                                                      SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)

                                    State v. Anthony K. Cole (A-66-15) (076255)

Argued January 17, 2017 -- Decided June 27, 2017

PATTERSON, J., writing for the Court.

        In this appeal, the Court reviews the trial court’s denial of defendant’s motion to bar the admission into
evidence of three segments of video, recorded during breaks from questioning at police headquarters, in which
defendant appeared alone in the interrogation room.

         On the evening of September 7, 2009, David Donatelli was in Spring Lake Park, preparing for South
Plainfield’s annual Labor Day fireworks display. As he stood looking up to examine a light stanchion, Donatelli
was slashed. The laceration on the side of his neck exposed his carotid artery and jugular vein.

         A police officer found two matching black-and-gray gloves. Blood identified by DNA analysis as
Donatelli’s was found on the outside of the glove. State Police forensic scientists then swabbed the interior of both
gloves and detected skin cells that matched defendant’s DNA profile in the database. Officers arrested defendant.

          Police officers interrogated defendant in two sequential conversations, both video-recorded. Advised that
the officers had forensic evidence linking him to the crime, defendant maintained his innocence, provided an alibi,
and asked to be released. When the officers were in the room, defendant was gregarious and engaged. When briefly
left alone during three breaks from the questioning, however, defendant adopted a starkly different demeanor; he
muttered to himself, mouthed obscenities toward the location where the officers had been sitting and the video
camera, and placed his hand inside his pants.

          Defendant was tried before a jury over six days. On the second day of trial, defense counsel stated that the
portions of the video recordings in which defendant appeared alone were unduly prejudicial under N.J.R.E. 403.
The trial court ruled that the contested sections were relevant because they reflected on defendant’s demeanor and
the accuracy of his statements. The court admitted the video recordings in their entirety. It invited defense counsel
to submit a proposed jury instruction addressing the limited purpose for which the jury should consider the segments
of the recordings in which defendant appeared alone.

           During the State’s case, the contested video recordings were played for the jury. The trial court reiterated
its offer to give the jury a cautionary instruction. The record does not indicate that defense counsel proposed such
an instruction. The prosecutor specifically addressed defendant’s conduct when he was alone and suggested that
defendant’s “manipulation” of his presentation to police signaled his guilt. Defendant did not object.

         In its jury charge, the trial court instructed the jurors that they were the sole and exclusive judges of the
evidence, including the credibility of witnesses, but did not specifically address the portions of the video recordings
in which defendant sat alone in the interrogation room. The jury convicted defendant of attempted murder, unlawful
possession of a weapon, possession of a weapon for an unlawful purpose, and hindering apprehension. In a separate
proceeding, the jury convicted defendant of the remaining offense, certain persons not to have a weapon.

         An Appellate Division panel reversed defendant’s conviction and remanded for a new trial. The panel
deemed the contested segments too equivocal to be admitted as consciousness-of-guilt evidence, particularly without
a limiting instruction. The Court granted the State’s petition for certification. 224 N.J. 527 (2016).

HELD: The trial court properly exercised its broad discretion when it applied N.J.R.E. 401 and 403 to the contested
evidence and admitted the video recordings in their entirety. The lack of a limiting instruction and the prosecutor’s
comment on the evidence did not constitute plain error.

                                                           1
1. N.J.R.E. 401 defines “[r]elevant evidence” as “evidence having a tendency in reason to prove or disprove any
fact of consequence to the determination of the action.” Once a logical relevancy can be found to bridge the
evidence offered and a consequential issue in the case, the evidence is admissible, unless exclusion is warranted
under a specific evidence rule. N.J.R.E. 403 mandates the exclusion of evidence that is otherwise admissible “if its
probative value is substantially outweighed by the risk of . . . undue prejudice, confusion of issues, or misleading the
jury.” To determine the admissibility of evidence under N.J.R.E. 401 and 403, the trial court conducts a fact-
specific evaluation of the evidence in the setting of the individual case. On appellate review, considerable latitude is
afforded to the court’s ruling, which is reversed only if it constitutes an abuse of discretion. (pp. 17-21)

2. In this case, the conduct depicted in the video recordings was germane to the jury’s assessment of defendant’s
credibility in his statement to police and therefore relevant to its determination of pivotal issues. The portions of the
two video recordings in which defendant was alone in the interrogation room met N.J.R.E. 401’s standard of
relevancy. The segments at issue were potentially prejudicial to defendant; that evidence, however, was not
prejudicial to the point at which the risk of prejudice substantially outweighed the probative value of the evidence,
as N.J.R.E. 403 requires for the evidence to be excluded. The trial court did not abuse its discretion when it
admitted into evidence the video recordings, including the portions in which defendant was alone. (pp. 21-27)

3. The Appellate Division panel reversed defendant’s conviction based not on a relevance analysis, but on its
conclusion that the video segments were inadmissible as evidence of consciousness of guilt. The three video-
recorded segments were not offered or admitted as consciousness-of-guilt evidence but on the ground that they were
relevant to the jury’s evaluation of the credibility of defendant’s statement. Accordingly, the Court does not
determine whether the evidence in question was admissible as consciousness-of-guilt evidence. (pp. 27-28)

4. The Appellate Division noted that the trial court did not give a limiting instruction. The trial court twice offered
to give a limiting instruction. Defense counsel did not submit a proposed instruction and the trial court did not sua
sponte charge the jury regarding the video recordings. Given the brief duration of the video-recorded excerpts in a
six-day trial, it is unclear whether a limiting instruction would have clarified the limited purpose of the videotaped
segments or overemphasized the evidence. Moreover, the State presented overwhelming evidence of defendant’s
guilt, including DNA evidence linking defendant to a glove on which the victim’s blood was found shortly after the
crime, as well as testimony by defendant’s mother and friends that substantially undermined his account of his
activities during the critical time period. The trial court’s decision not to charge the jury on this issue was not
“clearly capable of producing an unjust result,” and was not plain error. R. 2:10-2. (pp. 28-31)

5. The prosecutor’s reference to defendant’s demeanor as proof of his guilt was beyond the scope of fair comment.
The prosecutor was free to discuss the video-recorded segments in which defendant was alone but should have
constrained any such discussion to the question of credibility. The Court cautions prosecutors that when evidence is
admitted for a limited purpose, comments in summation that exceed the bounds of that purpose must be avoided.
However, the comment was not clearly capable of producing an unjust result, giving rise to plain error. (pp. 31-34)

6. The Court addresses the issues raised in the concurrence, and stresses that its ruling is distinctly fact-sensitive and
based on the standard of review. (pp. 34-38)

         The judgment of the Appellate Division is REVERSED, and the matter is REMANDED to the Appellate
Division for proceedings consistent with this opinion.

         CHIEF JUSTICE RABNER, CONCURRING, is of the view that multiple reasonable inferences can be
drawn from defendant’s behavior after the interview and that no authority directly supports the use of evidence of a
witness’s demeanor after an interrogation has ended. According to Chief Justice Rabner, the video’s minimal
relevance was substantially outweighed by the risk of undue prejudice and the danger that the recording would
mislead the jury, and the evidence should have been excluded under N.J.R.E. 403. Chief Justice Rabner concurs in
the judgment because he finds the error was harmless in light of other strong evidence of defendant’s guilt.

        JUSTICES LaVECCHIA, FERNANDEZ-VINA, and SOLOMON join in JUSTICE PATTERSON’s
opinion. CHIEF JUSTICE RABNER filed a separate, concurring opinion, in which JUSTICES ALBIN and
TIMPONE join.

                                                            2
                                      SUPREME COURT OF NEW JERSEY
                                        A-66 September Term 2015
                                                 076255

STATE OF NEW JERSEY,

    Plaintiff-Appellant,

         v.

ANTHONY K. COLE,

    Defendant-Respondent.


         Argued January 17, 2017 – Decided June 27, 2017

         On certification to the Superior Court,
         Appellate Division.

         Joie D. Piderit, Assistant Prosecutor,
         argued the cause for appellant (Andrew C.
         Carey, Middlesex County Prosecutor,
         attorney).

         Susan Brody, Deputy Public Defender, argued
         the cause for respondent (Joseph E. Krakora,
         Public Defender, attorney).

         Jennifer E. Kmieciak, Deputy Attorney
         General, argued the cause for amicus curiae
         Attorney General of New Jersey (Christopher
         S. Porrino, Attorney General, attorney).

    JUSTICE PATTERSON delivered the opinion of the Court.

    In this appeal, we review an evidentiary ruling made by the

trial court during defendant’s trial for attempted murder and

other offenses.

