STATE OF NEW JERSEY v. KAREEM PRUNTY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KAREEM PRUNTY,

Defendant-Appellant.

_________________________________________________________

January 28, 2014

 

Argued December 17, 2013 Decided

 

Before Judges Fisher, Espinosa and Koblitz.

 

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 09-10-0958.

 

Paul Casteleiro argued the cause for appellant.

 

Sarah E. Ross, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Frank J. Ducoat, Deputy Attorney General, of counsel and on the brief).

 

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Kareem Prunty appeals his conviction for first-degree murder and related weapons offenses, urging evidentiary errors that he claims denied him a fair trial. Defendant also contends the trial judge erred when he failed to remove a juror who, after deliberations had begun, expressed concerns about the financial hardship allegedly caused by his continued service on the jury. In a pro se supplemental brief, defendant additionally argues, for the first time, that the verdict was against the weight of the evidence. We affirm.

 

I

In October 2009, defendant was indicted and charged with: first-degree murder, N.J.S.A. 2C:11-3(a), regarding the April 17, 2007 shooting death of Gregory Fils-Aime; third-degree possession of a weapon without a permit, N.J.S.A. 2C:39-5(b); and second-degree possession of a handgun for unlawful purposes, N.J.S.A. 2C:39-4(a). On March 16, 2011, at the conclusion of a fourteen-day trial, which included three days of jury deliberations, defendant was convicted as charged.

Defendant was sentenced to a forty-eight-year prison term, 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, on the murder conviction, and concurrent five-year prison terms on the other convictions.

Defendant appeals, arguing:

I. THE ADMISSION OF THE TESTIMONY OF MICHAEL KITCHEN AND ALLEN PRINCE IN THE ABSENCE OF ANY PROOF THAT THE PHOTOGRAPHS AND PAINTED METAL PLATE WERE ACCURATE REPRESENTATIONS OF WHAT THE EYEWITNESSES ALLEGEDLY OBSERVED DEPRIVED THE DEFENDANT OF HIS RIGHT TO A FAIR TRIAL.

 

II. THE FAILURE TO REMOVE JUROR NO. 11 DENIED THE DEFENDANT HIS RIGHTS TO A FAIR TRIAL BY A FAIR AND IMPARTIAL JURY.

 

III. THE ADMISSION OF THE TESTIMONY OF DR. JUNAID SHAIKH VIOLATED THE DEFENDANT'S RIGHT TO CONFRONTATION MANDATING THE REVERSAL OF HIS CONVICTIONS (Not Raised Below).

 

IV. THE ADMISSION OF BRANTLEY'S ALLEGED STATEMENT TO DETECTIVE MANOCHIO FOLLOWING HIS TRIAL TESTIMONY DENIED THE DEFENDANT HIS RIGHT TO A FAIR TRIAL.

 

V. IT WAS PLAIN ERROR TO ADMIT THE TESTIMONY OF DETECTIVE MANOCHIO THAT THE VIDEO CREATED PURSUANT TO THE INVESTIGATIVE DETENTION ORDER OF THE DEFENDANT WAS REVIEWED BY UNKNOWN MEMBERS OF THE PROSECUTOR'S OFFICE PROMPTING THE DECISION TO CHARGE THE DEFENDANT (Not Raised Below).

 

VI. IN ADMITTING KATHLEEN McCANN'S HIGHLY PREJUDICIAL OPINION TESTIMONY THE TRIAL COURT ERRED.

 

VII. THE INTRODUCTION OF THE VIDEOTAPED STATEMENTS OF MICHAEL WHETSTONE TO THE POLICE ON APRIL 18 AND MAY 9, 2007 DEPRIVED THE DEFENDANT OF HIS RIGHT TO A FAIR TRIAL (Not Raised Below).

 

VIII. THE CUMULATIVE EFFECT OF THE ERRORS IN THE TRIAL COURT DENIED THE DEFENDANT A FAIR TRIAL.

 

In his pro se supplemental brief, defendant argues1:

IX. THE JURY'S VERDICTS FINDING THE DEFENDANT GUILTY OF COUNT I CHARGING MURDER AND COUNT II CHARGING POSSESSION OF A WEAPON FOR AN UNLAW[FUL] PURPOSE WERE AGAINST THE WEIGHT OF THE EVIDENCE (Not Raised Below).

 

X. THE TRIAL COURT'S CHARGE TO THE JURY ON ACCOMPLICE LIABILITY WAS FATALLY FLAWED DENYING DEFENDANT A FAIR TRIAL AND DUE PROCESS OF LAW. U.S. CONST. V, VI AND XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9 AND 10 (Not Raised Below).

 

We reject these arguments and affirm.

II

Before examining defendant's arguments, it is helpful to recount the evidence adduced at trial.

A. The Start of the Evening

The State presented evidence that Gregory Fils-Aime and his girlfriend, Renner Williams, lived with his father, Frederic Fils-Aime, and Frederic's wife in Roselle. Gregory was home most of April 17, 2007.

In the evening, Michael Whetstone, described in testimony as a black man, in his early thirties and around 5'9" tall, came to the house to pick up Gregory. Gregory sometimes called Whetstone "Unc," Whetstone knew Gregory as "G." According to Whetstone, Gregory was wearing a black "North Face" jacket and blue jeans. He also believed Gregory was wearing a hat, and because it was cold outside, Whetstone thought "it was like a skully or something." Whetstone was wearing a blue hoodie and a "skully" with a Yankees logo on it.

They left Gregory's home and walked to Mike's Tavern on Roselle Street in Linden, arriving after 10:00 p.m.

B. At Mike's Tavern

Once at Mike's Tavern, Gregory and Whetstone sat at the bar, talked and drank. Gregory apologized for his earlier suspicion that Whetstone may have been responsible for $14 that Gregory thought was missing but was later found, and he bought Whetstone some drinks. As the night wore on, Gregory became intoxicated.

Ann Marie Dampach, a bartender at Mike's Tavern for approximately sixteen years, testified she knew Gregory and described him as "ill mannered," that he was "a very arrogant person, basically, loud mouth, obnoxious, but never bothered anybody, overall." Dampach testified that Gregory introduced her to Whetstone, whom she had not seen before, as his uncle. She also testified Gregory was "rude" to her that night.

Barry Geiger, another bartender at Mike's Tavern, testified that he and Kathleen McCann arrived at approximately 10:00 p.m. He saw Gregory, who was wearing blue jeans, a dark jacket (he thought it was black), and a Pittsburgh Pirates hat. Geiger knew Gregory from the bar and knew him as "G." A week earlier, he and Gregory "had words" because Gregory "disrespect[ed]" McCann. And a couple of days prior to that, Geiger had security escort Gregory out of the bar for failing to show identification.

Mike's Tavern is equipped with seven surveillance cameras. Footage from these cameras, admitted into evidence, demonstrated that at 11:52 p.m., two African-American men, one of them defendant, entered the bar and sat to the right of Geiger and McCann, and across the bar from Gregory and Whetstone. Dampach recognized the two men as having been in the bar approximately eighteen months earlier; she said they were not "regulars." One of the men walked with a limp; he explained he had had knee surgery. This man used a cane and was dark-skinned; he was wearing a hat and a black jacket emblazoned with a dragon.

Shortly after defendant and his companion arrived, Gregory started "mouthing off," saying: "Yo, I'm G. I'm bad"; "I'm thug-like"; and "[a] little punk ass on the street." Geiger did not think Gregory's mouthing off was directed at anyone in particular, and according to Geiger, this was consistent with Gregory's normal behavior.

Defendant and his companion reacted to Gregory's remarks. Whetstone testified the two men looked at Gregory and said, "come here." Gregory responded, "no, you come here." Whetstone thought Gregory knew the two men and whispered to Gregory, "[w]hy are you saying that to them?" Gregory responded, "I'm G."

