June 30, 2017

State v. Anthony K. Cole (A-66-15) (076255) Decided June 27, 2017

 State v. Anthony K. Cole (A-66-15) (076255)
  Decided June 27, 2017
PATTERSON, J., writing for the Court.
In this appeal, the Court reviews the trial court’s denial of defendant’s motion to bar the admission into evidence of three segments of video, recorded during breaks from questioning at police headquarters, in which defendant appeared alone in the interrogation room.
On the evening of September 7, 2009, David Donatelli was in Spring Lake Park, preparing for South Plainfield’s annual Labor Day fireworks display. As he stood looking up to examine a light stanchion, Donatelli was slashed. The laceration on the side of his neck exposed his carotid artery and jugular vein.
A police officer found two matching black-and-gray gloves. Blood identified by DNA analysis as Donatelli’s was found on the outside of the glove. State Police forensic scientists then swabbed the interior of both gloves and detected skin cells that matched defendant’s DNA profile in the database. Officers arrested defendant.
Police officers interrogated defendant in two sequential conversations, both video-recorded. Advised that the officers had forensic evidence linking him to the crime, defendant maintained his innocence, provided an alibi, and asked to be released. When the officers were in the room, defendant was gregarious and engaged. When briefly left alone during three breaks from the questioning, however, defendant adopted a starkly different demeanor; he muttered to himself, mouthed obscenities toward the location where the officers had been sitting and the video camera, and placed his hand inside his pants.
Defendant was tried before a jury over six days. On the second day of trial, defense counsel stated that the portions of the video recordings in which defendant appeared alone were unduly prejudicial under N.J.R.E. 403. The trial court ruled that the contested sections were relevant because they reflected on defendant’s demeanor and the accuracy of his statements. The court admitted the video recordings in their entirety. It invited defense counsel to submit a proposed jury instruction addressing the limited purpose for which the jury should consider the segments of the recordings in which defendant appeared alone.
During the State’s case, the contested video recordings were played for the jury. The trial court reiterated its offer to give the jury a cautionary instruction. The record does not indicate that defense counsel proposed such an instruction. The prosecutor specifically addressed defendant’s conduct when he was alone and suggested that defendant’s “manipulation” of his presentation to police signaled his guilt. Defendant did not object.
In its jury charge, the trial court instructed the jurors that they were the sole and exclusive judges of the evidence, including the credibility of witnesses, but did not specifically address the portions of the video recordings in which defendant sat alone in the interrogation room. The jury convicted defendant of attempted murder, unlawful possession of a weapon, possession of a weapon for an unlawful purpose, and hindering apprehension. In a separate proceeding, the jury convicted defendant of the remaining offense, certain persons not to have a weapon.
An Appellate Division panel reversed defendant’s conviction and remanded for a new trial. The panel deemed the contested segments too equivocal to be admitted as consciousness-of-guilt evidence, particularly without a limiting instruction. The Court granted the State’s petition for certification. 224 N.J. 527 (2016).
HELD: The trial court properly exercised its broad discretion when it applied N.J.R.E. 401 and 403 to the contested evidence and admitted the video recordings in their entirety. The lack of a limiting instruction and the prosecutor’s comment on the evidence did not constitute plain error. 2

1. N.J.R.E. 401 defines “[r]elevant evidence” as “evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action.” Once a logical relevancy can be found to bridge the evidence offered and a consequential issue in the case, the evidence is admissible, unless exclusion is warranted under a specific evidence rule. N.J.R.E. 403 mandates the exclusion of evidence that is otherwise admissible “if its probative value is substantially outweighed by the risk of . . . undue prejudice, confusion of issues, or misleading the jury.” To determine the admissibility of evidence under N.J.R.E. 401 and 403, the trial court conducts a fact-specific evaluation of the evidence in the setting of the individual case. On appellate review, considerable latitude is afforded to the court’s ruling, which is reversed only if it constitutes an abuse of discretion. (pp. 17-21)
2. In this case, the conduct depicted in the video recordings was germane to the jury’s assessment of defendant’s credibility in his statement to police and therefore relevant to its determination of pivotal issues. The portions of the two video recordings in which defendant was alone in the interrogation room met N.J.R.E. 401’s standard of relevancy. The segments at issue were potentially prejudicial to defendant; that evidence, however, was not prejudicial to the point at which the risk of prejudice substantially outweighed the probative value of the evidence, as N.J.R.E. 403 requires for the evidence to be excluded. The trial court did not abuse its discretion when it admitted into evidence the video recordings, including the portions in which defendant was alone. (pp. 21-27)
3. The Appellate Division panel reversed defendant’s conviction based not on a relevance analysis, but on its conclusion that the video segments were inadmissible as evidence of consciousness of guilt. The three video-recorded segments were not offered or admitted as consciousness-of-guilt evidence but on the ground that they were relevant to the jury’s evaluation of the credibility of defendant’s statement. Accordingly, the Court does not determine whether the evidence in question was admissible as consciousness-of-guilt evidence. (pp. 27-28)
4. The Appellate Division noted that the trial court did not give a limiting instruction. The trial court twice offered to give a limiting instruction. Defense counsel did not submit a proposed instruction and the trial court did not sua sponte charge the jury regarding the video recordings. Given the brief duration of the video-recorded excerpts in a six-day trial, it is unclear whether a limiting instruction would have clarified the limited purpose of the videotaped segments or overemphasized the evidence. Moreover, the State presented overwhelming evidence of defendant’s guilt, including DNA evidence linking defendant to a glove on which the victim’s blood was found shortly after the crime, as well as testimony by defendant’s mother and friends that substantially undermined his account of his activities during the critical time period. The trial court’s decision not to charge the jury on this issue was not “clearly capable of producing an unjust result,” and was not plain error. R. 2:10-2. (pp. 28-31)
5. The prosecutor’s reference to defendant’s demeanor as proof of his guilt was beyond the scope of fair comment. The prosecutor was free to discuss the video-recorded segments in which defendant was alone but should have constrained any such discussion to the question of credibility. The Court cautions prosecutors that when evidence is admitted for a limited purpose, comments in summation that exceed the bounds of that purpose must be avoided. However, the comment was not clearly capable of producing an unjust result, giving rise to plain error. (pp. 31-34)
6. The Court addresses the issues raised in the concurrence, and stresses that its ruling is distinctly fact-sensitive and based on the standard of review. (pp. 34-38)
The judgment of the Appellate Division is REVERSED, and the matter is REMANDED to the Appellate Division for proceedings consistent with this opinion.
CHIEF JUSTICE RABNER, CONCURRING, is of the view that multiple reasonable inferences can be drawn from defendant’s behavior after the interview and that no authority directly supports the use of evidence of a witness’s demeanor after an interrogation has ended. According to Chief Justice Rabner, the video’s minimal relevance was substantially outweighed by the risk of undue prejudice and the danger that the recording would mislead the jury, and the evidence should have been excluded under N.J.R.E. 403. Chief Justice Rabner concurs in the judgment because he finds the error was harmless in light of other strong evidence of defendant’s guilt.

JUSTICES LaVECCHIA, FERNANDEZ-VINA, and SOLOMON join in JUSTICE PATTERSON’s opinion. CHIEF JUSTICE RABNER filed a separate, concurring opinion, in which JUSTICES ALBIN and TIMPONE join

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