. "G.U.") as suspects based on a theory

that they had mistakenly broken into "the wrong apartment" to rob the occupant,

David James, whom they believed was a cash-flush drug dealer. When the

murder occurred in 2009, James, also known as "Munch," was living in

Apartment 206-A with his then-girlfriend, Alicia Stewart, and her son. James

testified that, at the time, he kept sixteen- to twenty-thousand dollars "in a

French toast box" inside a "[s]mall chest freezer" in his "kitchen." At trial,

James denied selling drugs, testifying that he made a living as an independent

tractor trailer truck driver. He stated that he needed large sums of cash "to keep

[his] business running," and that he did not keep the money in a bank to avoid

"child support" seizures.

Sometime around the summer of 2009, James and Stewart broke up.

Stewart had been staying with her friend Raven Alston for about a month, but

went to spend the night at James's apartment when she and Alston had a fight.

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Stewart testified that she found the cash in James's freezer that night while

"snooping around." Later that summer, at a house party at Alston's friend's

house, Stewart told Alston about the money after Alston heard Stewart arguing

on the phone with James and telling James, "if I wanted anything from you, I

know your money [is] in the deep freezer."

Fair, whom Stewart and Alston knew as "Dough Boy," also attended the

house party and later "announced that he heard" Stewart's phone call with James.

According to Stewart, sometime later, she was at her friend Jazmine Aviles's

house when Fair called Aviles to ask where James lived. Aviles also lived in

the Brighton Arms apartment complex. Phone records confirmed Fair's call to

Aviles. After Aviles refused to tell Fair the address, Fair showed up at Alston's

door, asking Alston where Stewart and James lived and "what's up with the

money." Alston described Fair's inquiry as "weird" because he had never come

to her house before. Alston refused to tell Fair where they lived. However, after

Jonelle's murder, Alston asked Fair about the incident because "it just was weird

to [her] that someone would randomly be killed in the Brighton Arms" after Fair

had been "trying to get the address to the house." Alston testified that Fair

denied involvement in Jonelle's murder.

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In 2015, Elizabeth Pinto, Byrd's ex-girlfriend, implicated defendants in

Jonelle's murder and gave law enforcement their biggest break in the case. Pinto

testified that she had met Byrd in 2009 and had dated him for approximately six

months, from around April to October 2009. Pinto said Byrd, Spraulding, and

Jean-Baptiste were friends and all three hung out together "[m]aybe a few times

a week." Pinto testified that police first approached her in January of 2011, at

which time she provided phone numbers for all three defendants, but nothing

else. Investigators met with Pinto again in 2014, and in 2015. During a

December 8, 2015, recorded interview, portions of which were played for the

jury, MCPO Detective Scott Samis read Pinto her Miranda2 rights and told her

that arrests had been made, without specifying who had been arrested. Pinto

then confessed to her involvement in Jonelle's murder and implicated defendants

for the first time. Pinto provided police with more details on December 17,

2015, in another recorded interview that was also played for the jury.

Pinto's trial testimony was generally consistent with her prior

incriminating statements. She recounted that one night "around September

2009," she drove all three defendants to "an apartment complex" "across . . .

[from] a liquor store" to "steal some money . . . that they heard was in an

2

Miranda v. Arizona, 384 U.S. 436 (1966).

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apartment." Pinto testified that all four of them had begun the night at Byrd's

mother's house on Sewall Avenue where Byrd lived. Pinto said defendants were

talking about taking "a large sum of money" from what they described as a "trap

house." According to Pinto, all three defendants were dressed in "all black"

clothing and all three wore "latex gloves" under "black like leather gloves."

Pinto also observed Byrd with a handgun "on his waist."

Pinto testified that all four of them left Byrd's mother's house in a white,

"four-door sedan" that Pinto assumed "was a rental." Pinto drove while Byrd

sat in the front passenger seat and Spraulding and Jean-Baptiste sat "in the back."

One of the men was carrying a backpack. Byrd then directed Pinto where to go.

Pinto admitted knowing that defendants were going to commit a crime and

described her role as the driver. When they reached a liquor store across the

street from an apartment complex, Byrd told her to stop. Pinto recalled that the

area was "dark" and had a lot of trees. The liquor store was closed and there

was no one outside. Pinto stated it was "[v]ery late . . . . [l]ike into the next

day."

Pinto testified that all three defendants "got out [of] the car and went . . .

into the apartment complex." Byrd took Pinto's phone with him. Pinto's phone

had a "walkie-talkie" feature, called "direct connect." Pinto estimated that

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defendants were gone for more than twenty minutes but less than ninety minutes .

During that time, Pinto waited in the car. Defendants then came "[r]unning"

back to the car "in a panic" and "got in the car in a real hurry" with the backpack.

Pinto testified that Byrd "scooted [Pinto] over" and got into the driver's seat ,

while Spraulding and Jean-Baptiste got in the back. Then, they "just took off"

straight ahead, "speeding, like crazy." Spraulding and Jean-Baptiste told Byrd

"that he needed to chill out" because speeding would "draw attention." No one

said anything about what had occurred. When they arrived at Byrd's mother's

house, Pinto got into her own car and went home. Pinto testified that, the next

day, Byrd "looked depressed" and "shut down," and was not his usual "talkative"

self. She also noticed "a little scratch on his face" but conceded on cross-

examination that the first time she had ever mentioned the scratch was in a 2018

interview with police.

In the days following the murder, Pinto said she heard Byrd and

Spraulding talking "about something that maybe would bring problems and that

was hidden," but that was "all [she] heard." Sometime later that fall, Jean-

Baptiste called Pinto and told her "he wanted to meet up." Thereafter, Jean-

Baptiste came to Pinto's house, which he had never done before. While inside

the backseat of a car that was being driven by someone Pinto did not identify,

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Jean-Baptiste told Pinto he was "trying to figure out who was . . . snitching or

something" and told her that "[she] needed to be quiet about anything." Pinto

testified that she took his statement "as a threat," explaining that while Jean-

Baptiste did not make a "[d]irect threat," "[w]hen you tell somebody to be

quiet[,] . . . it means, to be quiet or else."

After Pinto had admitted her involvement and inculpated defendants in

Jonelle's death, on December 17, 2015, Samis drove Pinto around in his car to

retrace her steps on the night of the murder. Pinto first directed Samis to Byrd's

mother's house "where they got ready that night." Because Pinto had trouble

remembering the area, she asked Samis to drive to a hospital she knew so she

could get her bearings. Then, she directed Samis, turn-by-turn, before asking

him to stop when they reached "Munchie's Liquor Store in Neptune City." The

liquor store was located "directly across from Brighton Arms I, II, and III,"

which Samis stated was one of the few "wooded areas" in Neptune City back in

2009.

In January 2016, Pinto entered a negotiated guilty plea to second-degree

conspiracy to commit armed burglary. Pursuant to the terms of the plea

agreement, the State agreed to dismiss several charges against Pinto, including

armed burglary, armed robbery, felony murder, possession of a weapon for an

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unlawful purpose, and unlawful possession of a weapon. The State also agreed

to recommend a prison sentence not to exceed seven years, subject to NERA.

The agreement further provided that the State would "consider amending [the]

charge to a third-degree burglary and w[ould] consider recommending a

sentence of noncustodial probation" if Pinto testified "truthfully against"

defendants in connection with Jonelle's murder. At the time of trial, Pinto had

not spent a day in jail and did not expect to serve any jail time.

According to Pinto, after she pleaded guilty, Byrd's sister, Brianna

Robinson, messaged Pinto from Byrd's Facebook account, told her that Byrd

wanted to talk, and suggested a three-way phone call. Pinto reported the contact

to Samis. She testified that she did not "feel threatened by" Robinson, but that

she "was concerned that [Byrd] was trying to contact" her.

Pinto also testified that back in 2012, Byrd's then-girlfriend Narika Scott

had messaged her on Facebook, asking her to contact Byrd. Scott messaged her

again on September 18, 2013, asking Pinto to call her because she wanted to

visit her. When they spoke over the phone, Scott told Pinto "to just be quiet"

and asked to meet up with her. Pinto decided to ignore Scott, explaining at trial

that she "thought that was weird" and "didn't feel right about it ." Pinto testified

that she understood Scott's "be quiet" statement to mean "be quiet" regarding

A-4941-18

23

"anything pertaining to" Byrd. Pinto later explained that although the

"Facebook chat" with Scott was "neutral," she "felt threatened . . . when [they]

spoke on the phone" and Scott "told [her] don't say nothing. Be quiet ."

Scott had begun dating Byrd around 1999, and continued to do so for

approximately twenty-years while knowing that he dated other women. Scott

testified that she heard about Jonelle's death "around a year after it happened"

when police questioned her about it. A "long time later," she asked Byrd "about

that teacher shooting." Byrd "admitted to [her] about being involved in

something" and said he had been with Pinto, but otherwise gave her "no details ."

Scott met with police again on December 1, 2015, and told them that Byrd had

asked her to say "[h]e was with [her] on [her] birthday," which was September

14.

Scott acknowledged that she had contacted Pinto at Byrd's request and

wanted to meet with her to discuss Byrd. Scott also acknowledged maintaining

contact with Byrd and had visited Byrd in jail on September 24, 2016. Four

days later, on September 28, 2016, Scott received an email rant from Byrd,

stating:

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24

You fucking stupid ass pissy ass fiend, you acting like

I did some other shit. Fuck you stra8 like that. You

done some foul shit N want 2 act like gotta be . . . it's

fucking paper work on your fucking ass that I was going

2 sweep uder the rug, but fuck you . . . I see what it is,

that money not going to last . . . Dropp dead fucker my

lawyer going 2 rep your fucking ass on that stand N the

whole hood going 2 watch . . . Thinking I'm going 2 cop

out . . . You fucking joking, N your dad, he dying real

slow anyway, his life almost over, trying 2 get you 2 go

against me . . . I was the only nigga that ever gave a

flying fuck about you . . . when you was in KINTOC I

was the one who gave a fuck. [3]

Scott testified that after receiving the email, "[she] was hurt." She said the

statement about the "the whole hood" watching her on the stand made her

"uncomfortable." She subsequently received an apologetic email from Byrd.

Nonetheless, on the stand, she stated she was scared about testifying in the case.

Marisol Palermo, who met Spraulding around December of 2009, several

months after the murder, testified that around February of 2010, Spraulding told

her "he had rented a car and his friends took it . . . to Asbury Park" and "some

teacher got murdered, but he had nothing to do with it." Spraulding asked

Palermo "to say that [she] was with him" at the time of the murder if anyone

ever asked her about it.

3

Scott had a lengthy prior criminal record with primarily drug related

convictions and had served time in prison.

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25

Cano testified that he attempted to obtain cell phone records for all three

defendants, but only received records for Byrd's phone number. MCPO

Detective Pamela Smith examined the records for contacts that occurred around

the time of Jonelle's murder. She testified that there was a traditional phone call

between Byrd and Pinto around 7:40 p.m. on September 13, 2009, and another

call between them at 6:14 a.m. on the morning of September 14, 2009. As for

direct connect calls between Byrd and Pinto's phones, beginning around 1:36

a.m. and continuing to approximately 3:04 a.m. on September 14, 2009, there

were multiple calls. The first direct connect communication occurred at 1:36

a.m., the next at 2:38 a.m., followed by communications at 2:40 a.m., 2:41 a.m.,

2:47 a.m., 2:48 a.m., 3:01 a.m., and 3:04 a.m.

Adam Durando, who was qualified as an expert in the field of "radio

frequency engineering," testified that in the early morning hours of September

14, 2009, cell tower records showed that Byrd's cell phone utilized cell site

towers that encompassed the region where the Brighton Arms apartment

complex was located. Durando testified that around the time of Jonelle's murder,

Byrd's phone "was using towers more towards the north of the area," then "used

some towers that were more southerly and then went back up and used towers

that were more north of the area." Durando explained that a cell phone could

A-4941-18

26

ordinarily use a tower up to two-and-a-half miles away, but that a phone would

use the tower that provided the strongest signal, which was "usually" the tower

closest to the phone. Michael Newton, an investigator for the Office of the

Public Defender and the only defense witness, testified that Byrd's mother's

house on Sewall Avenue was located two-and-a-half miles from Jonelle's

apartment.

Initially, law enforcement efforts to retrieve DNA evidence from the

crime scene were unsuccessful as the New Jersey State Police lab had "no

[DNA] hits." DNA testing on the inside of a latex glove found under Jonelle's

body identified only Jonelle's DNA, and the piece of duct tape found in the

hallway identified only Jonelle's DNA. Additionally, the only DNA found under

Jonelle's fingernails was her own. A swab from the lighter found at the crime

scene was also tested with inconclusive results. Ultimately, the decision was

made to send some of the physical evidence from Jonelle's apartment to the New

York City Office of Chief Medical Examiner (New York lab) because they were

"doing a different type of testing . . . called low copy/high template DNA"

testing.