Gregory eventually approached the two men and had a conversation that Whetstone did not hear, although Whetstone did hear one of the two men ask Gregory, "Is you Blood?" He did not hear Gregory's response, but heard one of them say, "Get away from me. Go back over there with your friend." According to Geiger, although he could not hear what was being said, the voices got gradually louder until they were shouting; Gregory was yelling and the two men started yelling back. Geiger said he did not feel threatened because he was not involved.

Dampach testified this situation did not make her "nervous." However, when she heard some of the things being said, she backed away and "stopped paying attention to what they were talking about," explaining it was "[n]ot something I wanted to listen to," that it was "not my business," and she had other customers to attend to.

On the other hand, McCann testified the situation made her nervous. She said Gregory and the two men were not loud, and she could not hear what they were saying, but she could tell they were arguing. She asked Geiger if they could move a few stools away because she wanted to distance herself, thinking something might happen. McCann testified she saw the person, whom she identified as defendant, lift up his jacket and shirt, showing Gregory his waistline. She opined: "I thought he was showing him a gun." But she also acknowledged she did not see a gun and could not see defendant's waistline from where she was seated.

According to McCann, after defendant motioned toward his waistline, Gregory said something like, "Oh, okay," or "Oh, it's like that." And Whetstone said, "I'm outta here," and got up and left. Geiger similarly testified that Whetstone was angry with Gregory and said: "I had enough of this shit. I'm out of here." Gregory said, "Oh, you are going to leave me like that"? Whetstone testified he wanted to leave because Gregory was "talking gangsta stuff" and he was "not with that." Gregory had a drink to finish, so Whetstone exited the bar and waited for Gregory outside.

While Whetstone was outside the bar waiting, Dampach also went outside to smoke. She could tell Whetstone was angry with Gregory, but she did not know why. At this time, defendant and his companion exited the bar, and Dampach heard Whetstone apologize for Gregory's behavior. Whetstone told them, "don't pay my friend no mind. He was drunk a little bit." One of the two men said, "I ain't paying him no mind."

Dambach saw defendant and the other man get in their vehicles and leave. She believed defendant drove a tan or beige minivan or SUV, but she was not sure of the make or model. She told police the vehicle was gold.

Whetstone testified the two men left in separate vehicles; one got into a gray minivan parked across the street, the other walked around the corner and entered a dark-colored minivan. They both drove up Roselle Street toward a convenience store on St. George Avenue. As Dampach walked back into the bar, Gregory exited; she heard Whetstone yelling at Gregory, "You are going to get yourself killed." She could tell Whetstone was mad at Gregory.2 Geiger also testified Gregory and Whetstone were yelling at each other inside the bar as well as outside.

Whetstone testified that when Gregory exited the bar, he told Gregory to "knock it off" and "stop messing with people." He told Gregory to stop saying "gangsta" stuff because "that will get us killed." He testified they argued for approximately five minutes outside the bar.

C. After Leaving Mike's Tavern

Whetstone wanted to leave and Gregory wanted to stay, but they eventually left the tavern premises together and walked on Roselle Street towards St. George Avenue, the same direction the two minivans had taken. As they crossed the intersection of Roselle Street and Cleveland Avenue, Whetstone observed a gray minivan pull up. It looked familiar to him, "like the one the boys got in." Whetstone testified he did not recognize the driver as one of the two men from Mike's Tavern; he did not see the driver of the minivan in the courtroom. In his recorded statement, however, Whetstone identified the two occupants of the minivan as the same two men from Mike's Tavern.

According to Whetstone, the driver asked Gregory for a light. Whetstone asked Gregory if those were the same men from the bar; Gregory said, "no." He told Gregory to come on, "[d]on't give nobody no light," "just keep walking." But Gregory approached while Whetstone waited on the corner. Whetstone could see the driver's face because the window was down. When Gregory was a few feet away from the vehicle, Whetstone heard two gunshots and started running. When he turned around, he saw the driver of the minivan with a gun in his hand.3

Whetstone saw the minivan take off quickly after the shots were fired. He started running up Roselle Street and thought Gregory was behind him. Upon reaching St. George Avenue, he did not see Gregory and kept running until he got home. He said that while he was running he also "was rubbing my back" to check to see if he was shot, and added: "I didn't see the first two shots . . . [but] thought they, probably, shot me in the back."

Upon arriving home, Whetstone did not call police. He testified he did not have a telephone in the house and was too afraid to leave. He did not sleep that night and maintained vigil at the window to ensure nobody had followed him.

D. Evidence The Police Gathered

At approximately midnight that night, the Linden Police Department received a call about gunshots being fired in the vicinity of Roselle Street and Cleveland Avenue. Officers Perrella and McPhail were the first officers to arrive at the scene. Perrella saw Gregory's body on the lawn in front of the apartment building located at 1213 Roselle Street. He taped off some of the area around the crime scene and searched for evidence, finding shell casings on the sidewalk near the body. He also found two projectiles at the intersection of Cleveland Avenue and Roselle Street.

Officer Gardner and Detective Dustin of the Union County Sheriff's Office also responded and photographed the scene. Gardner testified that a projectile was recovered from a tree and another from the ground. She also testified that the front driver's window of an SUV parked across the street "appeared to have been recently blown out," opining that the window "could have, also, been struck during the shooting." Based on this information, Gardner concluded the bullets were fired from Cleveland Avenue, not Roselle Street.

Gardner also testified there was no blood trail or footprints found, no tire tracks on the street, and no evidence of a car peeling away. No weapon was recovered, and there were no fingerprints or other trace evidence connecting defendant to the shooting.

Dr. Junaid Shaikh, Union County Deputy Medical Examiner, was qualified as an expert in forensic pathology and testified about the autopsy performed and the report authored by Dr. Leonard Zaretski, the medical examiner at the time. Although his findings were consistent with Zaretski's, Shaikh testified he made independent findings he described as being within a reasonable degree of medical certainty.

The autopsy report revealed the victim was struck by three gunshots. One, described as serious but not fatal, hit the victim's right arm, seven inches below the shoulder. Another hit the victim's left arm, nine-and-a-half inches below the left shoulder, shattering the bone; a bullet was recovered from that region. A third and fatal gunshot wound was located on the victim's back "in the scapular or the big bone region on the left side," that perforated several vital organs and caused significant blood loss. Shaikh concurred with Zaretski on the cause and manner of death: "multiple gunshot wounds as the cause of death, and the manner of death is homicide."4

Detective Kenneth Mikolajczyk of the Linden Police Department attended the autopsy, and collected some of the victim's clothes, a spent bullet recovered from the victim's clothes, and fragments of bullets extracted from the victim's body.

Vincent Desiderio, a scientist employed by the New Jersey State Police, was qualified as an expert in gunshot residue and trace analysis. He explained that gunshot residue often ends up on the shooter's hands and clothes, but he never evaluated defendant's or any other suspect's clothes. Because he did not have the weapon or weapons used in the shooting for comparison purposes, Desiderio was unable to determine the distance between the shooter or shooters and the victim.

Lieutenant Michael Sanford of the Union County Police Department was qualified as an expert in forensic firearms examination and ballistic comparisons. Based on his examination of the recovered projectiles he concluded there were, "at least, two weapons that were used to fire these particular pieces of evidence."

E. What Others Heard and Saw

Paul Dossantos and his wife, Adriana Pequeno, lived on Cleveland Avenue in Linden; they both heard gunshots around midnight. At trial, Dossantos estimated he heard between four and five gunshots, although he told the police in his statement he thought it was between five and six. Pequeno thought she heard between five and seven gunshots. Both Dossantos and Pequeno heard the sound of a car peeling off immediately after hearing the gunshots, and Pequeno thought it sounded as if the vehicle was on Roselle Street headed in the direction of Mike's Tavern. Neither Dossantos nor Pequeno saw the shooting.

