                   NOT FOR PUBLICATION WITHOUT THE
                  APPROVAL OF THE APPELLATE DIVISION

                                          SUPERIOR COURT OF NEW JERSEY
                                          APPELLATE DIVISION
                                          DOCKET NO. A-2193-08T4

STATE OF NEW JERSEY,

     Plaintiff-Respondent,

v.

MICHAEL ROSS II,

     Defendant-Appellant.
________________________________________________

            Submitted February 8, 2012 – Decided December 28, 2012
            Remanded by Supreme Court July 3, 2014
            Resubmitted October 15, 2014 – Decided March 8, 2016

            Before Judges Messano, Ostrer and Sumners.

            On appeal from the Superior Court of New
            Jersey, Law Division, Middlesex County,
            Indictment No. 06-10-1640.

            Joseph E. Krakora, Public Defender, attorney
            for appellant (Jay L. Wilensky, Assistant
            Deputy Public Defender, of counsel and on
            the brief).

            Andrew    C.    Carey,   Middlesex   County
            Prosecutor, attorney for respondent (Nancy
            A. Hulett, Assistant Prosecutor, of counsel
            and on the brief).

            Appellant filed a pro se supplemental brief.

PER CURIAM

     Following     a    jury   trial,   defendant   Michael   Ross   II    was

convicted    of   the   first-degree     murders    of   Alesky   Bautin   and

Sergey Barbashov, N.J.S.A. 2C:11-3(a)(1) and (2); second-degree
possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-

4(a);   third-degree    unlawful     possession    of   a   weapon,    N.J.S.A.

2C:39-5(b);    and      third-degree        hindering       apprehension      or

prosecution,   N.J.S.A.     2C:29-3(b)(1).          The     judge     sentenced

defendant on the murder counts to two consecutive life terms,

each subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-

7.2, and a consecutive five-year term on the hindering charge.

     We   reversed     defendant's      convictions,    finding     the    trial

judge erred in substituting a juror after the jury had announced

it was deadlocked.      State v. Ross, No. A-2193-08 (App. Div. Dec.

28, 2012) (Ross I).      The Supreme Court reversed and remanded for

us to consider defendant's remaining points on appeal.                State v.

Ross, 218 N.J. 130, 155 (2014).

     Those contentions are:

           POINT II1

           THE DEFENDANT'S RIGHT TO A FAIR TRIAL BY
           JURY WAS VIOLATED BY THE TRIAL COURT'S
           EXCESSIVE AND PREJUDICIAL INTERVENTION IN
           THE TRIAL, NECESSITATING REVERSAL.      U.S.
           CONST., AMENDS. VI, XIV; N.J. CONST. (1947),
           ART. 1, PAR 9. (Not Raised Below).




           POINT III




1 Defendant's first       point    on   appeal    pertained    to   the    juror
substitution issue.



                                        2                              A-2193-08T4
          THE DEFENDANT WAS PREJUDICED BY MISLEADING
          TESTIMONY     CONCERNING    THE     POLYGRAPH
          EXAMINATION OF A KEY STATE'S WITNESS, AND
          THE TRIAL COURT REFUSED TO ADEQUATELY REMEDY
          THE HARM.    U.S. CONST., AMENDS. VI, XIV;
          N.J. CONST. (1947), ART. 1, PAR 10.

          POINT IV

          THE STATE COMMITTED PREJUDICIAL MISCONDUCT
          BY FORCING DEFENDANT TO CHARACTERIZE STATE'S
          WITNESSES AS HAVING "MADE UP" THEIR HIGHLY
          INCRIMINATORY  TESTIMONY.     U.S.   CONST.,
          AMEND. XIV; N.J. CONST. (1947), ART. 1, PAR
          10. (Not Raised Below).

          POINT V

          THE   TRIAL   COURT  IMPOSED   AN    EXCESSIVE
          SENTENCE, NECESSITATING REDUCTION.

          A.   The Aggregate Sentence Is Excessive.

          B.   The Consecutive Sentence for Hindering
          Is Improper.

In a pro se supplemental brief, defendant raises the following

points:

          POINT ONE

          THE STATE'S WITNESS INVESTIGATOR CLEMENTS'
          TESTIMONY BEFORE THE JURY, THAT HE KNEW THE
          STATEMENT OF ANOTHER STATE'S WITNESS GREG
          WAKEFIELD GIV[EN] TO THE POLICE TO BE
          TRUTHFUL CONSTITUTED A PROHIBITED ASSESSMENT
          OF WAKEFIELD'S CREDIBILITY WHICH DEPRIVED
          DEFENDANT OF HIS DUE PROCESS RIGHT TO A FAIR
          TRIAL[.]      THEREFORE,    THE  DEFENDANT'S
          CONVICTION SHOULD BE REVERSED.



          POINT TWO




                                3                          A-2193-08T4
           THE NUMEROUS INFLAMMATORY AUTOPSY AND CRIME
           SCENE PHOTOS OF THE VICTIMS REPEATEDLY SHOWN
           TO THE JURY, AND THE PLAYING OF THE 911
           PHONE CALL TO THE JURY OF ONE OF THE
           VICTIM'S MOANING HIS LAST BREATHS DEPRIVED
           DEFENDANT OF HIS DUE PROCESS RIGHT TO A FAIR
           TRIAL[.] THEREFORE THE CONVICTION SHOULD BE
           REVERSED.

We have considered these arguments in light of the record and

applicable    legal   standards.   We   affirm   the   convictions   but

remand the matter for resentencing.

                                   I.

    We reviewed at length the underlying facts of the case in

our prior opinion.      See Ross I, supra, slip op. at 3-12.          It

suffices to say that the State contended defendant shot              and

killed the victims after mistaking them for Mitchell "Mitch"

Wright, someone who had threatened defendant with a gun nearly

one month earlier on October 1, 2003.       On October 1, defendant,

in an attempt to avoid the confrontation, backed his car into

another.     He left the scene after parking his damaged vehicle

nearby and without notifying police.        On October 2, defendant

voluntarily came to police headquarters and gave a statement

regarding the incident.      Without providing any name, defendant

told police that the gun-waving assailant drove a burgundy or

maroon Ford Taurus or Mercury Sable that he had seen many times

before in the neighborhood.




                                   4                           A-2193-08T4
      The State established that Mitch lived at the nearby Forest

View apartment complex in Woodbridge Township and owned a red

1988 Volkswagen Jetta.           Late on the night of October 30, 2003,

both victims were killed while seated in the front seat of a

red, 1999 Volkswagen Passat parked outside Building 12 of the

apartment complex.       The murders remained unsolved for years.

      The   State   relied       upon   a       veritable          rogue's    gallery       of

witnesses   to   prove     its    case.          The        only    eyewitness       to    the

homicides who testified was Jamil McKnight.                          McKnight admitted

that he was with defendant during the October 1, 2003 gun-waving

incident, and that defendant identified Mitch as the person with

the gun.

      McKnight, who did not drive because of a condition that

seriously impaired his vision, testified that on October 30, he,

defendant, Sherrill Williams and Ron Huff were driving around

the   neighborhood    in     McKnight's          car    when        defendant       said    he

spotted the individuals who had threatened him weeks earlier

sitting in a parked car near the apartment complex.                             Defendant

insisted on returning to McKnight's house to retrieve a handgun

McKnight was holding for defendant.                     At that point, Huff left

the vehicle and Williams remained at McKnight's home.

      McKnight   accompanied       defendant           as    he    drove     back    to    the

apartment complex past the car, made a u-turn and slowed down as

he approached it again.           Defendant fired multiple shots through



                                            5                                       A-2193-08T4
the   passenger      side    window     into       the    car    from    a    distance    of

approximately       three    to   four    feet.           McKnight      claimed    he    and

defendant discarded the gun before visiting a mutual friend,

Greg Wakefield.          McKnight admitted retrieving the gun before

dawn on October 31, taking it to work with him in New York City,

and with Williams present, giving the gun to a man in Queens he

knew only as Dante.

      Huff    testified       and       corroborated            much     of     McKnight's

testimony.        He was not present during the October 1 incident,

however,     on    the   night    of    the       murders,      he   was     driving    with

defendant,        McKnight    and      Williams          when   he      heard    defendant

repeatedly mention a "red Jetta," and "the same people from

Rahway Avenue," the site of the October 1 incident.                             Huff heard

defendant ask McKnight, "you still got that at your house," and,

after McKnight answered affirmatively, defendant said, "[l]et's

go get it."        At that point, Huff grew concerned and asked to be

let out of the car.           Shortly thereafter, as he walked alone in

the neighborhood near the apartment complex, he heard what he

thought were firecrackers and then police sirens.                               Huff saw a

car with its passenger window blown out.                        On approaching it, he

saw that the passenger was apparently dead but the driver was

still alive and badly injured.                    Huff told the man help was on

the way.




                                              6                                    A-2193-08T4
    The     State   also    called       Sharhi    Roberts      and    Wakefield   as

witnesses.    Roberts was defendant's girlfriend in October 2003

and testified that on October 31, the day after the shootings,

defendant    told   her    that    he    shot     people   at    the    Forest    View

apartment complex.         About one year later, she brought up the

shootings in conversation, and defendant again admitted to being

the shooter and explained that at the time of the shooting, he

believed the car he shot into was Mitch's car.                         Although not

mentioned in her prior statements to police, Roberts testified

that during a subsequent argument with defendant, she threatened

to tell police about the shooting.                Defendant then told her that

he made up the story.

    Wakefield was a reluctant witness, and the State ultimately

introduced    his   prior      statements         to   police     as    substantive

evidence pursuant to State v. Gross, 216 N.J. Super. 98 (App.

Div.),    certif.    denied,       108     N.J.     194    (1987).        Wakefield

acknowledged that defendant and McKnight visited his house on

the night of the shooting.               He claimed an inability to recall

details of any conversation with defendant, but the prosecutor

confronted    Wakefield     with     a    prior    sworn    statement      in    which

Wakefield said that defendant appeared "jumpy" and said that he

was "popping off at Forest View," which Wakefield took to mean

shooting.     Wakefield      also       told    investigators     that    defendant




                                          7                                 A-2193-08T4
owned a 9 mm. gun and had intended to shoot Mitch, but shot the

two victims by mistake.

       Before the jury, Wakefield repeatedly disavowed his prior

statements to police.         He asserted that police questioned him at

length, subjected him to a polygraph and continued until "they

got    the   one   they     wanted   to    hear."       He   characterized       the

interrogation session as "torture."             Wakefield confirmed that he

was present on October 1 during the gun waiving incident and

observed that the man with the gun was driving a red Taurus.

Wakefield knew Mitch drove an old Jetta, not a Taurus.

       The   defense   suggested     that     McKnight    alone,    or    with   the

assistance of Williams, who did not testify, shot the victims.

Each    of   the   above    four   witnesses    was     subjected    to   vigorous

cross-examination that focused on inconsistencies between their

respective       accounts    of    events,    inconsistencies       between      the

multiple statements each had provided to police, the aggressive

investigative techniques employed by police and the motives each

witness had to lie.

       Roberts acknowledged that investigators harassed her and

her    family.      After   she    provided    police    with   a   statement,      a

disorderly       persons    charge   against    Roberts      for    making    false

public alarms was dismissed.              Wakefield gave two statements in

April 2005, when he was facing criminal charges of terroristic

threats, resisting arrest and unlawful possession of a weapon.