Diana Ho, a criminalist at the New York lab who was qualified as an

expert in forensic and DNA analysis, testified that the New York lab was using

A-4941-18

27

"high sensitivity testing." She explained that the testing "involve[d] the same

four steps" as standard DNA analysis, except that at "every step," "it is enhanced

. . . . so that we can detect the small amounts of DNA." Ho testified that there

was sufficient DNA on the lighter found in Jonelle's apartment to perform a

standard DNA analysis, although Ho also tested the New Jersey lab's swab of

the lighter using the high-sensitivity method. Standard DNA testing of the

lighter identified "a mixture of DNA from at least three people," one of whom

was a "major contributor." After receiving a DNA reference profile for Jean-

Baptiste from the New Jersey lab, Ho identified Jean-Baptiste as the major

contributor of DNA on the lighter. In a 2012 statement to police that was played

for the jury at trial, Jean-Baptiste stated that he smoked "[a] lot of cigarettes"

but denied using lighters of the kind found in Jonelle's apartment, which he

described as cheap, "crackhead lighters."4

In testing other samples provided by the State, Ho identified Michael as a

minor contributor of DNA on the piece of duct tape found in Jonelle's hallway. 5

4

In the same statement, Jean-Baptiste stated he had "hung out" with Fair in the

past, but claimed they were not close.

5

Cano testified that "even though [Michael's] DNA was found in the

apartment," it was not unusual "because he would frequent Jonelle's apartment"

and he had "found [Jonelle's] body."

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28

Ho also tested the latex glove found near Jonelle's patio, and, while she could

not exclude Byrd as a contributor, she determined that it was "1,630 times more

probable" that the DNA came from three unknown persons as opposed to coming

from Byrd and two unknown contributors. Ho testified that "[f]or all the other

samples, [Byrd] was excluded as a contributor." Fair and Davis were also

excluded as contributors from all items tested.

Following deliberations, the jury found all three defendants guilty on

counts one through six of Indictment No. 16-04-718, and Byrd and Jean-Baptiste

guilty on count seven of Indictment No. 16-04-718 charging witness tampering.

The jury also found Byrd guilty of the two additional witness tampering counts

in Indictment No. 18-06-809. The witness tampering count in Indictment No.

16-04-718 pertained to Pinto. Count one of Indictment No. 18-06-809 pertained

to Scott and count two pertained to Pinto. Following a second bifurcated

sequential trial before the same jury, Byrd and Spraulding were also convicted

of the certain person counts contained in counts eight and nine of Indictment

No. 16-04-718, respectively. Subsequently, all three defendants were sentenced.

Conforming judgments of conviction (JOCs) were entered on May 24, 2019, for

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29

Spraulding, June 6, 2019, for Byrd, and June 26, 2019, for Jean-Baptiste.6 These

appeals followed.

II.

All three defendants challenge the trial judge's evidentiary rulings barring

out-of-court statements allegedly incriminating others in the murder and

contradicting Pinto's testimony. Specifically, in Point I, Byrd argues that the

judge abused his discretion and committed reversible error by excluding out-of-

court statements made by Fair taking responsibility for the murder and "acting

with others who were not the defendant or the codefendants." According to

Byrd, "th[e] statements were admissible hearsay as statements against interest"

under N.J.R.E. 803(c)(25), 7 and "exclusion of that third-party-guilt evidence

violated [his] Sixth Amendment right to present a defense, his Fourteenth

Amendment rights to due process and a fair trial, and his corresponding state -

constitutional rights." Jean-Baptiste and Spraulding make the same argument in

Points I and II of their briefs, respectively. Additionally, Jean-Baptiste argues

6

Amended JOCs were entered for Jean-Baptiste and Byrd.

7

Effective July 1, 2024, the exception to hearsay for statements against interest

will be relocated from N.J.R.E. 803(c)(25) to N.J.R.E. 804(b)(3). Sup. Ct. of

N.J., Notice to the Bar: Rules of Evidence – Adoption of Amendments to

N.J.R.E. 803(c)(25) and N.J.R.E. 804(b)(3) (Sept. 15, 2023).

A-4941-18

30

the judge erred by excluding an out-of-court inculpatory statement made by

Fair's associate, Kevin Brown, and by denying "defense counsel's application to

question the lead investigator about Brown's statement."

Byrd moved to admit Fair's out-of-court statements to four witnesses who

then described Fair's statements to police. In the statements, Fair took

responsibility for Jonelle's murder and implicated persons other than defendants

in the crimes. The witnesses were Ciara Williams, Jenay Henderson, Kevin

Clancy, and Kyre Wallace. 8

As to Williams, Fair bragged to her about getting away with Jonelle's

murder. Fair told Williams that he overheard Alicia Stewart "beefing with her

boyfriend Munch" about him "keep[ing] all his money . . . wrapped up in foil in

the freezer" so he and Kevin Brown "followed Munch home one night and that's

how they found out where Munch lived." Fair said when he and Brown returned

"[t]he next night" to rob "Munch," they went to the wrong apartment but "we

wasn't leaving no witnesses." Fair also told Williams that he and Brown had

8

Byrd's attorney did not name the potential witnesses he planned to call at trial.

However, the witnesses and their statements to police were identified in the

State's reply brief to the motion. Although "[b]riefs submitted to the trial court"

are ordinarily prohibited from inclusion in the record on appeal, R. 2:6-1(a)(2),

the briefs contain necessary facts that cannot be found in full elsewhere in the

record and are therefore properly included as "essential to the proper

consideration of the issues." R. 2:6-1(a)(1).

A-4941-18

31

used Jean-Baptiste's car that night and when Jean-Baptiste learned what they

had done, he was angry.

Regarding Henderson, Fair told her that "it was set up as a robbery but

when they went to go rob the apartment it was the wrong apartment" and because

"the lady seen us[,] . . . we had to do what we had to do." Fair did not tell

Henderson who was with him. As to Clancy, Fair admitted to him that he had

been involved in the murder of "a teacher from Red Bank." Fair told Clancy "he

had kicked the door in to rob a drug dealer for two hundred bricks" but "they

kicked in the wrong door and the woman that was in the apartment that they

entered saw all their faces" so they killed her "[e]xecution style." Fair told

Clancy his "baby mother" was "the driver and . . . heard the shot." Fair also

identified his co-conspirators to Clancy by the street names "'G' and 'Heim' or

something with an H."

Finally, Fair told Wallace that he committed a burglary with three men.

Fair said they intended to burglarize David James's apartment to steal money

from his freezer but they broke into the wrong apartment, encountered a lady,

and "fucked her up" when she started screaming and fighting with them. Fair

told Wallace that Darius Long "was the look[-]out and the driver," while Bonnie

Ivory and Kevin Brown "came inside to help search the apartment and 'keep the

A-4941-18

32

lady under control.'" Although Fair acknowledged having a gun, he specifically

denied shooting Jonelle in his statement to Wallace.

In denying Byrd's motion, the judge acknowledged that the defense sought

"to elicit . . . Fair's out of court statements through" the testimony of Henderson,

Williams, Clancy, and Wallace, rather than through the detectives they had

spoken to about Fair's statements. The judge determined the statements were

inadmissible as statements-against-interest, N.J.R.E. 803(c)(25), or any other

hearsay exception, reasoning:

Counsel . . . has failed to demonstrate that Mr. Fair is

unavailable to testify. Counsel . . . has made no proffer

that reasonable means were used to procure Mr. Fair's

attendance at trial. Mr. Fair has not appeared in court

and refused to testify. Counsel . . . may avoid the

hearsay issue entirely by calling Mr. Fair as a defense

witness, where Mr. Fair will be subject to cross-

examination by the State.

....

Mr. Fair's unsworn statements to Ms. Henderson,

Ms. Williams, Mr. Clancy, and Ms. Wallace about his

involvement in [Jonelle's] death are inherently

unreliable. On February 12, 2014, while in custody,

Mr. Fair admitted that he lied to Ms. Williams when he

told her that he killed [Jonelle]. On August 21, 2015,

Mr. Fair told detectives that he may have "taken credit

for the murder . . . to make himself look cool."

Additionally, during Mr. Fair's sworn plea colloquy, he

clearly states that he conspired to commit a burglary

with a gun, but ultimately did not commit the burglary.

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33

Turning to Brown, during direct examination, Samis testified that he met

with Brown, "an associate of" Fair, and was "able to rule [Brown] out" as a

suspect because there was "[n]o DNA evidence, no corroborating witness

statements, nothing linking him to this crime at all, no phone tower hits.

Nothing." Samis specified he did not "look at any evidence that Kevin Brown

was involved in this crime." Counsel for Jean-Baptiste objected, arguing that

Samis had "told a falsehood" and "opened the door" to evidence linking Brown

to Jonelle's murder. Counsel said that a statement by Brown that "he could have

been in the car with James Fair but did not go inside the apartments and needed

some time to think if he was there" was in Samis's report. Counsel argued that

he was offering the statement "not . . . for the truth of the matter asserted," but

"to impeach Detective Samis." The judge ruled that Brown's statement did not

actually contradict Samis's testimony, which "gave specific reasons why

[Brown] was ruled out." The judge concluded that the statement was "hearsay"

and the defense could not impeach Samis with Brown's hearsay statement.

The trial court's determinations on the admissibility of evidence are

reviewed for abuse of discretion. State v. R.Y., 242 N.J. 48, 64 (2020). An

abuse of discretion "arises when a decision is 'made without a rational

explanation, inexplicably departed from established policies, or rested on an

A-4941-18

34

impermissible basis.'" Id. at 65 (quoting Flagg v. Essex Cnty. Prosecutor, 171

N.J. 561, 571 (2002)). Additionally, "[a] trial court's 'discretion is abused when

relevant evidence offered by the defense and necessary for a fair trial is kept

from the jury.'" Ibid. (quoting State v. Cope, 224 N.J. 530, 554-55 (2016)).

Where a defendant seeks to admit evidence of third-party guilt, the court

must determine, first, whether the evidence has "'a rational tendency to engender

a reasonable doubt with respect to an essential feature of the State's case.'" Id.

at 66 (quoting State v. Fortin, 178 N.J. 540, 591 (2004)). This "liberal" standard,

State v. Koedatich, 112 N.J. 225, 302 (1988), is intended to prevent conjectural

or "'unsupported claims [from] infect[ing] the process,'" R.Y., 242 N.J. at 66

(quoting State v. Loftin, 146 N.J. 295, 345 (1996)).

The standard only requires that the evidence is "'capable of demonstrating

"some link between the [third-party] evidence and the victim or the crime,"'" or

that the evidence creates the "'possibility of reasonable doubt.'" Id. at 66-67

(alteration in original) (quoting State v. Perry, 225 N.J. 222, 238-39 (2016)).

"Put another way, '[s]omewhere in the total circumstances there must be some

thread capable of inducing reasonable men to regard the event as bearing upon

the State's case.'" Id. at 67 (alteration in original) (quoting State v. Sturdivant,

31 N.J. 165, 179 (1959)).

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35

For example, our Supreme Court has held that a "person who confesses to

the crime of which the defendant is accused should not be barred from the

witness stand" unless "the confessor's claim is so patently false because it was

impossible for him to have committed the crime," such as if the confessor was

unquestionably incarcerated when the crime occurred. Cope, 224 N.J. at 555.

If the defendant's third-party guilt evidence creates the possibility of reasonable

doubt, the court must then "determine whether it would be admissible under the

New Jersey Rules of Evidence." R.Y., 242 N.J. at 69.

"Hearsay," an out-of-court statement "offer[ed] in evidence to prove the

truth of the matter asserted in the statement," N.J.R.E. 801(c)(2), is inadmissible

unless it falls within an exception provided by the rules of evidence or other law.

N.J.R.E. 802. While hearsay evidence is generally "considered untrustworthy

and unreliable," exceptions exist where "the circumstances under which the

statements were made provide strong indicia of reliability." State v. Nevius, 426

N.J. Super. 379, 393 (App. Div. 2012) (quoting State v. Phelps, 96 N.J. 500, 508

(1984)).

N.J.R.E. 803(c)(25) exempts from the rule against hearsay a "statement

against interest," defined as follows:

A statement which was at the time of its making so far

contrary to the declarant’s pecuniary, proprietary, or

A-4941-18

36

social interest, or so far tended to subject declarant to

civil or criminal liability, or to render invalid

declarant’s claim against another, that a reasonable

person in declarant’s position would not have made the

statement unless the person believed it to be true.

"[T]he test of admissibility under N.J.R.E. 803(c)(25) is 'whether, in the

context of the whole statement, the particular remark was plausibly against the

declarant's penal interest, even though it might be neutral or even self-serving if

considered alone[.]'" Rowe v. Bell & Gossett Co., 239 N.J. 531, 559 (2019)

(quoting Nevius, 426 N.J. Super. at 394). "[S]tatements that so disserve the

declarant are deemed inherently trustworthy and reliable" based on "the theory

that, by human nature, individuals will neither assert, concede, nor admit to facts

that would affect them unfavorably." Id. at 558 (quoting State v. Brown, 170

N.J. 138, 148-49 (2001)). However, other portions of a declarant's statement

that are exculpatory of a defendant will be inadmissible if those portions "do not

expose the declarant to criminal liability." Nevius, 426 N.J. Super. at 395.

"Nevertheless, the entire statement may be admissible 'if the exculpatory

portions strengthen the incriminating effect of the inculpatory portions.'" Ibid.

(quoting Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, cmt. 6 on

N.J.R.E. 803(c)(25) (2011)).