Julena Gray Green and her boyfriend, Elliot Brantley, were sitting and talking in her car, which was parked across the street from Brantley's home on Roselle Street that night. Green testified she saw two men walking from the direction of Mike's Tavern. She described the street as being "very busy that night and all I know is two guys crossed the street, they made it to the corner." She said, "there was a tall guy and short guy. The short guy turned around. He went to walk back, then they started running, then you heard gunshots." Green explained the shorter one turned and started to walk back towards Mike's Tavern, "[t]hen it's like the tall one said, 'Oh, shit,' or something, and they took off running. That is when you heard the gunshots." Based on what she heard, she thought the gunshots came from the area of Mike's Tavern. She testified she saw nothing that would indicate that "the taller one" shot "the shorter one"; to the contrary, she saw both run toward St. George Avenue.

In a statement given that night, Green told police she saw a silver or gray minivan drive past them and make a right turn towards Mike's Tavern. She said "it sounded like it could have been a minivan pulling off because it just sounded heavy." Green, however, could not identify any type of minivan involved in the shooting, and she did not see shots come from any vehicle.

Brantley testified, "as I was sitting there I just seen a person like, walk across the street" from Mike's Tavern to St. George Avenue. He thought the person that he saw cross the street was wearing a jacket and a baseball hat. Later, he saw a minivan drive by. Brantley said that ten or fifteen minutes after seeing the person cross the street, and approximately five minutes after seeing the minivan drive by, he heard three or four gunshots that sounded like they came from the area of Roselle Street and Cleveland Avenue. After he heard the gunshots, Brantley testified he heard a vehicle revving its engine.

Brantley's trial testimony, however, was inconsistent with a statement he gave police on February 3, 2011. In that statement, which was recorded, Brantley said a van drove past them and came up to the intersection of Roselle Street and Cleveland Avenue at approximately the same time a man was crossing the street; as the man reached the corner, the van turned, and Brantley heard gunshots. After a Gross5 hearing, the recording of the interview was admitted into evidence and played for the jury.

Officer Kendell Vaughn, of the Roselle Police Department, was off duty on the night of April 17, 2007, and in his apartment on Roselle Street in Linden when he heard three gunshots. He went outside and observed an individual walking across the street from his apartment at a fast pace: "He appeared to be tucking what I thought at the time was a weapon in the back of his waistband in the small of his back" and kept looking behind him. Vaughn described the individual as a dark skinned, African-American male, approximately 5'10" to 6' tall. He believed the individual was wearing gray pants and a sweatshirt; Vaughn later gave a statement to police that the individual was wearing a sweatshirt and gray, maybe blue, pants. Vaughn was never asked to view a photo array.

Officer Matthew Jones, of the Linden Police Department, spoke to Vaughn on April 18, 2007, and took a statement. After reviewing his report, Jones testified that "[Vaughn] only told me that he saw a black male running north on Roselle Street towards Saint George Avenue clutching his right side." Vaughn did not mention anything about a gun when he gave his statement; if Vaughn had mentioned a gun, Jones said he would have taken notice of it and included it in his report.

On the night of April 17, 2007, Aisha Christian was on Roselle Avenue when she heard three gunshots; she was 100% sure it was three gunshots. She testified she did not see what happened, explaining: "I didn't look, at all." Approximately fifteen seconds later, she saw someone running towards her: "with his hand in" the "[f]ront pocket in whatever, hoodie, jacket he was wearing."6 She described the individual as an African-American male, approximately 6' tall, with a goatee, dressed in all dark clothes and wearing what she thought was a baseball-type hat. After reviewing her statement to the police, she stated that he was wearing a "skully."

Christian said the individual was running "from the area by Mike's Tavern back towards Saint George Avenue." He was running towards her at first, but then he started walking. She did not see him carrying a weapon but said there was something about his hand in his right pocket that led her to believe he had something in his hand. He also looked "a little frazzled." In her statement to police, Christian said the man had "a nasty look on his face and looked distraught."

That night, police showed Christian an array of six photographs and asked if she could identify the man she saw running down the street. She identified a man named K.B., whom no one has argued was involved in any way, and said she was "100 percent" certain that was the man she saw run past her. She never told police she saw any type of minivan that night.

Rashad Gilliam testified he lived in Linden, across the street from Mike's Tavern, and on the evening of April 17, 2007, he saw defendant, whom he had known for approximately ten years, in Mike's Tavern. He said defendant walked with a limp and used a cane. Gilliam identified defendant in court.

Gilliam left the bar and went home, but later came back outside to smoke a cigarette. He testified he saw defendant leave the bar and drive away in a pick-up truck. He did not know what time Gregory left the bar, and he did not hear gunshots. Gilliam testified he did not see anything out of the ordinary, he did not see defendant fight with anybody, and he did not see defendant with a weapon.

F. Whetstone's Subsequent Statements

On the morning of April 18, 2007, Linden police officers went to Whetstone's home and escorted him to the police station. He was advised of his Miranda7 rights, agreed to speak to police, and gave a videotaped statement. On May 9, 2007, a second interview was videotaped.

During the April 18, 2007 interview, Detective Michael Manochio, of the Union County Prosecutor's Office, and another officer, accused Whetstone of murdering or setting up Gregory. They told Whetstone he was the prime suspect and later explained to the jury that they played good cop/bad cop with Whetstone, grilled him hard, called him a "coward" and a "fag" for not doing anything to help his friend, and told Whetsone "all roads lead to" him. Whetstone denied murdering Gregory. He did not reveal to the officers that Gregory had accused him of stealing money, or that they had gotten into an argument outside the bar.

At trial, Whetstone was shown some of the surveillance video taken at Mike's Tavern, and he identified himself and Gregory in the video, which also revealed that when Gregory walked outside of the bar he and Whetstone got into "a heated argument." At trial, Whetstone admitted he lied to police about what had happened on the night of the shooting and also lied about how much alcohol he consumed on April 17, 2007. In addition, he testified he did not tell police he had previously been convicted of unlawful possession of a weapon, aggravated assault, and drug possession.

Whetstone told police during the interview that the driver of the gray minivan had been in Mike's Tavern; however, at trial he testified he said that because he just wanted to leave the police station. He also told police he did not see who the shooter was, but he testified at trial that, in fact, he had turned around after the shooting began and had seen the shooter. Whetstone testified he told police whatever they wanted to hear during the interview because he wanted to leave; that he "accused somebody of murder just because [he] wanted to get out of that" interview. He told the officers he was afraid for his safety and did not want to identify anyone out of fear. Whetstone was later interviewed again by police and shown a photographic array; he did not make an identification.

On July 21, 2009, Michael Boyle, a private investigator, spoke with Whetstone and showed him an array of photographs that included one of defendant; Whetstone said he did "not recognize anyone." Boyle testified Whetstone did not appear to be afraid, and he had no reason to believe Whetstone was high that day.

On August 13, 2009, Stephen Biss, a private investigator associated with Boyle, took a statement from Whetstone. In that statement, Whetstone was unequivocal that the minivan involved in the shooting was blue. Whetstone did not appear to Biss to be afraid; Biss found him forthcoming and Whetstone signed the statement Biss prepared for him.

G. Statements Given

To Police By Others

 

A couple of days after the shooting, Dampach spoke to police and gave a statement. She was shown a series of photographs and identified defendant, recognizing him as having been in the bar the night of the shooting.

Geiger also spoke to police and gave a statement a few days after the shooting. He was shown a series of photographs and identified defendant, recognizing him from the bar and the surveillance video; he said he was "75 percent sure" it was him.

H. The Subsequent Investigation

Manochio testified at length about the two-year investigation. Within twenty-four hours of the crime, police had obtained the surveillance video from Mike's Tavern and were able to identify defendant as being in the bar on the night of the shooting. They never questioned defendant about the shooting or about his whereabouts that night, nor did they have any of the witnesses view a lineup that included defendant.