                                          8                                A-2193-08T4
As part of his plea agreement, Wakefield agreed to give truthful

testimony on behalf of the State against defendant.                     However, by

the    time   of    trial,    Wakefield        had    served   his     sentence   and

completed his parole.           The implication was that Wakefield was

now free to tell the truth.

       McKnight avoided prosecution for his role in the homicides

completely.        He was charged with obstruction but permitted to

enter the Pre-trial Intervention Program (PTI).                       Although Huff

faced    no   charges      during    the       relevant   timeframe,      defendant

demonstrated that when initially questioned by police, Huff did

not tell them about his car ride with defendant and the others,

nor did he tell them about the statements defendant made in the

car.     Huff only provided those details when questioned years

later.

       Defendant    also     asserted   alibi        through   his    testimony   and

that of another witness.            After acknowledging that he had been

convicted in 2006 of a fourth-degree crime for which he was

sentenced     to   eighteen     months'        incarceration    without     parole,2

defendant described the October 1 incident.                          He denied that

Mitch was involved and described the gun-waving assailant as

exiting a Taurus or Sable, as he told police on October 2, 2003.



2 Defendant was convicted of fourth-degree aggravated assault
with a firearm.  The nature of the conviction was sanitized by
the court. See State v. Brunson, 132 N.J. 377, 387-88 (1993).



                                           9                                A-2193-08T4
Defendant     acknowledged       knowing    that   Mitch     drove       a    1988    red

Jetta.

    Defendant testified that on the night of the murders, he

was driving with McKnight, Williams and Huff when they saw a

Taurus leaving the Forest View complex.               McKnight suddenly asked

to return home.      When they arrived there, Huff left and McKnight

entered his house, returning to the car with something wrapped

in a bandana.       Defendant believed it was a gun.              Defendant drove

to the house of a friend, LaToya McPhatter.                    Leaving McKnight

and Williams in the car, defendant stayed at McPhatter's house

briefly and then walked to Wakefield's house, where McKnight

arrived later.      Defendant denied shooting the victims.

    However, defendant's credibility was severely                            damaged on

cross-examination.           It     was     revealed       that      a        telephone

conversation defendant had with his father while incarcerated in

in 2006 after being arrested for the homicides was recorded

without defendant's knowledge.             Defendant told his father that

he was not in Middlesex County at all on the night of the

murders.      He also told his father that Mitch was, in fact,

involved in the October 1, 2003 incident.

    Defendant also called LaToya McPhatter's younger sister in

support of his alibi.            However, the young girl, only thirteen

years    of   age   in   2003,    testified    that    she    thought          she    saw

defendant on the night of the killings but could not recall



                                       10                                       A-2193-08T4
speaking    with     him.         On     cross-examination,           the    prosecutor

confronted her with a statement in which she told investigators

that she did not recall defendant visiting that night at all.

       After summations and instructions from the judge, the jury

began its deliberations.               On the fifth day, the jury indicated

it was unable to reach a unanimous verdict.                          Ross, supra, 218

N.J. at 136.       After the judge provided the instructions approved

in State v. Czachor, 82 N.J. 392, 404-06 (1980), a juror became

ill.    Ibid.     After dismissing that juror the following day, the

judge substituted an alternate juror and instructed the jury to

begin deliberations anew.              Ibid.    The jury deliberated for more

than   sixteen     hours    over    the    course      of    four    additional       days

before returning its guilty verdicts.                 Ibid.

                                               II.

       Defendant    argues    that       the    trial       judge    "engaged    in     an

impermissible amount of questioning of witnesses," which "in its

aggregate [was] highly prejudicial."                    We acknowledge that the

judge's questions far exceeded what was necessary to clarify

testimony, were in most instances gratuitous and added little to

the presentation of evidence.                  We do not condone the judge's

conduct.

       However,    we    disagree       with    defendant      and    our    dissenting

colleague that the judge's questions, none of which raised an

objection    from       defense     counsel,         were    "clearly       capable    of



                                           11                                   A-2193-08T4
producing an unjust result."        R. 2:10-2.      The judge's conduct,

while a mistaken exercise of discretion, does not "'raise a

reasonable doubt as to whether the error led the jury to a

result    it   otherwise   might   not   have   reached[.]'"   State   v.

Taffaro, 195 N.J. 442, 454 (2008) (quoting State v. Macon, 57

N.J. 325, 336 (1971)).

                                         A.

    We begin by recognizing that a trial judge, "in accordance

with law and subject to the right of a party to make timely

objection, . . . may interrogate any witness."             N.J.R.E. 614.

The Rule is intended to promote the trial court's duty to insure

a fair trial.      Taffaro, supra, 195 N.J. at 445, 450.        A judge

may question a witness if necessary to protect the proceedings

or the rights of any party, clarify testimony, avoid unnecessary

delay or elicit material facts.          State v. O'Brien, 200 N.J. 520,

534-35 (2009); Taffaro, supra, 195 N.J. at 445; State v. Guido,

40 N.J. 191, 207 (1963); State v. Medina, 349 N.J. Super. 108,

131 (App. Div.), certif. denied, 174 N.J. 193 (2002).

    However, the judge "is an imposing figure," symbolic of

"experience, wisdom, and impartiality."           Guido, supra, 40 N.J.

at 208.        His or her ability to pose questions to witnesses

during a jury trial, therefore, must be exercised with "great

restraint . . . in order not to influence the jury."            Taffaro,

supra, 195 N.J.      at 451.   The judge must "not telegraph to the



                                    12                          A-2193-08T4
jury any partiality to a given party's side."                O'Brien, supra,

200 N.J. at 534 (citing Taffaro, supra, 195 N.J. at 451).                         A

judge   may   not    "take     over   the        cross-examination   for        the

government    to   merely    emphasize     the    government's   proof     or    to

question the credibility of the defendant and his witnesses."

Id. at 535 (quoting United States v. Bland, 697 F.2d 262, 265

(8th Cir. 1983)).

    We must consider the entire record when deciding whether a

defendant was denied a fair trial as a result of the judge's

intervention.      State v. Martinez, 387 N.J. Super. 129, 138 (App.

Div.), certif. denied, 188 N.J. 579 (2006).               An appellate court

may assess "[t]he overall length of the questioning[,] . . .

[b]ut it is the impact of the court's questions, and not the

number of minutes they lasted, which matters most."                  Taffaro,

supra, 195 N.J. at 453-54.

    With these standards in           mind, we review the nature and

extent of the judge's intervention, particularly regarding those

instances that defendant claims require reversal.

                                           B.

    The judge posed questions to almost every witness called by

the State.      The first two witnesses, police officers Vincent

Totka and Michael Ng, investigated the October 1, 2003 incident.

While questioning Ng, the judge asked how police became aware of

defendant's possible involvement, a fact that the prosecutor had



                                      13                                 A-2193-08T4
not developed on direct.           The answers revealed that police found

identifying documents in the damaged car, which engine was still

warm.       Police   contacted       defendant's    father      who    accompanied

defendant to police headquarters on October 2, at which time

defendant voluntarily provided a statement about the previous

night's events.        Defendant argues the judge's questions served

to paint him as a lawless individual who failed to report his

involvement in a traffic accident.

      The   judge    also    posed   limited   questions     to       the   industry

witness     who   authenticated      the   subscriber    information         for   an

incoming 911 call made on the night of the murders by Barbashov,

the   State   police    lieutenant      who   answered   the     call,      Bautin's

brother, who heard the fatal shots from a nearby apartment he

shared with the decedent, and Barbashov's former girlfriend.

      Christopher Lyons was the first officer to respond to the

scene of the murders.          The judge asked some limited questions

about the conditions of the lighting at the time, and what Lyons

did to secure the scene.           Lyons also testified about his efforts

after   being     assigned    to   investigate     the   case    in    late    2004.

Defendant points to some questions the judge asked regarding

Lyons' investigation of a "cold" case, and how law enforcement

never considers a cold case to be closed.                 Defendant contends

these questions served to justify, in the jurors' minds, the




                                        14                                  A-2193-08T4
aggressive interrogation of the critical State's witnesses that

followed during the ensuing years leading to defendant's arrest.

      The    judge       extensively     questioned       the    State's      ballistics

expert, two medical examiners who performed the autopsies and

the investigator who processed the crime scene.                          We agree that

the   questions         did   little    to   clarify      the    testimony      of   these

witnesses        and,    in   many     respects,      seemingly     served      only    to

display the judge's personal knowledge of the subject matters

involved.          Defendant         contends      that    the    sheer       amount    of

questioning lent credence to the State's theory of the case.

      As    to    the    four    witnesses        whose   testimony      we   referenced

above, however, it is fair to say that the judge's questioning

was quite limited.               The judge asked Huff about the lighting

conditions at the murder scene, something Lyons testified to,

and what Huff and the others were drinking on the night of the

murders.         Defendant argues the judge supplied Huff, who knew

McKnight by his street name, "Sagacious," with McKnight's true

name, but that issue was broached during cross-examination.

      Defendant         posits    no    specific      objection     to    the    judge's

questioning of McKnight because no questions were asked.                               Nor

did the judge pose questions to Wakefield.                       However, the judge

intervened during the testimony of Investigator Mark Clements,

who took sworn statements from Wakefield and was the State's




                                             15                                  A-2193-08T4
predicate witness to establish admissibility of those statements

pursuant to Gross.3

      Clements   denied    that    Wakefield       was      harassed,         but

acknowledged that the investigators were aggressive because of

Wakefield's   reluctance   to   cooperate.     The       judge    interrupted

defendant's cross-examination of Clements as it related to how

much time Wakefield was in police custody before providing a

formal statement, and how much time Wakefield spent with the

polygraphist before providing the statement.              At sidebar, the

judge indicated that Clements, who was not present during the

polygraph, could not possibly know about the procedures employed

by the polygraphist that night.

      The prosecutor followed up on that theme during redirect

and   established   that   Clements    did   not     know        how   long     a

polygraphist would spend explaining the test or administering

preliminary questions before beginning the actual examination.

Following redirect and brief recross, the judge asked if the

polygraph examination was administered in a separate room and




3 Prior inconsistent statements made by a witness may be offered
by the proponent of that witness only after a hearing at which
the judge is required to consider a number of factors.    Gross,
supra, 216 N.J. Super. at 109-10. The judge conducted a hearing
outside the presence of the jury pursuant to N.J.R.E. 104.
Clements subsequently testified before the jury regarding the
circumstances under which Wakefield was questioned.



                                  16                                   A-2193-08T4
established that Clements and Lyons were not present during the

administration of the test.

       As our dissenting colleague notes, the judge's decision to

sua    sponte   call        for   a   sidebar     during     cross-examination         of

Clements was improper, and it served to disrupt development of

the timeline of Wakefield's questioning.                     However, the point of

defendant's line of questioning was on full display for the

jury, i.e., Wakefield was in police custody for an extensive

period of time, despite Clements' assertion that he was not, and

any     inculpatory          information         Wakefield        provided    differed

significantly         from    what    he    initially      told    police,      and   its

disclosure only followed aggressive, repeated interrogation.

