STATE OF NEW JERSEY v. FREDERICK L. HUNT
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1463-07T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
FREDERICK L. HUNT,
Defendant-Appellant.
________________________________________
Submitted February 9, 2010 - Decided March 25, 2010
Before Judges Parrillo, Lihotz and Ashrafi.
On appeal from Superior Court of New Jersey,
Law Division, Camden County, Indictment No.
06-06-2082.
Yvonne Smith Segars, Public Defender,
attorney for appellant (Kevin G. Byrnes,
Designated Counsel, of counsel and on the
brief).
Warren W. Faulk, Camden County Prosecutor,
attorney for respondent (Patrick D. Isbill,
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Defendant Frederick Hunt appeals his conviction by a jury
on a single charge of possession of a handgun without a permit.
At trial, defendant asserted that he was arrested within one
minute of picking up a handgun he found on the sidewalk to
prevent danger to children and others, he never intended to keep
the gun, and he had no opportunity to turn it in to the police
before his arrest. Because two trial errors may have affected
the jury's verdict in this close case, we reverse and remand for
a new trial.
I.
The only witness for the State was a police officer who
accidentally dropped his weapon during a foot chase of a car
thief. At about 9:00 a.m. on February 10, 2006, Officer John
Kelly of the City of Camden Police Department was on patrol in
his police vehicle when he spotted a car reported stolen. He
notified headquarters and then stopped the stolen car near the
intersection of Grand and Eutaw Streets. As Officer Kelly
stepped out of his vehicle with his weapon drawn, two occupants
jumped out of the stolen car and ran in different directions.
Kelly pursued the driver on foot. In returning his gun to
its holster while in pursuit, Kelly did not engage both safety
locks of the holster. After chasing the driver for approxi-
mately 200 yards, Kelly realized that his gun was not in its
holster. He immediately retraced his steps to look for his gun,
leaving the chase to other officers who had arrived.
Near the location of the motor vehicle stop, two elderly
men called to Officer Kelly. At this point, Kelly estimated,
A-1463-07T4
2
approximately forty seconds to a minute had elapsed from the
start of the foot chase. He testified:
Q. Okay. And based on what they told
you, what did you do next.
A. Based on what they told me, I followed
an individual that was on Eutaw Street.
The individual was defendant, who, according to Kelly, was
walking away from the scene at a "casual, steady pace." Kelly
caught up to defendant and yelled to him. As defendant turned,
Kelly ordered him to get on the ground. Defendant raised his
arms and said he did not do anything wrong.
Within seconds, a Camden police van came into the area and
two officers confronted defendant with their weapons drawn.
Defendant told the police that he had the officer's gun and sat
down at the curb. Kelly grabbed defendant by his jacket, forced
him to the ground, and handcuffed him. From defendant's
waistband, according to Kelly, under his jacket and a
sweatshirt, Kelly removed his missing handgun.
Defendant was the only witness for the defense. He
informed the jury he was twenty-eight years old and employed
with a mortgage company. On the morning of the incident, he was
on his way to work, having stopped at a store to get a paper,
and he was walking to his bus stop when he saw a handgun on the
ground. At first he thought it was a toy and picked it up.
A-1463-07T4
3
Feeling the weight, he realized it was a real gun. He put the
gun in his pocket because he did not want anybody else,
especially children in the area, to take the gun. He testified
that he used his cell phone to "chirp"1 his uncle, who was a
sheriff's officer, to get advice on what to do with the gun.
When he could not make contact with his uncle, he started to
walk toward "police activity" in the area to turn in the gun.
He first looked toward Officer Kelly's police car, which
was only ten feet away, but he saw that the vehicle was not
occupied. As he began walking toward other "police activity,"
he heard Officer Kelly approaching, yelling, and cursing at him
to get on the ground. Defendant testified that he was scared of
getting shot by the officer, and so, he did not immediately
reveal that he had a gun. He described his confrontation with
Kelly as a brief argument, after which he sat on the ground and
was arrested.
Defendant also testified that he had never owned or fired a
gun but that he was fascinated with guns as a child. He
estimated he had the officer's gun for about sixty seconds
before his arrest.
