delivered the opinion of the Court.
In this appeal, we review the convictions of defendant Darien Weston for first-degree murder and eight other offenses. The charges arose from the 2007 murder of a young Newark resident who was kidnapped, transported to a parking lot, forced into a dumpster, and shot twice at close range. In a 2008 trial, a jury convicted defendant of six offenses, but was unable to reach a verdict on four other charges. In 2009, a second jury convicted defendant of three of the remaining four charges. During deliberations in both trials, with no objection from defendant prior to the start of deliberations, jurors were permitted unsupervised access to videotaped recordings of witness statements that had been admitted into evidence. The record does not reveal whether either jury viewed the videotaped statements in the jury room.
Following defendant’s appeal, an appellate panel held that plain error occurred when the judges who each oversaw one of defendant’s trials permitted the jurors access to the videotaped statements in the jury room. The panel stated that it could not conclude that, in either trial, the trial court’s error was harmless. It reversed defendant’s convictions on all charges and remanded the matter for a new trial.
We reverse the Appellate Division’s judgment of reversal. Consistent with our prior jurisprudence, the Appellate Division correctly perceived that, if a jury views a videotaped pretrial statement or videotaped testimony during deliberations, it should do so only in open court under the supervision of the trial judge. We hold, however, that the trial courts’ decisions to permit the juries access to the pretrial statements in defendant’s trials did not constitute plain error in these trials. Given the content of the two statements and the strength of the other evidence presented by the State, we do not find that the trial courts’ handling of the
videotaped statements during jury deliberations was “clearly capable of producing an unjust result.”
R.
2:10-2. Accordingly, we reverse and remand this matter to the Appellate Division for its consideration of the
I.
On the evening of July 10, 2007, Paul Phillips, a twenty-three-year-old employee of a utility company, attended a prayer meeting at the Kingdom Hall of Jehovah’s Witnesses in Montclair. He and his girlfriend, Erin King, planned to meet at Phillips’s home in Newark after his return from the prayer meeting. Phillips left Montclair at approximately 8:40 p.m., driving his green Dodge Durango sports utility vehicle (SUV). As Phillips departed, he called King to advise her that he was on his way to meet her. In the hours that followed, she repeatedly tried to reach him on his cell phone, but her calls went unanswered.
Just before 10:00 p.m. that evening, Officer Juan Torres of the Newark Police Department was dispatched in response to a 9-1-1 call. The caller stated that there was an injured person in a green dumpster in a parking lot behind a row of homes on Peshine Avenue in Newark. Torres found Phillips in the dumpster, unresponsive and bleeding from his mouth. Paramedics arrived and took Phillips to the hospital, where he was pronounced dead.
An autopsy revealed that Phillips’s death was caused by two gunshot wounds to the head, one of which had been fired from a range of less than one to one and a half feet from the victim. Police found blood, matched by DNA analysis to Phillips, inside the dumpster and a .25 mm shell casing nearby. Three days after the shooting, Phillips’s vehicle was recovered in Irvington, five miles from the scene.
In the weeks following the murder, three witnesses who said that they were present at the scene of Phillips’s murder were located by police. The first of the three was Nahaaj Hunter, a nineteen-year-old man who was playing basketball near the Pesh ine Avenue parking lot where the shooting occurred. Hunter contacted a tip line, stated that he had witnessed Phillips’s murder, and identified defendant as the shooter. He gave a statement to police officers.
Police officers also learned that D.C., a ten-year-old boy who lived near the scene of the shooting, said that he had been present during the shooting. D.C. went to the police station with his mother a month after Phillips’s death and gave a statement that was recorded on audiotape and videotape. He identified a photograph of defendant and stated that defendant was the shooter. D.C.’s mother would later testify that, on the evening of the murder, she heard shots. Her son ran to her, crying and saying that someone had told someone else to get in a dumpster. She also stated that her son identified defendant in a yearbook photograph as the man who shot the victim in the dumpster.