Within five days of the shooting, police confirmed that a 1995 gold Ford Windstar was registered in defendant's name. Efforts to locate that minivan were unsuccessful; those failed attempts were not memorialized by Manochio in any of his reports or grand jury testimony.

By May 2007, police no longer viewed Whetstone as a suspect. Two years later, in May 2009, police obtained a court order to have defendant produced in front of the surveillance cameras at Mike's Tavern under the same conditions as the night of the shooting.

Defendant was indicted a few months later.8

III

In his first point, defendant contends the trial judge erred in admitting evidence relating to the vehicle or vehicles described by witnesses as having left Mike's Tavern shortly before the shooting and from which shots may have been fired at Gregory. We first discuss this evidence and then the legal principles that governed the admission of this evidence.

A

Specifically, Lauren Ciolino, a Motor Vehicle Commission (MVC) employee, testified she reviewed MVC records relating to defendant and confirmed that, on March 23, 2007, a license plate was assigned to defendant for a 1995 gold Ford Windstar; the registration for that vehicle expired in October 2007.

Over defendant's objection, and following a N.J.R.E. 104 hearing regarding its admission, the judge permitted the prosecution to introduce the testimony of Michael Kitchen and two photographs of a 1995 gold-colored Ford Windstar minivan that Kitchen purchased in 2010; it was not argued or suggested that Kitchen's vehicle ever belonged to defendant.

The State was also permitted to introduce the testimony of Allen Prince, the service director of an automobile dealership, to testify about the composition of the gold-colored paint used by Ford on its 1995 Windstar minivans and also about a metal plate, which was painted with the same gold-colored paint. The testimony and evidence was presented to support the State's position that gold-colored 1995 Ford Windstar minivans could look silver or gray in the right lighting.

In admitting the testimony and evidence, the trial judge explained:

It's an issue in the case . . . that the defendant owned a gold van registered as a gold van and that the witnesses testified they saw a grayish or silvery color van.

 

I think the color of this van is highly relevant in the case and I will allow the witnesses to testify and I will allow the [photographs] and [colored metal plate] to come into evidence with an explanation as to what they are. The age and weathering and where the vehicle was garaged all goes to the weight. The coloring in [the photograph] is very similar, to me, to what's [on the colored metal plate].

The judge noted that the photographs of the vehicle were "taken on a cell phone camera [in] very uncertain lighting." Prince did not take the photographs, and he said "from looking at them they looked [like they were taken] at night," although he also said at times that "they were [taken] at dusk."

Kitchen testified that, in 2010, he purchased a gold 1995 Ford Windstar minivan. Two photographs of that vehicle were admitted. One depicted the vehicle when first purchased. Kitchen testified the photograph "fairly and accurately" depicted the way the lower left-hand section of the vehicle looked when he purchased it in 2010, and that the photograph was accurate regarding the color of that vehicle. Kitchen believed the other photograph was probably taken in San Francisco. He did not know what time of day the photograph was taken but believed "it was in the evening prior to becoming completely dark."

In addition, Kitchen was shown a metal plate that had been painted with the same gold-colored paint used by Ford Motor Company on its 1995 Windstar minivans. He said the color on the plate "appeared to be the same" color that was on the 1995 Ford Windstar minivan he purchased in 2010. On cross-examination, Kitchen stated he could not testify as to the line of ownership of the vehicle he had purchased. He also did not know if it had been repainted before he purchased it.

Prince testified that he sold new and used Fords and professed familiarity with their paints and colors. He said he was also familiar with the computer system used to compile all the information about the vehicles produced by Ford as well as other makers. The system compiled the data by "VIN number, the make, model, color, and all the components of those vehicles."

Prior to testifying, Prince had looked up Kitchen's and defendant's vehicles on the system and determined both were assembled in 1995, one month apart, in Ontario, Canada. Both were the same model and type, and both used the same exterior paint, which the system listed as "DK," signifying pumice pearl metallic on the Ford color chart made by DuPont. The metal plate was colored with the DK/pumice pearl metallic paint. Prince testified pumice pearl metallic paint is a tricolor paint and "looks a different color" in different lights.

Prince acknowledged that April 2007 was approximately twelve years after the vehicle the State was attempting to identify was made, and he agreed weather damage over that time could have affected the paint and the color of the vehicle. He also noted that vehicles do get repainted, and he had no idea if defendant's vehicle had ever been repainted.

B

Defendant argues the testimony of Kitchen and Prince, as well as the photographs of Kitchen's 1995 Ford Windstar and the metal plate were erroneously admitted because the State failed to properly authenticate the photographs and failed to demonstrate how either the testimony or physical evidence was relevant:

there was no evidence that the photographs and the metal plate reasonably replicated what a 1995 gold-colored Ford Windstar minivan would look like in the light it was allegedly observed, [and] the witnesses were never shown the photographs of the Kitchen vehicle or the metal plate and asked whether the vehicle they observed was reasonably similar to the vehicle depicted in the photographs in make, model or type and color[,] or in color with respect to the [painted] metal plate.

Defendant further argues that this testimony and physical evidence was highly prejudicial:

Two individuals with no relationship to the case, neither of whom had ever seen the defendant's vehicle, were permitted to testify to support a proposition that the vehicle depicted in the photographs appeared as the defendant's vehicle would have appeared on the night of the incident. This evidence only invited the jury to speculate that the vehicle depicted was similar in type and color to the vehicle observed by the witnesses in the absence of the witnesses ever seeing the photographs of the Kitchen vehicle or the metal plate.

As a general matter, substantial deference is given to a trial judge's evidentiary rulings. State v. Morton, 155 N.J. 383, 453 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001). Stated another way, a trial judge's evidentiary ruling must be upheld on appeal "unless it can be shown that the trial court palpably abused its discretion, that is, that its finding was so wide of the mark that a manifest denial of justice resulted." State v. Carter, 91 N.J. 86, 106 (1982).

Evidence is relevant when it has "a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401; State v. Wilson, 135 N.J. 4, 13 (1994). This test is broad and favors admissibility. See State v. Deatore, 70 N.J. 100, 116 (1976). In determining whether evidence is relevant, the inquiry focuses on "the logical connection between the proffered evidence and a fact in issue," State v. Hutchins, 241 N.J. Super. 353, 358 (App. Div. 1990), or, stated differently, "whether the proffer 'renders the desired inference more probable than it would be without the evidence,'" State v. Davis, 96 N.J. 611, 619 (1984) (quoting Deatore, supra, 70 N.J. at 116).

In agreeing with the trial judge that the evidence in question was relevant within the meaning of N.J.R.E. 401, we reject the notion, which seems to lie at the heart of defendant's argument, that to be relevant, evidence must be conclusive in itself. The State sought to demonstrate to the jury that the various and seemingly inconsistent descriptions of a vehicle at or near Mike's Tavern and at or near the shooting were not as inconsistent as they might seem. This evidence had a tendency to prove a fact in dispute, i.e., that the color of a vehicle that defendant once owned and may still have owned might appear to be a different color depending upon the lighting and weather conditions in which it was perceived. We, thus, reject the argument that the evidence was not relevant.

We also reject the arguments regarding the authentication of the photographs of Kitchen's vehicle. Kitchen testified that the photographs depicted his vehicle, which was the same year, make, model and color of the vehicle registered in defendant's name. That was sufficient. See N.J.R.E. 901 (declaring that "[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter is what its proponent claims"). The argument that the photographs do not precisely reproduce the lighting that existed when the witnesses at or near Mike's Tavern or the shooting observed another vehicle that may have been the same year, make, model and color of Kitchen's vehicle, does not mean the photographs were not authenticated. Those arguments merely go to the weight or persuasiveness of the evidence. Authentication was met by the testimony of Kitchen as to what he believed the photographs depicted.

