                                                      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. Michael Ross II (A-79-15) (077458)

Argued March 27, 2017 -- Decided June 26, 2017

FERNANDEZ-VINA, J., writing for the Court.

         In this appeal as of right. the Court considers whether the trial court’s active questioning in a first-degree
murder trial constituted plain error.

          Alesky Bautin and Sergey Barbashov were shot and killed on the evening of October 30, 2003. The men
were sitting in Barbashov’s red Volkswagen Passat outside the Forest View apartment complex in Avenel when the
shooting occurred. Nearly one month earlier, defendant was stopped at a traffic signal when a car pulled up and
blocked his vehicle. A passenger defendant knew only as “Mitch” got out of the car and pointed a gun at him.

         On October 30, defendant was with Jamil McKnight, Sherrill Williams, and Ronald Huff. The group drove
in McKnight’s car to visit a friend. McKnight did not drive because of a condition that impaired his vision. Upon
seeing a red car parked outside, defendant told the group that he spotted the individuals who had threatened him
weeks earlier. Defendant said he wanted to go get his gun, which he had left at McKnight’s house.

         Before reaching McKnight’s house, Huff asked to get out of the car. Williams stayed at McKnight’s house
while defendant and McKnight drove back to Forest View with the gun. As they passed Barbashov’s car, defendant
fired multiple shots into the car from approximately three to four feet away. 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, and that he and Williams gave the gun to a man in Queens whom he knew only as Dante.

          The police received information leading to Sharhi Roberts, defendant’s ex-girlfriend. Roberts was arrested
on municipal court charges and agreed to give a statement in exchange for dropping the charges against her. She
told police that defendant had admitted to her on two separate occasions that he committed the murders. Wakefield,
who was also facing charges in an unrelated case, reluctantly gave a statement to the police in which he said that
defendant had admitted to committing the murders. In September 2006, police arrested defendant.

          An eight-day jury trial was held in 2008. The State presented seventeen witnesses and defendant presented
three witnesses, including himself. The trial court questioned many of the witnesses. Defendant did not object at
any point during trial to the court’s questioning of witnesses. During the final jury charge, the judge instructed the
jury that it should not be influenced by his questioning.

         In its fifth day of deliberations, the jury indicated it was unable to reach a verdict, and the court delivered a
Czachor charge. A juror became ill, and the judge substituted an alternate juror and instructed the jury to begin
deliberations anew. The jury deliberated four additional days before convicting defendant of the first-degree
murders of Bautin and Barbashov, second-degree possession of a weapon for an unlawful purpose, third-degree
unlawful possession of a weapon, and third-degree hindering apprehension. Defendant moved for a new trial, but
defense counsel did not challenge the trial court’s questioning. The court denied defendant’s motion.

          The Appellate Division subsequently reversed defendant’s convictions, holding that the trial court erred in
substituting a juror after the jury announced it was deadlocked. The Court reversed and remanded for the Appellate
Division to consider defendant’s other points on appeal. 218 N.J. 130 (2014).

          On remand, an Appellate Division panel rejected defendant’s remaining contentions in a split decision.
The majority and dissent disagreed as to whether the trial court’s questioning constituted plain error. Defendant
filed a notice of appeal as of right by virtue of the dissent in the Appellate Division.

                                                            1
HELD: Although some of the trial court’s inquiries were unnecessary and over-reaching, the trial judge’s conduct did
not rise to the level of plain error. Upon review of the record, the Court is satisfied that the trial court’s questions did
not deprive defendant of a fair trial.

1. When a defendant fails to object to an error or raise an issue before the trial court, courts review for plain error and
reverse only if the error was “clearly capable of producing an unjust result.” R. 2:10-2. (pp 21-22)

2. Defendant suggests that his failure to object at trial is excusable because of the “awkwardness” of objecting to the
trial court’s conduct in front of the jury. Defendant, however, could have done so at sidebar. Defendant also
contends that his failure to object at trial was justifiable because the impact of the court’s questioning may not have
seemed prejudicial until viewed cumulatively. In light of defendant’s failure to object to the nature or scope of the
trial court’s questioning in his motion for a new trial, the Court is unpersuaded by this contention. (pp. 22-23)

3. Judges are authorized to question witnesses “in accordance with law and subject to the right of a party to make
timely objection.” N.J.R.E. 614. A trial judge may intervene to expedite the proceedings and clarify testimony.
State v. O’Brien, 200 N.J. 520, 534 (2009). A trial judge may also pose questions to help elicit facts from a witness
who is in severe distress. State v. Taffaro, 195 N.J. 442, 451 (2008). Although a trial judge has wide latitude to
question witnesses, a judge must exercise this authority with “great restraint,” especially during a jury trial. Ibid. A
fine line separates proper and improper judicial questioning. A trial court crosses this line when its inquiries give
the jury an impression that it takes one party’s side or that it believes one version of an event and not another. In
determining whether a trial judge crossed over this line, courts must examine the record as a whole. (pp 23-25)