    Several months after a municipal employee was assaulted and

seriously injured during a public event, defendant Anthony K.

Cole was linked by DNA analysis to evidence found at the scene.

                                1
Police officers arrested defendant, transported him to police

headquarters, and interrogated him in two sequential

conversations, both video-recorded.   Advised that the officers

had forensic evidence linking him to the crime, defendant

maintained his innocence, provided an alibi, and asked to be

released.   When the officers were in the room, defendant was

gregarious and engaged.   When briefly left alone during three

breaks from the questioning, however, defendant adopted a

starkly different demeanor; he muttered to himself, mouthed

obscenities toward the location where the officers had been

sitting and the video camera, and placed his hand inside his

pants.

    The trial court denied defendant’s motion to bar the

admission into evidence of the three segments of the video

recordings in which defendant appeared alone in the

interrogation room.   The court ruled that the contested portions

of the video recordings were relevant to the credibility of

defendant’s statement denying involvement in the crime and that

they met the standard of N.J.R.E. 401.   The court rejected

defendant’s argument that the evidence was unduly prejudicial

and should be excluded under N.J.R.E. 403.

    At trial, the State presented the video recordings in their

entirety, along with substantial evidence of defendant’s guilt,

including DNA analysis and the testimony of witnesses who

                                 2
contradicted defendant’s statement.    The trial court offered to

give the jury a limiting instruction about the video-recorded

evidence upon defendant’s request; defendant did not seek such

an instruction.   In summation, the prosecutor not only urged the

jury to consider the video recording in assessing defendant’s

credibility, but also suggested that defendant’s behavior when

the officers were out of the interrogation room signified his

guilt.   The jury convicted defendant of all charges.

    An Appellate Division panel reversed defendant’s

conviction.   The panel did not determine whether the trial court

had properly admitted the video-recorded segments at issue as

relevant to the credibility of defendant’s statement to police.

It held, however, that those segments were inadmissible as

consciousness-of-guilt evidence.

    We do not concur with the Appellate Division’s analysis of

this case.    The trial court admitted the disputed video-recorded

segments not because they constituted proof of defendant’s

consciousness of guilt, but by virtue of their relevance to

defendant’s credibility when he denied involvement in the crime

immediately before and after those segments were recorded.    We

conclude that the trial court properly exercised its broad

discretion when it applied N.J.R.E. 401 and 403 to the contested

evidence and admitted the video recordings in their entirety.

We further hold that the lack of a limiting instruction and the

                                 3
prosecutor’s comment on the evidence did not constitute plain

error.

    Accordingly, we reverse the Appellate Division’s judgment

and remand this matter to the panel for a determination of the

issues raised by defendant on appeal that remain unresolved.

                                I.

    We derive our account of the facts from the trial record.

    On the evening of September 7, 2009, David Donatelli, a

supervisor employed by the Borough of South Plainfield

Department of Public Works, was on duty in Spring Lake Park,

preparing for the Borough’s annual Labor Day fireworks display.

As he stood in the northeast portion of the park near its tennis

courts and an adjacent walking path, looking up to examine a

light stanchion, Donatelli sensed someone brushing up against

his shoulder.   He felt as if his neck were struck by “a whip,”

began to bleed, and realized that he had been slashed with a

sharp object.   Donatelli implored his fellow employees to help

him, laid down on the ground, and went into shock.

    After a police officer rendered first aid, an ambulance

transported Donatelli to a trauma center.     Physicians conducted

emergency surgery to close a laceration on the side of

Donatelli’s neck; the laceration measured six to eight inches in

length and was deep enough to expose, but not to sever, his

carotid artery and jugular vein.     Donatelli was left with a

                                 4
permanent scar and loss of sensation in the affected area.     He

never returned to his job.

    Two witnesses who had been in the park to attend the

fireworks display generally described a man whom they had seen

running near the path in the vicinity of the assault.     Police

officers searched the area but did not locate a suspect.     A K-9

dog led its handler along a scent trail near the path but

stopped abruptly on a nearby street, signaling that an

individual may have exited the park and departed in a vehicle.

    The following morning, during a search of the path near the

location where Donatelli had been attacked, a police officer

found two matching black-and-gray gloves, one on the ground and

the other suspended from a tree thirteen feet above the ground.

The gloves were secured and delivered to the New Jersey State

Police forensic laboratory for DNA testing.

    For several weeks, the investigation stalled as officers

interviewed various individuals but ruled them out as suspects.

Five weeks after the assault, however, the State Police

laboratory advised South Plainfield officers that blood

identified by DNA analysis as Donatelli’s had been found on the

outside of the glove, on the index finger portion of the glove.

State Police forensic scientists then swabbed the interior of

both gloves and detected skin cells.   They submitted samples of

those cells for comparison with the statewide database of known

                                5
DNA profiles.   That comparison revealed a match between DNA

extracted from the skin cells found in the gloves and

defendant’s DNA profile in the database.

    On December 16, 2009, the State Police forensic laboratory

advised the South Plainfield Police Department that DNA evidence

connected defendant to the gloves.    Several of the Borough’s

officers were acquainted with defendant through encounters with

him at the Police Athletic League (PAL) facility, where

defendant regularly lifted weights.   An officer contacted

defendant by cellphone to determine his location.     Several

officers arrested defendant and brought him to police

headquarters.

    Defendant stated that he wanted to talk to police officers

and was immediately escorted to an interrogation room, where

video-recording equipment documented the proceedings.

    After waiving his rights under Miranda v. Arizona, 384 U.S.

436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), defendant was

interviewed by two officers for approximately two hours.

Defendant was talkative and responsive during the conversation;

he addressed the officers in a familiar and friendly tone,

invoking his prior contacts with them while lifting weights at

the PAL facility.   He admitted that he was in Spring Lake Park

the night of the incident but denied that he was in the section

of the park where the attack on Donatelli occurred.     Defendant

                                 6
told the officers that he was alone in the park that evening and

that he did not encounter anyone he knew.   He stated that as the

fireworks were beginning, his mother called him and said that

she needed him to come home “to cut some boxes or something

stupid and take them out for recycling,” and that he “just

left.”   Defendant gave the officers an incorrect cellphone

number for his mother.

    Shown a photograph of gloves similar to the gloves found in

Spring Lake Park the morning after Donatelli was attacked,

defendant denied ever owning or wearing gloves of that type.     He

offered to prove that contention by retrieving his own pair of

gloves from his home and bringing them to the officers.      At the

officers’ request, defendant provided a DNA sample by buccal

swab.

    As the interview progressed, the officers revealed to

defendant that “scientific” evidence connected him, as well as

the victim, to the gloves found in the park.   Late in the

interview, an officer showed defendant an excerpt of the DNA

testing results provided by the State Police laboratory.

Defendant challenged the DNA evidence, reiterated his innocence,

and insisted that he should be permitted to leave the police

station.   The officers declined to release defendant, offered to

resume the conversation at defendant’s request, and left the

room.

                                 7
       The video recording then displayed an abrupt change in

defendant’s demeanor.     After a few seconds of silence, defendant

began to mutter to himself in an agitated manner.    He put his

hand inside his pants and mouthed obscenities in the direction

of the seats where the officers had been sitting, and in the

direction of the camera.     Approximately five minutes later,

defendant stood up and summoned an officer by knocking on the

door.    When an officer responded, defendant addressed him in a

collegial manner.   Defendant was escorted from the room.     At

that point, the first of the two video recordings ended.

       Minutes later, defendant spotted South Plainfield’s Chief

of Police, with whom he was acquainted, and asked to speak with

him.    Defendant, the Chief of Police, and another officer

entered the interrogation room and the video-recorded

interrogation resumed.1    After waiving his Miranda rights for the

second time, defendant again denied involvement in the attack on

Donatelli and requested that the Chief of Police release him

from custody.   The Chief told defendant that according to the

DNA evidence, defendant had worn the gloves found at the scene.

He offered to leave the room to give defendant an opportunity to

decide whether to explain the presence of his DNA in the gloves.




1  The second video recording admitted at trial began recording
approximately seventeen minutes after the completion of the
first video recording.
                                   8
Left alone in the interrogation room for less than two minutes,

defendant became agitated and muttered to himself.

    When the Chief of Police returned, defendant resumed his

cooperative demeanor.   He bantered with the Chief about

weightlifting and referred to one of the other officers as a

“cool guy.”   Defendant offered to state his case to a judge,

provided that the Chief release him from custody.    The Chief

asked defendant to explain what had happened at Spring Lake Park

on the evening of the crime.   Defendant insisted that he was

alone that evening and that he was not by the tennis courts.       He

again requested to be released and promised to explain his

innocence to “the judge.”