       Defendant points to a testy exchange that occurred during

Roberts's testimony.              Only days before the trial, Roberts told

defense    counsel's         investigator        that    defendant     told     her    he

fabricated      his    involvement         in    the    murders.       During    direct

examination, the prosecutor asked why Roberts had not divulged

that    information          in    any     of    her    statements      to    officers

investigating         the    crime.        Roberts      responded     that    she     was

harassed by investigators and was telling them what they wanted

to hear.

       Defense counsel asked Roberts to "describe for the jury the

manner in which [the investigators] harassed you with as much

specificity as you can." Roberts provided a rambling answer, in



                                            17                                  A-2193-08T4
which    she     claimed        to   have    been     evicted        as    a    result     of

investigators         constantly      questioning           her     and    other       family

members.          She     reiterated         that     she     had     tried       to     tell

investigators that defendant told her he fabricated his earlier

confession, but they did not want to hear that information.

    At     a    sidebar     discussion        that    followed       the       prosecutor's

objection,      the     judge    asked      defense   counsel        how   the     eviction

claim was relevant.              The judge directed counsel to carefully

structure       his     questions     to     elicit     the       chronology       of     the

investigator's alleged conduct.                   After the sidebar, the judge

gave the following directions to Roberts:

               JUDGE:   All right.   Now, Miss Roberts, you
               have to listen to the questions of [defense
               counsel] very carefully. All right?

               WITNESS:    Okay.

               JUDGE:   You listen to the question and you
               think and you only answer his question.

               WITNESS:    Okay.

               JUDGE: Try to focus on his question and then
               try to give a specific answer to that
               question. Right? Could you do that?

               WITNESS: Yes.

               JUDGE:     I appreciate it.             Thank you very
               much.

It suffices to say, however, that the judge grew impatient with

Roberts's continued failure to provide direct answers regarding

the circumstances of her eviction.



                                             18                                    A-2193-08T4
       Defendant argues that the judge's impatience telegraphed

his     doubt        regarding     Roberts's           claims        of     harassment          by

investigators.          However, our review of the record reveals that

the    judge    repeatedly       overruled       the       prosecutor's         objection       to

this    line     of     inquiry     in    an     attempt        to        permit      its    full

development.

                                                 C.

       Defendant       relies     extensively          upon     Taffaro         and    O'Brien,

although he concedes that the judge's questioning here "was not

as unabashedly partisan . . . ."                      Indeed, in both Taffaro and

O'Brien, the Court concluded that the judicial questioning was

partisan       and    effectively       tilted    the       evidence       in    the    State's

favor, thereby denying the defendants a fair trial.

       In   Taffaro,     supra,     195    N.J.       at    448,     the     judge     posed     a

relatively extensive amount of questions to the defendant.                                    The

questions       "did     not     help     clarify       [the]        defendant's            under-

standable testimony; instead, they underscored the weaknesses in

his defense."         Id. at 452.        The Court summarized:

               [T]he questions had the effect of suggesting
               to   the   jury  that   the  court   doubted
               defendant's account in a case that rested
               heavily on defendant's credibility. The
               questions also covered, in part, terrain
               that had already been crossed. Rather than
               clarify points in a witness's testimony, the
               court's questions had the capacity to signal
               disbelief.

               [Id. at 453.]



                                            19                                         A-2193-08T4
      In O'Brien, supra, 200 N.J. at 525, the defendant asserted

a diminished capacity defense to charges that he murdered his

parents.    The Court cited the questions posed by the judge to

the   defendant     and   the    judge's      extensive     questioning     of     the

defense psychiatrist.        Id. at 526-27.          The Court also cited the

judicial questioning of one of the State's investigators, which

it characterized as "effectively hammer[ing] nails into defense

counsel's ongoing cross-examination and bolster[ing] the State's

witness."     Id. at 539.            The Court summarized the prejudicial

effect of the judge's questioning this way:

            [T]he defense was made up of three prongs:
            defendant's own testimony about his drug-
            and depression-induced condition on the
            night of the murder and at the time of the
            confession; his expert's testimony regarding
            the effects of defendant's condition; and
            the neutralization of witnesses who saw
            defendant and opined that he was not under
            the influence of drugs. The judge intervened
            on each of those prongs, by expressing
            disbelief when defendant and his expert
            testified,   and   by   helping to   counter
            defendant's    challenge    to  Investigator
            Mitchell.

            [Ibid.]

      In   Guido,   supra,      40   N.J.     at   208   n.2,   a   case   cited    by

defendant and the Court in              Taffaro     and O'Brien, among other

things, the judge's salacious questioning of the defendant had

the clear capacity to discredit her testimony before the jury

and resulted in reversal.              In State v. Ray, 43 N.J. 19, 27



                                         20                                 A-2193-08T4
(1964),    cited   by    the   Court        in    Taffaro,      the    judge      conducted

"lengthy    questioning        of    [the]        defendant's         key     witness,"     a

defense    pathologist.             The     judge      also    engaged       in   "frequent

interrogation of [the] defendant [that] improperly suggested his

doubts as to her credibility."                 Id. at 28.

    Defendant      has     failed         to     bring    to     our        attention     any

published    opinion      in        which        our    courts    have        reversed      a

defendant's conviction based upon judicial questioning directed

solely to the State's witnesses.4                      This is not to say that a

judge's improper questioning of the State's witnesses may compel

reversal if, for example, it serves to bolster the State's case.

The harm exceeds the impact of any actual answer provided by the

witness because it conveys that the judge is taking "one party's

side."     Taffaro, supra, 195 N.J. at 451.                      Our point is simply

that when the judge's conduct is directed toward a defendant and

his witnesses, it carries a greater risk of not only conveying




4  In three of the federal cases cited by our dissenting
colleague, the questioning of the defendant or defense witnesses
figured prominently or exclusively in compelling reversal.   See
United States v. Ottaviano, 738 F.3d 586, 596 (3d Cir. 2013);
United States v. Filani, 74 F.3d 378, 381 (2d Cir. 1996);
Bland, supra, 697 F.2d at 264-65. In United States v. Rivera-
Rodriguez, 761 F.3d 105, 111, 113 (1st Cir. 2014), cert. denied,
___ U.S. ___, 136 S. Ct. 1573, 191 L. Ed. 2d 656 (2015), the
offending   questions  were  posed   to  the   government's  two
cooperating witnesses.




                                            21                                     A-2193-08T4
impartiality to the jury but also negatively impacting the fair

presentation of a defense.        O'Brien, supra, 200 N.J. at 534-35.

    In this case, defendant concedes that the judge did not

pose questions to him or his alibi witness at all.            He argues,

nonetheless, that this lack of questioning, when compared to the

extensive    questioning     of     the   State's    witnesses,     subtly

discredited the defense case.         This argument might have merit,

except that, as we already noted, the judge posed few questions

to the four witnesses whose testimony mattered most in resolving

the single contested issue in the case, i.e., the identity of

the shooter.

    The judge asked few questions of Huff.             The testimony of

McKnight, the only eyewitness, was unfettered by any questions

from the judge.     The same is true of Wakefield, who, in the end,

recanted any testimony that was damaging to defendant.            Although

we cannot divine the impact of Wakefield's testimony on the

jury, it is difficult to imagine that the jury found any of it,

including his prior statements, to be credible.          As to Roberts,

the judge expressed a level of frustration with her testimony,

but, on balance, defense counsel was able to fully impeach her

credibility regarding defendant's alleged admissions and also

obtained    the   benefit   of    Roberts's   late-asserted   claim   that

defendant had recanted any prior admissions.




                                     22                           A-2193-08T4
       In this case, therefore, we must part company with our

dissenting       colleague      and    conclude     that     the    impact       of    the

extensive and, in many instances, unnecessary questioning by the

judge does not "raise a reasonable doubt" that "the jury [was

led]    to   a    result   it    otherwise        might     not    have     reached[.]"

Taffaro, supra, 195 N.J. at 454.                 We add some additional reasons

that support our conclusion.

       We have recognized that "[c]laims of judicial misconduct

pose a severe problem to our appellate tribunals for 'it is

difficult to review a charge of unfairness upon a dry record.'"

Medina, supra, 349 N.J. Super. at 131 (quoting Guido, supra, 40

N.J. at 208).        In this case, however, defense counsel, who was

"in the trenches" and best able to assess what, if any, impact

the    judge's      questioning       was    having,      never    posed     a    single

objection.        We should not assume counsel was shy or reluctant

for fear of alienating the judge because, as we noted, the judge

repeatedly overruled the prosecutor's objections during defense

counsel's        cross-examination      of       Roberts.         Defense     counsel's

decision not to object was quite rational, given that most of

the    judge's     questions    were    posed      to   witnesses     that       provided




                                            23                                   A-2193-08T4
scant evidence of defendant's involvement in the murders and had

little impact on the defense strategy.5

     Moreover, we cannot overemphasize the powerful effect that

the cross-examination of defendant must have had upon the jury.

After   testifying    that   he    was    at    McPhatter's    house     when   the

shootings occurred, the State confronted defendant with his own

words to the contrary.       At the time, defendant was not speaking

to a cellmate or some jailhouse "snitch."                  He was speaking with

his father, the man who accompanied him to police headquarters

to report the gun-waving incident of October 1, 2003.

     Lastly,   the    jury   in    this        case    deliberated    extensively

before indicating it was deadlocked.                  After a juror was excused

for illness, the reconstituted jury deliberated for many hours

over several more days.            We acknowledge, without necessarily

accepting,   the     proposition    that        these    lengthy     deliberations

reflect that the State's evidence was not overwhelming, and that

in such a close case, there was fertile ground upon which the

judge's extensive questioning might sow mischief.

     However, the last witness called by the State, and the last

witness to whom the judge posed any questions, testified on

April 10, 2008.       The last witness — defendant — testified on



5 We further note that defendant's motion for a new trial decided
immediately before sentencing did not challenge the nature or
scope of the judge's questioning of witnesses.



                                         24                               A-2193-08T4
April 15, and the jury began its deliberations the next day.

The verdict was announced on April 29, 2008, nearly three weeks

after the judge interjected his last question.                            In our minds,

the     jury's       extensive        deliberations        indicate        the     judge's

questioning         weeks    earlier       had    little    impact       upon    the    fair

consideration of the evidence.

       In sum, we find no basis to reverse defendant's conviction

on this ground.

                                                 III.

       Defendant's remaining points warrant limited comment.                               We

find no error, let alone plain error, in the judge's refusal to

disclose to the jury the results of Wakefield's polygraph — that

he     was    not    forthright       —    which       preceded    his    first        formal

statement.          Our     Court    has    consistently      held       that    polygraph

results are generally inadmissible because they are unreliable.

State v. A.O., 198 N.J. 69, 86 (2009).                      Polygraph evidence may

also "receive undue weight and distract jurors from judging the

credibility of witnesses directly."                     Id. at 92.        Moreover, the

record       does   not     reflect       what    questions       Wakefield      allegedly

answered with a lack of candor.                    Consequently, the instruction

that     defense      counsel       requested      —    informing      the      jury    that

Wakefield had essentially failed the test                          —   would only have

invited speculation.




                                             25                                   A-2193-08T4
     Nor are we convinced by defendant's argument that the jury

would likely have concluded that Wakefield was truthful to the

polygraphist,      because     the      police      subsequently        took       his

statement.      The jury could have just as plausibly concluded that

Wakefield dissembled to the polygraphist, and only upon being

confronted      with   that   result,    decided       to   change     his    story,

without   any    assurance     that   the    next      version   was    any      more

truthful than the previous one.              Furthermore, as the defense

established, Wakefield gave yet another statement a few weeks

later, which deviated significantly from the first.

