STATE OF NEW JERSEY v. ERIC WHITE

NOT FOR PUBLICATION WITHOUT THE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.

ERIC WHITE,

Defendant-Appellant.

___________________________________

December 18, 2014

 

Submitted October 27, 2014 - Decided

Before Judges Sabatino and Leone.

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 06-03-0291.

Joseph E. Krakora, Public Defender, attorney for appellant (Daniel V. Gautieri, Assistant Deputy Public Defender, of counsel and on the brief).

Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (Matthew M. Bingham, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

After a jury trial, defendant Eric White was convicted of murdering his girlfriend, Carolyn Tinson, by slashing her throat with a knife at her apartment on August 21, 2004. Defendant was seventy-three years old at the time of the offense. He called 9-1-1 that night and admitted that he killed his girlfriend. After speaking with defendant in a series of further calls, the police arrived at the apartment and found defendant present with the victim's dead body and a knife with traces of the victim's blood on it. In addition, the victim had a blunt force trauma on her head, which proved to be a skull fracture. When interviewed at the police station, defendant again admitted that he had killed the victim.

The jury convicted defendant of murder, N.J.S.A. 2C:11-3(a), and of third-degree possession of a weapon (a knife) for an unlawful purpose, N.J.S.A. 2C:39-4(d). The jury acquitted defendant of a count separately charging him with possession of a baseball bat for an unlawful purpose.

The trial court sentenced defendant on the murder conviction to a custodial term of forty years, with an eighty-five percent parole disqualifier under the No Early Release Act, N.J.S.A. 2C:43-7.2. The court merged the weapons conviction into the murder count.

On appeal, defendant argues: (1) he was deprived of a speedy trial by virtue of the nearly seven-year delay between his 2004 arrest and the 2011 trial; (2) the trial court improperly admitted defendant's custodial statement to the police, despite his language and enunciation difficulties, and also improperly allowed a police officer to describe a throat-slashing gesture that the defendant made to the officer during the interview; (3) the judge improperly instructed the jury that the prosecutor did not have a chance during the defense case to cross-examine a deceased hearsay declarant, Albert Hayes; and (4) the judge improperly permitted the deliberating jury to listen to the tapes of the 9-1-1 calls in the jury room.

For the reasons that follow, we affirm.

I.

Defendant's first point1 in his appellate brief contends that he was deprived of his right to a speedy trial, because of the nearly seven-year delay between his arrest and the jury trial

THE TRIAL COURT ERRED IN DENYING [DEFENDANT'S] SPEEDY-TRIAL MOTION, FAILING TO FOLLOW THE CORRECT STANDARD IN A CASE WHERE [DEFENDANT] HAD BEEN CONFINED IN THE COUNTY JAIL FOR OVER SIX-AND-ONE-HALF YEARS PRIOR TO TRIAL.

A.

The general chronology pertinent to this issue is as follows. Defendant was arrested on August 22, 2004, the morning after the murder. He was thereafter held in jail until the time of trial. A Cumberland County grand jury issued the indictment against defendant on March 22, 2006.

Following the issuance of the indictment, the court and counsel took part in a series of proceedings to address a host of pretrial issues, including the audibility and admissibility of the 9-1-1 tape and of defendant's statements to the police. Many of these issues were raised in pretrial motions filed by the defense, although some were filed by the State.

The trial was consequently delayed by the hearings necessary to resolve these extensive motions, by defendant's change of trial counsel, by a defense request for a psychological evaluation, by defense opposition to a State counter-evaluation, and by resolution of a claim by defendant that he was incompetent to waive his Miranda2 rights.

A trial was finally scheduled to begin in early March 2011, and the parties selected a jury at that time. However, on March 7, 2011, before the jury was sworn, the court adjourned the trial at the State's request due to certain outstanding discovery and scheduling issues.

After the March 2011 postponement, defendant moved to dismiss the indictment on speedy-trial grounds. Judge Benjamin C. Telsey,3 denied the motion, in an oral ruling on April 27, 2011. The jury trial commenced before Judge Telsey three weeks later on May 18, 2011, and it concluded on June 8, 2011.

B.

The applicable standards for evaluating defendant's claims of a deprivation of the right to a speedy trial are well established. The United States and New Jersey Constitutions both guarantee a defendant a right to a speedy trial. U.S. Const. amend. VI; N.J. Const. art. I, 10. In determining whether this right has been violated, courts must consider four factors: (1) the length of the delay; (2) the reasons for the delay; (3) whether and how the defendant asserted his right to a speedy trial; and (4) any prejudice to the defendant caused by the delay. Barker v. Wingo, 407 U.S. 514, 530-33, 92 S. Ct. 2182, 2192-93, 33 L. Ed. 2d 101, 116-19 (1972); see also State v. Cahill, 213 N.J. 253, 264 (2013) (noting that Barker "identified four non-exclusive factors that a court should assess when a defendant asserts that the government denied his right to a speedy trial"); State v. Szima, 70 N.J. 196, 200-01 (adopting the Barker test and noting that the right to a speedy trial is relative and depends upon the circumstances), cert. denied, 429 U.S. 896, 97 S. Ct. 259, 50 L. Ed. 2d 180 (1976).

No single factor under this four-part test is dispositive; rather, they are related and must be considered together, along with any "such other circumstances as may be relevant." Szima, supra, 70 N.J. at 201. The remedy for violating the right to a speedy trial is dismissal of the indictment. Barker, supra, 407 U.S. at 522, 92 S. Ct. at 2188, 33 L. Ed. 2d at 112.

Defendant bears the burden of establishing a violation of his speedy trial right. State v. Berezansky, 386 N.J. Super. 84, 99 (App. Div. 2006). However, "when the delay in concluding a trial is excessively long by any measure," then "the burden upon defendant to satisfy the other factors is correspondingly diminished." State v. Farrell, 320 N.J. Super. 425, 453 (App. Div. 1999)

A trial judge's factual determination on a speedy trial issue "should not be overturned unless [it is] clearly erroneous." State v. Merlino, 153 N.J. Super.12, 17 (App. Div. 1977); accordState v. Fulford, 349 N.J. Super.183, 195-96 (App. Div. 2002) (noting that it "cannot conclude that [the trial judge] abused his discretion in rejecting defendant's speedy trial contention"). We review de novo the trial court's legal conclusion that defendant failed to establish a violation of his constitutional right to a speedy trial. State v. Stas, 212 N.J. 37, 50-53 (2012); accordUnited States v. Valazquez, 749 F.3d 161, 174 (3d Cir. 2014).

C.

In applying the Barkerfactors in this case, Judge Telsey noted that "[t]he age of this case is atrocious[,]" and he weighed the fact that defendant was "sitting in jail" for almost a seven-year pretrial period against the State. However, the judge noted that defendant had not asserted his right to a speedy trial for six-and-a-half years. The judge also found that the defense had not demonstrated any prejudice beyond the fact of his lengthy incarceration.

In reviewing defendant's speedy trial motion, the judge observed that "[t]he reason for the delay is the critical issue in analyzing this seven year period of time." Observing that the materials provided in the motion record were scanty and summary in nature, the judge "also pull[ed] the Promis Gavel history of this case and also pulled the case notes."4 Analyzing that case history in detail, Judge Telsey found that a significant period of delay was caused by defense-raised issues surrounding defendant's capacity to waive his Miranda rights. Other delays, the judge noted, were caused by the substitution of defense counsel and various adjournment requests by defense counsel. After weighing these considerations, Judge Telsey denied the motion to dismiss the indictment.

On appeal, defendant argues that Judge Telsey erred by (1) incorrectly applying the demand-waiver element as a "primary" analysis; and (2) misapplying the relevant Barker factors in a "secondary" analysis that the court conducted. We disagree, despite the unusually lengthy time that it took for this homicide case to get to trial. As shown by our following in-depth analysis of the four factors, Judge Telsey was correct in evaluating and weighing the factors as he did and in denying the motion.

D.

Defendant first argues that by allegedly considering the operative "delay" in this case to have been only the two months between defendant's March 2011 scheduled trial and the court's decision in late April 2011 on defendant's dismissal motion, Judge Telsey applied an incorrect legal standard known as the "demand-waiver" doctrine. That doctrine, which was expressly rejected by the Barker Court, is a "rigid approach" that "provides that a defendant waives any consideration of his right to speedy trial for any period prior to which he has not demanded a trial." Barker, supra, 407 U.S. at 525, 92 S. Ct. at 2189, 33 L. Ed. 2d at 114.

In his initial comments addressing the speedy trial issue, Judge Telsey did focus on this two-month period between March and April 2011. However, it appears that the judge understandably did this because the defense had focused primarily on that time period in its motion, not because he deemed defendant to have waived his speedy trial rights by failing to demand them earlier.

Judge Telsey analyzed the March 2011-April 2011 period of delay in light of: (1) the prosecutor's acknowledgement that this delay was caused by the State's discovery of a second 9-1-1 tape when the trial was about to begin, and (2) the fact that, by that point, the defense was clearly prepared to try the case and objected to any postponement. The judge concluded that this approximately two-month period did not amount "to any undue delay that would result in a dismissal of this case."

E.

Defendant next argues that in evaluating the Barker factors as to the delay leading up to defendant's March 2011 motion, the judge merely looked at "which side had requested the most postponements of scheduled court proceedings and concluded that the defense had requested more delays than had the State." This characterization is inaccurate. In fact, the judge's analysis of the history of the case was far more thorough and detailed. Although the judge termed this review a "secondary" analysis, it comported with the Barker standards and was wholly independent of the judge's initial two-month analysis. We now address Judge Telsey's consideration of each of the four Barker factors, in turn, as to the delay that occurred in the period leading up to defendant's March 2011 motion.

1.

Length of the Delay

The first Barkerfactor requires the court to assess whether the relevant time period in a given case has "crossed the threshold dividing ordinary from 'presumptively prejudicial' delay." Doggett v. United States, 505 U.S. 647, 651-52, 112 S. Ct. 2686, 2690, 120 L. Ed. 2d 520, 528 (1992); State v. Douglas, 322 N.J. Super.156, 170 (App. Div. 1999). Whether the length of the delay is presumptively prejudicial depends on the "circumstances of the case." Barker, supra, 407 U.S. at 531, 92 S. Ct. at 2192, 33 L. Ed. 2d at 117.

A delay that is extraordinarily long under the circumstances is "presumptively prejudicial" and will "thereby trigger consideration of the other factors" enumerated in Barker. Cahill, supra, 213 N.J. at 264-65; see alsoDoggett, supra, 505 U.S. at 652 n.1, 112 S. Ct.at 2691 n.1, 120 L. Ed. 2d at 528 n.1 ("We note that, as the term is used in this threshold context, 'presumptive prejudice' does not necessarily indicate a statistical probability of prejudice; it simply marks the point at which courts deem the delay unreasonable enough to trigger the Barkerenquiry.").

The time period for calculating the relevant length of time for a speedy trial analysis begins upon arrest, because "it is clear that the protection of the Sixth Amendment attaches upon arrest on a criminal charge and need not await indictment or information." Szima, supra, 70 N.J. at 199-200 (citing Dillingham v. United States, 423 U.S. 64, 96 S. Ct. 303, 46 L. Ed. 2d 205 (1975)).

Here, defendant was arrested on August 22, 2004, and his completed jury trial began on May 18, 2011, a total period of six years, eight months, and twenty-six days. Judge Telsey frankly noted in his analysis that "[t]he age of this case is atrocious" and that the length of the delay prong of Barker was satisfied. Even the prosecutor acknowledged "that it is very unsettling that anybody would have to wait six and a half years for a trial."