On cross-examination, defendant admitted a number of things
he might have done in those sixty seconds, such as wait for a
1
Defendant's testimony did not explain what he meant by "chirp."
A-1463-07T4
4
police officer near the police car that was unoccupied, call the
police on his cell phone, ask other people in the area such as
the two elderly men to call the police, or go back to the store
or to a nearby home and have someone call the police. Defendant
described these alternatives as possibilities that, in "20-20
hindsight," were available to him but he did not think of at the
time.
The statute under which defendant was charged, N.J.S.A.
2C:39-5b, provides in relevant part:
Any person who knowingly has in his
possession any handgun . . . without first
having obtained a permit to carry the same
. . . is guilty of a crime of the third
degree.
To prove a violation of this statute in the typical case, the
State must prove only the following essential elements:
1. The item alleged to have been possessed
was in fact a handgun;
2. Defendant knowingly possessed the
handgun; and
3. Defendant did not have a permit to
possess the handgun.
[Model Jury Charge (Criminal), "Unlawful
Possession of a Handgun" (2001).]
Defendant contested none of these elements. Rather, his defense
was that he had no intent to keep the handgun and was justified
in picking it up to prevent danger to children and others.
A-1463-07T4
5
Defense counsel requested and the trial court agreed to charge
the jury: "If you believe the defendant was attempting to
terminate the possession of the handgun at the time he was
arrested, there must have been sufficient time for the defendant
to terminate that possession." Defense counsel made no further
request regarding justification for defendant's possession of
the gun.
In charging the jury, the trial court stated:
[T]o "possess" . . . within the meaning of
the law, the defendant must knowingly
procure or receive a handgun possessed or be
aware of his control thereof for a
sufficient period of time to have been able
to relinquish control if he chose to do so.
The law requires a sufficient period
[of] time to allow termination of possession
of the weapon. If there was not a
sufficient period of time to relinquish
possession, it is a defense to the . . .
offense charged.
Temporary possession of a handgun by a
person carrying a weapon shall not be
considered unlawful possession under this
provision of the statute.
The fact that the defendant only
possessed or carried the handgun for a short
period of time does not preclude you from
finding the possession was unlawful if you
decide that the defendant had no intent to
surrender it.
....
A-1463-07T4
6
[Y]ou must find . . . that he had the
time and opportunity to surrender the
handgun to the proper authority.
After deliberating for forty-five minutes, the jury
returned a verdict of guilty. At sentencing, the court
considered the absence of a prior criminal record, defendant
having only two minor, non-violent municipal court convictions,
and found that mitigating factors outweighed the one aggravating
factor of needing to deter unlawful conduct. The court
sentenced defendant to three years' probation, 100 hours of
community service, and money penalties. Defendant filed a
timely notice of appeal.
II.
In his first point on appeal, defendant argues:
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW
AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO
THE UNITED STATES CONSTITUTION AND ART. I,
PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS
VIOLATED BY THE FAILURE TO INSTRUCT THE JURY
ON THE DEFENSE OF JUSTIFICATION (NOT RAISED
BELOW).
In the factual circumstances of this case, we agree. A common
law defense of justification was presented by the evidence, and
it was relevant to opposing arguments regarding the one disputed
issue in the case, defendant's intent. Justification as a
defense required instruction to the jury, even in the absence of
a request by counsel.
A-1463-07T4
7
Justification for engaging in an otherwise criminal act is
an affirmative defense under the New Jersey Code of Criminal
N.J.S.A. 2C:3-1. Necessity is recognized as one form
Justice.
of justification in N.J.S.A. 2C:3-2a, which states:
Necessity. Conduct which would otherwise be
an offense is justifiable by reason of
necessity to the extent permitted by law and
as to which neither the code nor other
statutory law defining the offense provides
exceptions or defenses dealing with the
specific situation involved and a
legislative purpose to exclude the
justification claimed does not otherwise
plainly appear.
In State v. Tate,
102 N.J. 64, 70 (1986), the Court paraphrased
the three "limiting criteria" of a defense of necessity under
this statutory provision: (1) defendant's conduct must be
permitted by law;2 (2) it must not be specifically addressed in
another Code section or statute; and (3) it must not be contrary
to legislative purpose. In Tate, the majority held that, under
the Code, medical necessity was not a defense to possession of
Id. at 72-73.
marijuana.