Police also obtained a videotaped statement from a third witness, twelve-year-old Q.M., who spoke to two officers with his mother present. In his statement, recorded on audio and video and later transcribed, Q.M. recounted that he had been acquainted with defendant for about two months before the murder and that he and defendant spent time together daily during that period. Q.M. stated that, on the evening of Phillips’s murder, he saw a gray Durango pull up in the back of Peshine Avenue with defendant in the front seat and someone else in the back.
Q.M. told police that as the car arrived, another local resident whom Q.M. knew approached defendant, briefly spoke with him, and nodded affirmatively. Q.M. said that defendant then got out of the car, walked to the back door and opened it, and
Q.M. also told police about an encounter with defendant about an hour and a half after Phillips’s murder. He said that defendant, driving the Durango, pulled up to Q.M. and told Q.M. to get into the car. According to Q.M., defendant threw a black gun on Q.M.’s lap, ordered him to take it and “stash” it, and threatened to kill Q.M.’s mother if he did not comply. Q.M. told police that he took the gun as ordered by defendant and disposed of it, and also took a pair of boxing gloves from the vehicle. With the consent of Q.M.’s mother, police officers searched his home and found the victim’s boxing gloves.
As a result of the officers’ investigation, defendant, who was seventeen years old at the time of the murder, was arrested. Following a hearing, defendant was waived to adult court pursuant to N.J.S.A. 2A:4A-26.
II.
A grand jury indicted defendant for first-degree murder, N.J.S.A. 2C:ll-3(a)(l) or (2); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); first-degree carjacking, N.J.S.A. 2C:15 — 2(a)(1)—(4); first-degree kidnapping, N.J.S.A. 2C:13 — 1(b)(1) or (2); first-degree felony murder, N.J.S.A 2C:ll-3(a)(3); third-degree terroristic threats, N.J.S.A. 2G:12- 3(a); fourth-degree tampering with physical evidence, N.J.S.A. 2C:28-6(1); two counts of third-degree hindering apprehension, N.J.S.A. 2C:29-3(b)(3); and fourth-degree aggravated assault (pointing a firearm), N.J.S.A. 2C:12-l(b)(4).
Defendant’s first trial took place over ten trial days in September 2008. The State presented the testimony of Hunter, D.C., Q.M., and twenty other witnesses.
Hunter testified that at the time of the murder, he had known defendant for about five or six months. He stated that three days before Phillips’s murder, he and defendant fought over a woman, and defendant threatened to shoot him in the head with a small handgun. Hunter identified a handgun that had been recovered by police and linked to Phillips’s murder by ballistics evidence as the weapon that defendant had used to threaten him during their dispute three days before Phillips’s murder.
Hunter testified that he witnessed Phillips’s shooting while at a basketball court located approximately two hundred feet from the location where Phillips was killed. He recalled that a black SUV pulled up behind the row of homes on Peshine Avenue, and defendant got out of the driver’s seat. According to Hunter, defendant went to the back of the SUV, pulled Phillips from the vehicle, forced him into the dumpster and fired three shots at him from about two feet away. Hunter stated that several children also witnessed the murder, and that the children ran away immediately thereafter. Hunter identified defendant in court as the individual who had killed Phillips. He was extensively cross-examined, particularly with respect to his history of criminal offenses, and admitted that he did not like defendant.
D.C. also testified at defendant’s first trial. Notwithstanding inconsistent versions of the Phillips murder given in his
On cross-examination, defense counsel impeached D.C. with his videotaped statement, and D.C. denied making several portions of that statement that conflicted with his testimony at trial. Defendant was permitted to play that statement in its entirety to the jury. The State provided a written transcript to the jurors for their use while the statement was played, but that transcript was not admitted into evidence or made available to the jurors during deliberations.