On appeal, the State concedes that this particular period is "significant" and that "a Barkerinquiry is appropriate." The trial judge correctly recognized that this first factor weighed here in defendant's favor.

2.

Reasons for the Delay

"Once a defendant asserts a violation of his right to a speedy trial, the government is required to identify the reason for the delay." Cahill, supra, 213 N.J. at 266 (citing Barker, supra, 407 U.S. at 531, 92 S. Ct. at 2192, 33 L. Ed. 2d at 117). Deliberate government action designed to delay the trial and hamper the defense weighs heavily in the defendant's favor. Ibid.

However, a more neutral reason, such as negligence or a heavy caseload, will be weighed against the government less heavily than deliberate delay, although still weighed in favor of defendant because it is the government's ultimate responsibility to prosecute cases in a timely fashion. Ibid.; see also State v. Long, 119 N.J.439, 471 (1990) (noting that "although a substantial amount of time lapsed between defendant's arrest and the beginning of the trial, there is no indication that the prosecution intentionally delayed the proceedings to gain an unfair, tactical advantage").

The defendant's own contribution to the overall delay is an important factor. Our Supreme Court has held "[a]ny delay that defendant caused or requested would not weigh in favor of finding a speedy trial violation." State v. Gallegan, 117 N.J. 345, 355 (1989) (citing United States v. Loud Hawk, 474 U.S. 302, 316, 106 S. Ct. 648, 656, 88 L. Ed. 2d 640, 655 (1986)). See also Long, supra, 119 N.J.at 470-71 (noting that "[a] defendant should not be able to take advantage of a delay substantially attributable to his own trial motions when the court acts upon them within a reasonable period of time" (quoting United States v. Jones, 524 F.2d 834, 850 (D.C. Cir. 1975))).

Judge Telsey aptly considered this reason-for-delay factor to be "the critical issue" in determining the speedy trial motion here. Because of the pivotal nature of this constitutional factor, we divide in chronological phases the reasons for delay at each significant stage of this case, and Judge Telsey's associated findings and remarks regarding those reasons.

a.

Arrest to Indictment (August 2004 through March 2006). Although the murder had taken place on August 21, 2004, defendant was not indicted until March 22, 2006. As Judge Telsey remarked, "that [period] was 19 months before this case was even indicted, which takes up a substantial chunk of the time since the murder to today's date[.]" Except for bail applications within the first month of this period, "nothing happened on this case" between September 2004 and March 2006, which the judge found "troubling."

The record contains no explanation as to why the indictment was not returned sooner than March 2006. Judge Telsey does not expressly state how he weighed this delay, but presumably because he found it "troubling," he weighed it against the State.

b.

Post-Indictment to Turnover of Defense Expert Report (April 2006 through February 2009). Once the indictment issued, the next few months proceeded with no delay attributable to either party. There was a pre-arraignment interview on April 6, 2006, and the arraignment took place on May 1, 2006. The first status conferences took place on June 5, July 10, and August 14, 2006.

Judge Telsey then explored the key events between October 30, 2006 and March 2009. The judge noted that each delay or need for time during that interval was due to a defense adjournment or defense motion, except for (1) a few instances where the party causing the delay was unclear, and (2) a single request by the prosecutor for an adjournment at a time when other circumstances in the case made it clear that the defense would have needed an adjournment itself to deal with an ongoing issue.

One issue the parties dealt with during this particular time frame was an unsuccessful defense motion to obtain the identity of a confidential informant. Several adjournment requests by the defense seemed to be related to that motion, which was finally heard on March 2, 2007.

Significant delays were thereafter caused by issues relating to the psychological evaluation of defendant, and the ensuing hearings to resolve whether defendant had validly waived his Miranda rights. The defense requested a postponement in September 2007 so that defendant could be evaluated. The judge noted that the defense provided no explanation as to why the psychological evaluation request had not been raised by the defense earlier.

A defense expert report on the Miranda issue, authored by Dr. Katherine Barber (the "Barber report"), was finally provided to the State in late February 2009. That was nearly a year and a half after the defense had first raised the voluntariness issue and almost three years after the indictment.

c.

Turnover of Defense Expert Report to Miranda Hearing (March 2009 through April 2010). Judge Telsey next considered the responsive actions taken by the State following its receipt of the Barber report. The judge noted, "At that point, it's reasonable and the [c]ourt's experience has been that the State needs to take a look at that report and have their expert review it."

Defendant complains that nearly fourteen months elapsed between the service of the Barber report and the court's hearing on the Miranda issue. He contends that this delay was largely due to "the State's failure to have an expert meet with [defendant] in a timely fashion" and, accordingly, should have been weighed against the State.

Judge Telsey appropriately determined, however, that much of this particular delay was the result of the defense's objection to the State having its own expert conduct an evaluation of defendant. The judge also noted that the defense had filed a motion for rehearing after it lost a motion on this issue, which necessitated the postponement of a status conference.

Although the record is somewhat sparse relating to this particular time interval, the transcripts support a finding that the delay was largely either neutral or was attributable to the defense, except for the final month of the period when the Miranda hearing was postponed for one month at the prosecutor's request.

Defense counsel objected to the State's expert evaluating defendant, so the State filed a motion for permission to do so, which was heard on August 19, 2009. Judge Becker granted that motion. At that motion hearing, defense counsel asked that the defense expert, defense interpreter, and defense counsel also be present at the evaluation, and Judge Becker granted that request.

The defense then filed a motion for reconsideration of the ruling allowing the State's expert to examine defendant, which was heard and denied on September 17, 2009. The record from that proceeding includes observations by counsel and the court about the logistical difficulties of scheduling an evaluation with two experts, two counsel, and two interpreters.

The parties had continuing logistical difficulties in scheduling an evaluation when all of the relevant participants could attend. On October 5, 2009, just prior to a hearing with the court, defense counsel identified proposed evaluation dates to the prosecutor, indicating when the defense team was available.

Appropriately sensitive to the mounting delay, Judge Becker convened a conference on October 5, 2009, to advise counsel that "the [c]ourt has a duty to get this matter off of the dime, as it were." Judge Becker expressed concerns that the Miranda issue might only be a prelude to a larger issue regarding defendant's competency to stand trial. Consequently, Judge Becker ordered, sua sponte, a separate evaluation of defendant by the Department of Human Services.

On October 19, 2009, the parties were back before Judge Becker to again discuss scheduling of the evaluation by the State's expert. The prosecutor advised the judge that the parties were still having difficulty scheduling the evaluation because of logistics, noting that the parties had identified two dates when both experts were available, but defense counsel was not. The prosecutor also noted that the State was in the process of locating a new interpreter for the evaluation because the interpreter who the State had intended to use "turned out to be a trooper in the State of New York," which the State's expert thought created a potential for a defense claim of bias. Despite these persisting hurdles, the court-ordered evaluation eventually took place on October 20, 2009.

New defense counsel were substituted into the case between December 3, 2009, and February 8, 2010. This change of counsel prompted further delay of the State expert's evaluation.

At a conference on February 8, 2010, the prosecutor proposed that, rather than continue to try to schedule the logistically difficult State expert evaluation, the State use the same court-appointed expert who had evaluated defendant's competency to stand trial to give an opinion as to his ability to waive his Miranda rights. Judge Becker consequently allowed the prosecutor "two weeks to get that done," ordered that the State serve its expert report by February 26, 2010, and scheduled a hearing on the Miranda-waiver issue for March 19, 2010.

The Miranda hearing took place on April 16, 2010, having been delayed about a month from the original date at the prosecutor's request.

Assessing the overall delay of over two years caused by these psychological evaluation issues leading to the Miranda hearing, Judge Telsey stated that he "[was] not suggesting that any of this [was] improper or wrong by the defense." Even so, the judge observed that "[i]t appears that the defense has been behind this delay, or at least much of the delay."

The judge noted that the defense had legitimately raised the Miranda issue. However, the process surrounding the issue started "in the middle of 2007," should have been raised sooner by the defense, and was not finished until April 2010.

During this same period, there was apparently a year-long general moratorium on trials in Cumberland County. Judge Telsey declined to count that moratorium as a delay attributable to the State. Under the procedures in force at that time, if a certification were sent to the court by the defense reporting that the case was trial-ready, it would have been tried. No such certification of readiness was provided in this case. Judge Telsey aptly noted that "[t]he defense clearly wasn't and couldn't have been trial ready before April 26 of 2010, before [the] Miranda issue [of admissibility] was decided."

d.

Miranda Hearing to Time of Trial (April 2010 to May 2011). As Judge Telsey explained in his speedy trial analysis, the Miranda hearing was followed by plea negotiations, pretrial activity, and at least one trial date postponement due to the unavailability of defense counsel. The judge did not appear to weigh this period against either party, except for the two-month period between March 2011 and May 2011 when the trial was adjourned at the State's request.

e.

Summarizing this overall pretrial history of the case, Judge Telsey noted that, although it was "appalling" that defendant had been "sitting in jail for six and a half to seven years," he found that the overall "delay has been primarily due to defense psychological evaluations and Miranda [h]earings." His conclusion as to this second Barker factor is correct, given the chronology of events that we have just described, and we adopt it.

3.

Assertion of Speedy Trial Right

The third factor to be weighed under the Barkeranalysis is "whether and how defendant asserted his speedy trial right." Long, supra, 119 N.J.at 470. In applying this factor, we have observed that "[w]hile an accused has no duty to bring himself or herself to trial, it is difficult to prevail on a speedy trial claim without a timely assertion of rights." Fulford, supra, 349 N.J. Super. at 193. If a defendant fails to assert the right to a speedy trial for a long time, this factor weighs against a determination that the right has been violated, particularly where the trial actually takes place shortly after the right is first asserted. SeeBarker, supra, 407 U.S. at 531-32, 92 S. Ct.at 2192-93, 33 L. Ed. 2d at 117-18 (noting that asserting the right to a speedy trial "is entitled to strong evidentiary weight" in the analysis, but "failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial").

This third Barker factor plainly weighs here against defendant, who did not assert his right to a speedy trial at any point between his arrest in August 2004 until the adjournment of the initial trial on March 7, 2011. Moreover, defendant's actual trial took place just two months after his speedy trial right was first asserted. Cf. State v. May, 362 N.J. Super.572, 598 (App. Div. 2003) (noting that failure to assert the right for years weighed against the defendant, "especially in light of the fact that trial began only about four months after the first assertion of the speedy-trial right").

4.

Prejudice to Defendant

The fourth Barker factor requires an assessment of prejudice to the accused, in light of three interests: (1) prevention of oppressive pretrial incarceration; (2) minimization of the defendant's anxiety and concern; and (3) limiting the possibility that the defense will be impaired. Barker, supra, 407 U.S. at 532, 92 S. Ct. at 2193, 33 L. Ed. 2d at 118. The last interest tends to be the most significant because of its implications for a defendant's right to a fair trial. Szima, supra, 70 N.J. at 201.

In evaluating the claimed prejudice to defendant caused by the delay of the trial, Judge Telsey acknowledged the "obvious" negative consequence that defendant "has been in jail waiting for his day in court[.]" Beyond that, however, the judge noted that the defense could only identify specific prejudice arising from the deaths of two potential witnesses, Hayes and defendant's family doctor. Hayes died in 2007, which the judge noted was "during a period of time that the defense was continuing with its investigation and presentation of certain pretrial issues in this case."