The dissenting opinions in Tate would have allowed such a
defense under the common law of justification, which is
explicitly recognized by the Code under subsection b of N.J.S.A.
2
In the context of this case, we understand the first limiting
criterion to mean that the conduct was not unlawful for a reason
other than the statute under which defendant was charged.
A-1463-07T4
8
2C:3-2. Id. at 76-81, 88 (Handler, J. dissenting) and 95
(Garibaldi, J. dissenting). That subsection states:
b. Other justifications in general. Conduct
which would otherwise be an offense is
justifiable by reason of any defense of
justification provided by law for which
neither the code nor other statutory law
defining the offense provides exceptions or
defenses dealing with the specific situation
involved and a legislative purpose to
exclude the justification claimed does not
otherwise plainly appear.
The dissenting justices discussed "the breadth and diversity" of
the common law defense of justification, and described one of
its "common threads" as a balancing between "a choice of evils."
Id. at 78-79 (Handler, J. dissenting). Subsection b of the
statute preserved common law defenses of justification provided
that the asserted justification is "not inconsistent with a
deliberate legislative choice." 1971 Commentary to Model Penal
Code, quoted in John M. Cannel, New Jersey Criminal Code
Annotated, comment 2 on N.J.S.A. 2C:3-2b (2005). Such defenses
must be considered on a case-by-case basis within the
Cannel, supra, comments 3
limitations set forth in the statute.
and 4; see examples of common law defenses of justification
discussed in Tate, supra,
102 N.J. at 78 (Handler, J.
dissenting).
In past weapons prosecutions, self-defense as justification
has required that defendant show "spontaneous and compelling" or
A-1463-07T4
9
"imminent" or "immediate" danger. See State v. Kelly,
118 N.J.
370, 386 (1990); State v. Harmon,
104 N.J. 189, 208-09 (1986);
cf. Polk v. State,
947 S.W.2d 758, 760 (Ark. 1997) (elements
necessary to establish self-defense or defense of necessity to
unlawful possession of a firearm); State v. Crawford,
521 A.2d 1193, 1200-01 (Md. 1987) (same).
In State v. Romano,
355 N.J. Super. 21 (App. Div. 2002),
which involved a charge of driving while intoxicated, we held
that to establish a defense of justification:
(1) There must be a situation of emergency
arising without fault on the part of the
actor concerned;
(2) This emergency must be so imminent and
compelling as to raise a reasonable
expectation of harm, either directly to the
actor or upon those he was protecting;
(3) This emergency must present no
reasonable opportunity to avoid the injury
without doing the criminal act; and
(4) The injury impending from the emergency
must be of sufficient seriousness to
outmeasure the criminal wrong.
[Id. at 29.]
In this case, the State argues that danger to nearby
children and others was not imminent and compelling. See People
v. Pepper,
48 Cal. Rptr. 2d 877, 880 (Ct. App. 1996) (rejecting
defendant's justification defense to unlawful possession of a
firearm because evidence did not show imminent and compelling
A-1463-07T4
10
danger to children in the house). Although there was no
specific evidence of children or others who might have picked up
the gun, other than the two elderly men, the immediacy of danger
presented by a loaded handgun on a city sidewalk was a factual
issue for the jury to determine. Defendant was entitled to the
jury's consideration of a provision of the Code that recognizes
a defense of justification to protect against a greater harm
than his own allegedly temporary possession of the handgun
without a permit.
As quoted previously, the trial court instructed the jury
about temporary possession in conformity with cases from other
jurisdictions where defenses of "transitory" or "momentary"
possession were presented to charges of illegal possession of
weapons or drugs. See, e.g., People v. Martin,
25 P.3d 1081,
1082 (Cal. 2000); Pepper, supra,
48 Cal. Rptr. 2d at 882; Bieder
v. United States,
707 A.2d 781, 783 (D.C. 1998); People v.
Ternaku,
564 N.Y.S.2d 5 (App. Div.), appeal denied,
565 N.E.2d 529 (N.Y. 1990); State v. Miller,
193 P.3d 92, 97 (Utah 2008).
The court also instructed the jury on defendant's intent and
opportunity to relinquish possession. But focusing the jury
only on "the time and opportunity to surrender the handgun," and
on whether defendant intended to do so, did not fully apprise
the jury of the law regarding alleged justification for
A-1463-07T4
11
defendant's conduct. Charges on temporary possession and
intent, combined with a charge on justification, would have
fully informed the jury about the law applicable to the factual
issues raised by the defense.