Before defendant’s first trial commenced, Q.M. recanted his pretrial statement. At defendant’s first trial, Q.M. insisted that he did not witness Phillips’s murder, converse with defendant in the victim’s vehicle, or dispose of the gun. Q.M. claimed that in an encounter in the bathroom during a break from his discussions with police officers, one of the officers coerced him into repeating details that the officers provided to him by threatening to arrest his mother if he did not comply. He testified that he regretted getting defendant into trouble.
In the wake of Q.M.’s recantation, the State sought to admit his pretrial statement as substantive evidence. The trial court held a hearing under N.J.R.E. 104 out of the presence of the jury, and admitted Q.M.’s pretrial statement as a prior inconsistent statement pursuant to N.J.R.E. 803(a)(1) and State v. Gross, 121 N.J. 1, 577 A.2d 806 (1990). With Q.M. on the witness stand, his pretrial statement was then played for the jury. As it did with respect to D.C.’s statement, the State gave the jury a written transcript of the statement to follow as the videotaped version was played in open court. The transcript was not admitted into evidence and was not provided to the jury for use during deliberations.
At the charge conference, the State suggested, with no objection from defendant, that a DVD player be made available to the jurors so that they could view the videotaped statements. The trial court stated that it had no objection to permitting the jury to review the videotaped statements during deliberations. During her summation, the prosecutor urged the jury to watch the videotaped statements of both witnesses. The trial court instructed the jury, in accordance with Model Jury Charges (Criminal), “Prior Contradictory Statements of Witnesses (Not Defendant)” (rev. May 23, 1994), regarding the special considerations raised by the admission of the pretrial statements of D.C. and Q.M.
After two days of deliberations, defendant moved for a mistrial on the ground that a juror was tainted. After requesting a mistrial, defense counsel stated that although he could not make a principled argument against the admission into evidence of the videotaped statements of D.C. and Q.M., he had concluded he may have been mistaken when he declined to object to the State’s proposal to give the jurors access to those statements during deliberations. Defense counsel stated that he would have preferred if the jury had been required to request a statement before being allowed to play it, so in-court testimony could be read back as well. The trial court declined to remove the DVDs from the jury room, suggesting that doing so after two days of deliberations could be prejudicial to both parties.
The jury in defendant’s first trial convicted him of six offenses: first-degree kidnapping, second-degree possession of a weapon for an unlawful purpose, third-degree possession of a weapon without a permit, third-degree terroristic threats, third-degree hindering apprehension, and fourth-degree tampering with physical evidence. It was unable to reach a verdict with respect to the other counts of defendant’s indictment.
Defendant’s retrial on those remaining counts, conducted before a different judge, took place over seven trial days during September and October 2009. Among the twenty witnesses who testified were Hunter, D.C. and Q.M. 1
With the exception of a discrepancy regarding the distance from which he viewed Phillips’s murder, Hunter’s testimony at defendant’s second trial was essentially consistent with his testimony at the first trial. He identified defendant as the individual who shot Phillips.
D.C. again testified that he witnessed Phillips’s murder and identified defendant as the shooter, adding new details regarding an exchange between defendant and Phillips immediately preced ing the murder. The trial court denied the State’s request to move D.C.’s videotaped statement into evidence at the second trial.
Q.M. was also a witness at the second trial. The trial court held a hearing under
N.J.R.E.
104 out of the presence of the jury, and admitted Q.M.’s videotaped statement pursuant to
Gross, supra,
121
N.J.
at 7-17,
As did the judge in the first trial, the trial court decided to permit the jury access to the DVD of Q.M.’s videotaped statement during its deliberations in the second trial. Subsequently, the State represented to the trial court that it had arranged for the jury to have access to a DVD player in the jury room. Defendant did not object to that procedure. In summation, the State urged the jury to watch the DVD and to note the inconsistencies between Q.M.’s pretrial statement and his testimony on the stand.