As for the family doctor, the defense argued that his death meant that he could not testify about defendant's "various heart conditions and his lung conditions and all those things." However, defense counsel did not know exactly when the doctor died, only that she thought it was after 2004 but more than a year before April 2011. The judge thought it possible that the death of defendant's doctor might prejudice the defense, but given the continuing availability of defendant's medical records, the judge concluded any such prejudice could be overcome.

F.

On the whole, we are satisfied that Judge Telsey appropriately weighed each of the Barker factors and denied the motion to dismiss the indictment. The record and chronology of events reasonably supports the judge's conclusion that much of the delay in getting this case to trial was the unfortunate result of defendant's own pretrial motion practice and change of counsel, and logistical difficulties that were not the sole fault of the prosecution. Certainly the time period in this case between arrest and trial was extraordinarily long. We emphatically urge that such a delay exceeding six years not be repeated in other cases in the future. However, nothing suggests that the State acted here with a motive of prejudicing the defense and, "[e]xcept in the most egregious of cases, the length of the delay and the absence of any explanation for the delay cannot alone justify a decision." Fulford, supra, 349 N.J. Super. at 195.5

Judge Telsey's finding that a significant portion of the delay in this case was attributable to defense strategy -- particularly in arranging the expert evaluation of defendant and the Miranda issue -- was based on sufficient credible evidence. So was his determination that no significant prejudice beyond lengthy incarceration had been shown. Defendant has not shown these findings were "clearly erroneous." Merlino, supra, 153 N.J. Super. at 17.

Defendant's failure to raise his speedy trial right until March 2011 and the fact that the trial did, in fact, occur within three months of that application for relief, are mitigating considerations that the judge could appropriately and did take into account.

In sum, defendant has not met his burden to demonstrate that the denial of his speedy trial motion was erroneous. Merlino, supra, 153 N.J. Super.at 17. We therefore affirm on this issue.

II.

In his second point on appeal, defendant contests the trial court's admission of his statements to the police, his incriminating throat-slashing gesture and the court's application of Miranda voluntariness standards

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS THE STATEMENTS HE MADE DURING HIS INTERROGATION ON THE BASIS THAT HE DID NOT UNDERSTAND HIS MIRANDA WARNINGS, AND THE INCONSISTENT FINDINGS OF THE VARIOUS JUDGES WHO CONSIDERED THE INTERROGATION LED TO THE INTRODUCTION OF AN APPARENTLY INCRIMINATING GESTURE.

A. [Defendant's] Statements Should Have Been Suppressed on the Basis That He Did Not Knowingly and Understandingly Waive His Privilege Against Self-Incrimination.

B. When the Translated Statement Revealed That The Detectives And [Defendant] Did Not Sufficiently Understand One Another, The Court Should Have Suppressed [Defendant's] Statements And Not Merely The Tape of the Interrogation.

C. The Admission of The Evidence of [Defendant's] Incriminating Gesture Was Harmful Error.

A.

The relevant key aspects of the record concerning these admissibility issues are as follows.

At about midnight on the night of the murder, defendant called 9 1-1.6 Cumberland County 9-1-1 supervisor Claude Trumbauer took the call, and he authenticated the recording of the first 9-1-1 call that was played to the jury and admitted into evidence as S-45.

Trumbauer testified that defendant was very difficult to understand at the beginning of the 9-1-1 call but "the more [defendant] talked, the more you could understand him." Defendant said, "I killed somebody," which Trumbauer was able to understand clearly. Trumbauer confirmed defendant's name and address and ascertained that defendant had "used a knife."

Trumbauer then connected the State Police to the call. With the State Police officer on the line, defendant repeated that he had killed a woman and said that he had cut her throat. Defendant was cut off from the call, and Michael Falzone, a telecommunications officer with the State Police, said that he would "try to call this guy back and figure out what's going on."

Falzone called back and defendant answered. Defendant told Falzone that the woman he had harmed with a knife was his girlfriend. The phone connection was aborted three more times. Each time Falzone called back and defendant answered, but defendant did not provide any additional information.

At trial, Falzone authenticated the portion of the 9-1-1 recording from the point where he called defendant back repeatedly. That audio recording was also played for the jury and admitted into evidence.

Falzone stayed on the line until troopers had arrived at defendant's residence. Defendant was taken into custody, handcuffed, and placed in a police car. The troopers then "cleared the house" in order "to see if there [were] any victims that needed assistance or any other suspects in the residence."

Upon entering, the troopers discovered Tinson's body lying in bed in "the bedroom to the left." There were large pools of blood around Tinson's head and neck and splatter strewn around the bed where the body laid.

Detective Francis McGovern, whose job was to document his observations and to convey them to an appropriate crime scene investigator for an ultimate determination of evidential value, observed what he thought was additional blood splatter on some shirts in a wardrobe in the bedroom. McGovern brought this to the attention of the investigators, including Detective James Mitchell, who testified that, based on his training and experience, the stains in the wardrobe were not blood but rust. If he had thought it could be blood, Mitchell would have taken photographs.

Two knives, one of which was ultimately determined to have Tinson's blood on it, were found beside the bed in the second bedroom, which was used by defendant. The apartment was generally disheveled, but nothing indicated a break-in or a struggle.

Defendant was taken to the Bridgeton State Police barracks and interrogated by two troopers, including Detective Michael Peterson. As of August 2004, when these events took place, the statewide requirement that all police interrogations must be recorded if possible was not yet in force. Detective Peterson did conduct a pre-interview with defendant before beginning to audio- record the statement. There was no capability to video-record a statement at the Bridgeton State Police station at the time.

Detective Peterson read defendant his Miranda rights twice, both when defendant signed the Miranda card before the pre-interview began and before questioning him on tape. Defendant signed the Miranda card at 2:54 a.m. The audio-recorded statement began at 4:43 a.m. and lasted for a little less than an hour.

In his statement, defendant told the police that Tinson had been taking money from him and that they had gotten into an argument that night about it in Tinson's bedroom.7 Defendant stated that he "cut her throat." He said that he thought he had the back of the knife against her skin and was not intending to really hurt her, but in reality it was the sharp edge of the blade he drew across her throat.

According to defendant, he used a kitchen knife the couple usually used for cooking and cutting up meat. After he cut Tinson's throat, he went into the kitchen and ate some food, then he rested or dozed for a few minutes in the other bedroom. Defendant said he did not know Tinson was dead until he went back into the bedroom a bit later to check on her.

According to Detective Peterson, during the interrogation defendant appeared emotional, but not overwhelmingly so. Although defendant speaks and understands English, Peterson said that he had "extreme difficulty understanding" him because of his Jamaican accent and the fact that he was not wearing his dentures. Peterson asked defendant to write out his statement, but defendant told him that he could not read or write.

Peterson perceived that defendant could understand him. He testified that defendant did nothing to indicate that he did not understand what was going on. According to Peterson, "[he] felt very comfortable interviewing [defendant] and [he] felt that . . . [defendant] appeared to be comfortable with . . . answering [the officers'] questions."

At the time of his arrest, defendant was seventy-three years old. When being evaluated later by the court-appointed forensic psychologist to assess his competency to stand trial, defendant reported that he had been born and raised in Jamaica, had had no formal schooling, and was living on his own by the time he was fourteen. He first came to the United States in 1967 and then returned to Jamaica. By 1973, he was living in the United States permanently. For most of the time when he lived in the United States, defendant worked in a factory, which he stopped when he developed heart problems at the age of sixty-six.

Defendant contends that the successive rulings by the three different judges on the three suppression motions relating to the statement that he gave to the police on the night of the murder are "somewhat inconsistent," and that it was error for the court to allow the State to use the statement in any respect at trial. Specifically, defendant contends that (1) Judge Becker erred in April 2010 by failing to suppress the statement altogether, on the asserted basis that defendant was not capable of knowingly and intelligently waiving his right against self-incrimination, and (2) Judge Telsey erred by permitting Detective Peterson to testify about his observations during his interview with the defendant, as this was inconsistent with Judge Krell's ruling two months earlier which had barred the introduction of the audio-recording and transcript of the statement. These contentions of discrepancy and error are unpersuasive.

B.

We consider these admissibility issues in light of the applicable principles of law set forth in Miranda and its progeny. In Miranda, supra, 384 U.S. at 467, 86 S. Ct. at 1624, 16 L. Ed. 2d at 719, the United States Supreme Court held that in order to protect a person's Fifth Amendment rights against self-incrimination, that person may not be subjected to custodial interrogation by the police unless he or she is apprised of those rights. Accord Stas, supra, 212 N.J. at 49. In particular, the police must inform such a person

that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.

[Miranda, supra, 384 U.S. at 479, 86 S. Ct. at 1630, 16 L. Ed. 2d at 726.]

The Court in Miranda further required that statements made to the police during a custodial interrogation8 be excluded at trial, unless it is shown that the defendant "knowingly and intelligently waive[d] these rights" in responding to the officers' questions. Ibid. Such a waiver is important because "[a]ny police interview of an individual suspected of a crime has coercive aspects to it." J.D.B. v. North Carolina, ___ U.S. ___, ___, 131 S. Ct. 2394, 2401, 180 L. Ed. 2d 310, 321 (2011) (internal quotation marks and citation omitted).

The prosecution bears the burden of proving a defendant's voluntary waiver of his right against self-incrimination beyond a reasonable doubt. State v. Presha, 163 N.J. 304, 313 (2000). In making that assessment, our courts must look at the "totality of circumstances" involved. Ibid.; State v. Nyhammer, 197 N.J. 383, 402 (2009), cert. denied, 558 U.S. 831, 130 S. Ct. 65, 175 L. Ed. 2d 48 (2009). The courts consider such factors as defendant's age, education, and intelligence; the advice given about his constitutional rights; the length of the detention; whether the questioning was repeated or prolonged; and whether physical punishment or mental exhaustion was involved. Presha, supra, 163 N.J. at 313; State v. Dispoto, 189 N.J. 108, 124-25 (2007) (indicating that "fact-based assessments" are appropriate in considering the totality of circumstances and evaluating whether a defendant voluntarily waived his rights).

We review the trial court's factual findings from the suppression hearing on defendant's self-incrimination claims under "a deferential standard." Stas, supra, 212 N.J. at 48. Our appellate function, as it relates to the facts, is simply to consider "whether the findings made could reasonably have been reached on sufficient credible evidence present in the record." Stas, supra, 212 N.J. at 49 (quoting State v. Johnson, 42 N.J. 146, 162 (1964)); see also State v. Locurto, 157 N.J. 463, 471 (1999). We owe "deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Johnson, supra, 42 N.J. at 161; see also Stas, supra, 212 N.J. at 49. By comparison, "with respect to legal determinations or conclusions reached on the basis of the facts," our review is plenary. Stas, supra, 212 N.J. at 49.

Applying these standards here, we detect no errors or material inconsistencies in the Miranda rulings by the judges who each ruled on the admissibility issues here. The rulings are legally sound and sufficiently supported by the factual record.

1.

Defendant first argues that Judge Becker erred in holding that defendant had understood the Miranda warnings sufficiently to waive his right against self-incrimination. He contends that his status as an illiterate immigrant from Jamaica obligated the police to provide him with more of an explanation than just twice reading him his rights and obtaining express acknowledgement of understanding, and that the judge was obliged to believe the defense expert's opinion on this subject rather than the State's expert and the officer who spoke with defendant.