    The Chief of Police again left the room.     For about three

minutes, the camera recorded defendant as he reviewed a document

regarding the DNA test results and mouthed words.    The Chief of

Police then returned and offered to call one of defendant’s

relatives regarding defendant’s status.    Defendant insisted that

if the Chief of Police called someone on his behalf, that person

should be permitted to drive him home.    Defendant told the Chief

of Police that he had “nothing to do” with Donatelli and “[did

not] even care about him.”   The Chief departed, and the second

video recording concluded.

    Police officers later conducted consent searches of the

rooms that defendant occupied in his parents’ homes but found no

                                 9
evidence.   Pursuant to a communications data warrant, officers

obtained records of cellphone calls to and from defendant and

his mother for September 7, 2009; those records revealed no

telephone conversation between defendant and his mother on that

date.   Defendant’s cellphone records indicated that at 8:47 p.m.

that evening, shortly after Donatelli was assaulted, defendant

used his cellphone to call a local taxi service.

     The State Police forensic laboratory advised the

investigating officers that the DNA sample taken by buccal swab

during defendant’s interrogation confirmed that defendant was

the source of the skin cells extracted from the gloves found in

Spring Lake Park the morning after Donatelli was assaulted.

According to the State’s forensic expert, defendant’s DNA sample

and the cells found in the left glove shared a DNA profile found

in “one in a quadrillion” individuals.2

                                II.

     Defendant was indicted for first-degree attempted murder,

N.J.S.A. 2C:11-3(a)(1) and 2C:5-1; fourth-degree unlawful

possession of a weapon, N.J.S.A. 2C:39-5(d); third-degree

possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-


2  The comparison of defendant’s confirmed DNA sample with DNA
derived from skin cells found in the right glove also revealed a
match, but that match was substantially less definitive than the
match revealed by the left glove, because the skin cells in the
right glove generated only a partial DNA profile.

                                10
4(d); third-degree hindering apprehension, N.J.S.A. 2C:29-3(b);

and fourth-degree certain persons not to have weapons, N.J.S.A.

2C:39-7(a).

       Defendant was tried before a jury over six days.   On the

second day of trial, the trial court heard argument regarding

the admissibility of the two video recordings of defendant’s

conversations with the South Plainfield officers.3   Defense

counsel stated that the portions of the video recordings in

which defendant appeared alone were “weird” and “unsettling” and

objected to their admission as unduly prejudicial under N.J.R.E.

403.    The State noted that when the officers left the

interrogation room, defendant abandoned his “guy next door . . .

persona” and put “his hand down his pants, MF’n the [o]fficers.”

The State argued that the contested video-recorded segments were

relevant and should be admitted so that the jury would have

complete information to evaluate defendant’s statement.

       After reviewing the video recordings, the trial court ruled

that the contested sections were relevant because they included

“nonverbal . . . acts and facial expression[s,] . . . some

directly to the camera” that reflected on defendant’s demeanor

and the accuracy of his statements.    The court admitted the




3  For reasons the record does not reveal, and with no objection
by defendant, the State redacted portions of the video
recordings. Those redactions are not at issue in this appeal.
                                 11
video recordings in their entirety.    It invited defense counsel

to submit a proposed jury instruction addressing the limited

purpose for which the jury should consider the segments of the

recordings in which defendant appeared alone.

     During the State’s case at trial, the investigating

officers testified about the discovery of the gloves the day

after the assault of Donatelli and described the events that led

to defendant’s arrest.    The two contested video recordings were

played for the jury during direct examination of the lead

investigator.    The trial court reiterated its offer to give the

jury a cautionary instruction about the portions of the video

recording in which defendant was alone in the interrogation

room.   The record does not indicate that defense counsel

proposed such an instruction.

     The State also presented the testimony of forensic experts

to explain the DNA evidence that linked defendant and the victim

to the gloves.   The witnesses who had seen a man running in the

vicinity of the crime testified about what they observed.   A

late-disclosed witness, who described himself as a “good

acquaintance[]” of defendant, told the jury that he saw

defendant at the Labor Day fireworks that evening and that,

although defendant asked him for a ride home and told him that

he would see him later, he never saw defendant again.



                                 12
    The State also presented evidence to undermine defendant’s

contention that he left the fireworks event early to assist his

mother by cutting boxes for recycling.   Defendant’s mother

testified that she was unsure whether she spoke with her son on

September 7, 2009, but was certain that she did not ask him to

help with her recycling; she noted that residents in her area

are not required to cut boxes to prepare them for recycling.

The State also presented the cellphone records indicating that

defendant and his mother did not speak by cellphone that

evening.   Donatelli described the assault, and medical

professionals who treated him testified about the nature and

extent of his injuries.

    Defendant declined to testify and presented no witnesses.

    Relying in part on defendant’s video-recorded statements to

the officers, defense counsel argued in summation that defendant

was innocent and that the investigating officers ignored leads

that could have implicated another individual in the crime.     The

prosecutor specifically addressed defendant’s video-recorded

conduct when he was alone in the interrogation room; he

initially focused on that conduct’s impact on the credibility of

defendant’s statement.    He then suggested, however, that

defendant’s “manipulation” of his presentation to police

signaled his guilt.   Defendant did not object to the State’s

summation.

                                 13
    In its jury charge, the trial court instructed the jurors

that they were the sole and exclusive judges of the evidence,

including the credibility of witnesses, but did not specifically

address the portions of the video recordings in which defendant

sat alone in the interrogation room.   During deliberations, the

jury requested a playback of two excerpts of the video

recordings:   the last five minutes of the first video recording,

in which defendant was alone in the interrogation room, and the

portion of the second video recording in which defendant

“state[d] he doesn’t care about the [victim.]”

    The jury convicted defendant of attempted murder, unlawful

possession of a weapon, possession of a weapon for an unlawful

purpose, and hindering apprehension.   In a separate proceeding,

the jury convicted defendant of the remaining offense, certain

persons not to have a weapon.   The trial court sentenced

defendant to an aggregate term of incarceration of twenty-six

and a half years, subject to eighty-five percent parole

ineligibility in accordance with the No Early Release Act,

N.J.S.A. 2C:43-7.2(a).

    Defendant appealed his conviction and sentence.      An

Appellate Division panel reversed defendant’s conviction and

remanded for a new trial.   The panel did not determine whether

the trial court had properly found that the contested segments

of the video were relevant to the jury’s assessment of

                                14
defendant’s credibility.   Instead, the panel characterized those

segments as consciousness-of-guilt evidence, admissible only if

the conduct is intrinsically indicative of the defendant’s

guilty conscience.   Citing the possibility that defendant’s

behavior reflected an innocent man’s anger at a false

allegation, the panel deemed the contested segments too

equivocal to be admitted as consciousness-of-guilt evidence,

particularly without a limiting instruction.   The panel declined

to determine whether N.J.R.E. 403 would bar the evidence.      The

panel stated that additional arguments raised by defendant were

either without merit or were obviated by the panel’s holding,

but did not specify which of the remaining issues had been

decided.

    We granted the State’s petition for certification.      224

N.J. 527 (2016).   We also granted the Attorney General’s motion

to appear as amicus curiae.

                               III.

    The State argues that all of the video recordings of

defendant in the interrogation room were properly admitted as

relevant to his credibility.   The State asserts that the

Appellate Division panel improperly focused its inquiry on the

standard for consciousness-of-guilt evidence, and applied that

standard too strictly.   It notes that Rule 3:17(a) mandates the

videotaping of interrogations of some defendants if they are

                                15
conducted in a place of detention and asserts that the admission

of evidence video-recorded in conformance with that Rule

enhances a jury’s ability to assess the defendant’s credibility.

Finally, the State contends that in light of DNA evidence and

other proofs against defendant, any evidentiary error was

harmless.

    Defendant counters that, by definition, a police

interrogation excludes any setting in which there are no

officers in the room.   He characterizes the disputed video

segments as post-interrogation and distinguishes this case from

cases in which a video recording depicts a defendant briefly

alone in an interrogation room between questioning sessions.

Defendant contends that the Appellate Division panel properly

evaluated the evidence within the framework of consciousness of

guilt and that, even if the video recordings were admissible in

their entirety, the trial court should have issued a limiting

instruction.   Defendant contends that the alleged error was not

harmless because the DNA found in the gloves was insufficient to

definitively identify defendant.