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37

"Admission of a statement under N.J.R.E. 803(c)(25) is not contingent on

a showing of 'extrinsic circumstances bearing on the general reliability or

trustworthiness of the declarant's statement[.]'" Rowe, 239 N.J. at 558 (quoting

State v. White, 158 N.J. 230, 240 (1999)). Admissibility "must be determined

on 'a statement's self-incriminating character' alone." State v. Williams, 169

N.J. 349, 359 (2001) (quoting White, 158 N.J. at 240). Extrinsic circumstances

of reliability, "such as the fact that the [declarant] . . . could have been engaging

in a 'show of bravado'" by making a statement against interest, "pertain solely

to the weight given to the statement" by the jury. Id. at 361.

Here, we conclude that Fair's out-of-court statements satisfy the standard

for the admission of third-party guilt evidence and the judge's decision to

exclude them constituted a mistaken exercise of discretion. As confessions to

burglary and murder, Fair's alleged statements exposed him to criminal liability

and thereby qualified as statements against interest within the meaning of

N.J.R.E. 803(c)(25). Contrary to the judge's ruling, a statement against interest

is admissible "'even though the declarant does not testify at trial'" and was not

shown to be unavailable by the party offering the declarant's statement. Rowe,

239 N.J. at 558 (quoting Hill v. N.J. Dep't of Corr. Comm'r Fauver, 342 N.J.

Super. 273, 301 (App. Div. 2001)).

A-4941-18

38

The judge's second basis for excluding Fair's out-of-court statements, that

they were "inherently unreliable" because Fair recanted and explained he was

trying "to make himself look cool," was equally improper. As statements against

his penal interest, Fair's confessions are "'deemed inherently trustworthy and

reliable.'" Rowe, 239 N.J. at 558 (quoting Brown, 170 N.J. at 149). The

statements' "'self-incriminating character'" is the sole deciding factor to their

admissibility under N.J.R.E. 803(c)(25). Williams, 169 N.J. at 359 (quoting

White, 158 N.J. at 240). By contrast, Fair's subsequent statements to police and

in his plea colloquy were "extrinsic circumstances" of reliability that

"pertain[ed] solely to the weight" of his confessions once admitted. Id. at 361.

Next, we turn to the judge's decision denying counsel for Jean-Baptiste

the opportunity to impeach Samis's credibility using Brown's statement from his

report. Counsel sought to introduce the statement to impeach Samis's

credibility, not as substantive evidence or for "the truth of the matter asserted in

the statement." N.J.R.E. 801(c)(2). "A prior inconsistent statement may . . . be

used to attack the credibility of a witness." Parker v. Poole, 440 N.J. Super. 7,

22 (App. Div. 2015) (citing N.J.R.E. 607). A prior inconsistent statement is one

that "contradict[s] or call[s] into question the [declarant's] version of events as

recounted at trial." State v. Burris, 145 N.J. 509, 535 (1996). Extrinsic evidence

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39

of a prior inconsistent statement may be excluded if the "party seeking to

impeach a witness with a prior inconsistent statement [does not] afford that

witness 'an opportunity to explain or deny the statement.'" State v. Williams,

184 N.J. 432, 452 (2005) (quoting N.J.R.E. 613(b)).

The judge denied the defense an opportunity to impeach Samis with his

report, explaining that it was not inconsistent with Samis's testimony because

Samis gave "specific reasons why" Brown was ruled out as a suspect .

Irrespective of the fact that Samis gave "specific reasons why" Brown was ruled

out as a suspect, Samis testified that he did not "look at any evidence that Kevin

Brown was involved in this crime" and that there was "nothing linking [Brown]

to th[e] crime at all." This testimony went beyond explaining why Brown was

ruled out as a suspect and gave the impression that there was absolutely no

reason to suspect Brown. At a minimum, Samis's prior statement that Brown

admitted he "could have been in the car" called this testimony "into question."

Burris, 145 N.J. at 535. Therefore, we are persuaded that the judge's ruling

denying the defense an opportunity to impeach Samis with his report was a

mistaken exercise of discretion.

Notwithstanding the erroneous evidentiary rulings, our inquiry does not

end there. We must next determine whether the error was harmless. To

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40

determine whether an erroneous evidentiary ruling constitutes harmless error,

the relevant inquiry is whether the purported error "'is of such a nature as to have

been clearly capable of producing an unjust result.'" R.Y., 242 N.J. at 71

(quoting R. 2:10-2). "[T]he harmless-error standard . . . requires that there be

'some degree of possibility that [the error] led to an unjust result.'" State v.

Ingram, 196 N.J. 23, 49 (2008) (second alteration in original) (quoting State v.

R.B., 183 N.J. 308, 330 (2005)).

"'The possibility must be real, one sufficient to raise a reasonable doubt

as to whether [it] led the jury to a verdict it otherwise might not have reached. '"

R.B., 183 N.J. at 330 (alteration in original) (quoting State v. Bankston, 63 N.J.

263, 273 (1973)). To that end, "we consider the importance of [excluded]

testimony in the broader context of defendant's trial." State v. Bass, 224 N.J.

285, 308 (2016). As such, any error will be found "harmless" where "the

evidence against [the] defendant [is] . . . overwhelming." State v. Trinidad, 241

N.J. 425, 433 (2020); see, e.g., State v. Hightower, 120 N.J. 378, 410 (1990)

(holding officer's testimony that defendant "was the person responsible for the

murder" was harmless error because of "the strength of the State's case, the

length of the trial, and the number of witnesses called").

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41

Here, given the substantial evidence of guilt and the importance of the

excluded testimony in the context of the trial, we are satisfied the erroneous

evidentiary rulings were harmless. Although defendants' third-party guilt

evidence was more than "mere conjecture," Sturdivant, 31 N.J. at 179, it did not

have a clear capacity to change the verdict because the evidence was weak.

Fair's alleged statements were inconsistent with each other and implicated

different accomplices. For example, in one statement, he said he shot Jonelle,

but in another, he said no one shot her. Also, in one statement, he said his child's

mother was the driver while in another, he said a man named Darius Long was

the driver. Additionally, Fair's statement to Clancy that "they kicked in the"

door to Jonelle's apartment was inconsistent with the physical evidence showing

no forced entry. As for Brown's statement in Samis's report, an attack on Samis's

credibility using the report was unlikely to damage Samis's credibility in any

meaningful way because it did not directly undercut Samis's testimony that

Brown was ruled out for a variety of well-founded reasons. Moreover, Samis's

testimony about Brown was not critical to the State's case.

On the other hand, the State presented powerful evidence of defendants'

guilt. Pinto's account implicating defendants was corroborated by Jean-

Baptiste's DNA found on a lighter beneath the point of entry in Jonelle's

A-4941-18

42

apartment, cell tower data showing Byrd's phone connecting with towers closer

to Jonelle's apartment around the time of the murder, phone records showing

several direct-connect calls with Pinto's phone which was in Byrd's possession

at the relevant times, and a neighbor's observation of a man standing behind the

building wearing all black clothing at the time in question. Pinto's account was

further corroborated by James's testimony that he kept sixteen- to twenty-

thousand dollars in his freezer, and evidence that Fair, whom Jean-Baptiste

admitted knowing, had overheard James's girlfriend talking about the money and

had inquired about James's address. The State also produced powerful

consciousness of guilt evidence for all three defendants through the testimony

of Pinto, Scott, and Palermo.

III.

In Point II of his brief, Byrd argues that the judge abused his discretion in

admitting improper expert opinion testimony from Kavanaugh, and improper lay

opinion testimony from Cano, Samis, and MCPO Lieutenant Donna Morgan.

Byrd asserts that "[b]ecause the expert and non-expert opinion testimony was

offering an opinion on the ultimate issue in the case on a matter not beyond the

ken of the average juror, it was improper under N.J.R.E. 701 and N.J.R.E. 702."

Jean-Baptiste and Spraulding present substantially similar arguments in Points

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43

II and III of their briefs, respectively. They contend that Kavanaugh's opinions

about the number of perpetrators and manner of entry into Jonelle's apartment

had no factual support and impinged on matters the jury was equally capable of

evaluating. Further, they argue the lay opinion testimony of Cano and Samis

that they ruled out three people as suspects, and testimony by Morgan explaining

the State's theory of the case at length invaded the fact-finding province of the

jury, improperly bolstered the State's theory of the case, and "decimated" the

defense theory of third-party guilt.

Because defendants raise these issues for the first time on appeal, we

review for plain error. State v. Clark, 251 N.J. 266, 286-87 (2022).

Under that standard, an unchallenged error constitutes

plain error if it was "clearly capable of producing an

unjust result." The possibility of an unjust result must

be "sufficient to raise a reasonable doubt as to whether

the error led the jury to a result it otherwise might not

have reached."

[Id. at 287 (citations omitted) (first quoting R. 2:10-2;

and then quoting State v. Melvin, 65 N.J. 1, 18-19

(1974)).]

"Plain error is a high bar and constitutes 'error not properly preserved for

appeal but of a magnitude dictating appellate consideration.'" State v.

Santamaria, 236 N.J. 390, 404 (2019) (quoting State v. Bueso, 225 N.J. 193, 202

(2016)). "To determine whether an alleged error rises to the level of plain error,

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it 'must be evaluated "in light of the overall strength of the State's case."'" Clark,

251 N.J. at 287 (quoting State v. Sanchez-Medina, 231 N.J. 452, 468 (2018)).

Indeed, "a guilty verdict following a fair trial and 'based on strong evidence

proving guilt beyond a reasonable doubt[ ] should not be reversed because of a

technical or evidentiary error that cannot have truly prejudiced the defendant or

affected the end result.'" State v. Cotto, 471 N.J. Super. 489, 537 (App. Div.

2022) (alteration in original) (quoting State v. J.R., 227 N.J. 393, 417 (2017)).

The admissibility of expert testimony is governed by N.J.R.E. 702, which

provides:

If scientific, technical, or other specialized

knowledge will assist the trier of fact to understand the

evidence or to determine a fact in issue, a witness

qualified as an expert by knowledge, skill, experience,

training, or education may testify thereto in the form of

an opinion or otherwise.

The Rule imposes three requirements for the qualification of an expert and

the admission of his or her testimony:

(1) the intended testimony must concern a subject

matter that is beyond the ken of the average juror; (2)

the field testified to must be at a state of the art such

that an expert's testimony could be sufficiently reliable;

and (3) the witness must have sufficient expertise to

offer the intended testimony.

[State v. Jenewicz, 193 N.J. 440, 454 (2008).]

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"Under the Rule, expert testimony is not appropriate to explain what a jury

can understand by itself." State v. J.L.G., 234 N.J. 265, 305 (2018). "Matters

'within the competence of the jury' are for the collective wisdom of the jury to

assess," while "issues that are beyond the understanding of the average juror

may call for expert evidence." Ibid. (quoting State v. Sowell, 213 N.J. 89, 99

(2013)). All three of N.J.R.E. 702's "requirements are construed liberally in

light of [the Rule's] tilt in favor of the admissibility of expert testimony."

Jenewicz, 193 N.J. at 454 (citing State v. Berry, 140 N.J. 280, 290-93 (1995)).

Nonetheless, even if qualified under N.J.R.E. 702, an expert is not

permitted to tender an opinion that is "not supported by factual evidence or other

data." State v. Townsend, 186 N.J. 473, 494 (2006). N.J.R.E. 703 requires that

expert opinion be grounded in

"facts or data derived from (1) the expert's personal

observations, or (2) evidence admitted at the trial, or (3)

data relied upon by the expert which is not necessarily

admissible in evidence but which is the type of data

normally relied upon by experts in forming opinions on

the same subject."

[Ibid. (quoting Richard Biunno, New Jersey Rules of

Evidence 896 (2005)).]

The "net opinion" rule, a corollary of N.J.R.E. 703, "requires an expert to

give the why and wherefore of his or her opinion, rather than a mere conclusion."

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Ibid. (quoting Rosenberg v. Tavorath, 352 N.J. Super. 385, 401 (App. Div.

2002)). While a conclusion "based merely on unfounded speculation and

unquantified possibilities" must be excluded, failure "'to account for some

particular condition or fact which the adversary considers relevant'" or "'give

weight to a factor thought important by an adverse party'" may be "a proper

'subject of exploration and cross-examination at a trial'" but is not a basis for

exclusion. Townsend v. Pierre, 221 N.J. 36, 54-55 (2015) (first quoting Grzanka

v. Pfeifer, 301 N.J. Super. 563, 580 (App. Div. 1997); then quoting Creanga v.

Jardal, 185 N.J. 345, 360 (2005); and then quoting Rosenberg, 352 N.J. Super.

at 402).

Under N.J.R.E. 701, lay witnesses may give relevant opinion testimony if

that opinion "(a) is rationally based on the perception of the witness and (b) will

assist in understanding the witness' testimony or in determining a fact in issue."

State v. McLean, 205 N.J. 438, 456 (2011) (quoting N.J.R.E. 701). To satisfy

the first condition, the "witness must have actual knowledge, acquired through

his or her senses, of the matter to which he or she testifies." State v. Sanchez,

247 N.J. 450, 466 (2021) (quoting State v. LaBrutto, 114 N.J. 187, 197 (1989)).

The second condition limits lay testimony only to that which will "assist the trier

of fact either by helping to explain the witness's testimony or by shedding light

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on the determination of a disputed factual issue." Id. at 469 (quoting State v.

Singh, 245 N.J. 1, 15 (2021)).

The first element "rests on the acquisition of knowledge through use of

one's sense of touch, taste, sight, smell or hearing." McLean, 205 N.J. at 457.