During deliberations, the jurors did not ask questions concerning the DVD. Like the jury in defendant’s first trial, the jury in his second trial gave no indication that it
In defendant’s second trial, the jury convicted him of first-degree murder, first-degree carjacking, and first-degree felony murder, and acquitted him of fourth-degree aggravated assault. After hearing victim-impact statements from Phillips’s family members and friends pursuant to the Crime Victim’s Bill of Rights, N.J.S.A. 52:4B-34 to -38, and making findings as to aggravating and mitigating factors in accordance with N.J.S.A 2C:44-l(a)-(b), the trial court sentenced defendant to an aggregate term of life plus thirty-five years, with a total period of parole ineligibility of more than eighty-five years.* * 3
Defendant appealed his convictions and sentence. In an unpublished per curiam opinion, an appellate panel reversed defendant’s convictions. The panel held that both trial courts committed plain error when they permitted the two juries unrestricted access to videotaped statements during deliberations. The panel reasoned that the trial courts failed to adhere to the procedures set forth in
State v. Michaels,
264
N.J.Super.
579, 643-45,
We granted the State’s petition for certification. 217
N.J.
287,
III.
The State concedes that the trial courts in both trials committed a “procedural lapse” when they allowed the two juries unsupervised access to the videotaped
Defendant argues that his right to a fair trial was violated when the videotaped statements of D.C. and Q.M. in the first trial, and the videotaped statement of Q.M. in the second trial, were in the juries’ possession during deliberations. He contends that both trial judges violated this Court’s directive in
Burr, supra,
195
N.J.
at 134-35,
IV.
A.
As the State and defendant agree, a trial court should not permit a jury to have unrestricted access during deliberations to the videotaped pretrial statements of witnesses. That rule constitutes an exception to
Rule
l:8-8(a), which broadly permits a jury to “take into the jury room the exhibits received in evidence----” As this Court recently noted, “video-recorded statements have been considered a different type of exhibit, a hybrid that is both a demonstrative exhibit and testimony.”
State v. A.R.,
213
N.J.
542, 560,
Our appellate courts first confronted the question of jury access to a videotape of a witness in the context of recorded trial testimony in
Michaels, supra,
264
N.J.Super.
at 641-42,
A trial judge should first seek to satisfy a jury request for playback of videotaped testimony by offering a reading of the transcript of the testimony. The trial judge should inquire of the jury as to whether there is something the jurors are seeking from the videotape which would be unavailable to them from an impartial reading of the witness’ testimony. If it is determined that the jury’s request for a replay of the tape appears reasonably necessary to its deliberations, then the tidal judge should exercise discretion to balance that need against any possible prejudice in each particular case.
[Id. at 644-45,625 A.2d 489 (citations omitted).]
In
Burr, supra,
this Court applied the guidelines set forth in
Michaels
to videotaped pretrial statements of child victims in the trial of a defendant charged with second-degree sexual assault,
N.J.S.A.
2C:14-2(b), and third-degree endangering the welfare of a child,
N.J.S.A.
2C:24-4(a). 195
N.J.
at 122, 132-35,
This Court concurred with the Appellate Division in
Burr
that the defendant was entitled to a new trial, affirmed and modified the panel’s judgment, and remanded the case to the trial court.
Id.
at 133-35,
In
State v. Miller,
205
N.J.
109, 114,
Shortly after it decided
Miller,
the Court addressed the different context of a videotaped confession in
State v. W.B.,
205
N.J.
588, 622-23,
The Court’s most recent exploration of this issue is found in
A.R., supra,
213
N.J.
at 552-64,
These cases state a consistent principle: because a jury’s review of a videotaped witness statement or testimony raises concerns that a particular segment will be overemphasized or
viewed out of context, any replay of such a statement or testimony must be conducted in open court, under the careful supervision of the trial judge.