4. The Court reviews in detail the trial court interventions challenged by defendant and finds that none constitute
plain error. In contrast to Taffaro and O’Brien, the trial court in this case did not question defendant or his alibi
witnesses. Rather, the trial judge interjected only during the testimony of some of the State’s seventeen witnesses.
And even then, the court posed few questions to the four witnesses whose testimony mattered most in resolving the
primary contested issue in this case—the identity of the shooter. Although the judge was at times harsh with
Roberts, defense counsel was fully able to impeach her credibility regarding defendant’s alleged incriminating
admissions. Moreover, the judge actually helped facilitate cross-examination of Roberts. (pp 25-32)

5. It is unlikely that the trial court’s putative error led the jury to a result it otherwise might not have reached.
Notably, defendant’s credibility was severely impaired on cross-examination. The trial court’s jury instructions also
indicate that the court’s intervention did not lead the jury to a result it otherwise might not have reached. On this
record, where the court did not cast doubt on the credibility of defendant or underscore weaknesses in his defense,
one can fairly conclude that the jury followed the judge’s instructions. (pp. 32-33)

6. By intervening during defendant’s trial, the trial judge in this case skirted perilously close to the fine line that
distinguishes proper and improper judicial conduct. The court, however, did not cross that line. Judges must remain
ever vigilant not to cross that line by asking questions that suggest a favorable impression of a party or signal doubt
about a witness’s credibility, or overly intervene in counsel’s questioning. It bears repeating that defendant did not
object at trial to the court’s questioning and review is confined to the plain error standard. The Court views
counsel’s failure to object as an indication that counsel perceived no prejudice in the court’s questioning. (p. 33)

         The judgment of the Appellate Division is AFFIRMED.

          JUSTICE TIMPONE, DISSENTING, expresses the view that the trial judge’s extensive cross-
examination of fourteen of the State’s seventeen witnesses, through colloquies extending for well beyond thirty
pages of transcripts, crossed that fine line that separates advocacy from impartiality. The judge sowed doubts as to
defendant’s theory of the case by buttressing the State’s witnesses, casting doubt with his tone and manner on a
critical defense-leaning witness, and testifying himself while adroitly avoiding examining defendant, according to
Justice Timpone. Where the majority finds that the judge came perilously close to the line, Justice Timpone finds
that he clearly crossed it, denying the defendant his due process right to a fair trial.

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


                                                            2
                                      SUPREME COURT OF NEW JERSEY
                                        A-79 September Term 2015
                                                 077458

STATE OF NEW JERSEY,

    Plaintiff-Respondent,

         v.

MICHAEL ROSS II,

    Defendant-Appellant.


         Argued March 27, 2017 – Decided June 26, 2017

         On appeal from the Superior Court, Appellate
         Division.

         Jay L. Wilensky, Assistant Deputy Public
         Defender, argued the cause for appellant
         (Joseph E. Krakora, Public Defender,
         attorney).

         Nancy A. Hulett, Assistant Prosecutor,
         argued the cause for respondent (Andrew C.
         Carey, Middlesex County Prosecutor,
         attorney).

         Emily R. Anderson, Deputy Attorney General,
         argued the cause for amicus curiae
         (Christopher S. Porrino, Attorney General,
         attorney).


    JUSTICE FERNANDEZ-VINA delivered the opinion of the Court.

    In this appeal as of right, we consider whether the trial

court’s active questioning in a first-degree murder trial

constituted plain error.




                                1
    A jury convicted defendant Michael Ross of committing a

double murder and related offenses.    The State’s theory of the

case was that defendant shot and killed the two victims because

he mistook one of them for an individual who had previously

threatened him with a firearm.   At trial, defendant testified

and denied involvement in the shooting.

    The State presented seventeen witnesses and defendant

presented three witnesses, including himself.    The trial court

questioned many of the witnesses.    Defendant did not object at

any point during trial to the court’s questioning of witnesses.

On appeal, however, defendant argued that the judge’s

questioning of a number of the State’s witnesses constituted

plain error.

    A divided Appellate Division panel affirmed defendant’s

convictions.   A majority of the panel acknowledged that the

trial judge’s conduct was a mistaken exercise of discretion, but

concluded that the judge’s participation did not constitute

plain error.   Conversely, the dissenting judge maintained that

the trial court’s conduct warranted reversal of defendant’s

convictions.

    Although some of the trial court’s inquiries were

unnecessary and over-reaching, we conclude that the trial

judge’s conduct did not rise to the level of plain error.     Upon

review of the record, we are satisfied that the trial court’s

                                 2
questions did not deprive defendant of a fair trial.