     Under      these    circumstances,          the     judge    appropriately

instructed the jury not to speculate as to the results of the

polygraph; and to consider the fact that Wakefield submitted to

a polygraph only in connection with how long he was interrogated

by Clements and Lyons.           We presume the jury was capable of

following these instructions.6          Ross, supra, 218 N.J. at 152.

     As for defendant's claim of prosecutorial misconduct, it is

inappropriate for the State to ask a witness to opine whether

another witness was truthful.           State v. Bunch, 180 N.J. 534, 549

(2004).   Defense counsel could have objected when the prosecutor

asked defendant whether Wakefield and Roberts had lied.                       But no



6 We note that Roberts also testified that she submitted to a
"lie detector" during questioning. However, defense counsel did
not seek any instruction regarding that polygraph.



                                        26                                   A-2193-08T4
objection was raised.           Consequently, in reviewing the issue, we

must determine if there was plain error.                     We conclude there was

none, given that it was a principal defense theme that Wakefield

and Roberts had in fact lied.

       In a similar vein, in his pro se filing, defendant argues

that an answer given by Clements during cross-examination, in

which     the     detective         expressed        his    personal     belief     that

Wakefield's second statement as "truthful," requires reversal.

This    answer     was   not   appropriate,           but   defense    counsel    never

sought to strike the testimony, and, in light of our earlier

comments regarding Wakefield's credibility, this single answer

did not amount to plain error.

       Also in his pro se filing, defendant contends the admission

of autopsy and crime scene photos, as well as the playing of the

Barbashov's 911 call to police, requires reversal.                         There were

repeated    objections         to     the   photographs,        primarily     because

defendant did not contest the cause and manner of death, or, for

that    matter,    any   evidence       from     the   crime    scene.     The    judge

overruled       these    objections,           tersely      explaining     that      the

prosecutor had the right to prove her case.                       It is clear from

the record, however, that the judge limited the number of photos

that the prosecutor otherwise wished to publish to the jurors.

       We ordinarily review the trial court's evidentiary rulings

to     determine     whether        there      was     a    mistaken     exercise     of



                                            27                                A-2193-08T4
discretion.       State v. J.D., 211 N.J. 344, 354 (2012).                        Any

decision to admit or exclude crime scene photographs rests with

the sound discretion of the trial judge.                    State v. Johnson, 120

N.J.   263,    297     (1990).      We   apply    the    same    standard    to   the

admission of autopsy photographs.                 State v. Morton, 155 N.J.

383, 455-56 (1998).            Here, copies of the admitted photographs

are not included in the record, and we have no basis upon which

to conclude the judge's highly discretionary decision requires

reversal.

       As to the recording of the 911 call, there was no objection

during the testimony from Barbashov's girlfriend, who identified

his voice on the tape.              However, when the State rested, the

judge noted defense counsel's objection to its admission.                          We

acknowledge that the tape of the victim calling 911 after having

been    shot    and    as     he   neared     death     lacked     any   significant

probative      value    and   probably      should    not   have    been   admitted.

However, we cannot conclude that this brief snippet of a phone

conversation denied defendant a fair trial.

                                         IV.

       Defendant was almost twenty-one years old at the time of

the homicides and nearly twenty-six years old at sentencing in

August 2008.      The judge noted defendant's prior adjudications of

delinquency, as well as two adult convictions that took place

after the murders.          As noted above, defendant's prior conviction



                                         28                                 A-2193-08T4
for aggravated assault involved the pointing of a firearm; a

second adult conviction was for theft.

      Citing       State    v.    Yarbough,         100    N.J.   627,    643-44     (1985),

cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308

(1986),      State   v.     Carey,      168    N.J.       413   (2001),     and    State       v.

Molina,      168     N.J.        436    (2001),       the       judge    concluded           that

consecutive sentences were appropriate because there were "two

victims."       The judge reviewed the tragic circumstances of the

victims' deaths and much of defendant's biographical information

before concluding that aggravating sentencing factors three, six

and   nine    applied.           N.J.S.A.      2C:44-1(a)(3)         (the    risk       of    re-

offense); -1(a)(6) (the extent of prior criminal record and the

seriousness of the offense for which defendant was convicted);

and -1(a)(9) (the need to deter defendant and others).                              Although

the prosecutor urged application of other aggravating factors,

the   judge     rejected         them    without          explanation,      and     he       also

rejected      defense       counsel's         argument       that    mitigating          factor

eleven applied.         See N.J.S.A. 2C:44-1(b)(11) (imprisonment would

entail an excessive hardship to defendant's family).

      Concluding           the         aggravating          factors         "substantially

outweigh[ed]"        the    non-existent         mitigating         factors,      the     judge

stated that defendant "must be separated from normal society for

the   rest     of    his     natural       life."           The     judge    imposed          two

consecutive life terms, both subject to NERA.                           The judge gave no



                                               29                                   A-2193-08T4
explanation at all for the consecutive sentence imposed on the

hindering apprehension charge, which was premised on defendant's

concealment of the murder weapon.

    Defendant essentially concedes that pursuant to Yarbough,

Carey     and    Molina,    "consecutive        terms   of   imprisonment   are

virtually       mandated   in   a   case    involving   multiple   homicides."

However, he contends the judge failed to consider the "real-time

consequences of NERA," although he acknowledges that the judge's

stated intention to "separate[] [defendant] from normal society

for the rest of his natural life," reflects a complete, albeit

inappropriate, understanding that defendant must now serve 127.5

years before he is eligible for parole.                 Defendant argues the

aggregate sentence is excessive.                 He also contends that the

judge gave no explanation for imposing a consecutive five-year

term on the hindering charge.

    We begin by noting that "[a]ppellate review of the length

of a sentence is limited."            State v. Miller, 205 N.J. 109, 127

(2011).    As the Court has recently reiterated:

            The appellate court must affirm the sentence
            unless (1) the sentencing guidelines were
            violated; (2) the aggravating and mitigating
            factors found by the sentencing court were
            not   based    upon  competent  and   credible
            evidence    in   the  record;  or   (3)   "the
            application of the guidelines to the facts
            of [the] case makes the sentence clearly
            unreasonable so as to shock the judicial
            conscience."




                                           30                         A-2193-08T4
         [State v. Fuentes, 217 N.J. 57, 70 (2014)
         (alteration in original) (quoting State v.
         Roth, 95 N.J. 334, 364-65 (1984)).]

Furthermore,    "trial     judges        have   discretion    to   decide      if

sentences should run concurrently or consecutively."                    Miller,

supra, 205 N.J. at 128.

    In   Yarbough,       the     Court    identified   the    factors    to    be

considered     in     deciding     whether      to   impose   concurrent       or

consecutive sentences:


         (1) there can be no free crimes in a system
         for which the punishment shall fit the
         crime;

         (2) the reasons for imposing either a
         consecutive or concurrent sentence should be
         separately   stated    in   the   sentencing
         decision;

         (3) some reasons to be considered by the
         sentencing   court   should  include   facts
         relating to the crimes, including whether or
         not:

                    (a)    the   crimes    and    their
                    objectives    were    predominantly
                    independent of each other;

                    (b) the crimes involved separate
                    acts of violence or threats of
                    violence;

                    (c) the crimes were committed at
                    different    times   or    separate
                    places,    rather     than    being
                    committed so closely in time and
                    place as to indicate a single
                    period of aberrant behavior;




                                         31                             A-2193-08T4
                (d) any of the        crimes   involved
                multiple victims;

                (e) the convictions for which the
                sentences are to be imposed are
                numerous;

           (4) there should be no double counting of
           aggravating factors;

           (5) successive terms for the same offense
           should not ordinarily be equal to the
           punishment for the first offense[.]7

           [Yarbough,   supra,   100  N.J.   at       643-44
           (footnote omitted) (emphasis added).]

"When a sentencing court properly evaluates the Yarbough factors

in light of the record, the court's decision will not normally

be disturbed on appeal."   Miller, supra, 205 N.J. at 129.

       It is clear that pursuant to Carey, supra, 168 N.J. at 431,

and Molina, supra, even when the only Yarbough factor found by

the sentencing court is the multiplicity of victims, that factor

"is entitled to great weight and should ordinarily result in the

imposition of at least two consecutive sentences."        168 N.J. at

443.    As a result, we find no reason to disturb the judge's

decision to impose consecutive sentences for the two murders.8



7 A sixth factor, imposing an overall outer limit on consecutive
sentences, was superseded by legislative action.   See State v.
Eisenman, 153 N.J. 462 (1998).

8 We note, however, that the judge in this case never addressed
any of the other Yarbough factors at all. "[A] trial court is
expected to give 'a separate statement of reasons for its
decision to impose consecutive sentences.'"  Molina, supra, 168
                                                    (continued)


                                 32                            A-2193-08T4
    However,        "[t]he       fact    that        two     consecutive     terms      of

imprisonment should ordinarily be imposed in multiple-victims

cases does not prevent the sentencing court from setting the

base term of each sentence below the maximum provided by the

Code."     Carey, supra, 168 N.J. at 430.                    In Miller, supra, 108

N.J. at 122, a case that did not involve multiple victims, the

Court said that "[w]here the offenses are closely related, it

would ordinarily be inappropriate to sentence a defendant to the

maximum    term   for     each    offense       and    also     require    that    those

sentences be served consecutively, especially where the second

offense did not pose an additional risk to the victim."                                 In

State v. Pennington, 154 N.J. 344, 361-62 (1998), referring to

Yarbough     factor     five,      the    Court        said     in    remanding       for

resentencing      after       imposition        of     two     consecutive      maximum

sentences,    the     trial      court   was     "required       to   explain     why    a

shorter second term for the same offense is not warranted if

consecutive terms are reimposed."




(continued)
N.J. at 442 (quoting State v. Miller, 108 N.J. 112, 122 (1987)).
As the Court has noted, although "[c]rimes involving multiple
deaths . . . represent especially suitable circumstances for the
imposition of consecutive sentences[,] . . . '[t]hat does not
mean that all consecutive sentencing criteria are to be
disregarded in favor of fashioning the longest sentence
possible.'"   Carey, supra, 168 N.J. at 428 (quoting State v.
Louis, 117 N.J. 250, 258 (1989) (alteration in original)
(citations omitted).



                                          33                                    A-2193-08T4
       We have affirmed the imposition of two consecutive maximum

term sentences in a double homicide case.                     See, e.g., State v.

Kelly, 406      N.J. Super.          332, 353 (App. Div. 2009) (affirming

without    discussion         the    imposition       of    two    consecutive      life

sentences based upon the murder of two victims), affirmed on

other grounds, 201 N.J. 471 (2010).                   However, we believe it is

incumbent upon the judge to explain fully the justification for

imposing   such    a    sentence,       particularly        after,    in   this   case,

rejecting the State's argument that other specific aggravating

factors    were    present      and     finding    only      the     frequently-found

aggravating factors three, six and nine applied.                       We also agree

with   defendant       that    the    judge    gave    no    explanation      for    the

imposition of a consecutive term on the hindering charge.                           As a

result,    we   remand    the       matter    to   the     Law     Division   for    re-

sentencing.

       We affirm defendant's conviction and remand the matter to

the Law Division for re-sentencing.