Id.
at 546, 559-61,
The seasoned trial judges who oversaw defendant’s trials effectively addressed most of the issues that arose in the course of the proceedings, but they did not follow the procedures set forth in
Michaels, Burr,
and the Court’s later authority. First, the jury did not request a replay of the videotaped statements in dispute. In the first trial, the jury expressed no interest in reviewing the videotaped statements of D.C. or Q.M.; the suggestion that it be permitted to do so came from the State,
We therefore agree with the Appellate Division that it was error for the trial courts to permit the juries to have unsupervised access to the videotaped statements during deliberations. We
reiterate that trial courts should make videotaped statements and testimony available to jurors during deliberations only in the event of a jury request, and solely in accordance with the guidelines set forth in our prior law.
See A.R., supra,
213
N.J.
at 546, 559-61,
B.
It is undisputed that defendant did not object in either of his trials to the juries’ unsupervised access to the witnesses’ videotaped pretrial statements, which were properly admitted into evidence. 5 Accordingly, as did the Appellate Division, we review whether the jury’s access during deliberations to the D.C. and Q.M. videotaped pretrial statements constituted plain error.
Plain eri’or is error that “is ‘clearly capable of producing an unjust result.’ ”
State v. Singleton,
211
N.J.
157, 182-83,
In determining whether defendant has demonstrated that the errors here had “ ‘a clear capacity to bring about an unjust result,’ ” we assess “ ‘the overall strength of the State’s case.’ ”
State v. Nero,
195
N.J.
397, 407,
The jury’s access to D.C.’s videotaped statement during deliberations in the first trial clearly did not deprive defendant of a fair trial. Defendant presented the statement to the jury, and his counsel affirmatively relied on it in summation; D.C.’s confusing responses to police interrogation on videotape had the potential to undermine the child’s incriminating testimony about defendant on the witness stand.
In his videotaped statement, D.C. gave three contradictory accounts of Phillips’s murder. Initially, D.C. denied having witnessed the murder, stating that his nine-year-old friend Isaiah was present at the scene and told him about the shooting after it occurred, and that the two boys then went to the dumpster and saw the victim bleeding from the head. In other portions of his statement, D.C. indicated that he himself had witnessed the shooting. He recounted that the shooter and the victim arrived in a green van or green truck, that the shooter was holding a handgun, and that the victim was in the dumpster on his knees. In the same videotaped statement, D.C. gave an alternative version of the murder, in which the victim emerged from a house and was shot after trying to escape from the shooter in his vehicle. D.C. said that he recognized defendant as the shooter because he had seen him on two prior occasions.
In contrast, D.C.’s trial testimony at both trials provided a consistent account of the shooting, albeit one that diverged from the accounts given by Hunter in his pretrial statement and testimony, and Q.M. in his pretrial statement. D.C. testified at
If, as defendant suggests, jurors in the first trial may have viewed D.C.’s videotaped statement and relied on it more than they relied on the witness’s trial testimony, then that could only have weakened the State’s case. The trial court’s decision to allow the jury in the first trial to have D.C.’s videotaped statement during deliberations did not constitute plain error.
In the case of Q.M., whose videotaped pretrial statement was in the juries’ possession in both trials, application of the plain error standard requires a more detailed inquiry. In his pretrial statement, Q.M. incriminated defendant. Prior to defendant’s first trial, Q.M. recanted his statement and claimed that it had been prompted by police coercion. Testifying in both trials, Q.M. disclaimed any knowledge of Phillips’s murder and contended that the details provided in his statement had been supplied to him by police officers. In order to determine whether the juries’ access to Q.M.’s pretrial statement during deliberations was “clearly capable of producing an unjust result,” we consider the strength of the other evidence presented by the State, some of which directly corroborated Q.M.’s pretrial statement, and none of which supported his testimony at trial.