Defense counsel did not request a charge on justification
and did not object to its omission. Therefore, the plain error
See State v. Torres,
183 N.J. 554,
standard of review applies.
564 (2005); State v. Johnson,
309 N.J. Super. 237, 266 (App.
Div.), certif. denied,
156 N.J. 387 (1998); R. 2:10-2. In the
context of a jury charge, plain error is:
Legal impropriety in the charge
prejudicially affecting the substantial
rights of the defendant 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. Jordan,
147 N.J. 409, 422 (1997)
(quoting State v. Hock,
54 N.J. 526, 538
(1969), cert. denied,
399 U.S. 930,
90 S. Ct. 2254,
26 L. Ed. 2d 797 (1970)).]
The law is well-settled in this State that the primary
responsibility for ensuring correct and complete jury
instructions lies with the trial court. See State v. Grunow,
102 N.J. 133, 148 (1986); State v. Green,
86 N.J. 281, 287-89
(1981); State v. Powell,
84 N.J. 305, 318-19 (1980). We
conclude that because justification was the heart of the
defense, the trial court should have instructed the jury on the
A-1463-07T4
12
law pertaining to common law justification and necessity under
N.J.S.A. 2C:3-2.3
III.
In his second point, defendant argues:
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW
AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO
THE UNITED STATES CONSTITUTION AND ART. I,
PAR. 1 OF THE NEW JERSEY CONSTITUTION AND
RIGHT TO CONFRONTATION AS GUARANTEED BY THE
SIXTH AMENDMENT TO THE UNITED STATES
CONSTITUTION AND ART. I, PAR. 10 OF THE NEW
JERSEY CONSTITUTION WERE VIOLATED BY THE
IMPROPER ADMISSION OF HEARSAY EVIDENCE
ALLEGING THE COMMISSION OF OTHER CRIMES.
A. The Trial Court Improperly Admitted
Other-Crime Evidence Without a Proper
Limiting Instruction.
B. The State Improperly Relied on the
Out-Of-Court Statements of Absentee
Witnesses to Implicate the Defendant in
the Commission of the Crimes.
C. The State Failed to Show That Its
Absentee Witnesses Had First-Hand
Knowledge of the Facts.
The prosecution presented the disputed evidence in response
to defense cross-examination of Officer Kelly about the absence
of addresses or phone numbers in his police report for the two
elderly men to whom he spoke immediately before apprehending
3
We leave it to the trial court and counsel to determine what
specific justification charge tailored to the facts of this case
might be appropriate. We note that the elements of the defense
discussed in Romano, supra,
355 N.J. Super. at 29, should
provide guidance.
A-1463-07T4
13
defendant. After pointing out that the police report contained
the men's names, the cross-examination continued as follows:
Q. Now, there's another box next to
there for an address and a phone number.
What's in those boxes?
A. None given, sir.
....
Q. Now, you indicate you've been a
police officer for four years doing this?
A. Nine years, sir.
Q. Nine years? If there's a homicide
or any other serious case and two witnesses
are there and you get their names, is it a
normal police practice to also get their
addresses and phone numbers whether they
want to give it or not?
A. Yes, it is, sir.
Q. But in this case you didn't do
that?
A. No, sir.
Q. But you spoke with them long
enough to get their names, correct?
A. Yes, sir.
On redirect examination of Kelly, the prosecutor sought
explanation for the absence of the witnesses' addresses:
Q. Okay. Now, the two individuals
that you spoke with, did you ask them for
their address?
A. Yes, I did, sir.
A-1463-07T4
14
Q. And did they give it to you?
A. No, they did not sir.
Q. And why did they not want to give
you the address?
A. They didn't know the suspect's
background, they were afraid of retaliation
or retribution -- (emphasis added).
DEFENSE COUNSEL: Judge, I'm going to
object at this point to speculation.