We disagree. Defendant's status did not automatically entitle him to additional protections or explanations, as there was sufficient credible evidence supporting Judge Becker's finding that defendant was able to understand and waive his Miranda rights. The judge had legitimate reasons to discount the defense expert's contrary opinion and to find other evidence more credible. The record supports the judge's admissibility ruling, for the reasons we now detail.

Detective Peterson, one of the two police officers who took defendant's statement, testified at the Miranda hearing before Judge Becker. Although Peterson had considerable difficulty understanding defendant, he testified that defendant appeared to understand what was going on. As we have already noted, Peterson "felt very comfortable" interviewing defendant, and defendant "appeared to be comfortable with . . . answering [Peterson's] questions." Peterson thought defendant was very cooperative. Peterson said he could understand what defendant was saying better as the process went along.

Peterson explained that he tailored the structure of the interview to compensate for the difficulty the officers had in understanding defendant.9 Although acknowledging on cross-examination that there was "a lot that I didn't understand. That's why I redirected by clarifying the questions." Peterson did not agree with defense counsel's statement that he "did not understand most of what [defendant] was saying."

To the question, "So, you had no way of knowing if [defendant] understood his rights; correct?," Peterson answered, "Well, I just asked him if he did, and he said he did. And, he signed the card."

Judge Becker posed the following noteworthy question to Peterson

Q. At any time during your hour-and-a-half discussions with him, prior to turning on the tape, and then your 53 minutes, eight seconds, that you discussed with him, the taped statement, was there any time when you did not believe that he understood your spoken word?

Peterson answered, "No, sir."

Peterson acknowledged that there were a few times when defendant's answer "was not congruent with the actual question[.]" Peterson's impression was that this happened not because defendant had misunderstood the question, but because Peterson was trying to stay with a "consistent time line of events," while defendant was sometimes "going back and explaining the why [sic] instead of the what [sic]."

Dr. Peter David Paul, the forensic psychologist designated by the court to evaluate defendant's capacity to stand trial, also testified for the State on the Miranda voluntariness issues. Dr. Paul had evaluated defendant on October 20, 2009, at the Cumberland County Jail.

Dr. Paul testified that he had performed "a little over 1,000" competency evaluations as a court-appointed psychologist. He acknowledged that he had never performed an evaluation specifically "for purposes of waiving one's Miranda rights." However, Dr. Paul testified that part of his customary evaluation is to "assess the person's ability to understand his rights and waive them, knowingly, intelligently and voluntarily[.]"

Before evaluating defendant, Dr. Paul had reviewed Dr. Barber's report regarding defendant's ability to waive his Miranda rights. Dr. Paul considered that there was "some overlap and, I guess, in my opinion, I don't see a difference really in the level of complexity between the issues related to competence to stand trial and competence to understand Miranda."

Dr. Paul found defendant hard to understand at times because of his accent and lack of teeth. Even so, the expert was able to understand defendant sufficiently without an interpreter to conduct the evaluation. Dr. Paul noted that defendant became easier to understand as the evaluation progressed, and that defendant "was very cooperative in repeating himself as often as necessary, to make sure he was clearly understood." Dr. Paul believed that defendant could understand him clearly.

In his expert analysis, Dr. Paul addressed the factors regarding competency to stand trial in N.J.S.A. 2C:4-4 and also stated that defendant "understood the consequences of entering a guilty plea and it was my opinion that he was able to understand the rights waived upon entering such a plea and that he could waive these rights knowingly, voluntarily and intelligently." Dr. Paul agreed that if read to the defendant at the hearing, defendant would be able to understand his Miranda rights and be able to knowingly, voluntarily and intelligently waive them.

Dr. Paul amplified on cross-examination that "[i]t's not a difficult concept to grasp" that a person has "the right to say nothing." He conceded, however, that "the consequences of not exercising that right . . . are more complex."

Dr. Barber, a clinical and forensic psychologist, testified for the defense at the Miranda hearing. Barber evaluated defendant in April 2008 and again in August 2008 and rendered a report on the Miranda-waiver issue in February 2009. She had been retained to assess both defendant's competency to stand trial and to waive his Miranda rights. Her opinion as to the former subject was that he was competent to stand trial.

Dr. Barber brought an interpreter to her second meeting with defendant to improve her "ability to feel that [she] was adequately able to understand him, so that [she] felt confident that what [she] was getting from him in conversation, what [she] was recording, was accurate." She acknowledged that defendant did not seem to have trouble understanding her during the evaluation, that he understood why she was there and that he was able to give voluntary consent for the evaluation to proceed.

Dr. Barber conducted a "standard clinical interview" to ensure that defendant had no "mental illness or other types of cognitive impairments" that would interfere with her ability to conduct the evaluation. Then, she conducted a "structured interview[,]" which she said was "very similar to what Dr. Paul mentioned in his assessment of competency and what I, myself, typically do in assessing competency to stand trial."

Dr. Barber decided not to administer an intelligence test because, in her opinion, defendant is "not someone that could be adequately assessed with a standardized intelligence battery." She opined that, because of defendant's lack of education and lack of "cultural fluency," "I'm absolutely sure that he would come out as if his IQ were extremely low when, in fact, I don't think that's the case at all."

Dr. Barber also used, as a guide rather than as a definitive test, certain "instruments" that "cover four different areas" of comprehension. She reported that defendant's performance, as compared to a standardized norm, was "very low." Defendant's performance was best on the instrument that asked him to evaluate "pictorial stimuli" rather than spoken or written words.

On cross-examination, Dr. Barber acknowledged that the "normative population sample" she compared defendant to was American rather than specifically Jamaican. She believed that defendant was not intentionally underperforming on the tests, in part because he did not claim that he could understand nothing but was able to define, for example, the words "attorney" and "entitled."

Dr. Barber offered no ultimate opinion as to whether defendant's statement was voluntary. However, she did opine that defendant's "level of cognitive functioning is not sophisticated enough to permit him to adequately exercise a knowing or intelligent waiver of his Miranda rights." Dr. Barber noted that, in contrast to assessing the capacity to stand trial, which she said "is a relatively low threshold for anyone to meet," having capacity to waive Miranda rights "exists at a higher level of cognitive sophistication" and should be distinguished, in part, because at trial the individual would have the assistance of counsel.

In addition to the testimony of these three witnesses, Judge Becker considered the signed Miranda card and the written reports of the experts, which were admitted into evidence at the hearing but are not included in the record on appeal. The judge also listened to the audio recording of the statement and reviewed the first transcript of the statement that had been made by the prosecution.

Judge Becker concluded that "based upon what I heard," Peterson's testimony that defendant was "comfortable, not overly emotional, [and] not overwhelmed" was accurate. Regarding his own review of the audio recording, the judge stated

I had extreme difficulty at the beginning of the statement understanding the [d]efendant; however, as I went through the statement, I was better able to understand him in some context.

And very shortly after the statement started, I was actually able to understand the context of the answers the [d]efendant was giving, although [I] may not have understood every word.

Judge Becker also noted that he had been observing defendant at court appearances "for the last year-and-a-half, and he seems to understand what's going on."

Judge Becker rendered his oral ruling on the Miranda waiver issue on April 26, 2010. The judge found Peterson's "testimony, at the outset and throughout, to be very credible. He was giving a present recollection of the prior incident . . . [and] seemed to be -- have a very clear recollection of what occurred."

The judge agreed with Peterson that defendant's answers were consistent throughout the interview, in that he never denied that he had cut Tinson's throat even though he consistently said that he had not threatened to kill her.

As to the audio recording, the judge noted

Defendant was always on target to where he started. It wasn't like he was rambling all over the place. The officer gave no pressure, no coercion and no threats at any time that I saw.

And from the demeanor that I heard from the [d]efendant, it was evident that he did not feel that there was any coercion, pressure or threats.

Defense counsel had argued to Judge Becker that defendant "wasn't responsive to the questions" during the police interview and that "[a]ll he was doing was answering 'Yeah, yeah, yeah.'" Judge Becker disagreed, stating that "I thought he [defendant] was very responsive, although they [the detectives] didn't understand all the responses." The judge considered it significant that defendant did not just repeat "yeah" all the time but instead "disagreed when he didn't agree" and was not just "agreeing to everything that was said, right when it was said."

Commenting on the competing opinions of the experts, the judge noted that, had he taken Dr. Barber's report "at its face value with nothing else and listening to the tape quickly," he might have agreed with her conclusion. "But when I overlap Dr. Barber's report with Dr. Paul's report and where they agree and where the disagreements on it start, I find it just not to be credible, her conclusion not to be credible, when taking into consideration my careful review of the tape and the [d]efendant's responses to the questions."

More specifically, Judge Becker pointed out that Dr. Barber "was able to determine that defendant did understand certain complex words, which seems at odds with the opinion" she presented. Also significant to the judge was Dr. Barber's admission that the tests she gave to defendant were "inconsistent with [defendant's] cultural background" so that defendant was being measured against those who were not culturally similar to him.

The judge rejected Dr. Barber's opinion that defendant was not capable of forming an understanding of the questions and legal issues during the interview, noting such incapability "just was not evident anywhere in the tape that I listened to." As to defendant's understanding, Judge Becker found that "it became very clear and I think beyond a reasonable doubt that he did understand what was going on."

In conclusion, Judge Becker found that "based on the totality of the circumstances, looking at everything, I think the State has proven beyond a reasonable doubt that [defendant] did make a voluntar[y], knowing and intelligent waiver."

These findings of Judge Becker are consistent with the law and are adequately supported by the record. Defendant does not dispute that the statement he gave to police on the night of the murder was voluntary, but rather argues only that he did not "knowingly and intelligently" waive his right against self-incrimination.

Defendant argues that Detective Peterson was required "to make some effort, beyond merely reading a suspect's rights from a card, to ensure that an illiterate suspect actually understood his Mirandarights." He cites in this regard State ex rel. A.S., 203 N.J.131 (2010), State v. Flower, 224 N.J. Super.208 (Law Div. 1987), aff'd o.b., 224 N.J. Super.90 (App. Div. 1988), and State v. Carpenter, 268 N.J. Super. 378 (App. Div. 1993), certif. denied, 135 N.J. 467 (1994). However, these cases do not, as defendant suggests, impose an automatic requirement on police to take specific, explanatory steps whenever they are confronted with an adult immigrant with no formal education.

A.S. concerned a fourteen-year-old with an IQ of eighty-three who could read only at a third-grade level. A.S., supra, 203 N.J.at 135. In that circumstance, our Supreme Court noted that "[i]t is a police officer's responsibility to read and to make sure that the juvenile understands his or her constitutional rights before proceeding with an interrogation. That requirement comports with the special care that must be taken with respect to the child's constitutional rights." Id. at 149-50 (emphasis added); see also Presha, supra, 163 N.J.at 315 (holding that "younger offenders present a special circumstance in the context of a police interrogation" such that a parent or guardian should be present, if possible).

Moreover, the critical problem with the questioning of the juvenile in A.S.was that the parent who was present at her questioning was also the grandparent of the alleged victim. The parent had functioned not as an aid to the juvenile but as an assistant to the police, pressuring A.S. to answer questions and even telling her that she would need to answer questions even if she had an attorney. Id.at 141-42. Further, the interrogation itself revealed that A.S. plainly did not understand the role of an attorney, and her desire to remain silent was indicated by long pauses during the questioning and reluctance to provide answers. Id.at 139-40. Despite all this, the interrogators continued to pressure A.S. and failed to explain anything to her in age-appropriate terms that she could understand. Ibid. Nothing in A.S.suggests that police must take special explanatory steps with English-speaking adults who show no reluctance to answer questions and who affirmatively state that they understand and waive the Miranda rights read to them.