    The Attorney General asserts that the Appellate Division

panel improperly substituted its judgment for that of the trial

court.   It contends that a jury should consider all evidence

that is relevant to a defendant’s credibility, and that the



                                16
State conformed with court rules when it presented a complete

video recording of the events in the interrogation room.

                                IV.

                                A.

    In its ruling that the contested evidence was admissible,

the trial court applied two fundamental rules of evidence:

N.J.R.E 401, which prescribes the standard of relevancy, and

N.J.R.E. 403, which directs a court to bar the admission of

relevant evidence when the probative value of that evidence is

substantially outweighed by the risk of undue prejudice.

    N.J.R.E. 401 defines “[r]elevant evidence” as “evidence

having a tendency in reason to prove or disprove any fact of

consequence to the determination of the action.”   N.J.R.E 401;

see also State v. Perry, 225 N.J. 222, 236-37 (2016) (discussing

N.J.R.E. 401 analysis when considering Rape Shield Law); State

v. Jenewicz, 193 N.J. 440, 457-58 (2008) (considering N.J.R.E.

401 in determining whether testimony as to identity of initial

aggressor in previous fight was relevant to identity of initial

aggressor in fight at issue in case).   When a court decides

whether evidence is relevant, “the inquiry should focus on the

logical connection between the proffered evidence and a fact in

issue.”   State v. Bakka, 176 N.J. 533, 545 (2003) (internal

quotation marks omitted) (quoting State v. Darby, 174 N.J. 509,

519 (2002)).

                                17
    “Courts consider evidence to be probative when it has a

tendency ‘to establish the proposition that it is offered to

prove.’”   State v. Burr, 195 N.J. 119, 127 (2008) (quoting State

v. Allison, 208 N.J. Super. 9, 17 (App. Div.), certif. denied,

102 N.J. 370 (1985)).   The evidence must be probative of a fact

that is “really in issue in the case,” as determined by

reference to the applicable substantive law.     State v. Buckley,

216 N.J. 249, 261 (2013) (quoting State v. Hutchins, 241 N.J.

Super. 353, 359 (App. Div. 1990)).

    Under N.J.R.E. 401, “[e]vidence need not be dispositive or

even strongly probative in order to clear the relevancy

bar.”   Id. at 261.   The proponent need not demonstrate that the

evidence can, in and of itself, establish or disprove a fact of

consequence in order to meet the benchmark of N.J.R.E. 401.

“Once a logical relevancy can be found to bridge the evidence

offered and a consequential issue in the case, the evidence is

admissible, unless exclusion is warranted under a specific

evidence rule.”   Burr, supra, 195 N.J. at 127.

    One such rule excluding relevant evidence is N.J.R.E. 403.

That rule mandates the exclusion of evidence that is otherwise

admissible “if its probative value is substantially outweighed

by the risk of (a) undue prejudice, confusion of issues, or

misleading the jury or (b) undue delay, waste of time, or

needless presentation of cumulative evidence.”    N.J.R.E 403.

                                 18
    Here, defendant relies on the “undue prejudice” factor of

N.J.R.E. 403.   As this Court has noted, the inquiry under that

provision of N.J.R.E. 403 is whether the probative value of the

evidence “is so significantly outweighed by [its] inherently

inflammatory potential as to have a probable capacity to divert

the minds of the jurors from a reasonable and fair evaluation of

the” issues.    State v. Thompson, 59 N.J. 396, 421 (1971).   It is

not enough for the opposing party to show that the evidence

could be prejudicial; “[d]amaging evidence usually is very

prejudicial but the question here is whether the risk of undue

prejudice was too high.”    State v. Morton, 155 N.J. 383, 453-54

(1998) (quoting State v. Bowens, 219 N.J. Super. 290, 297 (App.

Div. 1987)); see also State v. Swint, 328 N.J. Super. 236, 253

(App. Div.) (“The mere possibility that evidence could be

prejudicial does not justify its exclusion.”), certif. denied,

165 N.J. 492 (2000).

    To determine the admissibility of evidence under N.J.R.E.

401 and 403, the trial court conducts a fact-specific evaluation

of the evidence in the setting of the individual case.     See,

e.g., State v. Cotto, 182 N.J. 316, 333 (2005) (stating that

ruling on admissibility of evidence of third-party guilt

“requires a fact-sensitive inquiry”); State v. Koedatich, 112

N.J. 225, 300 (1988) (noting “particularly fact-sensitive”

nature of relevancy determination when defendant asserts third-

                                 19
party guilt), cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102

L. Ed. 2d 803 (1989).

    In light of the broad discretion afforded to trial judges,

an appellate court evaluates a trial court’s evidentiary

determinations with substantial deference.     State v. Kuropchak,

221 N.J. 368, 385 (2015).    On appellate review, “[c]onsiderable

latitude is afforded” to the court’s ruling, which is reversed

“only if it constitutes an abuse of discretion.”     Ibid.

(alteration in original) (quoting State v. Feaster, 156 N.J. 1,

82 (1998), cert. denied, 532 U.S. 932, 121 S. Ct. 1380, 149 L.

Ed. 2d 306 (2001)); see also State v. Gorthy, 226 N.J. 516, 539

(2016) (citing State v. T.J.M., 220 N.J. 220, 233-34 (2015);

State v. Buda, 195 N.J. 278, 294 (2008)).     When a trial court

weighs the probative value of evidence against its prejudicial

effect pursuant to N.J.R.E. 403, its ruling should be overturned

only if it constitutes “a clear error of judgment.”     Koedatich,

supra, 112 N.J. at 313.     As this Court observed, applying the

predecessor rule to N.J.R.E. 403, a trial court’s weighing of

probative value against prejudicial effect “must stand unless it

can be shown that the trial court palpably abused its

discretion, that is, that its finding was so wide of the mark

that a manifest denial of justice resulted.”     State v. Carter,

91 N.J. 86, 106 (1982).

                                B.

                                  20
    In accordance with the deferential standard of review, we

apply N.J.R.E. 401 and 403 to the evidence that the trial court

admitted in defendant’s trial.

                                 1.

    We first consider whether the trial court abused its

discretion when it found that the contested evidence had “a

tendency in reason to prove or disprove any fact of

consequence,” and that it accordingly met the relevancy standard

of N.J.R.E. 401.

    In his video-recorded statement, defendant addressed

several factual issues that would be disputed before the jury at

his trial.    Defendant identified the time frame of his visit to

Spring Lake Park during the evening of September 7, 2009.       He

described his location and activities in the park.    Defendant

denied that he encountered anyone he knew at the fireworks

event, thus contradicting one of the State’s key witnesses.          He

asserted an alibi, premised on a call from his mother summoning

him home to assist her.    Defendant denied any connection to the

gloves found at the scene.   Most critically, defendant

repeatedly and unequivocally denied any involvement in the

attack on Donatelli.    Defendant’s video-recorded statement thus

challenged the State’s theory in significant respects.    Not

surprisingly, both counsel discussed that statement in their

summations.

                                 21
    As the trial court properly instructed the jury, it was the

jury’s province to assess the credibility of all of the

evidence.    “[C]redibility is an issue which is peculiarly within

the jury’s ken.”    State v. Frisby, 174 N.J. 583, 595 (2002)

(quoting State v. J.Q., 252 N.J. Super. 11, 39 (App. Div. 1991),

aff’d, 130 N.J. 554 (1993)); see also Kansas v. Ventris, 556

U.S. 586, 594 n., 129 S. Ct. 1841, 1847 n., 173 L. Ed. 2d 801,

809 n. (2009) (“Our legal system . . . is built on the premise

that it is the province of the jury to weigh the credibility of

competing witnesses . . . .”).    Here, that evidence included

defendant’s self-exculpatory statement.    Our Model Jury Charges

admonish jurors, in considering whether or not a defendant’s

statement is credible, to “take into consideration the

circumstances and facts as to how the statement was made, as

well as all other evidence in this case relating to this issue.”

Model Jury Charges (Criminal), “Statements of Defendant” (June

14, 2010).

    In that inquiry, a video recording is a valuable tool.       As

this Court observed in State v. Cook, videotaping a statement

“enhance[s] a judge or juror’s assessment of credibility by

providing a more complete picture of what occurred.”     179 N.J.

533, 556 (2004) (quoting Heath S. Berger, Let’s Go to the

Videotape:   A Proposal to Legislate Videotaping of Confessions,



                                 22
3 Alb. L.J. Sci. & Tech. 165, 173-74 (1993)).4    Viewing the video

recording, the jury could assess defendant’s facial expressions

and gestures as well as his words and determine whether his

assertions of innocence were strategic or sincere.