                                          34                                  A-2193-08T4
___________________________________

OSTRER, J.A.D., dissenting.

       Upon review of the entire record, I am convinced the trial

judge exceeded the boundaries of permissible questioning under

N.J.R.E. 614 and our case law.                    The error was "clearly capable

of producing an unjust result."                     R. 2:10-2.              That is, "the

possibility of injustice [was] 'sufficient to raise a reasonable

doubt as to whether the error led the jury to a result it

otherwise might not have reached.'"                     State v. Taffaro, 195 N.J.

442,    454    (2008)    (quoting      State       v.    Macon,       57    N.J.     325,     336

(1971)).      Therefore, I respectfully dissent.

                                             I.

       I assume familiarity with the facts set forth in our prior

decision.         The    majority       agrees          that    the        trial     presented

significant      credibility       issues         for    the     jury.         The        State's

principal       witnesses      gave     multiple,         inconsistent             statements.

They also had strong motives to curry favor from the State.

       The    State's    theory       was    that       defendant      shot        and    killed

Alexey       Bautin    and    Sergey     Barbashov,            two    white        men,    after

mistaking       them    for    a      tall    African-American               man     who     had

threatened him with a gun almost a month earlier, on October 1,

2003.     The State established Bautin and Barbashov were killed

while seated in a parked red 1999 Volkswagen Passat outside an
apartment    complex      in    Woodbridge       Township.          The   State's    only

eyewitness     to   the        homicides,       Jamil    McKnight,        admitted     he

retrieved     the   gun    used,     and        accompanied         defendant   to    the

shootings.     Defendant's girlfriend Sharhi Roberts, and a friend,

Greg Wakefield, testified that defendant confessed to them.                           Ron

Huff claimed he was in the car when defendant first spotted the

men he thought were involved in the prior incident, and then

decided to retrieve a firearm.                   Huff claimed he left the car

before the homicides, but he later appeared at the scene.

      The    defense   theory      was    that     McKnight         and   another    man,

Sherrill     Williams,     participated          in     the    shooting.        Defense

counsel argued that McKnight was threatened in the same early

October incident in which defendant was threatened; McKnight had

poor eyesight, making it more likely that he, not defendant,

misidentified the victims.               Williams said in an out-of-court

statement that the gun removed from McKnight's house the night

of   the    shooting   belonged      to     McKnight,         not    defendant.       The

defense contended that each of the key incriminating witnesses

had motives to lie, in order to avoid prosecution related to the

homicides (in McKnight's case), or to curry favorable treatment

in connection with other charges (in Roberts's and Wakefield's

case).

                                          II.




                                            2                                   A-2193-08T4
       The trial court's questioning must be considered against

this    factual    backdrop.       At   the   risk     of    repetition      with    the

majority opinion, an extensive review of the record is necessary

to appreciate the full impact of the court's intervention.

       The court's questioning fell into three major categories:

(1)    bolstering    State      witnesses;     (2)    eliciting    evidence         that

supported the State's case, which the prosecutor herself did not

elicit; and (3) expressing impatience with a reluctant State

witness.     The volume of the court's questioning was substantial.

The     court     interrogated     fifteen      of     the    State's        seventeen

witnesses.1

       The first two witnesses at trial were Woodbridge Police

officers Vincent Totka and Michael Ng.                  Totka took a statement

from defendant at the police station regarding the early October

incident in which someone driving a burgundy Ford or Mercury

pointed a handgun at defendant.               Totka described defendant as a

crime    victim     who   had    voluntarily         come    forward    to    make     a

statement.        Totka noted defendant's father accompanied him to


1 The State presented its case through the testimony of (1) six
investigating officers — Vincent Totka, Michael Ng, Christopher
Reahm, Mark Clements, John Haley, and Christopher Lyons; (2)
three experts — ballistics expert Gary Mayer, and pathologists
Frederick J. DiCarlo and Andrew Falzon; (3) Verizon's records
custodian, Renada Lewis; and (4) seven other witnesses — Ronald
Gordon Huff, Alexander Bautin, Ekaterina Vodolatskaya, Sharhi
Roberts,   David  Robert  Oakley,  Jamil   McKnight,  and  Greg
Wakefield.




                                         3                                    A-2193-08T4
the police station, but defendant gave his statement without his

father present.         The taped statement was played for the jury.

Cross-examination established that the gun was also pointed at

others at the scene, whom the police did not question.

    The judge then asked Totka why defendant's father was not

present during the interview.                   Totka explained defendant was

twenty-one years old, and did not need parental consent to give

a statement.       Although brief, the court's questioning may have

alleviated       concerns      jurors     may    have    had     about    the    police

behavior    in    taking       defendant's      statement      without    his    father

present.        There    was    nothing    unclear      about    Totka's    testimony

before    the    judge's       questioning.       The    court    simply    chose      to

elicit additional facts that assisted the State.

    Ng's focus was the automobile accident.                      He testified that

defendant was asked to come in to discuss what Ng believed was

his involvement in an accident.                 Ng said defendant "came in to

report . . . that he was involved in a motor vehicle accident

that we were investigating the night before."                        Ng identified

motor vehicle accident reports, which were prepared based on

defendant's information.            Defendant told Ng that he struck two

vehicles as he fled from the man who pointed a gun at him.

Defendant described the man as a "black male, approximately six-

two . . . ."            Ng did not issue any summonses to defendant

because    he    did    not    believe    defendant      was    driving    carelessly



                                           4                                    A-2193-08T4
under the circumstances.           The defense asked one question on

cross-examination, to establish that the Ford Taurus and Mercury

Sable had similar body styles.

      The judge then engaged Ng in questioning that lasted almost

half the length of the State's direct examination.                  The judge

elicited how Ng came to invite defendant into the station for

questioning.      In response to the court's numerous questions, Ng

described his investigation, step by step.              Ng testified he was

dispatched to the scene of the motor vehicle accidents.                         He

spoke to a witness, examined the two vehicles defendant struck,

and then found a parked vehicle nearby that appeared to have

been in a collision.            After impounding the vehicle, a police

search   of   the     vehicle    disclosed   defendant's    identification.

Police then went to defendant's house, spoke to his father, and

asked him to come into the police station for questioning.

      These additional facts emphasized that defendant failed to

report the incident immediately or voluntarily.                   See N.J.S.A.

39:4-130 (making it a motor vehicle violation to fail to report

an accident involving, among other things, property damage of

$500 or more).        The questioning also highlighted that defendant

did not take the initiative to report to police that he was

threatened with a gun, a serious crime, which may have created

the   inference      that   defendant   intended   to   address    the    threat

himself.       The    judge's    questioning   established        that    police



                                        5                                A-2193-08T4
effectively had to track defendant down to obtain his accident

report.

       In sum, with the first two witnesses, the judge established

himself      as   an   active      questioner   whose     questions        tended   to

support the State's case.             Notably, the court gave no mid-trial

instruction to the jury to disregard any implication that he

favored the State's case.

       The court elicited additional factual details from the next

four witnesses: the Verizon records custodian Renada Lewis, who

identified records of the 911 call; New Jersey State Police

trooper Christopher Reahm, who presented the 911 recording, and

described its method of storage; Alexander Bautin, who was in

his apartment when he heard the shooting of his brother Alexey

and    his   friend    Sergey      Barbashov;   and     Barbashov's      girlfriend,

Katerina      Vodolatskaya,         who   testified       about      the     victim's

whereabouts       before     the    shooting.     Defense        counsel    declined

cross-examination       of    Lewis    and    Reahm;    posed    one    question    to

Bautin, to identify that his brother's car was a 1999 Volkswagen

Passat; and briefly questioned Vodolatskaya to establish that

Bautin had money problems with his business partner, who owned a

gun.

       The   court     pursued      separate    lines    of     questioning     after

defense counsel's turn.               Many of the judge's questions were

leading,      which    established        the   judge     as     a     knowledgeable



                                          6                                  A-2193-08T4
questioner.       The information did not directly reflect negatively

on defendant.       It was undisputed that a drive-by shooter killed

Bautin and Barbashov.          However, the questioning maintained the

judge's role as an active questioner who supplemented evidence

in the State's case.

    In questioning Huff for five pages of transcript, the judge

addressed    an    apparent    inconsistency       in    Huff's   testimony,      and

emphasized facts that supported the State's theory of the case.

Huff initially identified the occupants of the vehicle by their

nicknames — "360" or "60," who was Ross; Sagacious, who was

McKnight; and Boo, who was Williams.                    He was asked on direct

regarding    Sagacious,       "Do   you   know   that     person's   real    name?"

Huff said he did not.          On cross-examination, counsel referred to

"Jamil McKnight, a man you knew as Sagacious," but Huff repeated

that he did not know Sagacious's or Boo's real names.                  The judge

then interjected, "You don't know their real names?" and Huff

again said no.        Later in cross-examination, counsel questioned

Huff referring only to McKnight, not Sagacious, and Huff had no

difficulty responding.          In the judge's separate examination, he

returned to the issue, and allowed Huff to reiterate that he did

not know Sagacious's real name, but thought that was his real

name based on defense counsel's prompting.

    The     court's    questioning        also   elicited    details   about      the

lighting around the apartments where the shooting took place.



                                          7                                 A-2193-08T4
These    questions       reinforced           already         clear       and     unambiguous

testimony that the State had elicited on direct, and which the

defense did not challenge on cross-examination.                                 In so doing,

the judge elicited testimony that supported the State's theory

of the case: that defendant thought he was getting revenge on a

man named Mitch, who pulled a gun on him on October 1, but

instead accidentally shot two innocent men sitting in their car

that night.

       Sharhi    Roberts       was      one     of    the     two    witnesses      to    whom

defendant allegedly confessed.                      Roberts testified that the day

after the shooting, defendant told her he shot the two men.

About    a   year     later,       he    again       confessed       to   her,     adding    he

intended to shoot Mitch, but shot the victims by mistake.                                   She

also    asserted      that   defendant          told    her    that       Mitch    previously

threatened      him   with     a    gun.        However,       she    also      claimed   that

subsequent to the two confessions, defendant told her that he

did not shoot the two men, and he only made up that he did.

       The   prosecutor      confronted             Roberts    on     direct      examination

with a prior statement to police, in which she did not mention

the third conversation.                 She claimed that she did not disclose

the    conversation      "because         the       officers    [Lyons       and   Clements]

didn't want to hear that" and her lawyer, David Oakley, told her

"to tell them what they wanted to know and that's that."                                    She

asserted the officers "were harassing" her for her statement.



                                                8                                    A-2193-08T4
In    return       for      her    testimony,       the    officers     informed      the

prosecutor        of   Roberts's       cooperation,       and   the   pending     charges

against her were dismissed.                 The prosecutor also elicited that

Roberts testified at a trial of a different defendant in August

2007 — over which the same trial judge presided — and confirmed

her     statement          to   police,    but    did     not   mention     the    third

conversation.

      On    cross-examination,            defense    counsel     elicited      Roberts's

claim      that    Lyons        and    Clements     harassed     her.       The    court

intervened in counsel's questioning, expressing impatience, and

at one point stating that "we" need specifics.

             Q    Okay.    So you've been dealing with
             Clements and Lyons for a while, haven't you?

                       A        Yes.

             Q    Okay.            Have they harassed you in the
             past?

                       A        Yes.

             Q    Can you describe for the jury the
             manner in which they harassed you with as
             much specificity as you can.