First, Hunter’s trial testimony substantially corroborated the account of Phillips’s murder given by Q.M. in his pretrial statement. As did Q.M. in his pretrial statement, Hunter testified that defendant arrived at the crime scene driving an SUV with Phillips in the back of the vehicle. Hunter stated that defendant ordered the victim out of the car and into the dumpster, and then shot him. In his pretrial statement, Q.M. said that defendant got out of the driver’s seat, opened the back, and told the victim to get into the dumpster; Q.M. said that defendant told him that the victim “put his head down” in his hands in the dumpster and “basically started crying.” 6 There were some discrepancies between their accounts. Hunter recalled that the SUV was black, while Q.M. recalled a grey SUV. In the first trial, Hunter recounted that three shots were fired; in the second, he recalled three or four, while Q.M.’s statement reflected that defendant shot Phillips twice. Their accounts of the shooting, however, were essentially consistent. Significantly, both witnesses were extensively cross-examined before the trial juries.
Second, testimony about Phillips’s boxing gloves substantially buttressed Q.M.’s pretrial statement and undermined the credibility of his recantation at trial. Q.M. told police in his pretrial statement that, after defendant ordered him into the victim’s Durango and directed him to dispose of the gun, he took boxing gloves from the vehicle, and that the gloves were currently at his home. Following Q.M.’s statement, Phillips’s boxing gloves were found by police in a consent search of Q.M.’s home. In both trials, Phillips’s girlfriend identified the boxing gloves found in Q.M.’s home as his; in the second trial, she added that she had previously seen the boxing gloves in Phillips’s vehicle. Thus, the officers’ recovery of the boxing gloves in Q.M.’s home, and the victim’s girlfriend’s
Third, Q.M.’s discussion, in his pretrial statement, of the gun used to kill Phillips was substantially corroborated by other evidence. Q.M. stated that approximately an hour and a half after the murder, defendant pulled over in the victim’s SUV, dropped a gun in Q.M.’s lap and ordered him to “stash” it. Q.M. testified that he threw the gun in a field near a tree.* * 7 He said that defendant later told him that he retrieved the gun. A gun was later recovered from an individual arrested in Newark for possession of a firearm, who stated that his cousin and he had found the gun a few minutes before his arrest in the grass in Ivy Hill Park. The gun was identified by Hunter, with more certainty in the first trial than in the second, as the weapon used by defendant to threaten Hunter three days before Phillips’s murder. On the basis of a shell casing found at the scene and two projectiles removed during Phillips’s autopsy, the gun found in Ivy Hill Park was identified by a ballistics expert as the weapon used in Phillips’s murder. Thus, Q.M.’s account of his disposal of the gun, given in his pretrial statement and later recanted, is consistent with other evidence admitted at both trials.
Finally, Q.M. told police in his pretrial statement that defendant told Q.M. that defendant had taken from Phillips a cell phone, described by Q.M. as a blue “I.A. 60” phone that was a “chirp.” At trial, Phillips’s girlfriend testified that the victim had a blue, black and silver Nextel flip cell phone. The cell phone was not recovered. In the testimony that he gave after recanting his statement in the first trial, Q.M. stated that although other details of his statement had been dictated by police officers, he “made up” his description of the color of the victim’s cell phone. The consistency between Q.M.’s description of the cell phone, and the description provided by the victim’s girlfriend in her testimony, supports the credibility of Q.M.’s pretrial statement, and undermines his explanation at trial.
In short, to the extent that the jury weighed the credibility of Q.M.’s pretrial statement against the credibility of his trial testimony recanting that statement, substantial evidence, independent of Q.M., corroborated the account that he originally gave police. In contrast, Q.M.’s attempts to explain away the details contained in his pretrial statement, and to account for his possession of the victim’s boxing gloves, found no support in the other evidence in the trial record. The juries saw Q.M. testify, heard his account, and had ample opportunity to form a judgment about his credibility that need not be interfered with on the basis of any other evidence presenting a clear capacity that an unjust result was reached.