Accordingly, we affirm the judgment of the Appellate Division

and uphold defendant’s convictions.

                                I.

                                A.

    Alesky Bautin and Sergey Barbashov were shot and killed on

the evening of October 30, 2003.       The men were sitting in

Barbashov’s red 1999 Volkswagen Passat outside the Forest View

apartment complex (“Forest View”) in Avenel when the shooting

occurred.   Nearly one month earlier, on October 1, defendant was

stopped at a traffic signal in the Woodbridge area when a car

pulled up and blocked his vehicle.      A passenger defendant knew

only as “Mitch” got out of the car and pointed a gun at him.      In

an attempt to avoid the confrontation, defendant drove away,

hitting two other cars in the process.      On October 2, defendant

traveled to police headquarters and gave a statement regarding

the incident.   Defendant told police that the gun-waving

individual drove a burgundy or maroon Ford Taurus or Mercury

Sable that he had previously seen in the neighborhood.

    On October 30, defendant was with Jamil McKnight, Sherrill

Williams, and Ronald Huff.   The group drove to Forest View in

McKnight’s car to visit a friend.      McKnight did not drive

because of a condition that impaired his vision.      Upon seeing a

red car parked outside one of the apartment buildings, defendant

                                   3
told the group that he spotted the individuals who had

threatened him weeks earlier.    Defendant said he wanted to get

his gun, which he had left at McKnight’s house.   Defendant also

described the individuals in the car, including Mitch, as black

males.

    Before reaching McKnight’s house, Huff asked to get out of

the car.   Williams stayed at McKnight’s house while defendant

and McKnight drove back to Forest View with the gun.       As they

passed Barbashov’s car, defendant fired multiple shots into the

car from approximately three to four feet away.    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, and that he and Williams gave the

gun to a man in Queens whom he knew only as Dante.

    Huff, who was walking around the neighborhood at the time

of the shooting, heard multiple shots.    Walking in the direction

of the shooting, Huff approached Barbashov’s car and saw Bautin,

who appeared to be dead, and Barbashov, who was still alive.

Huff heard sirens and told Barbashov that help was on the way.

Officer Christopher Lyons of the Woodbridge Police Department

responded to the shooting.   When he arrived at the scene, he

found Bautin dead with a bullet hole at the base of his skull

behind his ear lobe.   Lyons found Barbashov alive in the

driver’s seat and called for an ambulance.    Responders

                                  4
transported Barbashov to the hospital for emergency surgery, but

doctors there were unable to save him.

       Several spent shell casings and bullets were found in and

around Barbashov’s vehicle.     Gary Mayer, a forensics ballistics

investigator, determined that the spent shells, bullets, and

fragments recovered from the scene had all been fired from the

same nine-millimeter firearm.    Mayer examined a nine-millimeter

Glock handgun belonging to Barbashov’s business partner and

concluded that the rounds at the scene were not fired from that

gun.

       With no further leads, the investigation stalled.

Eventually, the police received information leading to Sharhi

Roberts, defendant’s ex-girlfriend.     Roberts was arrested on

municipal court charges and agreed to give a statement to police

in exchange for dropping the charges against her.     Roberts told

police that defendant had admitted to her on two separate

occasions that he committed the murders.

       Wakefield, who was also facing charges in an unrelated

case, reluctantly gave a statement to the police in which he

said that defendant had admitted to committing the murders.

Wakefield did not have an attorney present when he gave his

first statement to the police, and averred at trial that

authorities pressured him to implicate defendant.     Sergeant Mark

Clements, who investigated the crime on behalf of the Middlesex

                                   5
County Prosecutor’s Office, stated that Wakefield was with

authorities for approximately seven and one-half hours on the

date he gave his first statement and took a polygraph exam.

    In September 2006, nearly three years after the October 30

shooting, police arrested defendant.   McKnight was arrested in

New York for disposing of the firearm that had been used in the

shootings, and defendant was arrested three days later for the

murders.   Police never recovered the murder weapon.

                                B.

    In October 2006, a Middlesex County grand jury issued an

indictment charging defendant with two counts of first-degree

murder, contrary to N.J.S.A. 2C:11-3(a)(1) and (a)(2); second-

degree possession of a weapon for an unlawful purpose, contrary

to N.J.S.A. 2C:39-4(a); third-degree unlawful possession of a

weapon, contrary to N.J.S.A. 2C:39-5(b); and third-degree

hindering apprehension, contrary to N.J.S.A. 2C:29-3(b)(3).

    An eight-day jury trial was held in 2008.   On April 1, the

State called the first of its seventeen witnesses.     Officer

Vincent Totka, who investigated the October 1 gun-waving

incident, was the first witness to testify.   The trial judge

asked Officer Totka, who took defendant’s statement the day

after the incident, a brief series of questions to establish

defendant’s age at the time of questioning and to clarify why

defendant’s father was not in the room when the officer took

                                 6
defendant’s statement regarding the gun-waving episode.     Totka

responded that defendant was twenty-one years old at the time

and that parental consent was not needed.