                       A    Okay.    They came to my                  house.
                       I've been evicted from places.

             THE COURT:           I'm sorry.        Came to your house
             and what?

                       A    They came to my house.                Harassed
                       me numerous times.

             THE COURT: In other words, the question is
             we need specifics.    What did they do?



                                             9                                  A-2193-08T4
Specifically what did they           do?        What    did
they say? What did they do?

    A        Well --

THE COURT:    Okay.

    A        They --

THE COURT:     They came to your house.                What
else?

    . . . .

Q    All right.     Sharhi, describe how you
were harassed.    I don't just mean the cops
showed up.   How many times did they come,
what did they say to you and so forth,
things like that.

    . . . .

Q   Where were you working at the time?

    A    Perth     Amboy       Shop-Rite   on    Convery
    Boulevard.

Q    Okay.   So when's the first time that
you can remember the police coming to you
and harassing you?

    A    The first time I remember was my
    father's house, on 19 Walter Drive,
    Woodbridge.

THE COURT:     When?   When?      When?    When?        Not
where.

    THE WITNESS:           I    can't   remember       the
    exact day.

THE COURT:    Well, was it like -- was it
before August -- before October 30th, 2003,
or was it after October 30th?

    THE WITNESS:       It was after.




                         10                                   A-2193-08T4
          THE COURT:        Was it a month after, a year
          after?

                  THE WITNESS: A year, a year -- almost
                  two years -- it was a little after
                  November, I want to say -- I want to
                  say '05 --

          THE COURT:       Okay.

                  THE WITNESS:     -- 6, November.

          THE COURT:       November 2005.

          Q    Did the police ever offer you anything
          for your testimony?

                  A      Yes.   Yes.   Numerous times.

    The   court       intervened   during   cross-examination   about   the

pre-interview, in which defense counsel sought to establish that

officers told Roberts to discuss only the two confessions, and

not the subsequent denial.

          Q    Earlier you mentioned that when talking
          to the police, and by the police I mean
          basically   the   Woodbridge   police,   the
          Middlesex County Prosecutor's Office, there
          were portions of your conversations that
          were unrecorded?

                  A      Yes.

          Q    Was there some sort of preinterview
          that occurred before the recording begins?

                  A      Yes.   He stated that he wanted me
                  --

          THE COURT: No. No. No. Question was was
          there portions of the interview that was
          unrecorded. Yes?

                  THE WITNESS:     yes.



                                       11                         A-2193-08T4
THE COURT:   Next question.

Q    That was during the preinterview?

THE COURT: The preinterview is -- in other
words, did they talk to you before they
actually put the machine on and recorded
your statement?

     THE WITNESS:     Yes.

THE   COURT:         Okay.        So   you    had    a
preinterview?

     THE WITNESS:     Yes.

THE COURT:   Okay.

Q    What   did   they        tell you  in          the
preinterview or at           any time when          the
recorder wasn't on?

     MS. DAVISON:        Again,    Judge,    this   is
     hearsay.

THE COURT:   Overruled.

     A    At the time, the day -- the day I
     made -- the day of January --

THE COURT: This is January 26th, 2006, your
attorney was there?

     THE WITNESS:     Yes.

THE COURT:   And what did they tell you?

     A    They asked me to go back to the
     time that my sister had stated -- made
     the statement previous. They wanted me
     to go back to that time and recall of
     those two times that my sister had
     mentioned originally to Chris Lyons and
     Woodbridge    Police    Department   of
     November -- in November. They wanted -
     -



                         12                               A-2193-08T4
           Q    Is it fair to say you were limited to
           those two times?

                  A      Yes.

           Q    And then -- and then you were told that
           there would be consequences if you changed
           your story out of what was just said?

                  A      Yes.

    Officer Lyons initially testified on direct regarding his

arrival   on     the    scene     of     the    homicides,        and    his      initial

observations of the two victims and their car.                      He testified he

secured   Huff     for       questioning        by   detectives.            The      judge

interjected    several        friendly    questions,       in   the     midst     of    the

direct examination, prompting the witness to clarify a point,

spell a name, describe a location, explain an acronym, indicate

the meaning of a gesture, and expand upon a comment.                                In so

doing, the court appeared to work in tandem with the prosecutor.

    Lyons's cross-examination was brief.                        It focused on the

fact that police did not test Huff for gunpowder residue.                               The

court   sustained      the     State's    objection        when    defense        counsel

inquired about other aspects of the State's investigation, which

were outside the scope of direct.

    The    judge       then     engaged    Lyons      in    over      six    pages       of

questioning.       By    contrast,        the    direct     examination         consumed

nineteen pages of transcript, including the judge's interjected

questioning.     He elicited additional details about the officer's



                                          13                                      A-2193-08T4
efforts to secure the crime scene.                      Most significantly, the

judge elicited testimony regarding the lighting conditions at

the scene of the crime.            Lyons testified the area was "[f]airly

dark," there were no streetlights in the area, and "very little"

light was coming from a nearby building.                      These facts supported

the State's theory that the shooter misidentified the victims in

part because of the dark conditions.

    Officer        Haley      testified          about         his      crime        scene

investigation,     including       his   collection       of    bullets        and   spent

shells,   and    provided    a     critique   of      gunshot        residue    testing.

During the direct examination, the judge repeatedly interjected

questions to clarify or supplement information elicited by the

State.     The    judge     also    engaged      in     two    separate    rounds       of

friendly questioning of the witness, consuming over twelve pages

of transcript.     Although the information elicited did not appear

to be directly damaging to defendant, the judge did highlight

the depth of the witness's experience, and again appeared to be

in sync with the prosecution.

    The    State    called       Lyons   again     to    testify       about    how    the

investigation of the dual homicides, which had turned cold after

failing to uncover any suspects, was revived in 2005, after the

police received information in early November 2004.                             The same

week, Lyons interviewed Roberts and her sister.                          He discussed

his subsequent efforts during 2005 and 2006 to obtain statements



                                         14                                      A-2193-08T4
from Roberts, Huff, McKnight, Wakefield, and Williams.                                 After

police arrested defendant and charged him with the murders in

September 2006, Lyons continued his efforts with the five.

      Cross-examination             was      vigorous,               and         highlighted

inconsistencies       in    the    statements       of    the    State's         witnesses.

Defense    counsel     also     established       that     Lyons       threatened       some

witnesses, telling them they could be witnesses or they could be

defendants.    Lyons admitted that such tactics were coercive, but

justified, because he was "using leverage against people who had

lesser charges or lesser crimes to get the information about

this double homicide."

      At the end of cross-examination, the judge engaged Lyons in

a line of questioning premised on his assumption that Roberts

had been charged with making a false report to police before the

State     suspected     defendant         committed       the        murders.          Lyons

corrected the judge stating that defendant became a suspect in

late 2004; the charges were lodged against Roberts in 2005; and

she     thereafter     gave        her     formal        statement          incriminating

defendant,     which       prompted       Lyons   to      contact          the    municipal

prosecutor on her behalf.                 Nonetheless, the judge's effort —

albeit unsuccessful         —     to establish the lack of a connection

between the charges against Roberts and efforts to secure her

cooperation,    constituted          another      effort        to     establish       facts

favorable to the State's case.               Moreover, the friendly tenor of



                                           15                                       A-2193-08T4
the judge's questions of Lyons contrasted with his impatience in

questioning Roberts.

    The judge asked no questions of David Oakley, Roberts's

attorney.    Oakley denied he told his client to tell officers

what they wanted to hear, but he testified that Roberts received

harsher treatment — in terms of the bail set, and the State's

willingness to prosecute — for her own alleged offense, because

the State was interested in securing her cooperation.

    During    the    direct   examination   and   extensive    cross-

examination of Jamil McKnight, who claimed to have witnessed the

shooting, the judge's involvement was limited to interjecting

brief clarifying questions.      The judge also overruled several

State objections on cross-examination.

    The judge played a similar role during the testimony of

Greg Wakefield.     While separate gun charges were pending against

Wakefield, he told police in two formal statements in April 2005

that defendant confessed to him.      When the charges were resolved

in March 2008, Wakefield recanted.

    Ballistics expert Gary Mayer testified that the collection

of spent shell casings found at the scene matched each other and

were fired from the same gun.     Over the course of fifteen pages

of transcript, the court asked both clarifying and substantive

questions, some leading, assisting in Mayer's presentation.




                                 16                           A-2193-08T4
      Mayer testified that he had also tested a separate group of

shells    from    another     case.        He    determined      they   matched      each

other, but not the shells of the other group.                       The judge asked,

"So then you're saying that there were two different weapons

used, is that right?"           After Mayer answered affirmatively, the

judge called counsel to sidebar.                  The prosecutor explained that

the State's position was that only one gun was used in the

homicides    of    Bautin     and    Barbashov,        and    the   second    group       of

shells were from a different investigation.                          The judge then

advised the prosecutor that the jury was likely confused, and

advised    the     prosecutor       that    she    pose       clarifying     questions.

However, before the prosecutor did so on redirect, the court

continued with over thirteen pages of questioning, focusing on

the properties of semi-automatic weapons — the type used in the

homicides — and the differences between them and revolvers.                               At

one   point,      the   judge   used       the    collective        pronoun    "us"       in

responding to an answer from Mayer, stating, "Okay.                          Okay.    All

right.      That's      not   going    to       help    us.      You'll    have      to    —

Prosecutor will have to explain that."

      The trial judge also took an active role in the questioning

of DiCarlo, who performed the autopsy of Bautin, and Falzon, who

performed the autopsy of Barbashov.                    A key point of the medical

examiners' testimony was that the victims were hit by bullets

shot from the victims' height — which was consistent with a



                                           17                                   A-2193-08T4
drive-by     shooting.        The     judge       interjected        questions         with

increasing     frequency      during       the        State's     examination.           In

addition to clarifying DiCarlo's testimony, the court elicited

supplementary       information,      often       through         leading    questions.

Defense counsel declined cross-examination of both witnesses,

yet the court engaged in six pages of additional questioning of

DiCarlo and one page of additional questioning of Falzon.

      A principal focus of Clements's testimony was his response

to   Wakefield's     claim    that     he       was    unduly      pressured      by    the

officers during the interrogation preceding his April 7, 2005

statement.     The interrogation began in the late afternoon, and

Wakefield    gave    his    formal   statement          shortly     before       midnight.

Wakefield also mentioned that he was subjected to a polygraph

test.   Clements defended his interrogation techniques, and also

asserted     that    Wakefield       was    not        subject      to     his    intense

questioning for the whole time period, because he was before the

polygrapher for about four hours.

      The    judge    was    restrained          during     most     of     the    direct

examination    of    Clements.       However,          at   one    point    during      the

direct examination, the judge overruled a well-founded, albeit

belated objection, and interjected a properly phrased question:

            Q    Was Mr. Wakefield upset during the
            preinterview or the actual formal statement?

                    A      Yeah.   Mr. Wakefield did cry.  He
                    was     crying   at   times   during  the



                                           18                                     A-2193-08T4
               interview process based on the fact
               that it was our belief because he was
               implicating his friend in the double
               murder.

         THE COURT:     Sir, they can't hear you.
         You're going to have to get into that
         microphone and don't worry about looking at
         the jury. Look – speak into the microphone
         so they can hear you. Start again.

               THE WITNESS:        My apology.