     Defendant’s behavior during the brief intervals in which he

was alone in the interrogation room was closely intertwined with

his assertions of innocence.   Each of the three disputed

segments immediately followed a conversation in which defendant

stressed his camaraderie with the officers as he disclaimed

involvement in the crime; each was followed by a similar

exchange between defendant and the officers.     In the complete

video recordings, the jury was able to view defendant’s abrupt

changes in behavior -- attentive and communicative in the

officers’ presence, muttering and silently cursing in their




4  The Court’s opinion in Cook led to Rule 3:17, which addresses
the video recording of statements made by defendants. In Cook,
supra, the Court rejected the defendant’s due process challenge
based on the admission of his confession without a video
recording of that confession. 179 N.J. at 559-60. The Court
stated, however, that it intended to “evaluate fully the
protections that electronic recordation affords to both the
State and to criminal defendants.” Id. at 562. The Court
referred the issue to a committee and later adopted Rule 3:17.
With specific exceptions, that Rule requires the videotaping of
a defendant’s statement taken in a place of detention, if the
defendant is charged with one of the offenses enumerated in the
Rule. Rule 3:17(a). Thus, the video recordings at issue in
this case were prepared in conformance with a court rule
intended, among other objectives, to assist the jury in its
evaluation of a defendant’s credibility. See R. 3:17(d); Cook,
supra, 179 N.J. at 556.
                                23
direction after they departed, then resuming his congenial

demeanor when they returned.    When the jury viewed defendant’s

account of the critical evening, the disputed video-recorded

segments provided important context for the factual assertions

that preceded them and for those that followed.

       As the Appellate Division panel observed, the conduct

reflected in the disputed segments of the video recordings is

subject to more than one interpretation.    The jury could infer

from the video recordings that when arrested and confronted with

forensic evidence months after the crime, defendant contrived an

affable demeanor and exculpatory account of the critical events

as a strategy to avoid prosecution.    Alternatively, the jury

could infer that defendant was innocent and that he acted as he

did because he was shocked by his arrest and frustrated by the

officers’ skeptical responses to his truthful denials.    The jury

could, of course, draw some alternative inference or none at

all.   In this case, however, the conduct depicted in the video

recordings was germane to the jury’s assessment of defendant’s

credibility in his statement to police and therefore relevant to

its determination of pivotal issues in the case.

       Accordingly, we concur with the trial court that the

portions of the two video recordings in which defendant was

alone in the interrogation room met N.J.R.E. 401’s standard of

relevancy.

                                 24
                                  2.

    The trial court also found that the probative value of the

evidence was not substantially outweighed by the risk of undue

prejudice.   N.J.R.E. 403.   The court acknowledged that the

excerpts from the video recordings could have a negative impact

on defendant, but noted that the admission of any defendant’s

confession is also prejudicial.    It did not find the specter of

prejudice to substantially outweigh the probative value of the

evidence.

    We agree with the trial court that N.J.R.E. 403 does not

bar the admission of the video-recorded segments.    As noted, the

evidence was pertinent to the jury’s credibility determination

and, consequently, was probative as to an array of factual

issues addressed by defendant in his video-recorded statement.

To be sure, the segments at issue were potentially prejudicial

to defendant; the jury learned that defendant’s demeanor in the

interview strikingly contrasted with his behavior when he was

alone.   That evidence, however, was not prejudicial to the point

at which the risk of prejudice substantially outweighed the

probative value of the evidence, as N.J.R.E. 403 requires in

order for the evidence to be excluded.    See Morton, supra, 155

N.J. at 453-54 (“The mere possibility that evidence could be

prejudicial does not justify its exclusion.” (citing Bowens,

supra, 219 N.J. Super. at 296-97)).    Instead of “divert[ing] the

                                  25
minds of the jurors” from their responsibility to fairly decide

the case, Thompson, supra, 59 N.J. at 421, the video-recorded

segments assisted the jury in conducting the credibility

assessment at the core of its charge.   Thus, we do not find the

trial court’s application of N.J.R.E. 403 to represent a “clear

error of judgment,” Koedatich, supra, 112 N.J. at 313, or to be

“so wide of the mark that a manifest denial of justice

resulted,” Carter, supra, 91 N.J. at 106.5

     In short, we conclude that the trial court did not abuse

its discretion when it admitted into evidence the video

recordings of defendant in the South Plainfield Police

Department’s interrogation room, including the portions of those

video recordings in which defendant was alone in the room, on

the ground that the evidence was relevant to the credibility of




5   There is no evidence in this case that the police officers
who interrogated defendant or the prosecutors who represented
the State deliberately protracted the videotaping in the hope
that defendant would behave in an aberrant manner when left
alone. To the contrary, it appears that the officers video-
recorded the interrogation using routine procedures. Nor is
there any evidence that defendant was led to believe that the
video camera was turned off when the police officers left the
room; indeed, defendant appeared at certain points in the video
to be looking directly at the camera. Accordingly, we need not
consider whether a video recording showing a defendant
temporarily alone in an interrogation room would be admissible
if there were evidence of misleading or otherwise improper
conduct on the part of the State.

                               26
defendant’s statement, and its probative value was not

substantially outweighed by the risk of undue prejudice.

                                C.

    The Appellate Division panel reversed defendant’s

conviction based not on a relevance analysis, but on its

conclusion that the video segments were inadmissible as evidence

of consciousness of guilt.   Our jurisprudence regarding

consciousness-of-guilt evidence derives from the principle that

certain conduct may be “intrinsically indicative of a

consciousness of guilt,” and may therefore be admitted as

substantive proof of the defendant’s guilt.   State v. Phillips,

166 N.J. Super. 153, 160 (App. Div. 1979), certif. denied, 85

N.J. 93 (1980).   Such conduct may include “unexplained flight,

or an unusual exhibition of remorse for the victim of the crime,

or the switching of clothes [with] a cellmate before a lineup.”

Ibid.; see also State v. Ingram, 196 N.J. 23, 46-50 (2008)

(holding that trial court abused discretion in allowing State to

argue that defendant’s absence from trial constituted

consciousness-of-guilt evidence); State v. Mann, 132 N.J. 410,

421-24 (1993) (considering evidence of defendant’s attempted

suicide as consciousness-of-guilt evidence); State v. Mills, 51

N.J. 277, 286 (holding that evidence that defendant, in

distraught state, visited victim’s grave was admissible



                                27
consciousness-of-guilt evidence), cert. denied, 393 U.S. 832, 89

S. Ct. 105, 21 L. Ed. 2d 104 (1968).

    As this Court has noted, “[t]he potential for prejudice to

the defendant and the marginal probative value of evidence of

flight or escape mandate careful consideration of the nature of

the evidence to be admitted and the manner in which it is

presented.”   Mann, supra, 132 N.J. at 420 (citing United States

v. Hankins, 931 F.2d 1256, 1261-62 (8th Cir.), cert. denied, 502

U.S. 886, 112 S. Ct. 243, 116 L. Ed. 2d 198 (1991)).     In such

cases, the Court has mandated “a strong limiting instruction . .

. informing the jury that it should not draw any inference of

consciousness of guilt by defendant from his post-crime conduct

unless it believes that defendant acted to cover up a crime.”

State v. Williams, 190 N.J. 114, 134 (2007).

    That jurisprudence does not govern this case.      Here, the

three video-recorded segments were not offered or admitted as

consciousness-of-guilt evidence but on the ground that they were

relevant to the jury’s evaluation of the credibility of

defendant’s statement.   Accordingly, we do not determine whether

the evidence in question was admissible as consciousness-of-

guilt evidence.

                                D.

     The Appellate Division panel noted that the trial court

did not give a limiting instruction regarding the contested

                                28
evidence.   Defendant argues before this Court that the trial

court’s failure to give such an instruction constituted error.

Because defendant did not request an instruction, the trial

court’s determination is reviewed under a plain error standard.

See State v. Montalvo, ___ N.J. ___, ___ (2017) (slip op. at 23)

(“Without an objection at the time a jury instruction is given .

. . this Court reviews the instruction for plain error.”

(citations omitted)); see also State v. Townsend, 186 N.J. 473,

498 (2006) (reviewing trial court’s lack of limiting instruction

on proper use of expert testimony under plain error standard set

forth in Rule 2:10-2 because defendant did not object at trial

and raised issue for first time on appeal); State v. Krivacska,

341 N.J. Super. 1, 42-43 (App. Div.) (finding that trial court’s

failure to provide limiting instruction was not plain error

because defendant failed to request one), certif. denied, 170

N.J. 206 (2001), cert. denied, 535 U.S. 1012, 122 S. Ct. 1594,

152 L. Ed. 2d 510 (2002).

    When a party challenges relevant evidence pursuant to

N.J.R.E. 403, “[a]s an alternative to total exclusion of highly

prejudicial but also probative evidence, trial courts may use

the device of a limiting instruction under N.J.R.E. 105.”