In Flower, a Law Division judge determined that adult suspects with "diminished mental capacity must be treated differently" by police, likening their situation in custody to juveniles who are "no match for the police." Flower, supra, 224 N.J. Super. at 215-16. In that case, Flower had an IQ of less than seventy "with the limited intelligence of a six- or seven-year-old child." Id.at 211. Three teachers who knew him testified that he had a vocabulary at a "second- or third-grade level," that he "had to be spoken to in very basic terms" and that he did not have "the ability to grasp and understand concepts or abstractions." Ibid. Moreover, Flower's previous foster guardian testified that Flower would "'say yes to anything,'" and Flower himself testified that he had only answered "yes" to the police because he was afraid of going to jail. Id.at 211-12. The State's expert did not dispute these facts, but rather opined that a person with the mental capacity of a six- or seven-year-old child could still "understand the significance of his Mirandarights." Id.at 212. The judge in Flowerrejected this opinion and held that the State had failed to prove beyond a reasonable doubt that Flower was able to comprehend his rights sufficiently to waive them. Id.at 216.

Flower is readily distinguishable from the present case. Flower had a very low IQ and could not understand concepts or abstractions at all. In this case, even Dr. Barber opined that defendant did not have a low IQ and that he could define "attorney" and understand the concept of "entitled."

The facts of Carpenterare more similar to the present case, but that similarity does not assist defendant. Carpenter was a twenty-two-year-old illiterate defendant with an IQ of seventy-one, yet this court nevertheless held that the State had established beyond a reasonable doubt that he had knowingly and intelligently waived his rights against self-incrimination. Carpenter, supra, 268 N.J. Super. at 379, 386. The court noted that Carpenter "was borderline retarded, his mental capacity was on par with the average ten-year old child, and his language comprehension was on a fifth grade level." Id. at 381.

Among other factors showing knowing and intelligent waiver in the totality of the circumstances, the court considered it significant that Carpenter had his Miranda rights read to him multiple times, yet never suggested that he did not comprehend any of the warnings, and that he initialed the paper with the Miranda warnings and verbally acknowledged that he understood them. Id. at 380. Moreover, although Carpenter did not testify, the judge observed him in the courtroom and saw nothing indicating the inability to understand the warnings. Id. at 386. The judge also noted that "simple words were used with each recitation" of rights to Carpenter, and this was part of the totality of the circumstances analysis. Even so, the court did not suggest that this was required whenever an illiterate suspect was questioned. Id. at 385.

Hence, defendant's contention that the police were required to do more than they did here -- i.e., read him his Mirandarights two times and accept his spoken assurance that he understood those rights and that was he willing to speak to the police anyway -- is not supported by the precedent dealing with the special circumstances of juveniles or with persons having diminished mental capacity. We decline to expand the police's obligations beyond what was done in questioning defendant in this case.

The defense additionally contends that Judge Becker should have considered that defendant's "physical and emotional exhaustion" must have been a factor "because the interrogation took place during the middle of the night." However, there is no evidence that defendant was tired or wrung-out when he spoke to the police. To the contrary, he told them that he had eaten dinner and taken a nap after the murder before calling 9-1-1.

Finally, we reject defendant's argument that Judge Becker should have accepted Dr. Barber's opinion because she was the only expert who "conducted specific tests meant to assess [defendant's] ability to waive his privilege against self-incrimination" and she "found" that defendant was incapable of sufficiently understanding those rights.

Judge Becker was free to reject Dr. Barber's opinion. See Angel v. Rand Express Lines, Inc., 66 N.J. Super. 77, 85-86 (App. Div. 1961) (underscoring a fact-finder's prerogative to accept or adopt a particular expert's testimony). The judge specifically noted that her tests were not designed for those with defendant's particular cultural background, and that her conclusions were inconsistent with (1) her own testimony that defendant could understand some concepts, (2) Dr. Paul's evaluation and opinion, (3) Detective Peterson's lay testimony based on speaking with defendant for hours at the relevant time, and (4) the judge's own observations of defendant in the courtroom.

For these many reasons, we affirm Judge Becker's ruling that defendant's waiver of his right against self-incrimination was knowing and intelligent.

2.

Defendant next argues that Detective Peterson was improperly allowed to replicate for the jurors an incriminating throat-slashing gesture, which defendant allegedly had made during his police interview. He argues that the admission of the slashing gesture was the "result of inconsistent findings by multiple judges," and that it was harmful error for Judge Telsey to allow it to be divulged to the jurors.

We detect no such error. We hold that Judge Telsey was within his discretion in allowing Peterson to testify about and replicate the incriminating gesture and that the court's ruling was not inconsistent with prior rulings regarding defendant's statement to police.

The pertinent background concerning defendant's gesture is as follows. On April 26, 2010, in connection with ruling that defendant had knowingly and intelligently waived his right against self-incrimination, Judge Becker suggested that the audio-recorded statement would be admissible under the admissibility standards set forth in State v. Driver, 38 N.J. 255 (1962), but he did not definitively decide the issue. The judge remarked "in regard to the Driver . . . issue" that the "tape was clear and audible," but "with the defendant's translation issues, you could -- it wasn't understandable in a lot of respects." Judge Becker added, "I then -- so I find under Driver, the tape was acceptable as -- and able to be understood, as it was coming forward." He later noted that, although it did not go to the issue of whether defendant effectively waived his rights in giving the statement, "I do think, if [the statement's] going to be used, there's going to have to be a translation to a great extent of the language[.]"

The prosecution thereafter obtained and produced a new transcript of defendant's statement, created by an interpreter who understood Jamaican patois. Although the interpreter was able to decipher many portions of the recording that had not been previously transcribed, in dozens of places throughout the transcript defendant's words remained indecipherable.

On February 24, 2011, Judge Krell, who by that point was presiding over this case, considered a defense motion to preclude the audio recording and transcript of the statement. The prosecutor argued that Judge Becker had already ruled in the State's favor on this issue, but Judge Krell said he had reviewed the transcript of the Miranda decision and thought that Judge Becker "was somewhat vague about that because he said it was audible but then not understandable[.]" Judge Krell added that "the primary thrust of that [prior] hearing appears to have been an issue of the competency of [defendant] to basically give a statement," but "I didn't see that there was a great deal raised at that about this issue of whether there was an accurate transcript that was being made."

Judge Krell observed that defendant "speaks English, understands English but he has a very severe accent when he speaks and we know from the little hearing we had yesterday with the patois interpreter, that the [d]efendant speaks Jamaican patois."

As to the issue of admissibility of the interview transcript, Judge Krell stated, "The previous judge [Judge Becker] held that the -- that there was not a Miranda violation and ruled that the statement could come in, however, I don t find that he ruled that the transcript could come into evidence." Judge Krell explained

I do not believe that I can conduct this [h]earing without revisiting the Miranda [h]earings, in light of the new transcript, which provides much greater detail into what the [d]efendant was saying.

It is clear that without a transcript of the interrogation, it is almost impossible to understand what [defendant] was saying in the interrogation, other than possibly yes or no.

I'm challenged in identifying one single word in that hour long interrogation, other than yes or no, that I could understand without the use of the transcript.

Judge Krell expressed concerns that defendant did not offer a clear account of how the murder occurred, and that "if this transcript goes before the jury with the tape, the jury will hear inculpatory statements that are responsive to very leading questions, that are not necessarily questions that follow logically the answers that [defendant] was giving in his very difficult language to understand."

Judge Krell expressly stated that he had "absolutely no problem with the previous judge's [Judge Becker's] ruling on Miranda, because I don't see anything that would lead me to believe" that the waiver was involuntary or coerced. Judge Krell further stated, "I find all of that to be a correct ruling, from what I've heard." However, in analyzing whether the audio recording was sufficiently clear to be admissible under Driver, supra, 38 N.J.255, Judge Krell was concerned that "there were many, many times that, even with the improved transcript, there were many words, sentences, maybe even paragraphs that were not included in the transcript because even the improved transcriber could not understand what the [d]efendant was saying." Under those circumstances, Judge Krell concluded, "I cannot find that allowing this jury to hear that confession is basically fair to the [d]efendant. And therefore, I will disallow both the playing of the tape and the use of either transcript."

The State accepted this ruling, but before trial it moved to allow the officers who had conducted the interrogation, Peterson and Detective William Henry, to testify as to their understanding of what defendant had said at the time of the interview.

On April 27, 2011, Judge Telsey, the final judge to preside over this case, ruled that he would hold a N.J.R.E. 104 hearing on this issue, explaining that it was a separate issue from the one Judge Krell had decided in excluding the audio recording and transcript.

Judge Telsey noted that the issue of whether the detectives who heard defendant's statement could testify was different from the issue of whether the tape could be played or the transcript of the tape given to the jury. That is "because to listen to a [sic] audio and be able to understand what was said, may be completely different than having a face-to-face conversation with someone and being able to understand what that individual said."

The N.J.R.E. 104 hearing took place the following day, and Detective Peterson testified. Peterson reiterated that defendant always appeared to understand him, but that he, reciprocally, "had considerable difficulty at times" understanding defendant. Peterson described how he altered his typical questioning technique to better understand defendant and used considerable repetition. He noted that he sat near defendant and was able to observe his face and gestures the whole time. When asked about the importance of being able to observe the hands and face of an interviewee, Peterson cited "[a]ll those non-verbal [cues] and gestures sometimes that you're looking for -- usually that you're looking for to indicate a person's mental state or truthfulness, evasiveness or comfort level in an interview."

Peterson testified that defendant's responses were appropriate, by which he meant that "they were in line with the question[s]." Peterson found it frustrating that defendant seemed willing to answer questions but that he couldn't always understand defendant's answers.

Peterson was very clear that defendant had admitted during the interview that he cut the victim's throat, and that he made a corresponding gesture across the neck with his hand. After hearing the audio recording of the statement, the detective testified that there was a difference between listening to the recording and being in the same room with defendant because "when you're in the room with him I can see his face, you're watching his lips, you're watching his hands move, the gestures that he makes." Peterson admitted that there were "a lot of things that I never did get" but that he believed he and Detective Henry had understood the events of that evening "with a decent degree of accuracy."

Judge Telsey listened to the audio recording himself. The judge was unable to understand much of what defendant said beyond yes-and-no responses, but he noted that the recording corroborated Peterson's testimony as to "how the interview evolved" and the use of the leading-question technique employed.10 The judge also noted that "[t]he question really is -- is whether or not these officers were able to understand what [defendant] said, to testify about it which brings us back to the issue of reliability."

The judge precluded trial testimony by Detective Henry because he had not testified at the hearing and therefore the judge was "unable to make any determination as to Detective Henry's ability to understand [defendant]."

As for Detective Peterson, Judge Telsey observed that "he testified that he discovered ways to deal with the difficulty in understanding [defendant]," including that Peterson would slow defendant down, repeat questions, and ask leading questions. The judge favorably noted that Peterson had the ability to observe defendant and rely on gestures and non-verbal cues.11 The judge reasonably took into account that Peterson had the pre-interview conversation to assist him in understanding defendant before the tape started rolling. The judge also perceived that the fact that defendant said "no" several times when asked leading questions added "some reliability to what was being gathered by these police officers."

On the whole, Judge Telsey found Detective Peterson to be "a very credible witness." The judge noted that Peterson frankly acknowledged that there were many things defendant had said that he did not understand, and the judge stated, "That all goes to the [c]ourt's finding that it was particularly impressed as to Detective Peterson's credibility on this topic." The judge found "Detective Peterson to be reliable with regards to a recitation[] of these facts," and ruled that Peterson's testimony would be allowed.