As reflected by defendant’s affirmative use of D.C.’s pretrial statement, that statement was substantially less incriminatory than D.C.’s testimony at trial. If the jury decided that Q.M.’s pretrial statement was more credible than his trial testimony recanting his statement, such a determination found robust support in other evidence admitted in both trials. It is not only unlikely, but virtually inconceivable,
Notwithstanding our review of defendant’s trials under the plain error standard that governs this case, we reiterate our adherence to the rule of
Michaels, supra,
264
N.J.Super,
at 644-45,
V.
The judgment of the Appellate Division is reversed. The matter is remanded to the Appellate Division for consideration of the issues that it did not reach in its opinion in this case.
For reversal and remandment — Chief Justice RABNER, Justices LaVECCHIA, ALBIN, PATTERSON, FERNANDEZVINA, and SOLOMON, and Judge CUFF (temporarily assigned) — 7.
Opposed — None.
Notes
Hunter testified at the second trial only after a material witness warrant was issued. He was housed by police in a hotel for his protection during the trial. He testified that since he had identified defendant as the individual who shot Phillips, he had been labeled a "snitch,” shot at, "jumped” three or four times, and threatened.
The jurors in the second trial sent the court a single note during the first afternoon of deliberations: "[c]an we end now and come back tomorrow. Some of us want to think alone. P.S. How did [Q.M.] come into play[?]" The trial court permitted them to adjourn for the day, and, in response to the jurors’ inquiry about Q.M., the court instructed them to "rely on your own recollection of the evidence for the answer to that question."
The trial court sentenced defendant to a life sentence for his first-degree murder conviction. It sentenced defendant to a term of thirty years' imprisonment for his first-degree kidnapping conviction and a term of five years' imprisonment for his conviction for third-degree terroristic threats, both terms to run consecutively to defendant’s term of life imprisonment, and both subject to the parole ineligibility provisions of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The court sentenced defendant to a term of thirty years' imprisonment, subject to NERA, for his first-degree carjacking conviction; a term of five years’ imprisonment for his conviction for third-degree possession of a weapon without a permit; a term of five years' imprisonment for his conviction for witness tampering; and a term of five years for his conviction for hindering apprehension. All terms were to be served concurrently with his life term for first-degree murder. The remaining offenses were merged into other offenses. Defendant was awarded 841 days in jail credit toward his sentence.
The Appellate Division did not reach the remaining issues raised by defendant: whether the jury instruction on terroristic threats in defendant’s first trial failed to clearly state the crime of violence threatened; whether defendant was denied the effective assistance of trial counsel in both trials because his counsel failed to file a motion for a hearing pursuant to United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), with respect to his identification by D.C. and Q.M. based on a single photograph; and whether the sentencing court improperly imposed consecutive sentences, imposed an illegal sentence, and imposed a sentence that was manifestly excessive.
Shortly before the jury in the first trial returned a verdict, defense counsel raised a question about the trial court's handling of the videotaped statements, suggesting that his decision not to object to the procedure used by the trial court had been an error. He did so after urging the jury in summation to view D.C.’s statement, declining to object to the procedure before the jury was provided with the DVDs, and failing to raise a question about the issue during two days of deliberation. This untimely objection does not alter the standard of review.
See R.
1:7-2 (requiring objection "at the time the ruling or order is made or sought''); Pressler & Verniero,
Current N.J. Court Rules,
comment 2 on
R.
1:7-2
(2015)
(noting need to provide court with basis of complaint to permit opportunity to respond) (citing
State v. Maisonet,
166
N.J.
9, 20,
In his trial testimony in defendant's first trial, after he had recanted his pretrial statement, Q.M. told the jury that he had "made up” his statement regarding the victim putting his head in his hands in the dumpster because he “thought it would be funny."
The transcript of Q.M.'s statement quotes Q.M. as stating that he "threw [the gun] in the field on Harriman," which the court reporter noted was a phonetic transcription of a street identified by Q.M. It is unclear from the transcript where the field described by Q.M. was actually located.