Biunno, Current N.J. Rules of Evidence, comment 5 on N.J.R.E.

403 (2016); see also Ocasio v. Amtrak, 299 N.J. Super. 139, 159-

60 (App. Div. 1997) (holding that total exclusion of evidence is

                                29
error where prejudice can be minimized through limiting

instructions or other means).     In some cases, a limiting

instruction may provide important guidance as the jury evaluates

a video recording and should constrain counsel from addressing

extraneous issues in summation.    In other cases, such an

instruction could focus the jury’s attention on a fleeting

segment of video recording it might otherwise have ignored.     We

urge judges to consider giving such an instruction in

appropriate circumstances, should they be confronted with an

issue similar to that presented by this case.

    Here, the trial court twice offered to give a limiting

instruction, in a form to be submitted by defendant, to ensure

that the jury would not misconstrue the evidence.    Defense

counsel did not submit a proposed instruction and the trial

court did not sua sponte charge the jury regarding the video

recordings.   Given the brief duration of the video-recorded

excerpts in a six-day trial, it is unclear whether a limiting

instruction would have clarified the limited purpose of the

videotaped segments or overemphasized the evidence.     Moreover,

the State presented overwhelming evidence of defendant’s guilt,

including DNA evidence linking defendant to a glove on which the

victim’s blood was found shortly after the crime, as well as

testimony by defendant’s mother and friends that substantially



                                  30
undermined his account of his activities during the critical

time period.

    We therefore hold that the trial court’s decision not to

charge the jury sua sponte on this issue was not “clearly

capable of producing an unjust result,” and was not plain error.

R. 2:10-2; see also State v. Mohammed, 226 N.J. 71, 89 (2016)

(holding that trial court’s determination that portion of trial

was inconsequential will be reviewed under Rule 2:10-2); State

v. Weston, 222 N.J. 277, 300 (2015) (noting that plain error was

proper standard of review); State v. Macon, 57 N.J. 325, 337-41

(1971) (defining bounds of plain error standard).

                               E.

    Finally, we comment on a brief portion of the prosecutor’s

summation to the jury in which the prosecutor addressed the

video recordings.

    With no objection from defendant, the prosecutor argued to

the jury:

       All the statements that [defendant] made [during
       the interview] are to be analyzed and considered
       in the context of the level of anger and
       disturbance that existed when the police leave
       the room.    You observed it, members of the
       [j]ury. He’s the pillar of the community, the
       Mayor of the metropolis throughout the whole
       interview.

       And on that board as soon as the [p]olice
       [o]fficers leave, he knows they got him and
       that’s when his hand goes down his pants and he’s
       mouthing “M F’er” to the world because he knew

                               31
       they got him. And you saw the switch and that’s
       how you’re to analyze the credibility of the
       statements made by the defendant on [that day].
       Utilize those portions of his statement when law
       enforcement was not in the room.

       Able to turn it on and off at his leisure, and
       unless guilty, there is no need to manipulate
       your presentation, your appearance to law
       enforcement.   Manipulation is the process by
       which a guilty party attempts to get over.

    Thus, after commenting on the credibility question for

which the contested portions of the video recordings were

offered and admitted into evidence, the prosecutor ventured

beyond that limited purpose.   The prosecutor suggested to the

jury that the distinction between defendant’s demeanor when

police officers were in the room, and his demeanor when he was

alone, indicated that defendant was a “guilty party” seeking to

mislead the officers.

    This Court has long recognized that “[p]rosecutors are

afforded considerable leeway in closing arguments as long as

their comments are reasonably related to the scope of the

evidence.”   State v. Frost, 158 N.J. 76, 82 (1999) (citing State

v. Harris, 141 N.J. 525, 559 (1995); State v. Williams, 113 N.J.

393, 447 (1988)); accord State v. Timmendequas, 161 N.J. 515,

587 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L.

Ed. 2d 89 (2001).   Notwithstanding that latitude, prosecutors

should be mindful of the purpose for which evidence is admitted

when they comment on that evidence in summation.   See, e.g.,

                                32
United States v. Gross, 511 F.2d 910, 919 (3d Cir.) (finding

that prosecutor’s suggestion, in summation, that evidence

admitted only on issue of credibility was probative of guilt was

“troublesome,” but did not give rise to plain error), cert.

denied, 423 U.S. 924, 96 S. Ct. 266, 46 L. Ed. 2d 249 (1975);

People v. Lang, 782 P.2d 627, 647 (Cal. 1989) (noting that

prosecutor’s “urging use of evidence for a purpose other than

the limited purpose for which it was admitted is improper

argument”), cert. denied, 498 U.S. 881, 111 S. Ct. 224, 112 L.

Ed. 2d 178 (1990); People v. Williams, 681 N.E.2d 115, 122 (Ill.

App. Ct.) (holding that prosecutor’s argument that defendant’s

guilt was proven by evidence admitted only to show police

officers’ investigative steps gave rise to error), appeal

denied, 686 N.E.2d 1172 (Ill. 1997).

    We view the prosecutor’s brief reference to defendant’s

demeanor as proof of his guilt to be beyond the scope of fair

comment on the evidence.   The prosecutor was free to discuss the

video-recorded segments in which defendant was alone but should

have constrained any such discussion to the question of

credibility.   We caution prosecutors that when evidence is

admitted for a limited purpose, comments in summation that

exceed the bounds of that purpose must be avoided.

    We do not conclude, however, that the comment was “clearly

capable of producing an unjust result” giving rise to plain

                                33
error.   R. 2:10-2; see State v. Garrison, 228 N.J. 182, 201

(2017) (finding challenged jury instruction did not amount to

plain error).    In light of the substantial evidence presented by

the State, the prosecutor’s brief comment on the video recording

did not give rise to an unjust result and does not warrant

reversal of defendant’s conviction.

                                 V.

    Our concurring colleagues diverge from our opinion on a

single point:    whether the trial court abused its discretion

when it held that the probative value of the disputed evidence

for the jury’s assessment of defendant’s credibility was not

substantially outweighed by the risk of undue prejudice, and

declined to bar that evidence under N.J.R.E. 403.    Post at ___

(slip op. at 11).    They consider the trial court’s ruling under

N.J.R.E. 403 to be error, but find it to be harmless error in

light of the evidence presented by the State.    Post at ___ (slip

op. at 11-12).   We briefly address the issues raised in their

separate opinion.

    Our colleagues are concerned about a broad application of

our ruling in this case to future trials.    Our ruling is

distinctly fact-sensitive and based on our standard of review.

We do not determine, in this case, that every segment of video

recording that shows a defendant alone in an interrogation room

should be admitted under N.J.R.E. 401 and 403 for an assessment

                                 34
of credibility, or on any other basis.    Indeed, we would not

subscribe to such a bright-line rule.     We too would be concerned

about the open-ended use of video recordings of a defendant,

ostensibly for the assessment of demeanor and credibility.       A

careful balancing of probative value and prejudicial effect is

always required under N.J.R.E. 403.    Based on the facts before

the court in this matter and the parties’ distinct arguments, we

view the trial court’s ruling to be a reasoned application of

N.J.R.E. 401 and 403 to a unique set of facts, not a “clear

error of judgment” that is “so wide of the mark” as to warrant

reversal.   See Koedatich, supra, 112 N.J. at 313; Carter, supra,

91 N.J. at 106.

     The trial court made its ruling that the video recordings

would be useful in the jury’s assessment of this defendant’s

credibility in his interrogation in light of the sequence of

events that led to those recordings.     The court did not confront

a case in which officers video-recorded a defendant after they,

or the defendant, terminated the interrogation.    To the

contrary, immediately before they left the interrogation room,

the officers discussed with defendant the prospect of continuing

the discussion, if defendant wished to talk further.6    Minutes


6  After defendant said, “I might have a little secret in my mind
that proves I’m innocent,” and that he would not “say anything,”
the officer said that was “fine.” The officer added that if
defendant changed his mind and wanted to “reach out” he should
                                35
later, the interrogation resumed.     Each of the disputed segments

-- the five-minute segment that is the focus of our colleagues’

concurring opinion, and the two shorter segments that followed -

- was recorded immediately after one phase of the interrogation,

and shortly before the next.    That is the setting in which the

trial court made its case-specific ruling pursuant to N.J.R.E.