         THE COURT:         Thank you.

               A    Could     I    have    the    question    again
               please?

         THE COURT:         Sure.

         Q    Was Mr. Wakefield upset at any time
         during the preinterview or during the formal
         statement?

               DEFENSE COUNSEL: Objection,  Judge.
               Calls for Mr. Wakefield's state of
               mind.

         THE COURT:         No.      Did    he     appear    to     be
         upset?

               THE WITNESS:        Yes, sir.

         THE COURT:     Thank you.               Go ahead.     Tell
         the jury how he appeared.

               A    He was crying at times during the
               interview.  And it was our belief that
               he   was   crying   because   he   was
               implicating his friend in the double
               murder.

    During     cross-examination,          defense        counsel        presented

evidence that tended to establish that Wakefield was with the

polygrapher   significantly       less    time     than    Clements      claimed.



                                     19                                   A-2193-08T4
Defense counsel elicited that a Miranda card was executed by

Wakefield and the polygrapher at 8:38, and the polygraph ended

at shortly before 11:00, meaning Wakefield was gone for slightly

over two hours.

      The judge then called a sidebar, and curtailed the cross-

examination after noting the possibility that the polygrapher

could have been engaged in various discussions with Wakefield

before he signed the Miranda card.                 Consistent with this point,

during the judge's own line of questioning, he established that

the   polygrapher      and    Wakefield     were    in   a     separate     room,    and

Clements     was   not       privy   to     what    transpired        there.         The

implication was created that the polygrapher may have spent a

significant    amount        of   time    explaining     the    polygraph      process

before     obtaining     Wakefield's        Miranda      waiver       and   beginning

questioning.

      During the defense case, the judge was restrained.                        He did

not   pursue   a   separate       line     of    questioning     of    McPhatter      or

defendant, and his interjections were largely for the purpose of

clarification.

                                          III.

      A trial judge's "broad discretion" to participate in the

questioning of a witness, State v. Ray, 43 N.J. 19, 25 (1964),

is limited by the court's obligation to maintain the appearance

and reality of impartiality.               Taffaro, supra, 195 N.J. at 445.



                                           20                                  A-2193-08T4
"[I]n    exercising        their   discretionary             power,      judges   must      take

care    not    to    influence     the      jury      by     signaling        doubt    about     a

witness's credibility.             To do otherwise might place the court's

impartiality         in    question      and        affect       the    trial's       outcome."

Ibid.;      see     also   State   v.    O'Brien,          200    N.J.    520,    534    (2009)

("[P]articularly in the context of a jury trial" a judge must

ensure that he "does not telegraph to the jury any partiality to

a given party's side."); Ray, supra, 43 N.J. at 24 (discussing

the "necessity of judicial self-restraint and the maintenance of

an atmosphere of impartiality.") (internal quotation marks and

citation omitted); State v. Guido, 40 N.J. 191, 207-08 (1963).

       A trial judge must scrupulously avoid crossing the line

separating appropriate and inappropriate questioning.                                    On the

one hand, the court's questioning may serve a salutary purpose.

The Court has identified four goals of a judge's questioning:

               [I]t is proper, and even encouraged, for a
               trial judge to step in [1] when a party's
               basic rights are being threatened, [2] when
               expedition is necessary to prevent a waste
               of    judicial    time/resources,   [3]    when
               testimony requires clarification, or [4]
               when a witness appears to be in distress or
               is   having    trouble   articulating   his/her
               testimony.

               [O'Brien, supra, 200 N.J. at 534 (internal
               citations omitted).]

       On     the    other   hand,      a   trial          judge       must   avoid     "'undue

interference, impatience, or participation in the examination of




                                               21                                       A-2193-08T4
witnesses, or a severe attitude . . . toward witnesses . . . .'"

Ibid. (quoting Guido, supra, 40 N.J. at 207).            A judge may not

"take over the cross-examination for the government to merely

emphasize the government's proof or to question the credibility

of the defendant and his witnesses."           Id. at 535 (quoting United

States v. Bland, 697 F.2d 262, 265 (8th Cir. 1983)).             A judge

"should not press defendant when the meaning of their responses

is 'perfectly plain'".     Taffaro, supra, 195 N.J. at 451 (quoting

Guido, supra, 40 N.J. at 208-09 n.2).              Such questioning "may

express   incredulity   and   prejudice    a    defendant."   Just    as   a

court's questioning should not express incredulity in one side's

witness, it should not bolster or rehabilitate a witness on the

other side.    O'Brien, supra, 200 N.J. at 539-40 (criticizing

trial judge's questioning that "help[ed] to counter defendant's

challenge" to a State witness).

    Our Court has recognized that when a judge violates these

limitations, the risk of prejudice is great.           See Guido, supra,

40 N.J. at 208.   "The trial judge is an imposing figure.            To the

jurors he is a symbol of experience, wisdom, and impartiality.

If he so intervenes as to suggest disbelief, the impact upon the

jurors may be critical."      Ibid.     "A judge's slightest indication

that he favors the government's case can have an immeasurable

effect upon a jury."     O'Brien, supra, 200 N.J. at 535 (quoting

Bland, supra, 697 F.2d at 265-66).



                                   22                            A-2193-08T4
       "When a judge questions a witness in such a way that he

takes over the role of the prosecutor, it can give the jury the

impression that the judge does not believe the witness, and that

impression can deny the defendant his right to a fair trial."

Ibid. (citing United States v. Filani, 74 F.3d 378, 385 (2d Cir.

1996)).     "Where the court takes over the role of the prosecutor"

and displays bias, reversal is required."                        Filani, supra, 74

F.3d at 385 (internal citations omitted).                   If it appears to the

jury    that    the     judge    believes       the    accused      is    guilty,       the

defendant will be "deprive[d] of the fair trial to which he is

entitled."     Ibid.

       In Taffaro and        O'Brien, our court found that the trial

judge's     inappropriate         questioning         constituted        plain    error.

Taffaro, supra, 195 N.J. at 454; O'Brien, supra, 200 N.J. at

539-40 (reversing based on plain error).                  "In light of the trial

judge's esteemed position in the courtroom and the central role

that defendant's credibility played in this trial, suggesting

disbelief      of     defendant's      testimony       could    well      have    had     a

critical impact on the verdict."                 Taffaro, supra, 195 N.J. at

454.      Furthermore,           our   Court     has     repeatedly        held      that

instructing a jury, in accord with the model jury charge, not to

be   influenced       by   the   judge's    questioning        is   insufficient         to




                                           23                                    A-2193-08T4
"cure the harm" of inappropriate questioning.2                 O'Brien, supra,

200 N.J. at 539 (repeated mid-trial instructions that judge's

questions      were       not    intended      to     favor   one     side      were

insufficient); Taffaro,          supra, 195         N.J. at 454 ("We are not

persuaded that the jury instruction was sufficient to cure the

harm."); Guido, supra, 40 N.J. at 208.

      In    assessing     whether     a   judge's     intervention    constitutes

plain      error,   a    reviewing     court     must   consider     the    judge's

interventions in the context of the record as a whole.                          See,

e.g., United States v. Rivera-Rodriguez, 761 F.3d 105, 111, 113

(1st Cir. 2014), cert. denied, ___ U.S. ___, 135 S. Ct. 1573,

191 L. Ed. 2d 656 (2015); United States v. Ottaviano, 738 F.3d

586, 596 (3d Cir. 2013), cert. denied, ___ U.S. ___, 134 S. Ct.

1922, 188 L. Ed. 2d 945 (2014).                In so doing, the court weighs

the   cumulative        impact   of   multiple      interventions,    yet    avoids




2 Model Jury Charge (Criminal), "Criminal Final Charge" (June
2015) states:

             The fact that I may have asked questions of
             a witness in the case must not influence you
             in any way in your deliberations. The fact
             that I asked such questions does not
             indicate that I hold any opinion one way or
             the other as to the testimony given by the
             witness. Any remarks made by me to counsel
             or by counsel to me or between counsel, are
             not evidence and should not affect or play
             any part in your deliberations.



                                          24                                A-2193-08T4
magnifying the impact of isolated instances.              Rivera-Rodriguez,

supra, 761 F.3d at 113, 122.

      The appellate court must consider the impact of the judge's

questioning on the key issues before the jury.                 For example,

prejudice is heightened when the success of the State's case

depends on the jury's credibility determinations, and the judge

conveys a view on that issue.           See Taffaro, supra, 195 N.J. at

451 (internal quotation marks and citation omitted) ("[I]f a

judge's questions suggest disbelief, the impact upon the juror

may be critical.       This is especially true when the outcome of a

case rests primarily and necessarily on the jury believing or

rejecting a defendant's version of events.").             A reviewing court

may   consider   the    weight   of    other   evidence   in   the   case   to

determine whether the judge's interventions were prejudicial.

See Ottaviano, supra, 738 F.3d at 597 (finding judge erred in

its questioning of the defendant, but declining to reverse in

light of "overwhelming documentary and testimonial evidence of

guilt . . . .").

      The volume of a judge's questioning is also relevant in

assessing whether it improperly influenced the jury.                 Taffaro,

supra, 195 N.J. at 453; see also Ottaviano, supra, 738 F.3d at

596 (stating a court may consider "the portion of the trial

record affected . . . .").            However, "it is the impact of the




                                       25                            A-2193-08T4
court's questions, and not the number of minutes they lasted,

which matters most."               Taffaro, supra, 195 N.J. at 454.

       "Whether         the       judge      appeared           to     treat    both      sides

evenhandedly" is a factor as well.                         Ottaviano, supra, 738 F.3d

at 596.        If a judge intervened actively, but evenhandedly, the

impact on the jury may be less significant than when the judge

appears to intervene disproportionately on behalf of one side.

See Rivera-Rodriguez, 761 F.3d at 113 ("[W]e have stressed that

where the judge participates actively, the judge's participation

must    be     balanced       .    .   .    .")    (internal          quotation    marks      and

citation omitted); Ottaviano, supra, 738 F.3d at 596 (the court

must balance the degree of questioning in each side's case-in-

chief    "to      determine        whether       the     trial       judge's   comments      have

pervaded       the   overall        fairness       of     the       proceeding.")      (quoting

United States v. Wilensky, 757 F.2d 594, 598 (3d Cir. 1985)).

       The prejudicial impact of a judge's intervention extends

not only to the evidence the judge elicits, but also to the

elicitation itself.               By intervening in questioning, a judge may

convey       to   the    jury       that    he     finds        a    witness   credible      and

trustworthy, or the opposite; he finds one side's case more

persuasive than the other; and he expects the jury to return a

verdict in accord with his apparent preference.                                   Whether the

judge    subjectively             intends    to        convey       these   messages    is    not

relevant to the analysis.



                                                  26                                   A-2193-08T4
              [T]he judge's participation, whether in the
              form of questions or of comments, is likely
              to have a disproportionate and distorting
              impact.    The jury is likely to discern
              hints,   a  point   of   view,  a  suggested
              direction, even if none is intended and
              quite without regard to the judge's efforts
              to modulate and minimize his role.

              [Marvin E. Frankel, The Search for Truth: An
              Umpireal View, 123 U.Pa.L.Rev. 1031, 1043
              (1975).]