When Peterson testified thereafter at trial, he again acknowledged that he had difficulty understanding defendant when he interviewed him. The prosecutor queried, "In light of those language problems that you had with him I'm going to ask you not to tell us about anything he actually said to you about the events of that night but did you ask him at some point what he did to [Tinson]?" Peterson responded that he did. Peterson and was then asked, "And did he make a non-verbal response at one point?" Peterson replied that he did, and motioned with his hand across the throat. The prosecutor had no further questions.

On cross-examination, Peterson confirmed that he had severe difficulty understanding defendant and that, in addition to the Jamaican accent, defendant would sometimes talk very quickly and appear to mumble.

Defendant now argues that Judge Telsey's ruling to allow Peterson to testify about the incriminating gesture made during the police interrogation substantially undermined Judge Krell's earlier ruling and his finding "that the police and [d]efendant did not adequately understand one another." Defendant argues that the defense was "in a bind" at trial as a result of Peterson's testimony, because "[i]n order to demonstrate to the jurors that Peterson and defendant were often unable to understand each other, defense counsel would have to play parts of the very tape that it had successfully sought to exclude."

Defendant also suggests that Judge Krell "used Driver as the basis of his ruling," out of reluctance to expressly vacate Judge Becker's ruling on the Miranda issue, but that "Judge Krell should . . . also have reconsidered the Miranda ruling and suppressed all evidence of the interrogation[.]"

We reject these arguments. First, defendant misconstrues the actual context in which Judge Krell made a finding that "the police and [d]efendant did not adequately understand each other." In actuality, Judge Krell said nothing about whether defendant, on his side of the discussion, could understand the police officers' questions.

Judge Krell was not addressing at the Driver hearing the question of whether Detective Peterson had understood the gist of defendant's statement or accurately understood the essence of defendant's confession that he had "cut her throat" after arguing with Tinson over money. Rather, Judge Krell's concern was that it might be unfair to defendant under the reasoning of Driver, supra, 38 N.J.255, to present to the jury an audio recording of a statement that was structured in such a leading and repetitive way and which even a Jamaican patois interpreter could not always fully understand.

In Driver, our Supreme Court outlined the applicable standards for admissibility of an audio recording of a confession and held that, as a condition of admissibility, the speakers on the recording should be identified and it should be shown that: "(1) the device was capable of taking the conversation or statement, (2) its operator was competent, (3) the recording is authentic and correct, (4) no changes, additions or deletions have been made, and (5) in instances of alleged confessions, that the statements were elicited voluntarily and without any inducement." Id.at 287. Moreover, the Court held that

the trial judge should listen to the recording out of the presence of the jury before allowing it to be used. In this way he can decide whether it is sufficiently audible, intelligible, not obviously fragmented, and, also of considerable importance, whether it contains any improper and prejudicial matter which ought to be deleted.

[Id.at 288.]

Where a recording is "unintelligible and inaudible for the most part," the judge has the discretion to exclude it. Ibid.

In applying Driver, we have held that if a tape is partially intelligible and has probative value, then it is admissible even though substantial portions may be inaudible. State v. Cusmano, 274 N.J. Super. 496, 501 (App. Div. 1994) (citing State v. Zicarelli, 122 N.J. Super.225, 239 (App. Div.), certif. denied, 63 N.J. 252, cert. denied, 414 U.S. 875, 94 S. Ct. 71, 38 L. Ed. 2d 120 (1973)).

As with other evidentiary rulings, the admissibility of an audio recording is within the discretion of the trial court. Zicarelli, supra, 122 N.J. Super. at 240; see also Driver, supra, 38 N.J.at 288. Here, applying the standards issued in Driverand its progeny, Judge Krell reasonably considered the audio recording of defendant's confession too unintelligible and its leading-question format potentially prejudicial, so he determined not to allow "this jury to hear that confession." (emphasis added). That ruling kept the tape out of the jury's consideration, a ruling that the State accepted.

Given that the revised transcript, which Judge Becker did not have before him, still contained numerous indecipherable sections, Judge Krell was within his discretion in revisiting the Driver issue and excluding the audio-recording and transcript.

Indeed, Judge Krell had a well-founded concern that allowing the jury to hear on the audio the questioning as it was structured might not have been fair to defendant. Detective Peterson explained why the police had used leading questions and repetition in questioning defendant and how this helped them to better understand them. A juror listening to the recording, however, by virtue of the format of the questioning, would have heard defendant speak the words "cut her throat" one time in response to the question "Where did you cut her", and they would have heard the detectives speak the words "cut her throat" a dozen or more times when trying to elicit more detailed information and understand the defendant's answers to subsequent questions.

The transcripts of the audio recording, and the testimony of Peterson, provide a reasonable basis to infer that the police officers and defendant understood one another sufficiently during this throat-slashing exchange and many other specific exchanges. Even so, a juror listening to the audio might have focused too much on the police repetition rather than the words of defendant.

Judge Krell's findings and his Driver ruling are not inconsistent with Judge Telsey's later determination that Detective Peterson should be permitted to testify as to his recollection of defendant's statement. Judge Krell was analyzing the potential prejudicial effect of the audio recording on jurors listening to an interrogation that was extremely difficult to understand and that had many leading questions. Judge Telsey, by contrast, was analyzing whether Detective Peterson, after having spoken with defendant about the events on the night of the murder for over three hours, could testify as to whether he understood the gist of what defendant had related.

Having listened to the recording, Judge Telsey agreed with defense counsel and Judge Krell that much of what defendant said could not be understood. Even so, Judge Telsey correctly determined that the critical question before him was not what a third party listening to the recording could understand, but what Peterson had, in fact, understood as a participant in the interview when sitting with defendant. The judge was well aware from Peterson's own testimony that defendant had said "a lot of things that [Peterson] never did get." However, Judge Telsey ultimately credited the detective's testimony that, despite that difficulty, Peterson had understood defendant's version of the events of the evening of the murder "with a decent degree of accuracy." We defer to that credibility-based assessment. Locurto, supra, 157 N.J. at 471. The fact that Peterson had difficulty understanding the words spoken by defendant with his strong accent and without his dentures does not mean that defendant himself had trouble understanding the words spoken to him by Peterson and the other detective.

Defendant emphasizes that Judge Krell was "the one judge who was aware of the translated statement" in making an argument that there was some unresolvable inconsistency between the rulings of Judge Krell and Judge Telsey. He suggests that Judge Telsey might have discredited Peterson's testimony had he reviewed the transcript prepared with the aid of the translator.

It does appear Judge Telsey did not have the transcript furnished to him as part of the motion record. However, Judge Telsey had the audio recording itself to assist him in evaluating the issues. The judge's focus properly was on what Detective Peterson had, in fact, understood, rather than on what another listener, be it a transcriber or otherwise, could hear. A review of the transcript was not necessary.

The defense was free to argue to the jury that the overall problems the police had in understanding defendant rendered the "incriminating gesture" meaningless because the State had not established a context of understanding and credibility. We are satisfied that the trial court did not err in concluding that the gesture was admissible, and in allowing the jurors as fact-finders to assess its significance, if any. See N.J.R.E. 401 (defining admissible relevant evidence as proof having "a tendency in reason to prove any fact of consequence to the determination of the action").

In sum, Judge Telsey's finding that Peterson understood defendant sufficiently to testify as to the gist of his statement, including the incriminatory slashing gesture, was supported by sufficient credible evidence and was not inconsistent with Judge Krell's earlier decision to exclude the audio recording and transcript.

We also find without merit defendant's argument that Judge Krell should have reconsidered Judge Becker's Miranda ruling as a basis for precluding defendant's statement altogether. R. 2:11-3(e)(2).

In sum, defendant's arguments of improper admission of his statements and gesture to the police are rejected in their entirety.

III.

As his third argument, one which he did not raise at trial, defendant contends that the court erred in providing inappropriate instructions to the jurors concerning the defense's proofs of hearsay statements from Albert Hayes, a witness who had died by the time of trial

ALTHOUGH THE COURT PERMITTED JURORS TO HEAR A DECEASED WITNESS'S STATEMENT TO A POLICE DETECTIVE BECAUSE IT SUPPORTED [DEFENDANT'S] DEFENSE, THE COURT'S INSTRUCTIONS FAILED TO PROPERLY GUIDE JURORS' CONSIDERATION OF THAT EVIDENCE AND ALLOWED THE PROSECUTOR TO MISLEAD THE JURORS, IN SUMMATION, AS TO THE STATEMENT'S RELIABILITY. (Not Raised below)

This argument is likewise unavailing.

In essence, defendant contends that he was unfairly prejudiced by the court's limiting instruction and the prosecutor's comments in summation regarding hearsay testimony elicited by the defense from Detective McGovern regarding a statement that Hayes, the witness who died in 2007, had given to the police shortly after Tinson's murder.

Notably, defendant does not claim any error in the court admitting the testimony of what Hayes had told the police. Indeed, before trial the defense had advocated for its admission over the prosecution's motion to exclude it. Rather, defendant claims that the defense was unfairly prejudiced by: (1) Judge Telsey's limiting instruction informing the jury that the statement was hearsay and, therefore, the prosecutor had no opportunity to cross-examine Hayes, and (2) the prosecutor's comments in summation that the jury should disregard Hayes's reported statement because hearsay is unreliable and because of the absence of cross-examination.

A.

The pertinent background concerning Hayes's hearsay statement is as follows. At the time of the murder, Countryside Village, the apartment complex where Tinson and defendant lived, maintained a sign-in sheet for visitors. Hayes signed in at 4:20 p.m. on the day of the murder to visit defendant.

Detective McGovern interviewed Hayes at the Salem County Jail on August 23, 2004, two days after the murder. At trial, McGovern confirmed that Hayes had told him that at about 4:00 p.m. on August 21, 2004, the day of the murder, Hayes went to defendant's apartment and discovered him lying on the kitchen floor in his own feces and urine, and that defendant was unable to feel his legs and was drooling at the mouth. Hayes told McGovern that he had helped defendant to his bed, helped him again because defendant fell out of bed, and put a beer from the six-pack he had brought to the apartment in defendant's bedroom. Hayes did not see the murder victim while he was there.

In describing defendant's appearance to the detective, Hayes said defendant looked drugged. Hayes also commented that defendant "liked to hit the [crack] pipe."

Before trial, the State moved to bar testimony regarding the Hayes statement as inadmissible hearsay. Judge Telsey agreed that the Hayes statement was hearsay, but he was inclined to allow it into evidence nevertheless, "with certain qualifications."

Defense counsel argued that the Hayes statement fell into an exception to the hearsay rule as a statement against interest under N.J.R.E.803(c)(25) because Hayes "put himself right at the scene of the murder around, sometime around the time that it happened." Judge Telsey disagreed, saying, "This isn't even close to a statement against interest." Defense counsel also argued that the Hayes statement, alternatively, (1) fell into "statements as to mental or physical condition by a lay witness" exception to the hearsay rule, N.J.R.E.803(c)(3), and (2) should not be considered hearsay at all, as it was not offered for the truth of the matter asserted, N.J.R.E.801.

At the time of this motion hearing, the defense was considering presenting an expert witness to testify that defendant's condition as described by Hayes was consistent with defendant having had a mini-stroke, rendering him physically unable to commit the murder. That being anticipated, the judge ruled that the jury could consider the Hayes statement as the factual basis under N.J.R.E.703 for the defense expert opinion that defendant would have been physically unable to commit the murder at the time in question.