Thus, knowledge based "on the hearsay statements of others" does not satisfy

the first element. Sanchez, 247 N.J. at 469. The second element precludes "lay

opinion on a matter 'as to which the jury is as competent as [the witness] to form

a conclusion.'" Id. at 469-70 (alteration in original) (quoting McLean, 205 N.J.

at 459).

Neither lay nor expert opinion testimony is "a vehicle for offering the view

of the witness about a series of facts that the jury can evaluate for itself or an

opportunity to express a view on guilt or innocence." McLean, 205 N.J. at 462.

In State v. Frisby, 174 N.J. 583, 588 (2002), police investigated parents for the

death of their infant son. The mother and father gave conflicting accounts of

who was responsible for the child's care the night he died. Id. at 588-89. Police

charged the mother and testified at her trial regarding their decision to arrest her

and not the father. Id. at 590. In particular, the officers explained that they

thought the father was more credible, and relayed hearsay from non-testifying

witnesses that verified the father's alibi. Id. at 591-92. The officers went so far

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as to tell the jury directly that the hearsay statements "substantiated" the father's

testimony. Id. at 595.

The Court held that admission of the officers' testimony was error,

reasoning that the testimony regarding the father's credibility "'irresistibly'

implicated" the mother "by 'necessary inference.'" Id. at 593-96 (quoting State

v. Roach, 146 N.J. 208, 224-25 (1996)). The Court explained that such

testimony is, like a direct commentary on guilt, improper, and that "the mere

assessment of another witness's credibility is prohibited." Id. at 594. Moreover,

because the evidence against the mother was scant, the Court concluded that

"[a]ny improper influence on the jury that could have tipped the credibility scale

was necessarily harmful and warrant[ed] reversal." Id. at 596.

Here, Kavanaugh was qualified as an expert in "the field of crime scene

processing" and "fingerprinting" analysis. Her qualifications were not

challenged at trial or now on appeal. Nor do defendants dispute that crime scene

analysis is "beyond the ken of the average juror." Jenewicz, 193 N.J. at 454.

Kavanaugh opined that there were three intruders, and the initial point of entry

was a window that had the screen cut out. She testified that the rear sliding door

and front door were found open, but with no signs of forced entry. There was

dirt on the floor by the sliding glass door, and the front door had blood on it,

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suggesting, in Kavanaugh's opinion, that the perpetrators exited through the

front door after killing Jonelle.

According to Kavanaugh, immediately under the window was a chair with

partial footprints on it. Kavanaugh described the chair as a "café chair" and

testified that there was a "café table" in the kitchen, suggesting that an intruder

had moved the chair from the table to the window. Kavanaugh's conclusion that

there were three intruders, one who crawled through the window and moved the

chair to assist a second person who went through the window and stepped on the

chair, and a third who was let in through the sliding door, was a logical

explanation for there being two apparent points of entry and for the position of

the chair.

We therefore reject defendants' arguments that Kavanaugh's opinions

were not grounded in facts presented at trial. On the contrary, Kavanaugh's

opinions, for which she gave the "'why and wherefore,'" Townsend, 186 N.J. at

494 (quoting Rosenberg, 352 N.J. Super. at 401), were based on facts in

evidence, not speculation. Equally unpersuasive are defendants' contentions

that Kavanaugh's opinions explained what the jury could understand for itself.

Kavanaugh, having specialized knowledge of crime scene analysis, offered an

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opinion that could "assist the trier of fact to understand the evidence." N.J.R.E.

702.

Turning to defendants' challenge to lay opinion testimony provided by

Cano, Samis, and Morgan, all law enforcement personnel assigned to work on

the case, Cano testified he was able to rule Michael out as a suspect, explaining:

During the investigation, [Michael] was very

cooperative, especially in the beginning of the

investigation. He provided his DNA. His statement[

and] his phone records were all corroborated. We also

know that . . . he did not leave [his girlfriend's]

apartment the night of the homicide, and we also know

that he had a good relationship with Jonelle, even

though they were in the process of getting divorced,

they still had a good relationship, they were still being

intimate; and also they had a good working

relationship, and even though his DNA was found in

the apartment, . . . it's not uncommon because he would

frequent Jonelle's apartment. And also he found

Jonelle's body and . . . called us for help, so he was there

that day. So there's no motive for him to do anything

like that to Jonelle.

Cano provided similar testimony regarding Davis, stating he was "able to

rule [Davis] out as a suspect" because "[t]here was no forensics, no witnesses,

there was nothing linking him to the crime scene, and throughout the

investigation, he stayed very cooperative." Likewise, Samis testified he was

"able to rule [Brown] out" as a suspect because there was "[n]o DNA evidence,

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no corroborating witness statements, nothing linking him to this crime at all, no

phone tower hits. Nothing."

As to Morgan, Jean-Baptiste's attorney asked her on cross-examination if

she knew "the theory of this case" and she replied "yes." On re-direct, the

prosecutor asked Morgan "[w]hat is the State's theory?" While not specifically

mentioning defendants, Morgan proceeded to explain the State's theory at length

and in great detail. Her explanation included, among other things, the State's

claim that "several gentlemen broke into [Jonelle's] apartment by mistake

thinking they were hitting an apartment several doors down," that one person

entered through Jonelle's window and "push[ed] the chair over" "[t]o make it

easier for the second person" to climb through, and that the perpetrators left the

apartment through "[t]he front door." Morgan testified that the State's theory

was "consistent" with the physical evidence as well as "the forensic evidence."

We agree with defendants that all three officers gave improper lay opinion

testimony that usurped the role of the jurors. Although the officers were

explaining their investigation, "[m]uch of the material which is developed

during the course of an investigation is inadmissible at a trial. It may consist of

hearsay, suspicion, innuendo or opinion. Such material may serve a valuable

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investigatory purpose and yet not be admissible at a trial." State v. Kearney,

109 N.J. Super. 502, 506 (Law Div. 1970).

All three officers improperly offered their opinions "on the meaning of

facts that the jury [was] fully able to sort out." McLean, 205 N.J. at 461. Lay

opinion testimony is not "a vehicle for offering the view of the witness about a

series of facts that the jury can evaluate for itself." Id. at 462. Further, the

officers' knowledge was based in part "on the hearsay statements of others,"

which does not satisfy the first element of N.J.R.E. 701. Sanchez, 247 N.J. at

469.

Although several of the witnesses whose pre-trial statements establishing

the foundation for the officers' conclusions testified at trial, the fact that a

witness testifies at trial "does not render admissible [his or her] hearsay

statements." Neno v. Clinton, 167 N.J. 573, 581 (2001).

[A] police officer cannot provide an opinion at trial

when that opinion is based primarily on the statements

of eyewitnesses. Any other conclusion would allow an

officer to subvert the prohibition against hearsay and

pass along the essence of those hearsay statements to

the jury even when the officer is not permitted to testify

to the substance of the witness's statements under the

hearsay rule. Further, the fact that those statements

were the basis for [the officer's] lay opinion will not

render them admissible because to do so would defeat

the purpose of the hearsay rule. The purpose of

N.J.R.E. 701 is to ensure that lay opinion is based on an

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adequate foundation. A lay witness's opinion cannot

rely on the inadequate support of inadmissible hearsay

without the benefit of an exception. Consequently, a

police officer cannot advance an opinion when it is

primarily based on the hearsay statement of an

eyewitness.

[Id. at 585.]

In addition, in endorsing as true statements that were repeated at trial, Cano and

Morgan effectively gave an impermissible "assessment of another witness's

credibility." Frisby, 174 N.J. at 594.

Although admission of the testimony was erroneous, it did not have a clear

capacity to produce an unjust result. See R. 2:10-2. As previously explained,

the State's evidence against defendants was substantial. Also, much of the

evidence relied upon by Cano and Morgan to form their opinions was properly

admitted at trial through other competent sources. Therefore, we conclude the

error does not rise to the level of plain error.

IV.

Defendants assert numerous jury instruction errors in their briefs. In Point

III of his brief, Byrd argues: (1) the jury instructions for robbery erroneously

omitted an explanation of attempted theft; (2) the judge's use of "and/or"

language in multiple instructions allowed for a non-unanimous verdict; (3) the

judge erred in instructing the jury that it could convict defendants based on

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Pinto's "testimony alone"; and (4) the judge erroneously omitted an instruction

on accomplice liability from his instruction on witness tampering. These issues

were not raised at trial. Jean-Baptiste and Spraulding raise some of the same

issues as well as additional ones in Points VI and IV of their briefs, respectively.

Jean-Baptiste argues that the judge erred in denying defendants' request for a

"false-in-one, false-in-all" charge, while Spraulding argues the judge erred by

taking "judicial notice" that "possession of [controlled dangerous substances

(CDS) was] a predicate offense" in his instruction to the jury in the sequential

trial on the certain persons count.

"Appropriate and proper charges to a jury are essential for a fair trial."

State v. Lora, 465 N.J. Super. 477, 501 (App. Div. 2020) (quoting State v. Green,

86 N.J. 281, 287 (1981)). "Jury charges must provide a 'comprehensible

explanation of the questions that the jury must determine, including the law of

the case applicable to the facts that the jury may find.'" State v. Singleton, 211

N.J. 157, 181-82 (2012) (quoting Green, 86 N.J. at 287-88).

If a defendant does not object when a charge is given, "there is a

presumption that the charge was not error and was unlikely to prejudice the

defendant's case." State v. Montalvo, 229 N.J. 300, 320 (2017) (quoting

Singleton, 211 N.J. at 182). When there is no objection, we review for plain

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error and "disregard any alleged error 'unless it is of such a nature as to have

been clearly capable of producing an unjust result.'" State v. Funderburg, 225

N.J. 66, 79 (2016) (quoting R. 2:10-2); see State v. Adams, 194 N.J. 186, 206-

07 (2008) ("Generally, a defendant waives the right to contest an instruction on

appeal if he does not object to the instructions as required by Rule 1:7-2.").

Plain error in a jury charge is "[l]egal impropriety in the charge

prejudicially affecting the substantial rights of the defendant [and] sufficiently

grievous to justify notice by the reviewing court and to convince the court that

of itself the error possessed a clear capacity to bring about an unjust result."

State v. Camacho, 218 N.J. 533, 554 (2014) (first alteration in original) (quoting

Adams, 194 N.J. at 207). "Nevertheless, because clear and correct jury

instructions are fundamental to a fair trial, erroneous instructions in a criminal

case are 'poor candidates for rehabilitation under the plain error theory.'"

Adams, 194 N.J. at 207 (quoting State v. Jordan, 147 N.J. 409, 422 (1997)).

To determine whether there was error in a jury charge, "[t]he charge must

be read as a whole." State v. Torres, 183 N.J. 554, 564 (2005) (citing Jordan,

147 N.J. at 422). We "must not look at portions of the charge alleged to be

erroneous in isolation; rather, 'the charge should be examined as a whole to

determine its overall effect,' and 'whether the challenged language was

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misleading or ambiguous.'" State v. McKinney, 223 N.J. 475, 494 (2015)

(internal citations omitted) (first quoting Jordan, 147 N.J. at 422; and then

quoting State v. Nelson, 173 N.J. 417, 447 (2002)).

In addition, the error "must be evaluated in light 'of the overall strength of

the State's case.'" State v. Walker, 203 N.J. 73, 90 (2010) (quoting State v.

Chapland, 187 N.J. 275, 289 (2006)).

We note also that, "[a]lthough arguments of counsel can

by no means serve as a substitute for instruction by the

court, the prejudicial effect of an omitted instruction

must be evaluated in light of the totality of the

circumstances—including all the instructions to the

jury, [and] the arguments of counsel."

[Adams, 194 N.J. at 207 (alterations in original)

(quoting State v. Marshall, 123 N.J. 1, 145 (1991)).]

Byrd argues that although "the judge initially correctly noted that a mere

attempted theft will suffice as the theft element of a robbery, he never defined

as part of either robbery instruction the mens rea or actus reus necessary to

constitute a criminal attempted theft under N.J.S.A. 2C:5-1." Jean-Baptiste and

Spraulding make the same argument.

The crime of robbery includes attempted theft. A

person commits robbery if "in the course of committing

a theft" the person inflicts bodily injury or uses force

upon another, threatens another with or purposely puts

the other in fear of immediate bodily injury, or commits

or threatens immediately to commit a crime of the first

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or second degree. N.J.S.A. 2C:15-1(a)(1)-(3). An act

is "deemed . . . included . . . 'in the course of committing

a theft' if it occurs in an attempt to commit theft or in

immediate flight after the attempt or commission."

N.J.S.A. 2C:15-1(a)(3).

[State v. Dehart, 430 N.J. Super. 108, 116-17 (App.

Div. 2013) (omissions in original).]

A person is guilty of an attempt to commit a crime "if, acting with the kind

of culpability otherwise required for commission of the crime," the person

"[p]urposely does . . . anything which, under the circumstances as a reasonable

person would believe them to be, is an act . . . constituting a substantial step in

a course of conduct planned to culminate in his commission of the crime."