403.    That ruling is the only determination that we review for

abuse of discretion.

       Our colleagues note that the trial court did not

specifically refer to N.J.R.E. 403 when it made its ruling.

However, the absence of a specific reference to the Rule in the

trial court’s oral decision does not signal that the court was




call the officer “from the County Jail tell your attorney to
reach out to me. That’s where it’s going.” Defendant asked why
he was going to jail and was told he was going to be charged.
He questioned the fact that he was being charged and said that
“[t]his is a joke because I know I’m not guilty.” The officer
told defendant again that he would be going “in the cell for the
time being” but that if defendant thought about it and decided
he wanted to talk to the detectives, “[t]hen by all means talk
to an Officer get someone’s attention and say I don’t want to
remain silent anymore I want to talk. And talk to someone.”
Defendant asked the officer’s name, and the officer provided it.
Defendant then stated, “[i]f I was to make a statement you know
what I would say. I’m not guilty.” The officer responded that
if defendant changed his mind, “[y]ou know where to find us.”
Defendant then asked, “[i]s it almost over? Can I leave?” The
officer said “No. You’re not leaving,” and left the room, at
which point defendant shouted toward the door that his detention
was “against the law.” A few minutes later, defendant knocked
on the door and summoned an officer, who escorted him from the
room. Defendant then requested to speak to the Chief of Police,
and the interrogation resumed.
                                 36
not applying N.J.R.E. 403’s balancing test.     It is clear that

the court weighed the probative value of the evidence against

its potential for prejudice in accordance with that Rule.

    When the parties initially raised the issue before the

trial judge and defense counsel generally expressed concerns

about the video recordings, the judge specifically asked whether

defendant’s objection was based on N.J.R.E. 403, and was told

that it was.   In its decision the following day, the trial court

expressly applied both components of the standard of that Rule.

The court discussed the video recordings’ probative value in the

jury’s assessment of credibility.     It found that while the video

recordings depicting defendant’s demeanor while alone in the

interrogation, like a defendant’s confession, were prejudicial,

they were not so prejudicial as to mandate exclusion.     The trial

court, in sum, applied N.J.R.E. 403’s standard to this case and

made a ruling that clearly fell within its discretion.

    Our colleagues suggest that following our opinion, judges

will admit any evidence showing changes in a defendant’s

demeanor on the ground that it is relevant to the defendant’s

credibility.   If, in another matter, the State offers into

evidence video recordings such as those at issue in this case,

our trial judges can assess that evidence in accordance with

N.J.R.E. 401’s standard of relevancy, in light of the

circumstances of the specific case.

                                37
    Finally, our colleagues suggest that in summations in

future cases, prosecutors may overstate the significance of a

defendant’s change in demeanor or otherwise mischaracterize the

video-recorded evidence.   Post at ___ (slip op. at 10-11).    We

do not share our colleague’s concerns.    This Court has defined

what constitutes a prosecutor’s proper comment on the evidence

in summation, and what does not.     See, e.g., State v. Bradshaw,

195 N.J. 493, 510 (2008); State v. R.B., 183 N.J. 308, 331-34

(2005); Timmendequas, supra, 161 N.J. at 584-89.    Guided by that

jurisprudence, our experienced criminal trial judges routinely

scrutinize prosecutors’ comments in summation, and appellate

courts review those determinations.    We respectfully note that

if a summation in a future case raises the concerns identified

by our colleagues, the trial court charged to oversee that case,

guided by this Court’s case law on prosecutorial misconduct and

in accordance with the specific purpose of the evidence, will

rule on the propriety of the prosecutor’s comments.    Here, we

conclude that the prosecutor briefly exceeded the boundaries of

proper comment on the evidence by suggesting that defendant’s

demeanor signified his guilt, but that the remarks in summation

did not give rise to plain error.

                               VI.




                                38
    The judgment of the Appellate Division is reversed, and the

matter is remanded to the Appellate Division panel for

determination of any issues that the panel did not resolve.



     JUSTICES LaVECCHIA, FERNANDEZ-VINA, and SOLOMON join in
JUSTICE PATTERSON’s opinion. CHIEF JUSTICE RABNER filed a
separate, concurring opinion, in which JUSTICES ALBIN and
TIMPONE join.




                               39
                                         SUPREME COURT OF NEW JERSEY
                                           A-66 September Term 2015
                                                    076255

STATE OF NEW JERSEY,

    Plaintiff-Appellant,

         v.

ANTHONY K. COLE,

    Defendant-Respondent.



    CHIEF JUSTICE RABNER, concurring.

    In this case, officers interrogated defendant Anthony Cole

for two hours and ended the interview.     Defendant cooperated

throughout; he calmly answered questions and denied that he had

committed a crime.     At the very end of the interview, defendant

repeated that he was innocent and asked to be released.    The

officers instead told him that he was headed to the county jail.

They then left the room.

    Over the objection of defense counsel, the jury watched a

six-minute video recording of what happened next -- while

defendant sat alone in the interrogation room after the

interview had ended.     He was visibly upset, muttered to himself,

and cursed.   Based on that evidence, the prosecution argued in

summation that defendant manipulated his appearance during the

interview because he was guilty.



                                   1
    The Appellate Division concluded that it was error for the

trial court to admit the video in evidence.     The majority

disagrees.     In my judgment, the jury should not have seen the

video based on a straightforward application of the rules of

evidence.

    Under the circumstances, the video’s probative value was

limited.     Its minimal relevance was substantially outweighed by

the risk of undue prejudice and the danger that the recording

would mislead the jury.     As a result, the evidence should have

been excluded under N.J.R.E. 403.      Because the error was

harmless in light of other strong evidence of defendant’s guilt,

I concur in the judgment.

                                  I.

    The facts are not in dispute.      On December 16, 2009, the

police arrested defendant for the attempted murder of David

Donatelli several months earlier.      Donatelli, a long-time

employee of the South Plainfield Public Works Department, had

been at the park preparing for the town’s Labor Day fireworks

display when someone slashed his neck with a knife.      Because of

the severe nature of the wound, Donatelli faced a substantial

risk of death and was rushed to the hospital.     After emergency

surgery, he fortunately survived.

    The police brought defendant to headquarters, where he

waived his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.

                                   2
Ct. 1602, 16 L. Ed. 2d 694 (1966).     At trial, the jury watched

the recorded statement of the interview that followed.

Defendant responded to questions that two detectives posed and

admitted that he went to the park on the night of the fireworks

display.     But he repeatedly denied that he attacked Donatelli.

During the interview, defendant was responsive, talkative, and

in control.

    The interview lasted about two hours.     At the end,

defendant insisted that he was innocent, as he had throughout

the interrogation.     A detective then said the following:     “[I]f

you change your mind and you do want to reach out back to me[,]

[c]all me from the County Jail[;] tell your attorney to reach

out to me.    That’s where it’s going.”   (emphases added).

Defendant replied, “Why am I going to jail? . . . I’m not

guilty.”     In response, the detective told defendant he was

headed to “the cell for the time being” but, if he “want[ed] to

talk to the detectives,” he could “talk to an officer,” “get

someone’s attention,” and “talk to someone.”     Defendant again

insisted that he was not guilty and asked, “Can I leave?”        When

he was told, “[y]ou’re not leaving,” he protested again.        At

that point, the detectives walked out of the interview room and

the interview ended.     Nothing in the record suggests this marked

the start of a short break with more questions to follow; the

interview was over.

                                   3
    The detectives left defendant alone in the room, and a

camera continued to record him for almost six minutes.       While

alone, defendant appeared angry and distraught; he cursed,

gestured, and muttered quietly to himself.

    Defendant was then moved back to the booking room and, when

the chief of police walked by in the hallway, defendant asked to

speak with him.   Defendant was escorted back to the interview

room where a second interview took place.       The jury watched a

video of that statement as well.       In it, defendant continued to

insist that he was innocent.     The police left defendant alone

for ninety seconds during the second interview and for another

two minutes at the end.     Each time, he again muttered quietly to

himself.

    At trial, defense counsel argued that the State should not

be allowed to introduce the six-minute portion of the video

taken when defendant was alone.    Counsel stressed that the

evidence had no probative value and was prejudicial.       He also

argued that the jury was “not going to know what to do with” the

ambiguous evidence.     The State countered that the evidence

offered context and would enable jurors to determine the

witness’s credibility during the prior statement.

    The trial judge overruled the objection.       He reasoned that,

although the evidence



                                   4
         is subject to interpretation, I have to agree
         with the State that it’s clearly conduct which
         relates to the statements previously made by
         this defendant.