As Judge Telsey explained

[T]his is one of these situations where the [c]ourt has to strike a balance. [Defendant] is on trial. Mr. Hayes passed away and, due to the length of time, and we need not revisit the length of time.

But this is a pretty critical issue and a critical witness, as I understand it. It's really the entire defense strategy.

At least, one of the defense strategies seems to be that this [defendant] may have had this medical condition, that they can only confirm, to a certain extent, based upon what Mr. Hayes has said.

It does create some difficulties on behalf of the State because they don't have the ability to cross-examine and I recognize that, but I have to balance that with what is fair and appropriate.

Judge Telsey therefore ruled that most of the Hayes statement could come in through the officer that took it, specifically the portions of the statement describing what Hayes told the police that he saw and did at defendant's apartment. The judge also allowed Hayes's comment that defendant appeared to be drugged, but the judge excluded the comment that defendant had a history of "hitting the crack pipe."

The judge twice summarized for counsel what he planned. Defense counsel opposed the court giving a limiting instruction at all, again contending that the Hayes statement fell into a hearsay exception, but the judge flatly rejected this and said that the statement did not "rise[] to the level of a hearsay exception." Defense counsel did not raise a specific objection to the content of the limiting instruction the judge proposed to give.

Following Detective McGovern's testimony regarding the Hayes statement at trial, the judge instructed the jury

Ladies and gentlemen, you just heard some testimony with regards to what Al Hayes told this detective. That's something that's commonly referred to as hearsay.

And what hearsay is it's a statement made out of court. And that person is essentially not here to testify. And the benefit of having someone here to testify is the way that our system works. Which is you have direct examination, which is what you've seen, and then you have cross-examination. And it gives both sides and [sic] opportunity to develop different areas of a person's statement based upon that process, direct and then cross-examination.

Mr. Hayes is not here in court. Mr. Hayes has passed away, since the date of this incident, which is why he's here [sic].

So the Prosecution in this case is not going to have the ability to cross-examine him based upon what he told this detective.

So I am permitting, however, Mr. Hayes' statement to be presented as it just was, but I want to -- you just to be aware that it's being presented to you in the fashion in which the Prosecution does not have the ability to cross -- examine him based upon that statement. Thank you.

Both the prosecutor and defense counsel declined the judge's offer to be heard further after the judge gave the instruction.

As it turned out, the defense did not present any medical expert at trial or argue that defendant may have had a mini-stroke on the afternoon of the murder. Rather, the defense used the Hayes statement to establish that, regardless of the reason, defendant was seen by Hayes to have been incapacitated "earlier that evening."

As part of the defense theme that the investigation of the murder was allegedly shoddy and failed to gather evidence that would have led to the real perpetrator, defense counsel in her summation pointed to the facts that (1) sperm was found in Tinson's body but the source of the sperm was not identified, and (2) Tinson was found wearing only a top, suggesting to the jury that Tinson may have been having sex with someone else around the same time that Hayes said he found defendant "in that compromised position." Defense counsel also argued that death likely occurred sometime between 4:00 p.m. and 7:00 p.m., when Hayes said defendant was incapacitated, even though the medical examiner testified that the time could not be established that closely.

Responding to this theme, the prosecutor made several references in summation to the unreliability of the Hayes statement and the lack of any opportunity by the State to cross-examine. Specifically, the prosecutor stated that "[h]earsay evidence is not allowed in a court of law, generally because it's unreliable. And, one of the reasons it's unreliable is because I can't ask a dead person questions." Later, the prosecutor commented, "The whole Al Hayes thing that you heard from Detective McGovern it's hearsay, it's speculation; we don't know what that Hayes guy saw or didn't see. It's unreliable."

Defendant now takes issue with the focus placed before the jury on the inability of the prosecutor to cross-examine Hayes in Judge Telsey's limiting instruction and the prosecutor's summation, noting that "only defendant, and not the State, had a constitutional right to confront Hayes." Defendant further argues, "Hayes's statement was the heart of the defense that defendant was incapable of committing the homicide because of his physical condition, and the erroneous instruction led directly to the prosecutor's summation which unfairly undermined that defense by improperly characterizing all hearsay as unreliable."

B.

We need not resolve here whether the Hayes statement falls within the hearsay exceptions invoked by defense counsel, or, whether, if not, the defense nevertheless had a constitutional basis for its admission under the Sixth Amendment. See Chambers v. Mississippi, 410 U.S. 284, 302, 93 S. Ct. 1038, 1049, 35 L. Ed. 2d 297, 313 (1973) (holding that "where constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice"). We need not do so because, considering the trial record as a whole, defendant has not shown that he was prejudiced by either the judge's instruction or the prosecutor's remarks in summation concerning Hayes's statement.

Our Supreme Court has acknowledged that, under the rationale of Chambers, there may be some circumstances in which New Jersey's general prohibition of hearsay statements may be relaxed. State v. Bunyan, 154 N.J. 261, 266 (1998) (noting that "rules of evidence may not conform with constitutional requirements" in some instances). Perhaps out of an abundance of caution to safeguard defendant's right to present evidence in his own behalf, the trial judge elected to allow Hayes's out-of-court statements to be heard by the jury for their truth. We do not second-guess that decision.

The court's limiting instruction and the prosecutor's summation remarks were reasonable efforts by, respectively, the court to explain, and counsel to mitigate, the difficulty inherent in dealing, evidentially, with a statement by a deceased person which was not obviously admissible under the hearsay rules. Neither the words of the judge nor of the prosecutor had the clear capacity to deprive defendant of a fair trial.

Defendant contends that the judge's limiting instruction to the jury was not "balanced" because "[t]he judge made it appear that the only one disadvantaged by Hayes's absence was the State[.]" We discern no such unfair imbalance.

Judge Telsey informed the jury that (1) the Hayes statement was hearsay; (2) Hayes could not testify in person because he had died; (3) the court was allowing the jury to hear the Hayes statement even though Hayes could not be a live witness; (4) the "way that our system works" with live witnesses is that direct testimony is followed by cross-examination; and (5) the jury should "be aware" that the Hayes statement was "being presented to you in the fashion in which the Prosecution does not have the ability to cross-examine him based upon that statement." All of these things were true.

Moreover, even if the defense disliked the contents of the instruction and its focus on cross-examination, after failing in its effort to prevent the instruction altogether it bypassed two subsequent opportunities to request an instruction that would have been more "balanced." The defense offered no objection to the contents of the limiting instruction, either as proposed or as actually given by the judge. Consequently, we are guided in our analysis of that discrete issue by the plain error standard of appellate review, and may reverse, "only if there was error sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached." State v. Atwater, 400 N.J. Super. 319, 336 (App. Div. 2008) (internal citations and quotations omitted).

Judge Telsey's limiting instruction accurately advised the jury why Hayes would not be testifying in person and that the prosecution would have no opportunity to cross-examine Hayes. To be sure, the judge conceivably might have included an additional observation that if the defense had been able to present Hayes as a live witness, the defense might have elicited testimony that was even more beneficial to defendant's case than the hearsay statement. But the absence of such an added observation, by itself, did not render the judge's comments to the jury unduly unbalanced or unfair.

In any event, defendant still has not established that he was actually prejudiced, or that the trial court otherwise abused its discretion in giving such an instruction. SeeState v. Ward, 57 N.J. 75, 79 (1970) (noting, in the context of a jury charge, that a "trial judge may comment on the evidence as long as he leaves to the jury the ultimate determination of the facts and a rendering of the verdict on the facts as it finds them"); cf.United States v. Rodriquez-Aguirre, 108 F.3d 1228, 1236 (10th Cir. 1997) (upholding a criminal defendant's conviction despite multiple erroneous limiting instructions because the defendant was not otherwise prejudiced).

It is also worth noting that the Hayes statement was not directly exculpatory. The jury could have believed the Hayes statement entirely and been convinced that defendant was wholly incapacitated at about 4:30 p.m., but the conclusion that defendant had not killed Tinson would not necessarily follow. There was no expert or other evidence as to how long defendant's incapacitation may have lasted, and he was clearly able to walk and talk without assistance by the time the police arrived shortly after defendant called 9-1-1 at midnight. The medical examiner was not able to pinpoint the time of death of the victim. Hence, while the jury was free to believe the defense theory that death had likely occurred early in the evening when defendant was incapacitated, it could have rationally believed, instead, that the murder took place shortly before defendant called 9-1-1 and reported "I killed somebody."

As for the prosecutor's comments in summation, we do not regard them as falling outside the permissible latitude for such comments. Prosecutors are "expected to make vigorous and forceful closing arguments" in summation and the courts "afford prosecutors considerable leeway in closing arguments so long as their comments are reasonably related to the scope of the evidence presented." State v. Timmendequas, 161 N.J. 515, 587 (1999). "[T]he test for determining whether prosecutorial misconduct constitutes reversible error is whether the misconduct was so egregious that it deprived defendant of a fair trial." State v. DiFrisco, 137 N.J.434, 474 (1994) (citations and internal quotation marks omitted).

An appellate court "may view counsel's failure to object to summation remarks as 'speaking volumes about the accuracy of what was said.'" Tartaglia v. UBS PaineWebber, Inc., 197 N.J.81, 128 (2008) (quoting Fertile v. St. Michael's Med. Ctr., 169 N.J.481, 495 (2001) ("We presume that when a lawyer observes an adversary's summation, and concludes that the gist of the evidence has been unfairly characterized, an objection will be advanced.")).

Here, the prosecutor did not have the option of pointing the jury to inconsistencies or implausibility factors brought out in live cross-examination of Hayes, a deceased declarant. Instead, the prosecution was left to challenge the reliability of Hayes's hearsay statement through other means. SeeN.J.R.E. 806 (noting the ability of opposing counsel to impeach hearsay declarants). In addition, the prosecutor was free to argue that the jurors should ignore the hearsay statement from Hayes, which had been admitted over the State's objection. See N.J.R.E. 104(e) (specifically authorizing parties to argue about the weight of evidence, even after it has been objected to and admitted).

Under the circumstances as they developed here, questioning the reliability of the Hayes statement and suggesting that a proper cross-examination would have been fruitful for the State was within the latitude that the law allows prosecutors in summation. The comments were proper and they did not deprive defendant of a fair trial.

We also reject defendant's argument that the limiting instruction and the prosecutor's closing somehow violated his rights under the Confrontation Clause. Defendant's argument is flawed because it ignores that Hayes, had he been alive, would have been a witness for the defense, since the defense wanted to use his statement but the State wanted to preclude it altogether. Had Hayes lived to testify, defendant would have had no right to "confront" Hayes as a defense witness because the Sixth Amendment provides that "the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const.amend. VI (emphasis added). The Court in Chambersmade it clear that, in some cases, a defendant may be the party calling a witness who turns out to give testimony "against" that defendant, but that is not the circumstance in this case. SeeChambers, supra, 410 U.S. at 297-98, 93 S. Ct.at 1047, 35 L. Ed. 2d at 310 (noting that "those who give damaging testimony against the accused" are "against" the accused regardless of "whether the witness was initially put on the stand by the accused or by the State").

Here, the Hayes statement was not evidence against defendant but was offered in support of his case. The prosecutor sought to bar it entirely and contended that, if it came in, it should be part of the defense case. Thus, neither party had a constitutional right under the Sixth Amendment to confront Hayes.