N.J.S.A. 2C:5-1(a)(3). To prove criminal attempt, "[t]he State is tasked with

proving both a criminal purpose and a substantial step toward the commission

of the crime." State v. Jones, 242 N.J. 156, 169 (2020) (citing State v. Perez,

177 N.J. 540, 553 (2003)).

In Dehart, we held that where a defendant is charged with robbery and

"there [is] no evidence of an actual [completed] theft, the court [is] required to

instruct the jury on the law of attempt as an element of robbery." 430 N.J. Super.

at 119. We concluded a trial court's failure "to instruct the jury on the elements

of attempt" where there was "no competent evidence [the] defendant took

anything from" the victim was plain error. Id. at 120. Likewise, in State v.

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Gonzalez, we found the omission of an attempt charge as an element of robbery,

or any definition of attempt anywhere in the charge, to be plain error where "the

State was unable to offer any evidence that the victim . . . was actually robbed."

318 N.J. Super. 527, 532-33 (App. Div. 1999).

Conversely, in State v. Smith, 322 N.J. Super. 385, 399 (App. Div. 1999),

we concluded that a trial court's failure to define attempt in a jury charge on

robbery was not plain error where the court "instructed the jury on the elements

of attempt" elsewhere in the jury instructions. We reasoned that "the appearance

elsewhere in the jury instructions of a proper charge on attempt," "coupled with

the overwhelming evidence of [the] defendant's guilt," including the defendant's

own testimony he helped plan and carry out the robbery, left "no doubt that the

failure to define attempt in the robbery charge did not prejudice [the] defendant's

rights." Id. at 400. We distinguished Gonzalez on the ground that "there was

no definition of attempt anywhere in the charge." Smith, 322 N.J. Super. at 399

(citing Gonzalez, 318 N.J. Super. at 536).

Here, the judge's instruction on robbery included an explanation that the

State was required to prove defendant "was in the course of committing a theft."

Although the judge instructed the jurors that "an act is considered to be in the

course of committing a theft if it occurs in an attempt to commit the theft," at

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that juncture, the judge did not define criminal attempt. However, earlier in the

instructions, the judge defined "attempt" in the context of accomplice liability

as follows:

Attempt to aid means that a person takes substantial

steps in the course of conduct designed to or planned to

lend support or assistance in the efforts of another to

cause the commission of a substantive offense.

If you find that the defendant Jean-Baptiste, with

the purpose of promoting or facilitating the commission

of the offenses, solicited defendants Byrd and/or

Spraulding to commit the crimes and/or aided or agreed

or attempted to aid Byrd and/or Spraulding in planning

or committing them, then you should consider him as if

he committed the crimes himself.

Thus, as in Smith, 322 N.J. Super. at 399-400, a proper instruction on

attempt appeared elsewhere in the jury charge. Indeed, "during an explanation

of the law relating to another offense, . . . the judge fully and accurately

instructed the jury on the elements of attempt." Id. at 399. Given the substantial

evidence of defendants' guilt "and the appearance elsewhere in the jury

instructions of a proper charge on attempt, we have no doubt that the failure to

define attempt in the robbery charge did not prejudice defendant[s'] rights." Id.

at 400.

Next, Byrd argues the judge's use of "and/or" language in his instructions

on felony murder, accomplice liability, and possession of a weapon for an

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unlawful purpose each allowed for a non-unanimous verdict. Jean-Baptiste

makes identical arguments, and Spraulding joins the challenge to the accomplice

liability charge.

"Our Constitution presupposes a requirement of a unanimous jury verdict

in criminal cases." State v. Parker, 124 N.J. 628, 633 (1991) (citing N.J. Const.

art. I, ¶ 9). Rule 1:8-9 likewise requires unanimity "in all criminal actions."

"[U]nanimity requires 'jurors to be in substantial agreement as to just what a

defendant did' before determining his or her guilt or innocence." Frisby, 174

N.J. at 596 (quoting United States v. Gipson, 553 F.2d 453, 457 (5th Cir. 1977)).

However, "jurors need not always be unanimous on the theory of guilt, provided

they are unanimous in the finding of guilt of the offense charged." State v.

Harris, 141 N.J. 525, 562 (1995). Thus, courts have held "that a jury does not

have to agree unanimously on whether a defendant has acted as a principal or an

accomplice" or as to which of several ways a defendant committed "a single

offense that may be committed in a number of cognate ways." Frisby, 174 N.J.

at 596-97.

Byrd first argues the judge erred by instructing the jury that defendants

could be found guilty of felony murder if Jonelle's death occurred during a

"burglary and/or robbery." Byrd contends that this language impermissibly

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allowed the jury to reach a guilty verdict on felony murder without agreeing on

the predicate felony.

Our Supreme Court rejected a similar argument in Harris, where the

defendant was convicted of felony murder as well as "burglary, robbery,

kidnapping, and sexual assaults," all of which were predicate offenses for the

felony murder charge. 141 N.J. at 561. The Court found no plain error in the

trial court instructing the jury that the State was required to prove "that the

victim's death was caused during the commission or flight after committing one

of these enumerated crimes." Id. at 561-62. The Court explained that "when

there is sufficient evidence to support two or more alternative felony theories, a

jury need not designate which felony theory it relies on to convict one of felony

murder so long as there is sufficient evidence to sustain each felony." Id. at 562.

The Court posited that if "the jury had acquitted the defendant of one of the

predicate felonies, there could be concern about the lack of a specific unanimity

instruction." Id. at 563. However, any "concerns [the Court] might have about

the possibility of a patchwork verdict . . . vanish" when the jury unanimously

finds the defendant guilty of every predicate felony charged. Ibid.

Likewise, here, the jury could not have reached a patchwork verdict

because it unanimously found defendants guilty of both predicate felony

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charges—robbery and burglary. Byrd's argument that the judge erred in

instructing the jury on possession of a weapon for an unlawful purpose by

explaining that the unlawful purpose was to facilitate the commission of a

burglary or robbery fails for the same reason. Thus, the judge did not commit

plain error by using "and/or" language in the felony murder and possession of a

weapon for an unlawful purpose instruction.

Byrd further argues that the judge's accomplice liability charge allowed

for non-unanimous guilty verdicts because it was "riddled with 'and/or'

language" and because the judge told the jury "to refer back" to his first

accomplice liability instruction, in relation to burglary, when he instructed the

jury on robbery and the weapons charges.

"When a defendant might be convicted as an accomplice, the trial court

must give clear, understandable jury instructions regarding accomplice

liability." State v. Walton, 368 N.J. Super. 298, 306 (App. Div. 2004). That

occurred here. First, the judge clearly instructed the jury that "[a]ccomplice

status should be considered separately as to each charge," and that "[i]n order to

convict the defendant as an accomplice to these specific crimes charged, you

must find that the defendant had the purpose to participate in that particular

crime."

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Next, the judge told the jury:

In sum, in order to find the defendant guilty of

committing the crime of burglary, the State must prove

each of the following elements beyond a reasonable

doubt: that defendant Spraulding and/or Jean-Baptiste

committed the crimes o[f] burglary and/or armed

burglary; that the defendant solicited defendant

Spraulding and/or Jean-Baptiste [to] commit the crimes

and/or did aid or agree or attempt to aid defendant

Spraulding and/or Jean-Baptiste in planning or

committing them; three, that the defendants' purpose

was to promote or facilitate the commission of the

offenses; and four, that this defendant possessed a

criminal state of mind that is required to be proved

against the person who actually committed the criminal

acts.

Again, you must consider the accompl[ice]

charge separately as to each offense charged.

Lastly, when instructing the jury on other counts for which the State had

alleged accomplice liability, the judge stated that his earlier accomplice liability

charge applied to those counts. During the charge conference, when the judge

stated his "intention" to "read [the accomplice liability charge] from beginning

to end after the first count in the indictment and then after that just refer them

back to that," Byrd's trial counsel agreed to that approach. Byrd now contends

that the judge's instructions to refer back to the initial accomplice liability charge

"allow[ed] the defendant to be convicted of all of those crimes if the jury

believed he was an accomplice to only one of them." We disagree. The judge

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was emphatic and clear that accomplice liability should be considered separately

as to each offense and any other interpretation defies the judge's clear

instructions. "One of the foundations of our jury system is that the jury is

presumed to follow the trial court's instructions." State v. Burns, 192 N.J. 312,

335 (2007).

Byrd also argues that, in his initial accomplice liability instruction, the

judge "erroneously told the jury that it could convict of second-degree armed

burglary if the defendant aided or abetted either third-degree unarmed burglary

or an armed one." Relying on State v. Gonzalez, 444 N.J. Super. 62, 70-76

(App. Div. 2016), Byrd contends that this aspect of the court's instruction could

have allowed for a non-unanimous guilty verdict.

In Gonzalez, in the conspiracy and accomplice liability jury instructions,

the trial judge told the jury to find whether the defendant was liable for "robbery

and/or aggravated assault." Id. at 73-74. We found

the judge's repeated use of the phrase "and/or"—in

defining what the jury was obligated to determine—so

confusing and misleading as to engender great doubt

about whether the jury was unanimous with respect to

some part or all aspects of its verdict or whether the jury

may have convicted defendant by finding the presence

of less than all the elements the prosecution was

required to prove.

[Id. at 71.]

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We explained:

In considering the possibility that the verdict was

the product of less than unanimous findings by the jury,

we observe that the nature of the indictment required

that the jury decide whether defendant conspired in or

was an accomplice in the commission of a robbery, or

an aggravated assault, or both. By joining (or

disjoining) those considerations with "and/or" the judge

conveyed to the jury that it could find defendant guilty

of either substantive offense—which is accurate—but

left open the possibility that some jurors could have

found defendant conspired in or was an accomplice in

the robbery but not the assault, while other jurors could

have found he conspired in or was an accomplice in the

assault but not the robbery. In short, these instructions

did not necessarily require that the jury unanimously

conclude that defendant conspired to commit or was an

accomplice in the same crime.

[Id. at 75-76.9]

Here, the jury had to decide whether Byrd was guilty of second-degree

armed burglary or third-degree burglary. In addressing accomplice liability for

the "crime of burglary," the judge told the jury that the State had to prove, among

other things, "that defendant Spraulding and/or Jean-Baptiste committed the

9

Although the Court denied certification, State v. Gonzalez, 226 N.J. 209

(2016), in its order, the Court agreed that the trial judge's "use of 'and/or' in the

jury instruction . . . injected ambiguity into the charge," but added that "[t]he

criticism of the use of 'and/or' is limited to the circumstances in which it was

used in this case." Ibid.

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crimes o[f] burglary and/or armed burglary." Arguably, the "and/or" language

risked the possibility of a guilty verdict on second-degree armed burglary even

though some jurors only found facts sufficient for third-degree burglary.

However, the sole difference between third-degree burglary and second-

degree armed burglary is possession of "a deadly weapon" during commission

of the offense. N.J.S.A. 2C:18-2(b). It is undisputed that the jury unanimously

determined that all three defendants possessed a deadly weapon during the

commission of the crimes, as the jury unanimously found all three defendants

guilty of unlawful possession of a weapon and possession of a weapon for an

unlawful purpose. Considering these circumstances as well as the judge's clear

instruction to consider accomplice status "separately as to each offense ," we are

satisfied the judge's reference to "burglary and/or armed burglary" did not

"'possess[] a clear capacity to bring about an unjust result.'" State v. Afanador,

151 N.J. 41, 54 (1997) (quoting Jordan, 147 N.J. at 422).

Byrd also contends that the judge erred by failing to incorporate

accomplice liability into the jury instruction for the two witness tampering

counts pertaining to Pinto. Of the two witness tampering counts, one was based

on his sister Brianna's communications with Pinto, and the other was based on

Scott's. Byrd contends the judge was required to instruct on accomplice liability

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because Scott and Brianna were the ones who conveyed Byrd's "alleged"

messages at his behest.

The witness tampering statute provides in relevant part:

a. A person commits an offense if, believing that an

official proceeding or investigation is pending or about

to be instituted or has been instituted, he knowingly

engages in conduct which a reasonable person would

believe would cause a witness or informant to:

(1) Testify or inform falsely;

(2) Withhold any testimony, information,

document or thing;

(3) Elude legal process summoning him to testify

or supply evidence;

(4) Absent himself from any proceeding or

investigation to which he has been legally

summoned; or

(5) Otherwise obstruct, delay, prevent or impede

an official proceeding or investigation.

[N.J.S.A. 2C:28-5(a).]

Under the statute, "the criminal act is completed regardless of whether or

not the result is achieved." State v. Speth, 323 N.J. Super. 67, 87 (App. Div.

1999). Witness tampering includes "indirect attempts to tamper with witnesses

by making comments either to third parties knowing that they will get back to

the witness or even making comments directly to the witness, which, on the one

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hand, could be innocent, but in the context of the facts, could be threatening."

Id. at 83. "Thus, it is of no consequence that [the] defendant" never "directly

approached" the witness. Ibid.

At trial, Byrd argued that he did not engage in witness tampering and thus

no crime occurred. As to Scott in particular, Byrd's trial counsel argued that the

communications between Scott and Pinto were just "two women . . . [fighting]

over" Byrd, a man with whom they had both been involved. "When the State's

theory of the case only accuses the defendant of being a principal, and a

defendant argues that he was not involved in the crime at all, then the judge is

not obligated to instruct on accomplice liability." State v. Maloney, 216 N.J.

91, 106 (2013). Thus, we fail to see how the omission of an accomplice liability

charge resulted in plain error or prejudiced Byrd in connection with these two

witness tampering counts. "[E]ven if defendant had requested such a charge,

the accomplice liability instruction would not have been warranted because it

was not grounded in a rational basis in the trial evidence." Id. at 108.