Defendant's argument is more accurately viewed not as presenting an authentication question but whether exclusion is required by N.J.R.E. 403, which provides:

Except as otherwise provided by these rules or other law, relevant evidence may be excluded if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence.

Whether evidence should be excluded because its prejudicial effect outweighs its probative value is an issue resting in the discretion of the trial judge. Wilson, supra, 135 N.J.at 20. The burden is on the party urging exclusion of evidence to convince the court the grounds for exclusion delineated in N.J.R.E. 403 should control. Rosenblit v. Zimmerman, 166 N.J. 391, 410 (2001). The moving party must demonstrate not only that evidence is prejudicial, but also that the factors favoring exclusion "substantially" outweigh the probative value of the contested evidence. Ibid. See also Morton, supra, 155 N.J. at 453; Carter, supra, 91 N.J. at 106.

Grounds for the exclusion of the photographs through application of N.J.R.E. 403 were not inconsiderable here. Defendant argued, in essence, that the Kitchen photographs did not assist the jury in determining "what a gold 1995 Ford Windstar minivan looked like" in 2007 because the photograph was taken in 2010. Moreover, the issue of "what a gold 1995 Ford Windstar minivan looked like" was only relevant because in April 2007, a 1995 gold-colored Ford Windstar minivan was registered in defendant's name. The vehicle registered in defendant's name, however, was never recovered and, therefore, there was no testimony about what that vehicle may have actually looked like or that the vehicle was still in defendant's possession on April 17, 2007. And it was not known whether the vehicle defendant may have owned was repainted prior to the shooting. Furthermore, Kitchen did not know whether the minivan he purchased had ever been repainted, and therefore, he did not know if it was painted with pumice pearl metallic paint when the admitted photographs were taken. Since defendant's vehicle was never located, it is unknown whether the photographs depicted a vehicle that looked similar to it. Additionally, the photographs depicted one vehicle in San Francisco at dusk, whereas the vehicle to which the prosecution sought to compare it was seen by the witnesses 3,000 miles away, in Linden, New Jersey, at approximately midnight.

To be sure, the defense raised substantial arguments for the exclusion of the photographs on the basis of N.J.R.E.403. Its relevance was limited in light of the thin link between that evidence and the facts of the case that remained thin as a result of the prosecutor's failure to show the photographs and evidence regarding other Windstars to the witnesses at Mike's Tavern or near the shooting. But, how well the State demonstrated a link between this evidence and the elements of the crime charged relates more to whether there was sufficient evidence to convict, not whether the grounds for exclusion set forth in N.J.R.E.403 were demonstrated to the trial judge's satisfaction. That question, in short, fell within the trial judge's discretion, which, we conclude, was not abused here.

IV

In his second point, defendant argues the trial judge's failure to remove a juror who claimed financial hardship deprived him of his right to a fair trial by an impartial jury. He argues that Juror #11 "could not fulfill his obligations to fairly and impartially deliberate and he should have been removed due to his financial hardship over which neither he nor the judge had any control." Defendant also argues "it was improper for the trial court to condition consideration of the defendant's motion to remove the juror on the defendant waiving forevermore any issue relating to the juror's removal." Although we agree with this latter contention, we reject the argument that Juror #11 should have been removed.

A

On the trial's fourteenth day, after the jury had begun its first day of deliberations, the jury sent a note9 to the judge regarding Juror #11. The following colloquy took place in open court:

THE COURT: Now let me just speak first because . . . the jury's in the middle of deliberating. I can't excuse you at this point in time. Maybe yesterday or the day before, but the jury's in the middle of deliberating. I just can't excuse you at this point.

 

[JUROR #11]: Judge, you know, it's causing financial hardship in my household. I think . . . my thoughts will probably be more on my finances than giving an impartial verdict.

 

THE COURT: The damage has been done already, really . . . . This is like the 14th or 15th day [of trial].

 

[JUROR #11]: They paid me for (indiscernible).

 

THE COURT: I understand that, but . . . you're never going to get those days back, right? The 9 or 10 that you lost you're not going to get that back. We're talking about another couple of days at this point in time. The -- Are you telling me that you can't fulfill your obligations in this case? Is that what you're telling me, that you can't go back there . . . and do what you need to do?

 

[JUROR #11]: It will be very difficult.

 

THE COURT: And what is that?

 

[JUROR #11]: During the course of this trial I was demoted. I was transferred to another facility. A lot of things [are] going on.

 

THE COURT: Not because of this trial, though.

 

[JUROR #11]: No.

 

THE COURT: Those are all independent then.

 

[JUROR #11]: Yes.

 

THE COURT: Did you know earlier that you were not going to get paid?

 

[JUROR #11]: No, no, I would have told you that.

 

THE COURT: Well, the other side of the coin is did you make an inquiry?

 

[JUROR #11]: They told me I would be paid, but I guess I should have extended it and said (indiscernible) days.

After the judge discussed the matter with counsel, the colloquy with Juror #11 resumed:

THE COURT: There's very specific rules that control what I can do and not do here. I want you to understand that, all right? Now is there any way I can rectify the situation, calling your boss, or someone at Human Resources, or writing a letter? Is there anything I can do that would correct the situation and make it better?

 

[JUROR #11]: You could probably talk to the administrator of my facility.

 

. . . .

 

THE COURT: If I call the appropriate person and they agreed to pay you, would that solve your problem, or would you still have a level of anxiety by being away from work, in light of your current status there?

 

[JUROR #11]: If they agree to pay me that would be some satisfactory remedy.

 

. . . .

 

THE COURT: Suppose they won't agree to pay and say this is our policy, then what?

 

[JUROR #11]: This is what I'll do. Let them tell me how many vacation days I have, I'll use my vacation days for my jury duty.

 

THE COURT: Do you have enough vacation days left?

 

[JUROR #11]: I think I do. I think I do, sir.

 

THE COURT: All right. So I commit to you that I will do my best to get you paid, okay? You give me the information that -- And I may not have an answer for you today -- it may take a couple of days -- but if . . . they don't agree to that then you're willing to use your vacation days and you would then be able to continue on the jury and fulfill all your ob[liga]tions.

 

[JUROR #11]: Absolutely.

Trial judges possess "considerable discretion" in such matters and "removal of a prospective juror for cause will not be reversed unless the court has abused its discretion." State v. DiFrisco, 137 N.J. 434, 459 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996). Concerning the dismissal of a juror after deliberations have commenced, Rule 1:8-2(d)(1) provides:

If the alternate jurors are not discharged and if at any time after submission of the case to the jury, a juror dies or is dis-charged by the court because of illness or other inability to continue, the court may direct the clerk to draw the name of an alternate juror to take the place of the juror who is deceased or discharged. When such a substitution of an alternate juror is made, the court shall instruct the jury to recommence deliberations and shall give the jury such other supplemental instructions as may be appropriate.

Rule 1:8-2(d) "attempts to strike a balance between the need for judicial economy, especially in the context of lengthy trials, and the fundamental right of defendants to a fair trial by jury." State v. Valenzuela, 136 N.J. 458, 467 (1994); see also State v. Jenkins, 182 N.J. 112, 124 (2004) (observing that the rule "delicately balances two important goals: judicial economy and the right to a fair jury trial"). "Substitution of an alternate juror during deliberation does not in and of itself offend a defendant's constitutional guarantee of a trial by jury." State v. Williams, 171 N.J. 151, 162 (2002). "However, sparing use of the rule is counseled." Ibid. "[T]he potential prejudicial impact upon the integrity of the jury deliberation process would mandate that the rule be invoked only as a last resort mechanism to avoid the deplorable waste of time, effort and money inherent in a mistrial." State v. Lipsky, 164 N.J. Super. 39, 43 (App. Div. 1978).