Moreover, had Hayes lived to testify in person for the defense, it is indisputable that the State would have had the right, albeit under authority other than the Confrontation Clause, to cross-examine him and to test the details of what he saw, when he saw it, and the reasons why he may or may not have been a reliable witness. SeeN.J.R.E.611(b) (regarding the scope of cross-examination). That right to cross-examine Hayes in the courtroom after his direct examination for the defense could not have been taken away, regardless of whether Hayes made an initial statement to the police or not. Thus, defendant's suggestion that the prosecutor's right to cross-examination was somehow satisfied here because Hayes gave an out-of-court statement to "the case agent in charge of the State's investigation" misses the point.

For these reasons, we decline to find harmful error based on either the court's instruction or the prosecutor's summation remarks associated with the admission of the Hayes statement. Whether or not that hearsay statement was properly admitted in the defense case, defendant was not deprived of a fair trial because of the judge's explanation to the jury or the prosecutor's remarks regarding the hearsay nature of the statement.

IV.

Lastly, defendant argues that the court erred in permitting the jurors to listen to the 9-1-1 recording in the jury room, despite the lack of an objection to that procedure by his trial attorney

BECAUSE THE JURY WAS WRONGLY ALLOWED TO TAKE THE AUDIO RECORDING OF DEFENDANT'S 911 CALL, EVIDENCE CRITICAL TO THE STATE'S CASE, INTO THE JURY ROOM, WHERE IT COULD BE PLAYED REPEATEDLY DURING DELIBERATIONS OUTSIDE THE PRESENCE OF COUNSEL AND OF THE DEFENDANT, A NEW TRIAL SHOULD BE GRANTED. (Not Raised Below).

We find no reversible error on this subject.

The audio CDs containing the 9-1-1 calls were admitted into evidence. Rule1:8-8 expressly provides that "[t]he jury may take into the jury room the exhibits received in evidence," among other materials.

As counsel on appeal both recognize, however, in 2008, our Supreme Court made an exception to the general rule that "exhibits received in evidence" can go to the jury room where certain "testimonial" evidence, such as a statement or deposition, was at issue. State v. Burr, 195 N.J.119, 133-34 (2008).

Before Burr, this court had held that videotaped testimonyfrom trial should only be replayed in the courtroom, subject to the controls deemed advisable by the trial judge. State v. Michaels, 264 N.J. Super. 579, 643-45 (App. Div. 1993). The provisions of Rule 1:8-8 did not apply in Michaels because that case involved testimony, not exhibits received in evidence.

In Burr, the Supreme Court addressed for the first time whether "a taped pretrial statement, which has been introduced into evidence," could properly be reviewed by the jury during deliberations. Burr, supra, 195 N.J. at 132. Burr noted that, unlike the situation in Michaels "the videotape at issue was admitted into evidence as an exhibit" and juries generally have access to such evidence during deliberations. Id. at 133-34 (citing R. 1:8-8); see also Fiorino v. Sears Roebuck & Co., 309 N.J. Super. 556, 567-69 (App. Div. 1998) (with proper instructions, shredder-bagger, screen, and screwdriver could be allowed into jury room); State v. Pemberthy, 224 N.J. Super. 280, 302-03 (App. Div.) (allowing bag of cocaine into jury room was a matter for court's discretion), certif. denied, 111 N.J. 633 (1988).

The Court noted in Burr, however, that the "videotaped pretrial statement at issue" was "significantly different from a demonstrative exhibit." 195 N.J. at 134. The Court explained, "Although it is evidence, it is also testimony. It is, in effect, a hybrid of the two." Ibid. The Court observed that "allowing a jury unfettered access to videotaped witness statements could have much the same prejudicial effect as allowing a jury unrestricted access to videotaped testimony during deliberations." Ibid. Because it perceived a danger that the jury might unfairly emphasize the videotaped statement of a witness "over other testimony presented at trial, including her own cross-examination," the Court adopted a rule in Burr that "reflects the unique nature of this videotape evidence." Id. at 134.

The part of Burr invoked in this case by defendant centers upon the Court's admonition that "any playback of the videotape must occur in open court, along with the readback of related testimony that the court shall require." Id.at 135. See alsoState v. A.R., 213 N.J. 542, 560 (2013) (reiterating this directive from in Burrand noting that the videotaped statement of a witness is "the functional equivalent of a live witness" such that a "replay of a video recording is tantamount to having the witness testify a second time"). AccordState v. Miller, 205 N.J. 109, 122-23 (2011) (noting that the increasing use of digital recording equipment in the courtroom "presents new issues when juries ask for recorded testimony to be played back during their deliberations," and providing "certain guidelines for the playback of video testimony" to the jury, including that "[p]laybacks, like read-backs, should take place in open court with all parties present").

However, the exception that Burr carved out from the general principle allowing "exhibits received in evidence" to go to the jury room applies only to exhibits, such as witness statements, which are "testimonial" in nature. Burr, supra, 195 N.J. at 134-35 (noting that, although a "videotaped pretrial statement" is evidence, "it is also testimony"). The Burr holding, by its own terms, "reflects the unique nature of this [kind of] videotape evidence," but not necessarily all video-recorded evidence, much less all audio-recordings. Ibid.

Here, defense counsel explicitly took the position in the trial court that the 9-1-1 recording was "a non-testimonial statement."12 Defense counsel responded, "Absolutely, Judge" to the question of whether the jury should be able to hear the 9-1-1 recording. The defense objected only to the admission of the transcription of that recording, which it argued was "not accurate enough."

In A.R., supra, 213 N.J.at 560-63, the Court ruled that it was error to allow video-recorded statements to go to the jury room, but it held the error was not reversible because it had been invited by the defense. Defendant contends that A.R.is distinguishable here "because there defense counsel invited the error by actively encouraging the jury to review the video-recorded statements in the jury room," but in this case the defense merely failed to object. We do not find that distinction makes a difference here.

In holding that the error in allowing the video to go into the jury room was invited, the Court in A.R.considered it important "that defense counsel utilized the video recording as part of her defense strategy." Id.at 563. In summation, defense counsel in A.R.told the jury "'you probably should review that tape again'" and emphasized that the recording showed defendant was tired and acted "'like somebody who's beaten down'" and that the jury should "find that defendant was not thinking clearly during the interview." Id.at 562.

That situation is likewise present in this case, where in summation defendant's counsel expressly: (1) encouraged the jury to listen to the 9 1-1 recording during deliberations, stating, "[W]hen you listen to the tape, see if it sounds like there's someone in the background," and (2) suggested that the "indiscernible" sentences and defendant's "clearly confused" display in the 9-1-1 call were a basis for the jury to find reasonable doubt. These admonitions to the jurors plainly go beyond the mere silence of defense counsel.

The Court in A.R.also found significant to its finding of invited error the fact that "the trial record indicates that defense counsel, the prosecutor, and the trial judge anticipated that the jury would view the video-recorded statements during deliberations." Id.at 562-63.

Similarly, in this case Judge Telsey raised the issue to counsel prior to charging the jury, noting that he "wouldn't be surprised" if the jury wanted to be able to "rewind it and listen to parts of it" and that "we may want to look into the possibility of providing them some type of ability to do that themselves." Also, in this case, as in A.R., "[t]he trial court decided to permit the jury to review the [evidence] in the manner it requested only after consultation with counsel." Id.at 563. Judge Telsey expressly sought and obtained defense counsel's acquiescence before allowing playback equipment to be provided to the jury.

Finally, in this case, as in A.R., "defense counsel did not object to the jury's unfettered access to the [evidence] in the jury room." Ibid. Indeed, because of the difficulty in providing functioning playback equipment to the jury here, defense counsel had repeated and ample opportunity to voice an objection to the process or to request that the 9-1-1 recording be played back to the jury in the courtroom rather than the jury room.

Under the invited error doctrine, trial errors that "'were induced, encouraged or acquiesced in or consented to by defense counsel ordinarily are not a basis for reversal on appeal . . . [.]'" State v. Corsaro, 107 N.J. 339, 345 (1987) (quoting State v. Harper, 128 N.J. Super.270, 277 (App. Div. 1974)). Where a party has "'invited' the error, he is barred from raising an objection for the first time on appeal." A.R., supra, 213 N.J.at 561. However, if "the particular error . . . cut mortally into the substantive rights of the defendant," an appellate court can consider even an invited error. Corsaro, supra, 107 N.J.at 345 (internal quotation marks and citation omitted). See also N.J. Div. of Youth & Fam. Servs. v. M.C. III, 201 N.J. 328, 342 (2010) (noting that the doctrine will not be automatically applied if it would cause a fundamental miscarriage of justice). We discern no such "mortal" deprivation here, where defense counsel urged the jury in summation to listen to the 9-1-1 tape.

For these reasons, we deem the court's mistaken provision of the audio CDs of the 9-1-1 calls and playback equipment in the jury room, with the acquiescence of both trial counsel, at the very worst, an invited error.

Affirmed.

1 We omit the subheadings to this first point heading from defendant's brief, which merely listed the factors pertinent to a speedy trial analysis.

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

3 The case had been managed in earlier stages by Judge Robert P. Becker, Jr., and then by Judge David E. Krell.

4 Promis Gavel is the computerized database used in criminal matters in our state courts. Except for a few of the Promis Gavel printout sheets, the parties have not included in the record on appeal any of the materials submitted to Judge Telsey on the speedy trial motion.

5 Cf. State v. Davis, 131 N.J. Super. 484, 492 (App. Div. 1974) (indictment dismissed on speedy trial grounds where State "solely and exclusively" caused eleven-year delay in murder trial and significant evidence was missing that seriously prejudiced the defense"); Merlino, supra, 153 N.J. Super. at 15 (forty-six-month unexplained delay to indict defendants for violation of the gambling laws was excessive and deprived them of right to a speedy trial).

6 We have considered the two CDs containing the 9-1-1 calls, which were admitted into evidence at trial and are included in the record on appeal. We have also considered a transcript of the calls given to the jury as an aid, which was not admitted into evidence, as it is included in the appendix on appeal.

7 Defendant did not provide on appeal a CD containing his audio-recorded police statement. However, defendant did include in the appendix the two transcripts made from that recording. He does not dispute that the transcripts accurately reflect what he told the police on the night of the murder, except for a few isolated words that are inconsistent from one transcript to the other.

8 It is uncontested that the post-arrest police interview of defendant was a custodial interrogation.

9 As Peterson described it, "I would ask him a question and then get a response. And, because it was hard to understand him, I would take what I thought he had said, repeat it back to him, and then hope to get a yes or a no so that I could make sure I was on the right track with him."

10 Neither transcript of the audio recording was provided to Judge Telsey.

11 As the judge noted, "In person you gather, no doubt, you gather a lot more information that can help you process the words that [defendant] is using."

12 We need not predict or comment on whether the video recording of defendant's own statement, had the statement been made to the police by a third party, would satisfy the notion of "testimonial" as that pivotal term has been used in the evolving Confrontation Clause jurisprudence of the United States Supreme Court. See Crawford v. Washington, 541 U.S. 36, 53-54, 124 S. Ct. 1354, 1365-66, 158 L. Ed. 2d 177, 194 (2004) (holding that the Confrontation Clause only forbids the hearsay use of "testimonial" out-of-court declarants); see also Williams v. Illinois, __ U.S. __, __, 123 S. Ct. 2221, 183 L. Ed. 2d 89 (2012) (a 4-1-4 fractured decision reflecting the Justices' continued disagreement, post-Crawford, over the meaning of "testimonial").