       The extent to which the judge used leading questions is

also a factor, because a judge's leading questions may convey to

the jury that he already is aware of certain facts, and seeks

only    the   witness's    confirmation.       Under   such    circumstances,

jurors may view the judge as more knowledgeable about the facts

in issue than they are.         As a result, the judge's questioning

may infect the fairness of the trial as a whole.3

                                      IV.

       The judge's extensive questioning did not further any of

the four purposes identified in O'Brien, supra, 200 N.J. at 534.

No     party's    rights    were     threatened,       necessitating      court

intervention.      Rather than conserve judicial time or resources,

the    court's    questioning      generally   extended       the   length    of


3 We recognize the inherent difficulty in assessing the impact of
a judge's excessive intervention based on a cold transcript.
One commentator has argued that "[t]he effect of a trial judge's
improper intervention is immeasurable."          Michael Pinard,
Limitations on Judicial Activism, 33 Conn.L.Rev. 243, 293
(2000).   Consequently, he and others advocate a per se rule of
reversal where a judge intervenes improperly. Id. at 298-99.



                                      27                               A-2193-08T4
testimony.        No witness, such as a child, appeared to be in

distress.       Cf. State v. Riley, 28 N.J. 188, 201, cert. denied,

361   U.S.     879   (1959).          Finally,       although    the    court    did   ask

questions to clarify some answers, or to assure that a witness

could    be    heard,     the    overwhelming         majority     of   the     questions

served an inappropriate purpose.

      The      evidence    elicited          through     the     court's    questioning

generally supplemented or reinforced evidence presented by the

State.        The court alone established that officers had to ask

defendant       to   visit       the        station     to     report    his     multiple

collisions, and only then did defendant report that a person

pointed a gun at him.                This left the jury free to infer that

defendant did not intend to seek police assistance in addressing

the     gun    pointing.             The    judge's     questioning        excused     the

interrogation of defendant without his father and highlighted

the     poor    lighting        in    the     area    where     defendant       allegedly

mistakenly identified the victims.                      The judge gave Huff the

opportunity to rehabilitate himself, after Huff denied knowing

Sagacious's real name, yet responded to questions referring only

to Jamil McKnight.         The court also elicited testimony to support

an inference that Wakefield may have been in the presence of the

polygrapher      longer    than       the     Miranda    cards    emphasized      by   the

defense might have indicated.




                                              28                                 A-2193-08T4
    The court's questioning was far from evenhanded.                   The court

did not subject the State's witnesses to rigorous or challenging

questions.     In one instance, in which defense counsel raised a

well-founded, although belated objection to a question posed to

Clements, the judge himself rephrased the prosecutor's question

and elicited a response from the witness.              The court's questions

for the State's witnesses were consistently friendly, with the

glaring exception of the court's questioning of Roberts, who

testified that Ross recanted his prior confessions.                    The court

expressed      impatience       and    irritation,       if      not     outright

incredulity.

    The      judge    repeatedly      interjected     substantive      questions

during the prosecutor's direct or redirect examination — but not

during   the   defense's    cross-examination.            The    judge    thereby

placed himself in a position where the jury might have viewed

him as working in tandem with the State.              The judge's use of the

pronoun "we" and "us" in questioning was at best ambiguous, and

at worst, an unconscious alignment of himself with the State.

Even when the testimony elicited by the judge did not directly

implicate      defendant,       the     court's       separate     examinations

supplemented the State's case.           The sheer volume of the court's

questioning was substantial.

    The     overall    impact   of    the   judge's    participation      was   to

convey partiality in favor of the State's case.                  I am confident



                                       29                                A-2193-08T4
that this was not the judge's intent; his purpose was to elicit

facts in the search for the truth.             However, viewed objectively,

the jurors could have reasonably concluded, based on the extent

and nature of the judge's questioning, that the judge favored

the State's case.          Enhancing the judge's already significant

position    before   the     jury,    the   judge      also    frequently    asked

leading    questions,   reflecting      that     the   judge    possessed    prior

knowledge of relevant facts.

                                       V.

    It is not easy to determine whether a judge's excessive and

inappropriate questioning constitutes plain error.                   See United

States v. Hickman, 592 F.2d 931, 932 (6th Cir. 1979) ("The law

in this area is as easy to state as it is difficult to apply.").

A defendant is entitled to a "fair trial, but not a perfect

one."      State v. R.B., 183 N.J. 308, 333-34 (2005) (internal

quotation marks and citation omitted).

    I      recognize,   as      the   majority    highlights,      the   judge's

intervention here was unlike that which compelled reversal in

Taffaro or O'Brien.        In O'Brien, supra, 200 N.J. at 526-31, the

trial   judge   engaged    in    an   incisive    cross-examination         of   the

defendant and his expert.             Similarly, in Taffaro, supra, 195

N.J. at 453-54, the court cross-examined the defendant himself,

suggesting the court disbelieved him.




                                       30                                A-2193-08T4
       Here, the judge did not directly challenge defendant or his

alibi witness.           Nonetheless, viewing the record as a whole and

weighing the cumulative impact of the judge's intervention, I

believe prejudicial error resulted.                     The judge did not intervene

in isolated instances.             Rather, he assumed an activist role from

the    start,     interjecting       questions          during    the     State's    direct

examination, and pursuing his own separate lines of questioning

of    numerous    State     witnesses.            Further,       there    is    nothing    in

O'Brien      or    Taffaro     that     should           serve     to     exclude      their

applicability        to    cases     where        the    trial     judge       participates

extensively in the State's case, but does not interfere directly

with defense witnesses.             The fact that the judge here chose not

to question defendant or his alibi witnesses does not dispose of

defendant's claim he was not afforded a fair trial.

       The   judge    elicited       evidence       that    tended       to    support    the

State's      case,       including     the        appropriateness          of     excluding

defendant's father from defendant's interrogation; defendant's

disinclination to seek the police's help after the gun-pointing

incident; the lighting conditions at the murder scene; and the

possibility       that    Wakefield     was       present    with        the    polygrapher

longer than the Miranda cards may have indicated.

       The   prejudice      caused     by     the       judge's     intervention         goes

beyond the substantive evidence elicited.                         As a consequence of

the judge's intervention, the jury likely perceived him to favor



                                             31                                     A-2193-08T4
the     State's      case.        The    judge       created     this    perception        by

intervening       in     tandem    with      the    prosecution,        posing   friendly

questions       to     the   State's         witnesses,        eliciting      information

consistently favorable to the State's case, and bolstering the

credibility of State witnesses.                    As a consequence of the judge's

leading    questions,        and       his   prior      involvement      in    apparently

related proceedings, the jury likely viewed the judge as privy

to facts that the jury was not.

       The perception of partiality may be created as much by

constructive questioning during the State's case, as damaging

questions in the defense case.                       The judge did not challenge

defendant or his alibi witness, as did the judge in Taffaro and

O'Brien.          Nonetheless,          by    his       extensive     and     unwarranted

participation in the questioning of the State's witnesses, the

judge created the impression of favoring the State in a close

case.

       The evidence of defendant's guilt was not insignificant.

Neither was it overwhelming.                  The State's case depended on the

jury    finding      credible      a    group      of    witnesses      who   had    strong

motives    to     lie,    and     who   gave       inconsistent      statements.          The

defense plausibly argued that the sole alleged eyewitness to the

homicides — McKnight — had a similar motive to seek revenge

against Mitch.         Because of his poor eyesight, he was more likely

to mistake the victims for his intended target.                               Further, he



                                              32                                    A-2193-08T4
admittedly    took    steps   to     destroy    evidence      of   homicides     he

claimed he did not commit.            And, perhaps most importantly, he

was admitted to the pre-trial intervention program in return for

his cooperation.

       The two witnesses who claimed defendant confessed to them —

Roberts and Wakefield — gave inconsistent statements and alleged

police harassed or pressured them.              At the same time, the two

had an interest in currying favor with the State in connection

with   separate    charges    pending       against   them.        Moreover,    the

pending charge against Roberts was for making false accusations

against defendant's family.

       Defendant's credibility was not helped by his inconsistent

statement to his father from the jail after his arrest.                        Yet,

the inconsistency may not have been as harmful as the majority

perceives.     The     jury   may    have    found    understandable      a   son's

initial unwillingness to admit to his father involvement in the

events leading to a homicide.

       Certainly, we are obliged to consider "that the failure to

object may suggest the error was of no moment in the actual

setting of the trial."        Macon, supra, 57 N.J. at 341.               However,

I do not view defense counsel's failure to object as a strong

indication that the judge's questioning was harmless.                     With the

exception     of     his   interrogation       of     Roberts,      the    judge's

questioning    may     not    have    seemed     so     antagonistic       towards



                                       33                                 A-2193-08T4
defendant    as    to   prompt       an   objection.        Rather,         the       court's

questioning had a cumulatively prejudicial impact.

       Furthermore,       a     defense      attorney      may   have        a        natural

hesitancy    to    object       to   a    judge's    own     questions           to     avoid

alienating the judge or jury, especially if the judge responded

critically to the objection.              The opportunity to repeatedly seek

a sidebar would not necessarily alleviate an attorney's concern.

See United States v. Lanham, 416 F.2d 1140, 1145 (5th Cir. 1969)

(reversing        conviction         based      on      court's         inappropriate

questioning, noting that defendant's counsel "might hesitate to

make    objections        and     reserve       exceptions       to     the           judge's

examination, because, if they make objections . . . it will

appear to the jury that there is direct conflict between them

and    the   court.")         (internal      quotation      marks      and        citation

omitted); Pollard v. Fennell, 400 F.2d 421, 424 (4th Cir. 1968)

(noting "the natural reluctance of counsel to object to the

court's questions"); United States v. Hill, 332 F.2d 105, 106

(7th     Cir.     1964)         (describing      "difficult           and        hazardous

predicament" of defense counsel who needs to object to judge's

questions in the presence of the jury); In re United States, 286

F.2d 556, 561 (1st Cir. 1961) (stating counsel may "think twice"

before objecting to a judge's question, and "counsel runs the

risk . . . of comment by the judge before the jury implying that

he is seeking to cut off legitimate inquiry"), rev'd sub nom on



                                           34                                     A-2193-08T4
other grounds, Fong Foo v. United States, 369 U.S. 141, 82 S.

Ct. 671, 7 L. Ed. 2d 629 (1962); Kennedy v. State, 280 N.E.2d

611 (Ind. 1972).

       The jury was much better positioned than this court, with

its reliance on a cold written record, to assess the credibility

of    these    witnesses.       The    jury     apparently       found    the   issue

challenging, based on the length of the jury's deliberations,

and    the    extensive      readbacks   it     requested    of     Roberts's        and

Oakley's testimony.          I do not share the majority's view that the

judge's influence may have dissipated during the jury's lengthy

deliberations.         The greater risk is that the judge's questioning

firmly       shaped    the   jurors'     perspectives,       which       remained     a

continuing factor throughout the deliberations.

       In sum, when a judge sheds the mantle of impartiality, the

defendant's right to a fair trial is at risk.                     The measurement

of prejudice is a delicate task.                  Under the circumstances of

this     case,     I    conclude      that      the    judge's     extensive         and

inappropriate questioning, and the resulting appearance that he

favored      the   State's    case,    raises    a    "reasonable    doubt      as    to

whether the error led the jury to a result it otherwise might

not have reached." Macon, supra, 57 N.J. at 336.                     Consequently,

his conviction should be reversed and he should be granted a new

trial.

       Therefore, I respectfully dissent.



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