The "'inability-to-continue' standard has been acknowledged to be somewhat vague and broad; accordingly, [our Supreme] Court has construed and applied it narrowly." Williams, supra, 171 N.J. at 163. That is,

the "unable to continue" language of the rule must be strictly construed and must ordinarily be limited to compelling circumstances which are exclusively personal to the juror in question, and hence which do not and which by their nature cannot raise the specter of either a jury taint or a substantive interference with the ultimate course of the deliberations beyond that necessarily implicit in the effect of new personalities on group dynamics.

 

[State v. Trent, 157 N.J. Super. 231, 240 (App. Div.), rev'd on other grounds, 79 N.J. 251 (1979).]

In Williams, the Court held that

the "inability to continue" standard of Rule 1:8-2(d) may be met by a determination of financial hardship. To be sure, the financial consequence of lost wages is a burden on a juror. The difficulty posed by that burden is an individualized one and on proper examination it may prove to be sufficiently great for a juror and those dependent on him or her that it can affect the juror's ability to complete his or her duties. A juror who is excused because of a true financial hardship suffers from an inability to function that is exclusively personal, as the Rule requires, and also is unrelated to the juror's interaction with the other jury members.

 

[171 N.J. at 167.]

Here, although financial hardship may have provided a basis for the removal of Juror #11, the record did not adequately establish that he suffered from an inability to function as a deliberating juror. In response to the judge's extensive questioning, the juror assured the court he could "[a]bsolutely" proceed as a deliberating juror. We find no abuse of discretion in the judge's refusal to excuse the juror.

B

Notwithstanding the juror's assurance that he could "[a]bsolutely" continue as a deliberating juror, defense counsel moved to excuse him based on his initial response that it would be difficult for him to fulfill his obligations as a juror because of financial hardship. The following colloquy took place between defense counsel and the trial judge:

[DEFENSE COUNSEL]: Then at this time the defense would move to excuse him based on his initial response, when he first stood up and said that he was not going to be able to go forward, that has nothing to do with the fact that he was not being paid for the five days, and he said that there was other things going on in his life, the fact that he was demoted, and he was not going to be able to fulfill his duties, after there was --

 

THE [COURT10]: And so if I replaced him now and granted your request, you're waiving -- just a minute -- you're waiving any right to argue on appeal, [post-conviction relief], anywhere else, that -- that there's any grounds for -- for reversal based on my substituting . . . a juror. That's what you're telling me, right?

 

[DEFENSE COUNSEL]: May I have a moment to discuss it with my client?

 

([Defense counsel] confers with her client)

 

[DEFENSE COUNSEL]: Judge, at this time the defense will withdraw their application.

 

Defendant contends on appeal that "it was improper for the trial court to condition consideration of the defendant's motion to remove the juror on the defendant waiving forevermore any issue relating to the juror's removal." We agree. Defendant should not have been placed in the position of waiving one right to secure the full and fair consideration of another. Because, however, the judge possessed the discretion to deny the application to remove the juror, defendant was not prejudiced by the judge's attempt to condition his ruling on such an application on defendant's waiver of the right to appeal such a ruling.

V

In his third point, defendant contends the judge erred in allowing the testimony of Dr. Shaikh, the medical examiner, claiming it violated the Sixth Amendment's Confrontation Clause because Shaikh neither performed the autopsy nor prepared the report. That is, defendant argues the autopsy report, which formed the basis of Shaikh's testimony, was testimonial within the meaning of Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), and that he did not have an opportunity to question Zaretski, the medical examiner who actually performed the autopsy and authored the report.

Although defendant's argument is colorable, it was not urged in the trial court. See Melendez-Diaz v. Massachusetts, 557 U.S. 305, 313 n.3, 129 S. Ct. 2527, 2534 n.3, 174 L. Ed. 2d 314, 323 n.3 (2009) (noting that confrontation rights may be waived "by failure to object to the offending evidence"). We, thus, view this argument as waived.

Moreover, Shaikh testified as to facts and opinions that were not in dispute. The thrust of the defense was not that Gregory did not die from gunshots wounds but that defendant did not fire those shots. Consequently, any violation of the Confrontation Clause in the admission of the unobjected to testimony of Shaikh could not have impacted the jury's determination of guilt.

 

VI

In his fourth point, defendant argues that the judge erred in admitting the testimony of Detective Manochio that Brantley allegedly made a statement to Manochio after Brantley concluded his testimony.

The record reveals that, over objection, Manochio testified that Brantley, after testifying and leaving the courtroom, said to him: "I didn't know that was him. I go to Mike's all the time." Manochio did not ask Brantley any questions, but simply "figured [Brantley] was referring to the defendant." He also testified that Brantley "was a little nervous." In response to Manochio's testimony, the trial judge permitted the prosecution to recall Brantley, and Brantley denied the statements attributed to him by Manochio.

Notwithstanding Brantley's denial, defendant complains "the State was permitted to introduce it through Detective Manochio and to use it, over defendant's objection, to argue to the jury that [defendant] was intimidating Mr. Brantley and other witnesses." Defendant further argues that the statement attributed to Brantley by Manochio was inadmissible hearsay "in the absence of any substantive evidence that the witness was under any threat or fear of [him]." In addition, defendant argues that since there was no proof of any threat, by admission of this testimony "the State was permitted, through an inadmissible and prejudicial hearsay statement, to accuse the defendant of committing the crime of witness intimidation in the absence of a hearing." Defendant also argues that even if the statement was admissible, it was highly prejudicial "because it painted a picture that the defendant was a 'bad' person . . . [who] somehow threatened Mr. Brantley." Finally, assuming the statement was properly admitted, defendant argues the judge erroneously failed to issue the jury a limiting instruction.

Hearsay is an out-of-court statement "offered in evidence to prove the truth of the matter asserted." N.J.R.E. 801(c). Hearsay is inadmissible unless permitted by the evidence rules or some other law. N.J.R.E. 802. One of the enumerated exceptions to the hearsay rule concerns its use to illuminate the declarant's state of mind:

A statement made in good faith of the declarant's then existing state of mind, emotion, sensation or physical condition (such as intent, plan, motive, design, mental feeling, pain, or bodily health) . . . .

 

[N.J.R.E. 803(c)(3).]

In State v. Thornton, 38 N.J. 380, 390 (1962), cert. denied, 374 U.S. 816, 83 S. Ct. 1710, 10 L. Ed. 2d 1039 (1963), the Court explained:

It may be regarded as long since settled in this State that a person's own statements of a present existing state of mind, when made in a natural manner and under circumstances dispelling suspicion and involving no suggestion of sinister or improper motives, reflect his mental state and are competent to prove the condition of his mind that is, his plan or design.

However, "to be admissible under the state of mind exception to the hearsay rule, the declarant's state of mind must be 'in issue.'" State v. McLaughlin, 205 N.J. 185, 206 (2011). "The necessary predicate to admission of such evidence is that: a) the statement reflects a mental or physical condition of the declarant which constitutes a genuine issue in the case or b) the statement is otherwise relevant to prove or explain the declarant's conduct." State v. Downey, 206 N.J. Super. 382, 390 (App. Div. 1986). "Utterances indirectly indicating fear, ill-will, excitement, or other emotion on the part of the speaker are also admissible, whether the person be one whose state of mind is in issue . . . or a witness whose bias is to be ascertained." 6 Wigmore on Evidence 1790 at 326 (Chadbourn rev. 1976); see also State v. Gorrell, 297 N.J. Super. 142, 150 (App. Div. 1996) (recognizing that a hearsay statement of witness demonstrating bias against defendant may be admissible).