PROSECUTOR: Well, it's not speculation
if that's what they -- can we approach,
Judge?
THE COURT: Sure.
(Sidebar)
....
DEFENSE COUNSEL: At this point, it is
speculation because no foundation has been
laid. I didn't know what he's focusing on
and what detail he's working on (away from
recording microphone).
PROSECUTOR: Well, this was asked on
cross-examination, Judge. I think the
question was why there was no address
provided. [Defense counsel] got into that.
So the officer should be able to explain.
....
THE COURT: . . . I'm going to allow it.
....
(Sidebar concluded)
A-1463-07T4
15
Q. Officer, did these two individuals
explain to you why they did not want to
provide their address?
A. Yes, they did, sir.
Q. And why?
A. They were in fear for retaliation.
They didn't know if the individual was
involved in a gang or a drug deal or any --
of the such. (Emphasis added).
(Sidebar)
DEFENSE COUNSEL: I don't like the way
this is hanging whether he's in a gang or
anything else. I think we need to get a
curative. There's nothing to indicate -- my
client has no record, there's nothing to
indicate gang membership. There was no --
PROSECUTOR: Judge, that's fine.
....
(Sidebar concluded)
....
THE COURT (to the jury): I just want to
give you an instruction that -- there's no
evidence in this case that Mr. Hunt is a
member of a gang or ever has been. There's
no evidence that he was involved in the
incident with the stolen vehicle and that's
not part of this case and you should not
consider that.
In summation, defense counsel argued that Officer Kelly's report
was deficient. His failure to get addresses for the two men at
the scene deprived the defense of an opportunity to find and
interview those witnesses.
A-1463-07T4
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Defendant now argues on appeal that the redirect testimony
of the officer contained prejudicial hearsay that attributed
criminal conduct to him, namely, it implied that defendant was
involved in gang or drug dealing activity and might retaliate
against the two men.
"A trial court's determination on the admissibility of
evidence in general . . . is entitled to great deference and
ordinarily should not be disturbed unless it is 'wide of the
mark.'" State v. Fortin,
189 N.J. 579, 597 (2007) (quoting
State v. Marrero,
148 N.J. 469, 484 (1997)); accord State v.
Morton,
155 N.J. 383, 453 (1998); State v. Carter,
91 N.J. 86,
106 (1982).
We find no merit in much of defendant's argument. The
testimony objected to was neither hearsay nor evidence of other
crimes that should have been excluded under N.J.R.E. 404(b). It
was not hearsay because it was not offered for the truth of the
See N.J.R.E. 801(c). It
matter asserted by the two witnesses.
was offered to prove the reason that Officer Kelly did not get
their addresses for his police report, not whether the men
truthfully feared retaliation or believed defendant may be
involved with a gang or drug dealing. Because the men's
statements were not presented to prove their truth, defendant's
right of confrontation under the Sixth Amendment was not
A-1463-07T4
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violated. See Crawford v. Washington,
541 U.S. 36, 59 n.9,
124 S. Ct. 1354, 1369 n.9,
158 L. Ed. 2d 177, 197-98 n.9 (2004);
Tennessee v. Street,
471 U.S. 409, 414,
105 S. Ct. 2078, 2081-
82,
158 L. Ed. 2d 425, 431 (1985); State v. Buda,
195 N.J. 278,
301 (2008).
Furthermore, the officer did not testify that defendant was
involved in other criminal activity, or that the two men made
such an allegation. The provisions of N.J.R.E. 404(b) were
simply inapplicable.
Nevertheless, reference to retaliation and gang or drug
dealing activity should have been excluded because its probative
value was substantially outweighed by the potential that it
would unfairly prejudice defendant. N.J.R.E. 403.
The State does not dispute that the two elderly witnesses'
fears were not relevant in themselves to defendant's guilt, and
the prosecutor did not elicit that evidence on direct
examination of Officer Kelly. The State argues, however, that
defense counsel's cross-examination opened the door to Kelly's
redirect testimony explaining why his report did not contain
addresses or phone numbers for the two witnesses.