Additionally, Byrd challenges the judge's cooperating witness charge in

relation to Pinto. Byrd argues the judge committed reversible error by

instructing the jury that "[i]f you believe the witness to be credible and worthy

of belief, you have the right to convict the defendants on her testimony alone,

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provided, of course, that upon a consideration of the whole case, you are

satisfied beyond a reasonable doubt of the defendants' guilt." Byrd contends the

charge was erroneous because Pinto's testimony did not provide sufficient facts

to find defendants guilty, noting that Pinto "did not even know when she had

given the men the car ride in question, and did not know what the men did ."

The judge provided the model jury charge for evaluating cooperating

witness testimony. See Model Jury Charges (Criminal), "Testimony of a

Cooperating Co-Defendant or Witness" (rev. Feb. 6, 2006). "A jury charge is

presumed to be proper when it tracks the model jury charge verbatim . . . ." State

v. Berry, 471 N.J. Super. 76, 107 (App. Div. 2022), rev'd in part on other grounds

254 N.J. 129 (2023). The charge communicates the long-standing principle that

"a defendant may be convicted solely on the uncorroborated testimony of an

accomplice." Adams, 194 N.J. at 207 (quoting State v. Begyn, 34 N.J. 35, 54

(1961), overruled in part on other grounds by State v. Savoie, 67 N.J. 439

(1975)). "[T]he uncorroborated testimony of an accomplice, if it satisfies the

jury or court beyond a reasonable doubt, is sufficient to sustain a conviction of

a felony." State v. Butler, 32 N.J. 166, 185-86 (1960) (quoting People v. Nitti,

133 N.E.2d 12, 13 (Ill. 1956)). We find no error, much less plain error, in the

judge's instruction to the jury on evaluating Pinto's testimony.

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Jean-Baptiste argues the judge erred when he denied his request for a

"'false in one[]' charge" because "there was more than sufficient cause" based

on Pinto's "material" falsehoods and omissions in her testimony.

The "false in one, false in all" model jury charge instructs the jury that if

they believe any witness

willfully or knowingly testified falsely to any material

facts in the case, with intent to deceive [them], [the

jury] may give such weight to his or her testimony as

[they] may deem it is entitled. [They] may believe

some of it, or [they] may, in [their] discretion, disregard

all of it.

[Model Jury Charges (Criminal), "False in One - False

in All" (rev. Jan. 14, 2013).]

"It has been long recognized that the issuance of a false in one, false in all

charge rests in the sound discretion of the trial judge." State v. Young, 448 N.J.

Super. 206, 228 (App. Div. 2017); see State v. Ernst, 32 N.J. 567, 583-84 (1960);

State v. Fleckenstein, 60 N.J. Super. 399, 408 (App. Div. 1960) (noting that the

evidential inference of repetitive falsity is not mandatory). Moreover,

"[i]nadvertent misstatements or immaterial falsehoods are not ground[s] for

complete rejection of a witness'[s] testimony." State v. D'Ippolito, 22 N.J. 318,

324 (1956). Instead, the charge "should be given to the jury as an aid when a

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witness has been discredited out of his own mouth either by cross-examination

or by an unimpeached record." State v. Sturchio, 127 N.J.L. 366, 369 (1941).

Here, the judge denied the defense request for the charge, reasoning that

although Pinto had made "a number of different statements," and "additional

information was added . . . to each one of those statements," the general charge

on witness credibility was sufficient to guide the jury on how to evaluate her

testimony. In fact, that charge included an instruction to the jury to consider

when evaluating the witness's credibility "whether the witness testified with the

intent to deceive [them]" and then determine whether to "accept all of [the

testimony], a portion of it, or none of it." The judge also pointed out that

additional jury charges, such as the cooperating witness charge, specifically

directed the jury to evaluate Pinto's credibility carefully. We discern no abuse

of discretion in the judge's rejection of the defense request. Because Jean-

Baptiste fails to identify any trial testimony that supported a finding that Pinto

was testifying falsely to any material fact, the false in one charge was not

appropriate.

Spraulding argues that when the judge instructed the jury in the sequential

trial on the certain persons offense, the judge improperly took "'judicial notice'

of an element" of the offense.

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N.J.S.A. 2C:39-7(b)(1) provides that a person previously convicted of an

enumerated offense "who purchases, owns, possesses or controls a firearm is

guilty of a crime of the second degree." "Because the offense requires proof of

a specific prior conviction, a certain persons charge automatically entails a risk

of prejudice to a defendant in a jury trial." State v. Bailey, 231 N.J. 474, 484

(2018). As such, our Supreme Court has "set out the procedural path that certain

persons trials must follow to avoid the creation of undue prejudice in

establishing the essential element of a predicate conviction." Ibid.

"For efficiency, the same jury may try both charges in succession and may

decide the certain persons charge based on the same evidence presented as part

of the State's proofs" in the first trial. Ibid. "[I]f [the] defendant stipulates to

the offense, the jury need be instructed only that [the] defendant was convicted

of a predicate offense." State v. Brown, 180 N.J. 572, 585 (2004), overruled in

part on other grounds by Bailey, 231 N.J. at 490. "When a defendant refuses to

stipulate to a predicate offense under the certain persons statute, the State shall

produce evidence of the predicate offense: the judgment of conviction with the

unredacted nature of the offense, the degree of offense, and the date of

conviction." Bailey, 231 N.J. at 490-91.

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During Spraulding's certain persons trial, because Spraulding did not

stipulate to a predicate offense, the State introduced into evidence two

judgments of conviction for "possession with intent to distribute [(CDS)]."

After instructing the jury that the State was required to prove (1) that Spraulding

"purchased, owned or possessed or controlled the firearm on September 14,

2009," and (2) that Spraulding "is a person who has previously been convicted

of a predicate offense[,]" the judge told the jury that, "[p]ursuant to our statute

under the law," possession with intent to distribute CDS is a predicate offense,

"but you do need to find those elements that I outlined for you beyond a

reasonable doubt."

On appeal, Spraulding argues "[w]hen a defendant does not stipulate to

the predicate offense, the jury must determine whether the defendant's prior

conviction is an enumerated offense" and by "tak[ing] 'judicial notice' of this

third element," the judge did not "allow[] the jury to find this element beyond a

reasonable doubt." We disagree. The judge's instruction conformed to the

model jury charge, which provides that "the State must prove beyond a

reasonable doubt . . . that defendant is a person who previously has been

convicted of a certain enumerated crime," not that the jury must determine

whether the prior offense is a "certain enumerated crime" as a matter of law.

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Model Jury Charges (Criminal), "Certain Persons Not to Have Any Firearms

(N.J.S.A. 2C:39-7(b)(1))," at 5 (rev. Nov. 13, 2023).10

Instead, the model jury charge directs the judge to identify the alleged

prior conviction as a predicate offense by stating:

The statute specifically provides that "any person

having been convicted in this State or elsewhere of the

crime of [Select the enumerated crime listed in the

indictment for the Certain Persons count and see

footnote 5 supra] who possesses or controls a firearm is

guilty of a crime." The term "convicted of the crime(s)

of . . . " means evidence of a judgment of conviction

entered by a court of competent jurisdiction in this

State, New Jersey, or elsewhere.

[Model Jury Charges (Criminal), "Certain Persons Not

to Have Any Firearms (N.J.S.A. 2C:39-7(b)(1))," at 5

(rev. Nov. 13, 2023) (footnotes omitted).]

The referenced footnote five lists the enumerated crimes delineated in the

statute.

Whether Spraulding was convicted of a certain offense was a factual

question for the jury; that the specific offense was a predicate offense

enumerated in N.J.S.A. 2C:39-7(b)(1) was a question of law subject to the

10

Although an earlier version of the model jury charge would have been utilized

for the trial, the applicable language is the same. See Model Jury Charges

(Criminal), "Certain Persons Not to Have Any Firearms (N.J.S.A. 2C:39-

7(b)(1))" (rev. Feb. 12, 2018).

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court's determination. See State v. Schneiderman, 20 N.J. 422, 426 (1956)

("[Q]uestions of law are for the court's determination and are not within the

province of the jury."). Thus, the judge did not err by instructing the jury that

possession of CDS with intent to distribute was a predicate offense.

V.

In Point IV of his brief, Byrd argues he was "denied the effective

representation of counsel when his attorney literally did nothing to defend him"

in his sequential certain persons trial. According to Byrd, counsel "offered no

opening, no closing, and no evidence, and made no attempt to even ask th e jury

or the court for an acquittal."

"Our courts have expressed a general policy against entertaining

ineffective-assistance-of-counsel claims on direct appeal because such claims

involve allegations and evidence that lie outside the trial record." State v.

Preciose, 129 N.J. 451, 460 (1992); see State v. Sparano, 249 N.J. Super. 411,

419 (App. Div. 1991) ("Generally, a claim of ineffective assistance of counsel

cannot be raised on direct appeal."). We adhere to our general policy and decline

to entertain Byrd's ineffective assistance of counsel claim on direct appeal.

VI.

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In Point III of his brief, Jean-Baptiste argues the judge erred in permitting

Spraulding's attorney and the prosecutor "to introduce other crime evidence

through Pinto" over Jean-Baptiste's attorney's objection.

By way of background, during cross-examination of Pinto by Spraulding's

attorney, Pinto testified that it was "unusual" for defendants to be "dressed in all

black." Later, during re-cross-examination, the following questioning occurred

between Pinto and Spraulding's attorney:

[DEFENSE COUNSEL]: Now, you were talking about

them wearing black gloves.

[PINTO]: Yes.

[DEFENSE COUNSEL]: You said that was unusual?

[PINTO]: It wasn't . . . something that happened often,

no, not at all.

[DEFENSE COUNSEL]: But didn't you tell Detective

Samis on December 8th, "They always wore black

gloves"?

[PINTO]: Yeah, but --

[DEFENSE COUNSEL]: That's what you told him; is

that correct?

[PINTO]: But that's pertaining . . . . to certain

situations, sir.

[DEFENSE COUNSEL]: Did you tell him that they

always wore black gloves; yes or no?

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[PINTO]: Yes. That's out of context, sir.

The prosecutor requested a sidebar during which he asserted that the

answer to the question was that defendants "always wore black gloves when they

committed burglaries and robberies," and characterized defense counsel's

questioning as "cherry-picking." The judge confirmed that Spraulding's attorney

understood that it was his "call" if he was "going to open that door."

On re-direct, the following exchange occurred between Pinto and the

prosecutor:

[PROSECUTOR]: The other times that you saw

[Spraulding] putting black gloves on, what was he

doing?

[PINTO]: Um, I don't know what. Um, it . . .

wouldn't be like on a normal--they wouldn't put on

gloves to do normal stuff, let's say.

[PROSECUTOR]: What type of stuff was

[Spraulding] doing when he was putting black gloves

[on]? Specifically to [Spraulding].

Jean-Baptiste's attorney objected on the ground that the prosecutor was

"leading" the witness and "trying to elicit a specific response." The judge

overruled the objection, noting that Spraulding's attorney made a "strategic

defense decision . . . with regards to this" and that "what the prosecution has

done at this point is just very narrowly focused this question on one of the three

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. . . defendants." After the sidebar, the prosecutor asked Pinto "what do you

mean by not normal stuff?" Pinto responded, "[F]or example, you could say

illegal activities."

On appeal, Jean-Baptiste concedes the judge "was correct that

[Spraulding's] counsel opened the door to prior bad acts." Nonetheless, he

contends the judge "failed to appreciate that Pinto's testimony about other crimes

tainted [Jean-Baptiste]."

Otherwise inadmissible evidence may be admitted pursuant to the

"opening the door" doctrine:

The "opening the door" doctrine is essentially a

rule of expanded relevancy and authorizes admitting

evidence which otherwise would have been irrelevant

or inadmissible in order to respond to (1) admissible

evidence that generates an issue, or (2) inadmissible

evidence admitted by the court over objection. The

doctrine of opening the door allows a party to elicit

otherwise inadmissible evidence when the opposing

party has made unfair prejudicial use of related

evidence. That doctrine operates to prevent a defendant

from successfully excluding from the prosecution's

case-in-chief inadmissible evidence and then

selectively introducing pieces of this evidence for the

defendant's own advantage, without allowing the

prosecution to place the evidence in its proper context.

[State v. James, 144 N.J. 538, 554 (1996) (citation

omitted).]

However, "[t]he 'opening the door' rule has its limitations." Ibid.

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Under the related doctrine of "completeness,"

[w]hen a witness testifies on cross-examination

as to part of a . . . statement, . . . the party calling the

witness is allowed to elicit on redirect examination "the

whole thereof, to the extent it relates to the same subject

matter and concerns the specific matter opened up."

The theory behind the doctrine of completeness is "that

the opponent, against whom a part of an utterance has

been put in, may in his turn complement it by putting

in the remainder, in order to secure for the tribunal a

complete understanding of the total tenor and effect of

the utterance."

[Id. at 554-55 (citations omitted) (first quoting Gov't of

the Virgin Islands v. Archibald, 987 F.2d 180, 188 (3d

Cir. 1993); and then quoting 7 Wigmore on Evidence §

2113, at 653 (Chadbourn rev. 1978)).]