Manochio's testimony was properly admitted to help explain Brantley's then existing state of mind arguably fear, concern, or bias as well has his conduct, that is, allegedly changing his testimony. Because there was testimony that Brantley did not want to get involved, or have Green involved, and because Brantley's trial testimony was inconsistent with his prior recorded statement, his state of mind while testifying at trial related directly to an issue to be decided by the jury, his credibility. Credibility is always for the factfinder to determine. Ferdinand v. Agric. Ins. Co. of Watertown, N.Y., 22 N.J. 482, 492 (1956). Brantley's fear, concern, or bias, arguably suggested a potential motive for a change in his testimony. Furthermore, the statement was allegedly made by Brantley "in a natural manner and under circumstances dispelling suspicion and involving no suggestion of sinister or improper motives." Thornton, supra, 38 N.J. at 390. Brantley allegedly made the statement spontaneously, immediately after leaving the courtroom.

Because Manochio's testimony was relevant only as extrinsic evidence of Brantley's prior inconsistent statement, N.J.R.E. 613(b) posed other obstacles for its admission:

Extrinsic evidence of a prior inconsistent statement made by a witness may in the judge's discretion be excluded unless the witness is afforded an opportunity to explain or deny the statement and the opposing party is afforded an opportunity to interrogate on the statement, or the interests of justice otherwise require . . . .

This obstacle was overcome. Brantley was recalled to the stand and provided an opportunity to explain or deny making the statement. He denied it.

Defendant's argument that the statement was used to argue that defendant was "intimidating Mr. Brantley and other witnesses," and therefore, was other bad act evidence is not persuasive. The State did not argue any type of intimidation or witness tampering on the part of defendant.

Likewise, defendant's argument that "the trial court's failure to issue the jury a limiting instruction as to its proper consideration of the statement deprived the defendant of his right to a fair trial" is unpersuasive. Defendant bases his argument on the premise that under N.J.R.E. 404(b), the admission of evidence of prior bad acts must be coupled with a limiting instruction. See State v. P.S., 202 N.J. 232, 255 (2010). However, Brantley's statement was not evidence of prior bad acts and, therefore, N.J.R.E. 404(b) was not applicable.

It might have been wise to provide the jury with a limiting instruction as to how it was to consider the evidence, see N.J.R.E. 105, but defendant failed to request such an instruction:

When evidence is admitted as to one party or for one purpose but is not admissible as to another party or for another purpose, the judge, upon request, shall restrict the evidence to its proper scope and shall instruct the jury accordingly, but may permit a party to waive a limiting instruction.

 

[Ibid. (emphasis added).]

 

Because defendant failed to request a limiting instruction and failed to object to the absence of such an instruction, his argument is waived. See State v. Morais, 359 N.J. Super. 123, 134-35 (App. Div.) (holding that where "there is a failure to object, it may be presumed that the instructions were adequate," and "that trial counsel perceived no prejudice would result"), certif. denied, 177 N.J. 572 (2003).

Finally, any error in admitting Brantley's alleged statement was harmless as it was not sufficient to raise a reasonable doubt as to whether it led the jury to a result it otherwise might not have reached. State v. Macon, 57 N.J. 325, 335-36 (1971); R. 2:10-2. Brantley was not an eyewitness to the shooting, never identified defendant, and did not even recall the color of the minivan he saw that night. Brantley's testimony related to the timing of the events prior to the shooting, not to defendant's guilt or innocence.

Even if we would not have permitted the testimony, the question is not what we would have done but whether what the judge did constituted an abuse of discretion. That is, on appellate review, evidentiary rulings must be upheld "unless it can be shown that the trial court palpably abused its discretion." Carter, supra, 91 N.J. at 106. We find no such abuse here.

VII

In his fifth point, defendant contends it was plain error to allow Manochio to testify that the decision to indict defendant was made after several members of the prosecutor's office viewed the May 15, 2009 video of defendant walking in and out of Mike's Tavern. He argues the "'logical implication' was that members of the Prosecutor's Office identified the defendant as being the man in the April 17, 2007 video from Mike's Tavern with whom the decedent spoke prior to his murder based on the May 15, 2009 video," which constituted a violation of State v. Bankston, 63 N.J. 263 (1973).

Specifically, Manochio testified that, on May 15, 2009, an investigative detention order was issued and defendant was compelled to walk in and out of Mike's Tavern while recorded on the tavern's surveillance cameras. After the jury was shown that footage, the prosecutor elicited the following testimony from Manochio:

Q. Can you describe for the members of the jury what they just had an opportunity to watch?

 

A. Mr. Prunty came from the area of Roselle Street, as he did on the night of April 17th, 2007, just to duplicate that. We did that on May 15th.

 

Q. Detective, after you had a chance to go through that procedure with Mr. Prunty what happened next in the investigation?

 

A. Mr. Prunty went to the Linden Police Department, as per the order, and I took the captured surveillance tape down to Elizabeth, Union County Prosecutor's Office, where it was reviewed by several members of the office.

 

Q. Was there a decision made at that point in time as to whether or not to charge Mr. Prunty with the homicide?

 

A. There was.

 

Q. And was Mr. Prunty, in fact, charged at that point with the homicide?

 

A. He was.

Defendant argues that this testimony contained inadmissible hearsay and violated Bankston. In response, the prosecution chiefly argues that the hearsay rule was not violated because Manochio did not utter someone else's out-of-court statement. The prosecution's argument may be technically true but it certainly does not end the inquiry.

Although hearsay is defined as an out-of-court statement "offered in evidence to prove the truth of the matter asserted," N.J.R.E. 801(c), "[a] specific statement is not always required to implicate the rule; if the evidence elicited tends to create an impermissible inference of guilt based upon something said by someone other than a witness at the trial it is impermissible." Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment 2 on N.J.R.E. 801 (2013). "When the logical implication to be drawn from [a witness's] testimony leads the jury to believe that a non-testifying witness has given the police evidence of the accused's guilt, the testimony should be disallowed as hearsay." Bankston, supra, 63 N.J. at 271.

Indeed, testimony like Manochio's would ordinarily tend to be quite harmful. The most obvious inference from his testimony is that certain nonwitnesses formed an opinion that defendant was guilty based upon their examination of the videotape. The fact that these nonwitnesses were members of the prosecutor's office added the considerable weight of that office to that opinion. See State v. Michaels, 264 N.J. Super. 579, 640 (App. Div.), aff d, 136 N.J. 482 (1994). This was the rankest of inadmissible hearsay and should not have been permitted. Indeed, had each member of the group that viewed the videotape and then decided defendant should be charged been called to testify, they would not have been permitted to express their opinion of defendant's guilt. And yet Manochio was essentially permitted to testify as to the group's belief in defendant's guilt.

This issue, however, was not raised in the trial court. Consequently, we will not reverse unless the error in admitting this unobjected-to testimony was "of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2. Although we are troubled by the eliciting, let alone the admission of such testimony, we cannot conclude that the testimony was clearly capable of producing an unjust result. At best, the testimony if believed by the jury suggested that, after two years, the 2009 videotape was the evidence the prosecutor's office felt it needed to seek defendant's conviction. That videotape, however, was only probative of whether defendant was in Mike's Tavern on the evening of April 17, 2007. Officer Johnson of the Linden Police Department testified that within twenty-four hours of the shooting he had identified defendant as being the man in the April 17, 2007 surveillance video. And Dampach also identified defendant as being in Mike's Tavern that night. As a result, the improper testimony elicited from Manochio at best served to prove something that was demonstrated through other permissible avenues and, in that regard, was merely cumulative.

VIII

In his sixth point, defendant argues the judge erred in permitting Kathleen McCann, a lay witness, to offer opinion testimony.

The record reveals that McCann could not describe in words what she saw in Mike's Tavern on the night in question, so she demonstrated what she had seen, which the judge described for the record in the following way:

You [McCann] stood up and you are wearing a shirt and some -- you are wearing a button up shirt, an over the head kind of T-shirt underneath it, and you are wearing your button up shirt with the tails of the shirt not tucked in, but outside your pants, and you stood up and you picked up your outside shirt, your button-down shirt, showing your waistline, and the shirt that is underneath your button-down shirt that, to me, is akin to a brownish T-shirt.