The "opening the door" doctrine is
essentially a rule of expanded relevancy and
authorizes admitting evidence which
otherwise would have been irrelevant or
inadmissible . . . [and] allows a party to
elicit otherwise inadmissible evidence when
A-1463-07T4
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the opposing party has made unfair
prejudicial use of related evidence. . . .
The "opening the door" rule has its
limitations. For example, evidence is still
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 . . . ."
[State v. James,
144 N.J. 538, 554 (1996)
(quoting N.J.R.E. 403) (citations omitted).]
The abuse of discretion standard of review applies to
evidentiary rulings under N.J.R.E. 403. See State v. Nelson,
173 N.J. 417, 470 (2002); State v. Ramseur,
106 N.J. 123, 266
(1987); Benevenga v. DiGregorio,
325 N.J. Super. 27, 32 (App.
Div. 1999), certif. denied,
163 N.J. 79 (2000).
Here, defense counsel's objection and argument at sidebar
made no explicit reference to N.J.R.E. 403, but the court was
nevertheless alerted to the potential for prejudice that the
testimony entailed. If the trial court considered excluding the
testimony under N.J.R.E. 403, it made no record of the balancing
See Ramseur, supra,
106 N.J. at 266. We
required by that rule.
cannot defer to the trial court's exercise of permitted
discretion when the record does not reveal that discretion was
in fact exercised.
Defendant was not accused of any criminal activity other
than the alleged unlawful possession of the gun. Injecting the
A-1463-07T4
19
specter of possible retaliation and gang or drug dealing
activity into the trial was highly prejudicial to defendant. At
the same time, the probative value of the two men's statements
was limited to collateral issues regarding the Officer Kelly's
credibility and competency, but those issues were not
particularly relevant to defendant's guilt or innocence.
The prosecution's explanation for a deficiency in Officer
Kelly's report could have been fairly presented to the jury
without revealing the witnesses' fear of gangs or drug dealers.
In State v. Long,
173 N.J. 138 (2002), the Court said:
In deciding whether to exclude evidence
based on its potential for prejudice, "a
court must consider the availability of
other evidence that can be used to prove the
same point." Probative value is enhanced by
the absence of such other evidence. On the
other hand, relevant evidence loses some of
its probative value if there is other less
inflammatory evidence available to prove
that point.
[Id. at 164 (quoting State v. Covell, 157
N.J. 554, 569 (1999) (citations omitted).]
Here, the State's need to explain the absence of addresses
for the two men could have been satisfied by simply stating that
the men would not give their addresses, without adding their
reasons. See State v. Stevens,
115 N.J. 289, 303 (1989) (trial
A-1463-07T4
20
court should consider whether other evidence can serve the same
purpose).4
IV.
Cumulatively, the two trial errors were not harmless. See
State v. Wakefield,
190 N.J. 397, 538 (2007) ("where 'legal
errors . . . in their aggregate have rendered the trial unfair,
our fundamental constitutional concepts dictate the granting of
a new trial'") (quoting State v. Orecchio,
16 N.J. 125, 129
(1954), cert. denied,
552 U.S. 1146,
128 S. Ct. 1074,
169 L. Ed. 2d 817 (2008).
Reversed and remanded for a new trial.
4
Moreover, it was the State that in the first instance
unnecessarily inserted the non-testifying witnesses into the
trial. Although in appropriate circumstances a police officer
may testify generally that he took certain action based "upon
information received," State v. Bankston,
63 N.J. 263, 268
(1973), in this case that contextual information was
unnecessary. Officer Kelly did not need to explain why he
followed and questioned an individual walking away from the area
where he dropped his gun, especially because within seconds he
found his gun on defendant's person. Adding the encounter with
the two men to Kelly's testimony was fraught with risk because
of their refusal to give identification information for fear of
retaliation.
Furthermore, Kelly's direct examination regarding the
encounter, see ante at 3, pointedly implied that the two men had
identified defendant as the person who took the gun. The only
logical meaning of Kelly's testimony encompassed inadmissible
hearsay. See Bankston, supra,
63 N.J. at 271; State v. Alston,
312 N.J. Super. 102, 113 (App. Div. 1998). The State rather
than defendant "opened the door" to prejudicial testimony by
unnecessarily injecting the two elderly men into its proofs.
A-1463-07T4
21
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