Relatedly, "[t]he doctrine of 'curative admissibility' provides that when

one party introduces inadmissible evidence, thereafter the opposing party may

introduce otherwise inadmissible evidence to rebut or explain the prior

evidence." Id. at 555 (emphasis omitted) (citing United States v. Nardi, 633

F.2d 972, 977 (1st Cir. 1980)). However, "[t]he doctrine applies only when

inadmissible evidence has been allowed, when that evidence was prejudicial,

and when the proffered testimony would counter that prejudice." Ibid.

Our Supreme Court "has emphasized that the opening the door and

curative admissibility doctrines can be used only 'to prevent prejudice,' and may

not 'be subverted into a rule for [the] injection of prejudice.'" State v.

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Vandeweaghe, 177 N.J. 229, 238 (2003) (alteration in original) (quoting James,

144 N.J. at 556). These doctrines allow for the introduction of otherwise

inadmissible evidence "'only to the extent necessary to remove any unfair

prejudice which might otherwise have ensued from the original evidence.'" Ibid.

(quoting United States v. Winston, 447 F.2d 1236, 1240 (D.C. Cir. 1971)). Still,

evidence is "subject to exclusion where a court finds that the probative value of

the otherwise inadmissible responsive evidence 'is substantially outweighed by

the risk of (a) undue prejudice, confusion of issues, or misleading the jury . . . .'"

James, 144 N.J. at 554 (omission in original) (quoting N.J.R.E. 403).

Spraulding's trial counsel sought to impeach Pinto's testimony that

defendants wearing all-black was "unusual," with an earlier statement that was

only inconsistent with her testimony if taken out of context. This easily could

have misled the jury and prejudiced the State if the judge had not allowed the

statement to be put in its proper context. Although Pinto's testimony that "they

wouldn't put on gloves to do normal stuff" implicated all three defendants, the

judge allowed the prosecutor to narrow the inquiry so that Pinto's statement

about "illegal activities" was "specific[] to" Spraulding. In so doing, the judge

mitigated the prejudice to Jean-Baptiste.

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Even if it was error for the judge to allow the questioning, the error was

harmless. The admission of other-crimes evidence will be harmless where, as

here, there is "overwhelming proof . . . of [the] defendant['s] guilt, independent

of the other-crimes evidence." State v. Gillispie, 208 N.J. 59, 93 (2011). We

also reject Jean-Baptiste's contention that the judge's "fail[ure] to provide any

limiting instruction to the jury to protect [him] from the taint of Pinto's

allegations" warrant "a new trial."

"Normally, a limiting instruction should be given by the trial judge sua

sponte when 'other crime' evidence is admitted so that the jury will not give it

greater scope than is justified." State v. Rajnai, 132 N.J. Super. 530, 537 (App.

Div. 1975). However, "[t]he failure to give a limiting instruction does not

necessarily require the reversal of a conviction." Ibid. Here, no request for such

an instruction was made at trial and any instruction that Pinto's testimony only

pertained to Spraulding would likely have drawn attention to the fact that Pinto

had initially referred to all three defendants. Thus, under the circumstances, we

do not believe the omission rises to the level of plain error. See R. 2:10-2.

VII.

In Point IV of his brief, Jean-Baptiste argues that the judge abused his

discretion by admitting statements by Pinto "as prior consistent statements

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which served only to bolster [her testimony] . . . and thereby allowed

impermissible other crimes evidence to be presented to the jury."

N.J.R.E. 803(a)(2) allows the admission of a statement previously made

by a person who is a witness at a trial, provided that (1) it would have been

admissible if made by the declarant while testifying, and (2) the statement: "is

consistent with the declarant-witness' testimony and is offered to rebut an

express or implied charge against the declarant-witness of (A) recent fabrication

or (B) improper influence or motive." Thus, while "[a] prior consistent

statement offered to bolster a witness' testimony is inadmissible[,] . . . a prior

statement may be admitted in evidence to support the credibility of a witness for

the purpose of rebutting an expressed or implied charge of recent fabrication."

Palmisano v. Pear, 306 N.J. Super. 395, 402 (App. Div. 1997) (citations

omitted).

However,

[a]n attack on a party's credibility through prior

inconsistent statements does not necessarily give

plaintiff the right to use a prior consistent statement to

buttress the party's credibility. Admitting such

testimony is contrary to the traditional rule that parties

may not bolster the credibility of their witnesses, unless

the "attack upon the credibility of the witness tends to

show that his testimony is a fabrication of recent date."

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[Id. at 403 (citation omitted) (quoting Sas v. Strelecki,

110 N.J. Super. 14, 22 (App. Div. 1970)).]

Similarly, a prior consistent statement may be admitted to rebut a claim

of improper influence or motive. "[W]hether the statement was made before the

asserted motive or influence to fabricate is a substantial factor in determining

relevance" and admissibility under N.J.R.E. 803(a)(2), but it is not "absolutely

controlling." State v. Muhammad, 359 N.J. Super. 361, 388 (App. Div. 2003).

In State v. Chew, 150 N.J. 30 (1997), overruled in part on other grounds by State

v. Boretsky, 186 N.J. 271, 284 (2006), "[o]ur Supreme Court . . . declined to

adopt as a rigid admissibility requirement that the prior statement was made

prior to the motive or influence to lie." Muhammad, 359 N.J. Super. at 386

(citing Chew, 150 N.J. at 81).

In Chew, 150 N.J. at 77, the defendant challenged the trial court's

admission of prior consistent statements by two witnesses who inculpated him

in a murder. The State moved to admit the statements after the witnesses were

cross-examined on their motives and plea deals, and their credibility was heavily

attacked. Id. at 77-78. When they initially spoke to police, the witnesses had

provided the defendant with "an alibi." Id. at 77. Nine days later, "they both

provided statements, largely consistent with their trial testimony, that inculpated

[the] defendant." Ibid.

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The Court concluded that the statements were properly admitted as prior

consistent statements, id. at 81, reasoning that while the witnesses were aware

that they were potentially facing charges when they made the inculpatory

statements, "[t]here were shades of difference between the witnesses' motivation

at different times," and "cross-examination tested whether the witnesses were

further motivated by their plea agreements and whether the police had fed them

with the details of their stories." Id. at 80. Under those circumstances, the Court

determined that "[t]he prior consistent statements had significant 'probative

force bearing on credibility beyond merely showing repetition.'" Id. at 81

(quoting United States v. Pierre, 781 F.2d 329, 333 (2d Cir. 1986)).

Here, the State moved to admit portions of Pinto's 2015 statements to

police under N.J.R.E. 803(a)(2). The judge admitted the statements, reasoning

that "Pinto provided multiple police statements prior to being charged with any

crime and prior to her entry into a cooperation agreement." The judge pointed

out that "defense counsel has charged that . . . Pinto should not be believed due

to the fact that police bribed her, spoon-fed her information, or threatened her

while she was pregnant which caused . . . Pinto to falsely implicate the three

[]defendants." The judge concluded "Pinto's prior consistent statements were

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relevant to rebut the express and revised charges that . . . Pinto was bribed, [or]

coached, to testify by police." We agree with the judge's ruling.

Jean-Baptiste contends "[t]he defense never indicated that Pinto had

recently fabricated her testimony but rather . . . that she had been inconsistent,

untruthful and unreliable from the beginning." On the contrary, defense counsel

extensively cross-examined Pinto on her plea agreement, and argued in their

opening and closing statements to the jury that Pinto's cooperation agreement

with the State gave her a motive to lie. Defendants did not merely challenge

Pinto's credibility by highlighting inconsistencies between her different

statements. Instead, as Jean-Baptiste acknowledges in his brief, "[a]ll three

defendants suggested that [Pinto] had a motive to implicate [defendants] because

. . . she had received a favorable plea deal."

As in Chew, 150 N.J. at 77-81, Pinto gave the statements at issue before

her cooperation agreement with the State underlying her alleged motive to lie

came to fruition. Her statements were largely consistent with her trial testimony

and thus of highly probative value bearing on her credibility. Pinto's statements

were therefore properly admitted under N.J.R.E. 803(a)(2) "to rehabilitate" her

credibility and rebut the defense claim that she had fabricated her story

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inculpating defendants because of her cooperation agreement with the State.

Chew, 150 N.J. at 80.

VIII.

In Point VII of his brief, Jean-Baptiste argues the judge erred in denying

his motion for a judgment of acquittal on count seven charging him with first-

degree witness tampering pertaining to Pinto. Jean-Baptiste asserts "the State

had failed to present sufficient evidence to satisfy the elements of first -degree

witness tampering."

"Motions for a judgment of acquittal are governed by Rule 3:18-1," State

v. Tindell, 417 N.J. Super. 530, 548 (App. Div. 2011), which provides in part:

At the close of the State's case . . ., the court shall,

on defendant's motion or its own initiative, order the

entry of a judgment of acquittal of one or more offenses

charged in the indictment . . . if the evidence is

insufficient to warrant a conviction.

[R. 3:18-1.]

However,

a trial court must deny the defendant's motion if

"'viewing the State's evidence in its entirety . . . and

giving the State the benefit of all its favorable

testimony as well as all of the favorable inferences

which reasonably could be drawn therefrom, a

reasonable jury could find guilt . . . beyond a reasonable

doubt.'"

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[State v. Ellis, 424 N.J. Super. 267, 273 (App. Div.

2012) (omissions in original) (quoting State v. Wilder,

193 N.J. 398, 406 (2008)).]

See also State v. Reyes, 50 N.J. 454, 458-59 (1967) (articulating the seminal

standard of review for acquittal motions).

"On appeal, we utilize the same standard as the trial court in determining

whether a judgment of acquittal was warranted." Ellis, 424 N.J. Super. at 273.

However, "we apply a de novo standard of review," State v. Williams, 218 N.J.

576, 594 (2014), and "owe no deference to the findings of . . . the trial court,"

State v. Lodzinski, 249 N.J. 116, 145 (2021).

We have previously recited the witness tampering elements. Focusing on

the requisite proofs to obtain a conviction for first-degree witness tampering,

the State must prove that the defendant "employ[ed] force or threat of force" in

connection with an investigation involving enumerated crimes, including those

involved here. N.J.S.A. 2C:28-5(a). The key to whether a statement is a threat

is the jury's appraisal of the context, as well as the

content of a statement. Uttered in one context, an

apparently innocent statement such as, "I'd be careful

crossing the street if I were you" can be merely helpful

advice to a senior citizen. Uttered in another context it

may well be correctly perceived by reasonable persons

to be intended as a threat.

[State v. Crescenzi, 224 N.J. Super. 142, 147-48 (App.

Div. 1988).]

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Here, after the close of the State's case, the judge denied Jean-Baptiste's

motion for a judgment of acquittal on the first-degree witness tampering count,

concluding that there was sufficient evidence to establish "threatened force" and

"the potential to withhold testimony or information." Pinto had testified that

Jean-Baptiste came to visit her at her home, which he had never done before.

While an unknown third person drove them around, Jean-Baptiste told Pinto that

he was trying to figure out who was "snitching" and urged her "to be quiet."

Pinto testified that she took his statement as a threat "to be quiet or else."

Viewing the State's evidence in its entirety and affording the State the benefit of

all its favorable inferences, we are satisfied that a reasonable jury could find

guilt of the charge beyond a reasonable doubt.

Jean-Baptiste argues that "Pinto's subjective opinion that she took

defendant's request as a threat was not reasonable under the circumstances."

Citing State v. D.A., 191 N.J. 158, 171 (2007), Jean-Baptiste asserts that

"[g]enerally, where first-degree tampering has been charged, the threat has been

explicit." Although there was an explicit threat in D.A., nothing in the Court's

opinion suggests that a statement must be an explicit threat to qualify as a "threat

of force" under the witness tampering statute. Id. at 166, 171. Rather, "an

apparently innocent statement . . . . may well be correctly perceived by

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reasonable persons to be intended as a threat" in the proper context. Crescenzi,

224 N.J. Super. at 147-48. Here, viewed in context, there was sufficient

evidence with which a jury could find beyond a reasonable doubt that Jean -

Baptiste's statement to Pinto threatened violence. As such, the acquittal motion

was properly denied.

IX.

In Point V of his brief, Jean-Baptiste argues the judge failed in his role

"as the 'gatekeeper' to ensure juror impartiality and fairness." Specifically, Jean-

Baptiste asserts the judge's failure "to excuse [J]uror 8 for cause and to voir dire

the remaining jurors" after mid-trial allegations about Juror 8's damning extra-

judicial "conduct and comments" came to light "was prejudicial error"

warranting reversal of his convictions. In Point I of his brief, Spraulding makes

the same argument, stressing "[d]espite defense counsels' objections, the voir

dire of Juror 8 failed to specifically address the substantial allegations of her

bias and misconduct, and no effort was made to determine if other jurors had

been tainted by the views or conduct of Juror 8." In a supplemental brief, Byrd

makes the same arguments.

By way of background, on February 19, 2019, during the trial, the judge

informed counsel at sidebar:

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There's been information that has been brought to

certainly the [c]ourt's and counsel's attention with

regard to Juror No. 8. It's my intention at this point to

call her up, question her, see whether or not the answers

to any of her initial jury questions have changed, and I

also specifically want to find out where she works.

Spraulding's attorney asked the judge to "inquire about some of the specific

allegations, especially that she talked to other jurors." Byrd's attorney

specifically requested that every juror "be voir-dired to see if they have talked

to [Juror 8]."