 

Does that accurately describe what you did?

 

THE WITNESS: That is correct.

McCann also testified she saw defendant "reaching with his right hand towards his waistband," which was consistent with what she had seen that night and the actions she described to the jury. She then testified, over objection, that "I thought he was showing him a gun." McCann admitted she did not see a gun. She did, however, see Gregory's reaction to defendant's motion towards his waistline and heard Gregory say something along the lines of "Oh, it's like that." She testified that she also heard Whetstone, who was with Gregory, immediately say, "I'm outta here," and saw him get up and leave. And she testified that these observations caused her to move a few stools away from them. On cross-examination, McCann repeated that she never saw defendant, or anyone, with a gun or other weapon that night, and she admitted that defendant could have been reaching for his wallet or money.

We consider this question by again invoking the standard of appellate review. "The admissibility of opinion evidence rests within the discretion of the trial court." State v. LaBrutto, 114 N.J. 187, 197 (1989). Evidentiary rulings must be upheld unless the "finding was so wide of the mark that a manifest denial of justice resulted." State v. Kelly, 97 N.J. 178, 216 (1984).

"It is well-established that a lay witness may give his opinion in matters of common knowledge and observation." LaBrutto, supra, 114 N.J. at 197. A lay witness, however, must have "actual knowledge, acquired through his or her senses, of the matter to which he or she testifies." Ibid. Indeed, a non-expert witness may give testimony "in the form of opinions or inferences" if it "is rationally based on the perception of the witness" and "will assist in understanding the witness' testimony or in determining a fact in issue." N.J.R.E. 701. Lay opinion testimony, however, is not permitted to "cross[] over into the realm of expert testimony." State v. Kittrell, 279 N.J. Super. 225, 236 (App. Div. 1995). Typically, where a subject "is so esoteric that it is beyond the ken of the average person," it is an appropriate subject for expert testimony. State v. Doriguzzi, 334 N.J. Super. 530, 538 (App. Div. 2000).

The trial judge here did not abuse his discretion in allowing McCann to opine on what she believed defendant was showing Gregory. Her testimony was based on her own perception of defendant's movements, as well as Gregory's and Whetstone's reactions to defendant's movements. McCann's opinion testimony assisted the jury to understand her testimony.

 

IX

In his seventh point, defendant contends for the first time that the admission of Whetstone's videotaped statements of April 18, and May 9, 2007, deprived him of his right to a fair trial. He argues the statements were rendered inadmissible by N.J.R.E. 613 and N.J.R.E. 803(a)(1) and should not have been viewed by the jury.

Defendant argues there was no justification for playing the entirety of both interviews, which were three hours in length, because "he never denied stating in the interviews that the shooter was the man the decedent spoke to in the bar." Notwithstanding that Whetstone testified the shooter was not the same man Gregory had spoken to in the bar (contrary to his recorded statements), defendant argues the videotaped statements were inadmissible "because he admitted to saying everything attributed to him in his two videotaped statements."

We reject this argument because defense counsel cross-examined Whetstone extensively about his prior statements and about all his so-called "lies." At a sidebar regarding the impact of that cross-examination, defense counsel conceded the admissibility, with some limited redaction, of Whetstone's statements.

After the parties agreed to the redaction of the inadmissible portions, the following colloquy occurred between the court and counsel:

THE COURT: [Defense counsel], I didn't think you were disagreeing with me, but if you are -- it would seem to me that so much of this was paraphrased. The best evidence of these are [both videotaped statements], plus whether the detectives were putting words in the witness' mouth; whether he was coerced; whether he was dope sick or high. I mean, I think the DVDs are all the best evidence to that.

 

Are you objecting to [both videotaped statements] coming into evidence subject to certain potential minor redactions for relevance?

 

[DEFENSE COUNSEL]: No, but I would bring to the [c]ourt's attention to what we discussed, which you don't have in your possession, with the identification and photographic array that took place with Detective Fortuna on April 18th, which was right after he gave the statement.

 

THE COURT: My understanding is [the prosecutor] is not objecting to that being played. Is that correct?

 

[THE PROSECUTOR]: Correct.

After a proper foundation was laid, the redacted video statements were played for the jury.

To repeat, evidentiary rulings must be upheld "unless it can be shown that the trial judge palpably abused its discretion, that is, that its finding was so wide of the mark that a manifest denial of justice resulted." Carter, supra, 91 N.J. at 106. Because defense counsel did not object at trial, we would normally review to determine whether the admission of the videotaped statements constituted plain error, that is, error "clearly capable of producing an unjust result." R. 2:10-2.

Here, however, if there was an error, it was invited. "The doctrine of invited error operates to bar a disappointed litigant from arguing on appeal that an adverse decision below was the product of error, when that party urged the lower court to adopt the proposition now alleged to be error." Brett v. Great Am. Recreation, 144 N.J.479, 503 (1996). In other words, a"defendant cannot beseech and request the trial court to take a certain course of action, and upon adoption by the court, take his chance on the outcome of the trial, and if unfavorable, then condemn the very procedure he sought and urged, claiming it to be error and prejudicial." State v. Pontery, 19 N.J.457, 471 (1955).

Although it was the prosecution that sought introduction of the videotaped statements, defense counsel not only failed to object but also expressed a desire to have the videotaped statements played for the jury, believing they were the best evidence of Whetstone's inability to identify defendant. We, thus, reject defendant's arguments on this point.

X

We find insufficient merit in any of defendant's other arguments, whether raised by his appellate counsel or by defendant in his pro se brief, to warrant discussion. R. 2:11-3(e)(2). We add only the following brief comments regarding defendant's pro se argument that "a fair review of the credible evidence elicited during the course of the trial failed to establish the requisite elements of murder embodied in Count I and, as [a] necessary result, the requisite elements of possession of a weapon for an unlawful purpose embodied in Count III."

Rule 2:10-1 provides that a weight-of-the-evidence argument is not cognizable on appeal "unless a motion for a new trial on that ground was made in the trial court." Defendant did not raise the issue below, and therefore he is procedurally barred from raising this issue on appeal. State v. McNair, 60 N.J. 8, 9 (1972); State v. Johnson, 203 N.J. Super. 127, 133 (App. Div.), certif. denied, 102 N.J. 312 (1985).

Affirmed.

1We have renumbered the points in defendant's pro se supplemental brief for convenience.

2Dampach was permitted to testify that she did not see anything that would have led her to believe Whetstone would kill Gregory that night. She did not witness them fighting outside the bar and did not see anyone with a weapon.

3Other than the argument at Mike's Tavern, Whetstone could not think of any reason why anyone would want to kill him or Gregory. He estimated it was approximately twenty minutes from the time they left the bar to when the shots were fired.

4Although not objected to at trial and not raised as an issue on appeal, we note that testimony regarding the cause of death should be limited to "the mechanics of death" and not whether death was the result of a homicide or other criminal act. See State v. Jamerson, 153 N.J. 318, 338 (1998).

5State v. Gross, 216 N.J. Super. 98, 109-10 (App. Div.), aff'd, 121 N.J. 1 (1987).

6Whetstone testified he passed a woman while running on Roselle Street; during a police interview, however, Whetstone said he did not remember seeing anybody on the street when running home. Vaughn testified that, after hearing gunshots, he saw the man he described walking from the area past a heavyset Hispanic woman.

7Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

8We have omitted from this section of our opinion a description of testimony and evidence relating to the allegedly peculiar characteristics of Ford's 1995 gold Windstar. This testimony is discussed in detail in our consideration of defendant's arguments about the admission of that evidence that immediately follows.

9The actual content of the note was not placed on the record.

10The transcript states that the speaker here was the "Clerk," but from the text of the comment the speaker was undoubtedly the trial judge.