               The ability of a defendant to maintain
         control of himself, to respond in the manner
         in which he responded to police questions, to
         be demonstrative in his -- and appropriately
         demonstrative to questioning, and then when
         the defendant believes, I assume, knows that
         police aren’t there, knows that it’s being
         recorded, he mouths some of the curse words
         directly to the camera.    Clearly, that’s an
         indication of his demeanor and his conduct,
         and I think it is something that a jury should
         see in helping them understand [the] full
         tenor    and  context   of   the   defendant’s
         statement.

Aside from noting generally that “when a [d]efendant confesses,

that also impacts negatively on a [d]efendant,” the trial court

did not reference N.J.R.E. 403 or weigh the disputed evidence’s

probative value against its risk of undue prejudice or of

misleading the jury.    The court ruled that both videos could be

viewed in their entirety “with appropriate limiting

instructions.”     The judge invited defense counsel to present an

instruction.     Counsel did not submit one, and the court did not

give one to the jury.

    The prosecution, in summation, stressed the importance of

defendant’s demeanor after the first interview, when he sat

alone in the interview room.     The State’s arguments, repeated

below, were more than a stray, passing reference:



                                   5
                All the statements that he made on that
           day, December 16th, are to be analyzed and
           considered in the context of the level of
           anger and disturbance that existed when the
           police leave the room.      You observed it,
           members of the jury. He’s the pillar of the
           community, the Mayor of the metropolis
           throughout the whole interview.

                And on that board as soon as the police
           officers leave, he knows they got him and
           that’s when his hand goes down his pants and
           he’s mouthing “M F’er” to the world because he
           knew they got him. And you saw the switch and
           that’s how you’re to analyze the credibility
           of the statements made by the defendant on
           December 16th. Utilize those portions of his
           statement when law enforcement was not in the
           room.

                Able to turn it on and off at his leisure,
           and unless guilty, there is no need to
           manipulate your presentation, your appearance
           to law enforcement.      Manipulation is the
           process by which a guilty party attempts to
           get over.


                                 II.

       Relevant evidence is generally admissible.   See N.J.R.E.

402.    The threshold for relevancy is not high; to be “relevant,”

evidence must have “a tendency in reason to prove or disprove

any fact of consequence to the determination of the action.”

N.J.R.E. 401.

       Evidence of a person’s demeanor will ordinarily meet that

standard for a simple reason:    how a person behaves can reveal

whether he or she should be believed.    If an individual reacts

to an officer’s questions in a hostile, defensive, or evasive

                                  6
way, for example, a juror might reasonably think that the

person’s answers are not credible.   That type of evidence is

plainly relevant.

    In this case, it is questionable whether evidence of

defendant’s demeanor during the six minutes he was alone after

the interview can satisfy the relevancy test.    The State

contends that defendant’s marked change in demeanor bears on

credibility.   But it can also mean a number of other things.    In

fact, there are multiple reasonable inferences that can be drawn

from defendant’s behavior after the interview.

    As the State argues, defendant’s change in mood may be a

sign that his denials during the interrogation were not

credible.   In essence, as the State suggests, defendant may have

been upset because he realized he had been caught, and he only

revealed his true beliefs when left alone.   Yet defendant may

also have been upset because he believed he was innocent and law

enforcement officers decided not to release him.    Or the

evidence could prove that he has a habit of mumbling to himself

when alone -- as he did three times in the span of an hour.

    Under the circumstances, the evidence is not powerful proof

of defendant’s guilt.   At most, it is minimally probative.

    If evidence is relevant, trial courts may be asked to

assess whether “its probative value is substantially outweighed

by the risk of . . . undue prejudice, confusion of issues, or

                                 7
misleading the jury.”     N.J.R.E. 403.   To be sure, the video

portrays defendant in a very unflattering light, which

underscores the risk of undue prejudice the video presented.

Even more problematic, though, the type of evidence in question

could well mislead a jury.

    We trust jurors to evaluate a witness’s credibility.       When

they hear trial testimony or review a suspect’s recorded

statement, jurors evaluate not only what the witness has said

but also how he spoke.    This case is different.    Defendant was

no longer being questioned; he was alone after an interview had

ended.     He did not make audible comments that might be

admissible; he was agitated and upset.

    Jurors, as factfinders, are routinely asked to decide what

evidence means and choose among conflicting inferences.      But

there are no standards to guide a jury and help it understand a

witness’s ambiguous change of mood after an interrogation has

ended.     Left on its own, as the jury was in this case, this type

of equivocal evidence could easily mislead a jury.      Even with a

limiting instruction, the jury could not interpret defendant’s

behavior after the interview without speculating about its

meaning.     It was therefore error to admit the evidence.   In my

view, that ruling was an abuse of discretion.       See State v.

Gorthy, 226 N.J. 516, 539 (2016).



                                   8
    Today’s opinion expands the law but cites no authority that

directly supports the broader approach it adopts.      The

prosecution has not identified any case law that approves the

use of evidence of a witness’s demeanor after an interrogation

has ended.   Nor does the majority rely on any such precedent.

    The State and the Attorney General, as amicus, discuss

State v. Cook, 179 N.J. 533 (2004).       That important decision

considered the benefits of recording custodial interrogations

and announced that the Court would establish a committee to

“study and make recommendations on the use of electronic

recordation of custodial interrogations.”       Id. at 562.    The

ruling in no way addressed the particular issue this appeal

raises.   A year later, the Court adopted Rule 3:17 on

“electronic recordation.”     That rule, as well, does not answer

the question now before the Court.

    The State’s reliance on State v. Diaz-Bridges, 208 N.J. 544

(2012), is also unavailing.     Diaz-Bridges analyzed a pretrial

ruling that suppressed a defendant’s taped statement.         The case

turned on whether the defendant’s request to speak with his

mother during an interrogation amounted to an assertion of the

right to silence.   Id. at 548.      The defendant spoke with the

police on two separate occasions.      At different times during the

lengthy second interrogation, the police took breaks and left

defendant alone.    Id. at 554-55.     During a break after six

                                   9
hours, with the recording equipment running, defendant began to

cry and said he wanted to go home.     Id. at 555.

    The trial court suppressed the entire second statement; the

Appellate Division suppressed part of it.     Id. at 558.   The

Court reversed after it concluded that, under all of the

circumstances, defendant’s request did not “constitute [an]

invocation of his right to silence.”     Id. at 572.

    The State maintains that the Court’s reversal of the

suppression order in Diaz-Bridges amounted to a finding that the

entire video should be admitted at trial.    But no party argued

about whether portions of the video when defendant was alone --

during breaks in an interrogation -- should be played for the

jury.   And the opinion simply does not consider the issue.

    In short, neither Cook nor Diaz-Bridges supports the

majority’s ruling.

    Today’s outcome also leaves a number of unanswered

questions.   Will it become common at trial for prosecutors to

play recordings of defendants after an interview has ended --

while defendants sit alone in an interrogation room?    What will

qualify as relevant evidence of demeanor in those instances?       If

a witness responds to questioning in a pleasant tone but turns

sullen when alone afterward, can that be presented to assail the

witness’s credibility?   Suppose a witness starts to cross his



                                10
arms and look about nervously after an interview?    Can

prosecutors refer to that to offer context?

     In my judgment, the risk of undue prejudice and of

misleading the jury substantially outweighed the probative value

of the six-minute video.    As a result, it should have been

excluded under N.J.R.E. 403, and it was an abuse of discretion

to admit the evidence.1

                                III.

     The majority ably recounts the strong evidence in the

record against defendant:    police found gloves near the scene of

the crime with both the victim’s blood on the outside and skin

cells on the inside that matched defendant’s DNA; defendant’s

mother contradicted his alibi; and a friend testified that

defendant had asked if he could get a ride home from the

fireworks display, said he would be back in a few minutes, and

never reappeared.   In light of that and other evidence, I do not

believe the admission of the six-minute video “raise[s] a

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



1
 The Appellate Division remanded for a new trial and suggested
in a footnote that N.J.R.E. 403 posed a “formidable barrier.”
The panel, though, analyzed the disputed evidence under a line
of authority about consciousness of guilt. See State v.
Williams, 190 N.J. 114, 125-29 (2007). Because I believe the
evidence was inadmissible in the first place, I do not reach
that question. That said, the prosecutor’s arguments in
summation went beyond his stated purpose in seeking to admit the
evidence.
                                 11
verdict it otherwise might not have reached.”   See State v.

Sterling, 215 N.J. 65, 101 (2013).   The error was harmless.

    I therefore respectfully concur in the judgment.




                               12