The allegations against Juror 8 were later recounted by the judge in a

remand hearing ordered by this court. During the "temporary remand to

reconstruct the record," the judge entered into the record emails regarding the

allegations that prompted his inquiry received by court staff at approximately

noon on February 19, 2019:

[T]his is a series of emails that the [c]ourt had

received with regards to this incident. The first email

in this chain is the email from . . . [Byrd's attorney's

secretary to the judge's secretary, Melissa]. [T]hat

email is as follows. "Hi Melissa, to recap my

conversation with you, I received a call from the public

defender's office a few minutes ago. They received a

call from an unidentified woman who told them she had

information on one of the jurors. She knows the juror's

name, but did not disclose it and said she would call

back. Apparently, this woman has been Googling and

texting [Byrd] and all of his friends. Stephanie from

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the [Public Defender's (PD)] office is the one to speak

to, as she received the call."

According to the judge, his secretary forwarded the information by text to

the court clerk, who then "called Stephanie at the PD's office and got more

detailed information." Stephanie told the clerk that the caller "identified herself

as Ms. Worthy (phonetic), but said she doesn't want to [get] involved any

further. She claims she has a friend who works at Monmouth Medical Center"

with a juror she "believe[d]" was "[J]uror number 15." The caller claimed the

juror, whom she identified by name, "has been Googling the case, showing

articles to and talking about it with other people and has already decided she's

going to find them all guilty and going to burn their asses." The judge and

counsel deduced that the allegations pertained to Juror 8, not Juror 15.

After discussing the matter with counsel on February 19, 2019, the judge

called Juror 8 to sidebar and questioned her in counsels' presence as follows:

[COURT:] At the beginning of this process we asked

you a series of questions and those questions were

designed to find out whether or not you could be fair

and impartial.

Is there anything that has happened throughout

the course of this trial that would affect your answers

to those questions?

[JUROR 8:] No.

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[COURT:] Ma'am, where do you work?

[JUROR 8:] At Monmouth Medical.

[COURT:] Where do you live?

[JUROR 8:] In Red Bank.

[COURT:] Okay. And in terms of any posting or

newspaper articles, is there anything outside of what's

been in this courtroom that you have been in contact

with?

[JUROR 8:] No.

[COURT:] So is there anything that would change any

of your other answers to those questions that we asked

during voir dire?

[JUROR 8:] No.

[COURT:] And you believe that you can listen to the

evidence in this case, and as I have asked you certainly

throughout the voir dire process, listen to the evidence,

apply the law as I give it to you at the end of the case

and render a fair and impartial verdict?

[JUROR 8:] I can.

[COURT:] Okay.

[JUROR 8:] Why do you ask?

[COURT:] Because that's my job.

[JUROR 8:] Okay.

[COURT:] I ask the questions. You don't.

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What I want you to do is I want you to take your

seat. This is a discussion, a private discussion, up at

sidebar, the same as we did for jury selection.

[JUROR 8:] Okay.

[COURT:] I did that for a reason. I don't want you to

discuss anything that we have talked about up here as

we move forward. Okay?

[JUROR 8:] Okay.

[COURT:] You may be seated. Thank you.

The following colloquy regarding the voir dire ensued between the court

and counsel:

[COUNSEL FOR BYRD]: Judge, she confirms

that . . . she works in Monmouth Medical. Quite

frankly, I don't remember if she said that she's a nurse.

Maybe someone could help me out.

[COUNSEL FOR SPRAULDING]: I can. She did

when she was first questioned. That's how I knew she

was No. 8.

....

[COUNSEL FOR BYRD]: Judge, the [c]ourt didn't

inquire as to whether she discussed this case at work

with, you know --

[COURT]: I specifically asked her whether or not she

had any outside information, anything outside of this

courtroom. She said no, and I think the record should

reflect that clearly she was puzzled why she would even

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be up here answering these questions. In this Judge's

opinion, she seemed very sincere and she seemed very

straightforward with her answers. So in terms of

further inquiry, I'm satisfied at this point.

....

[COUNSEL FOR SPRAULDING]: . . . Judge. I ask

that you excuse her for cause just because of what

happened, and by that I mean bringing her up here by

herself in the presence of the other jurors. She now has

some thoughts in her mind about why she was singled

out. I mean, I think . . . that's going to fester because

she was asking you why am I here.

....

[COUNSEL FOR JEAN-BAPTISTE]: I would ask that

she be further questioned.

And the question being has she spoken to anyone

at her job specifically about this case, I think that's a

question that should be asked and I think it's innocuous

enough.

[COURT]: Okay. I'm satisfied at this point with the

inquiry that I have made. My concern is to make sure

that we have a fair and impartial trial with fair and

impartial jurors. I specifically asked her whether or not

she had come into contact with any outside information.

Her answer was no. And, as I indicated, she was about

as candid and as straightforward as she could be; and

. . . I specifically told her not to discuss anything that

we discussed here at sidebar, so I'm satisfied at this

point that we can move forward. This was an outside

concern that was given originally to the Public

Defender's Office, then brought to our attention. The

person, as I understand the information to the Public

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Defender's Office, originally had indicated that it was a

different juror and then changed to Juror No. 8 and the

information as I understood it had originally started out

that this juror was texting Ebenezer Byrd and . . . his

friends and clearly that couldn't happen because Mr.

Byrd has been in custody for quite some time at this

point without access to computers or texting or

Facebook or any of those other things, so I'm satisfied

at this point we can proceed.

At the remand hearing, the judge further explained:

Clearly, I did not want to taint the rest of the jury

with regards to something that may certainly have been

all fabricated. We may never know who Ms. Worthy

is. She was never part of this trial, never listed, as I

understand it, on any of the witness lists, that name is

foreign to me, had not heard it prior to haven't heard it

hence. And with that, I chose the course that I chose to

question . . . only the individual juror.

There was some discussion about the way and

manner it should have been done, whether or not she

should have been called into my chambers, which

throughout the course of my career I have never done

and certainly did not want to start it with this case.

I think [J]uror number 8 was clear and

unequivocal. She seemed to my recollection puzzled as

to why she was there. She made it clear to this [c]ourt

that she could be fair and impartial, and that she could

listen to the testimony and apply the law as I gave it to

her at the end of the case.

. . . . The allegation simply was that she had been

texting and talking about the case, and I was satisfied

based on her candid response to my questions that that

had not happened.

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"A criminal defendant's 'constitutional right to be fairly tried by an

impartial jury' is protected by both the Sixth Amendment of the United States

Constitution and Article I, Paragraph 10 of the New Jersey Constitution." State

v. Dangcil, 248 N.J. 114, 140 (2021) (quoting State v. Little, 246 N.J. 402, 414

(2021)). "That constitutional privilege includes the right to have the jury decide

the case based solely on the evidence presented at trial, free from the taint of

outside influences and extraneous matters." State v. R.D., 169 N.J. 551, 557

(2001); see Sheppard v. Maxwell, 384 U.S. 333, 362 (1966) (stating that due

process requires accused receive trial by impartial jury free from outside

influence); State v. Williams, 93 N.J. 39, 60 (1983) (same).

"Common sense dictates that jurors should be shielded from any external

factor that might induce bias or prejudice, and therefore destroy the impartiality

necessary for a fair trial." State v. Loftin, 191 N.J. 172, 189 (2007). Yet, as the

United States Supreme Court has noted, due process does not require the trial

court to

shield jurors from every contact or influence that might

theoretically affect their vote. Due process means a

jury capable and willing to decide the case solely on the

evidence before it, and a trial judge ever watchful to

prevent prejudicial occurrences and to determine the

effect of such occurrences when they happen.

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[Smith v. Phillips, 455 U.S. 209, 217 (1982).]

In cases of "mid-trial allegations of jury misconduct[,] . . . the trial judge

must make a probing inquiry into the possible prejudice caused by any jury

irregularity, relying on his or her own objective evaluation of the potential for

prejudice rather than on the jurors' subjective evaluation of their own

impartiality." State v. Scherzer, 301 N.J. Super. 363, 487-88 (App. Div. 1997).

"Although the trial judge has discretion in the way to investigate allegations of

jury misconduct, an adequate inquiry on the record is necessary for the purposes

of appellate review." Id. at 488.

In R.D., our Supreme Court provided the following guidance to trial courts

addressing mid-trial juror irregularities:

The court is obliged to interrogate the juror, in

the presence of counsel, to determine if there is a taint;

if so, the inquiry must expand to determine whether any

other jurors have been tainted thereby. The trial court

must then determine whether the trial may proceed after

excusing the tainted juror or jurors, or whether a

mistrial is necessary.

[169 N.J. at 558 (citation omitted) (citing Pressler &

Verniero, Current N.J. Court Rules, cmt. 2 on R. 1:16-

1 (2000)).]

In particular, the trial court should ask the juror about

the specific nature of the extraneous information, and

whether the juror intentionally or inadvertently has

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imparted any of that information to other jurors.

Depending on the juror's answers to searching

questions by the court, the court must then determine

whether it is necessary to voir dire individually other

jurors to ensure the impartiality of the jury. . . .

Although the court should not simply accept the juror's

word that no extraneous information was imparted to

the others, the court's own thorough inquiry of the juror

should answer the question whether additional voir dire

is necessary to assure that impermissible tainting of the

other jurors did not occur. In some instances, the court

may find that it would be more harmful to voir dire the

remaining jurors because, in asking questions,

inappropriate information could be imparted.

[Id. at 560-61.]

"It is the duty of the court to ask probing questions to protect the

impartiality of the jury." Id. at 563.

Ultimately, the trial court is in the best position to

determine whether the jury has been tainted. That

determination requires the trial court to consider the

gravity of the extraneous information in relation to the

case, the demeanor and credibility of the juror or jurors

who were exposed to the extraneous information, and

the overall impact of the matter on the fairness of the

proceedings.

[Id. at 559.]

"[A] juror who has formed an unalterable opinion of the defendant's guilt

or innocence must be excused from service on the panel." Loftin, 191 N.J. at

187 (citing Williams, 93 N.J. at 61). "[A]ll doubts about a juror's integrity or

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ability to be fair should be resolved in favor of removing the juror from the

panel." Ibid. Additionally, "a new trial will be granted when jury misconduct

or the intrusion of irregular influences into jury deliberations 'could have a

tendency to influence the jury in arriving at its verdict in a manner inconsistent

with the legal proofs and the court's charge.'" Scherzer, 301 N.J. Super. at 486

(quoting Panko v. Flintkote Co., 7 N.J. 55, 61 (1951)). "The test is 'not whether

the irregular matter actually influenced the result but whether it had the capacity

of doing so.'" Ibid. (quoting Panko, 7 N.J. at 61).

"The abuse of discretion standard of review" applies "when

reviewing . . . determinations of a trial court" in the handling of juror

irregularity. R.D., 169 N.J. at 560. "We traditionally have accorded trial courts

deference in exercising control over matters pertaining to the jury" and

application of the abuse of discretion standard "respects the trial court's unique

perspective." Id. at 559-60; see United States v. Cantu, 167 F.3d 198, 202 (5th

Cir. 1999) (applying abuse of discretion standard of review to trial court's

decision not to voir dire remaining jurors).

Applying these principles, we discern no abuse of discretion in the judge's

handling of the allegations pertaining to Juror 8. Critically, the judge confirmed

that Juror 8 was able to "listen to the evidence," "apply the law" as instructed at

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the end of the case, and "render a fair and impartial verdict." Relying on his

own "objective evaluation of the potential for prejudice rather than on the

juror['s] subjective evaluation of their own impartiality," the judge was satisfied

that the juror could render a fair and impartial verdict. Scherzer, 301 N.J. Super.

at 487-88 (stressing that in questioning a juror to assess taint, the judge must

determine "whether the juror is capable of deciding the case impartially, based

solely on the evidence presented at trial").

In determining that the voir dire was sufficient, the judge considered that

the allegations may "have been all fabricated." The judge noted that an

anonymous caller had originally claimed "that this juror was texting Ebenezer

Byrd" which "couldn't happen because Mr. Byrd ha[d] been in custody for quite

some time." Based on the source and the contents, the judge was understandably

skeptical about the allegations.

Although New Jersey courts have not squarely addressed the issue, we

believe that less credible allegations of juror misconduct necessitate a less

extensive inquiry. Courts in other jurisdictions have observed that not all claims

of juror misconduct even necessitate an inquiry by the trial court. See Sulcov

v. 2100 Linwood Owners, 303 N.J. Super. 13, 30 (App. Div. 1997) (noting that

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"[a]bsent New Jersey precedent, it is appropriate to look to out-of-state cases for

guidance").

For example, in United States v. Zimny, the court stated:

We recognize the danger that a criminal defendant or

someone acting on a defendant's behalf might author an

anonymous posting on the internet while posing as a

juror in the hopes of delaying the finality of the

conviction, and we by no means require a district court

judge to automatically undertake an inquiry every time

an anonymous posting authored by someone claiming

to be a juror surfaces.

[846 F.3d 458, 470 (1st Cir. 2017).]

Similarly, in State v. Brown, 668 A.2d 1288, 1305 (Conn. 1995), the

Supreme Court of Connecticut stated that "[t]he more obviously serious and

credible the allegations [of jury misconduct], the more extensive an inquiry is

required; frivolous or incredible allegations may be disposed of summarily."

The court explained:

A proper assessment of the credibility of the allegations

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