    Detective Michael Ng, who investigated the motor vehicle

accident resulting from defendant’s driving away from Mitch, was

the second witness to testify.   The trial court posed several

questions to Ng, whose responses established that the police

asked defendant’s father to have defendant contact them about

the accident and that defendant came to the station the

following day.   Following Ng’s testimony, a Verizon employee and

a New Jersey State Police lieutenant testified regarding the 911

call made on the night of the murders.    The trial court asked

those two witnesses limited questions.    Bautin’s brother and

Barbashov’s girlfriend were the next witnesses to testify, and

the court posed only a few questions.

    On the second day of trial, the State called Huff, who had

been in the car with defendant, McKnight, and Williams on the

evening of the murders.   Huff described what he witnessed that

night and testified as to what he told the police in response to

their questioning during the investigation.    During his direct

testimony, Huff referred to defendant and McKnight by their

nicknames and denied knowledge of their real names.    During

cross-examination, defendant responded to questions using

defendant and McKnight’s real names.     After cross-examination,

                                 7
the court had Huff clarify that he knew their real names only at

the time of trial and not previously:

         [Court]: So, in other words, you know who the
         real name of Sagacious is now?

         [Huff]:    I do not, no.

         [Court]:    Now?

         [Huff]:    Now.

         [Court]:    That is what I’m saying.

         [Huff]:    Jamil, whatever his name is.

         [Court]:    Do you know his last name now?

         [Huff]:    If they say it again I’ll know.

         [Court]: Did the attorney just ask you about
         McKnight?

         [Huff]:    Jamil McKnight.    Yes.

         [Court]:    Jamil McKnight?

         [Huff]: Jamil McKnight.       Like I said, I don’t
         know his real name.

         [Court]:    But you think that’s his real name
         now?

         [Huff]:    Yes.

The judge also asked Huff some questions regarding the details

of the night of the murders, including the weather conditions

and the lighting.

    Next, the State called Roberts, defendant’s former

girlfriend who previously informed police that defendant had

confessed to her.   In her testimony, Roberts stated for the

                                 8
first time that defendant told her that he “made up” his story

about committing the shootings.    Roberts also testified that the

police pressured her into implicating defendant, and the court

directed her to answer defense counsel, who had asked her to

recount specific instances of harassment:

         [Defense Counsel]: Can you describe for the
         jury the manner in which they harassed you
         with as much specificity as you can.

         [Roberts]: Okay. They came to my house. I’ve
         been evicted from places.

         [Court]:     I’m sorry.   Came to your house and
         what?

         [Roberts]: They came to my house.       Harassed
         me numerous times.

         [Court]: In other words, the question is we
         need   specifics.      What   did  they   do?
         Specifically, what did they do? What did they
         say? What did they do?

         [Roberts]:    Well --

         [Court]:   Okay.

         [Roberts]:    They --

         [Court]:   They came to your house.   What else?

At that point, Roberts gave a more detailed answer.    Shortly

thereafter, defense counsel asked Roberts a question that

prompted an objection from the State and a sidebar discussion.

After concluding the discussion at sidebar and before defense

counsel resumed cross-examination, the following colloquy took

place:

                                   9
         [Court]: All right. Now, Miss Roberts, you
         have to listen to the questions of [defense
         counsel] very carefully. All right?

         [Roberts]:    Okay.

         [Court]: You listen to the question and you
         think and you only answer his question.

         [Roberts]:    Okay.

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

         [Roberts]:    Yes.

         [Court]:  I appreciate it.    Thank you very
         much. Yes, [defense counsel].

         [Defense Counsel]:     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.

         [Roberts]:    They came numerous times.

         [Court]:     Came where, ma’am?

         [Roberts]:   To my house, to my job.     They
         waited in the parking lot of my job.     They
         came into my job, gave false statements about
         me.

         [Defense Counsel]:        What statements did they
         make about you?

         [Prosecutor]:     Judge, that’s hearsay.      It’s
         hearsay.

         [Court]:     Overruled.

    The defense then attempted to draw out Roberts’s assertions

about police harassing her into making a statement, and Roberts


                                   10
answered defense counsel’s question regarding the timing of the

alleged harassment:

           [Defense Counsel]: Okay. So when’s the first
           time that you can remember the police coming
           to you and harassing you?

           [Roberts]: The first time I remember was my
           father’s house.

           [Court]:     When?   When?    When?   When?   Not
           where.

           [Roberts]:    I can’t remember the exact day.

           [Court]: Well, was it like –- was it before
           . . . October 30, 2003, or was it after October
           30?

           [Roberts]:    It was after.

           [Court]:     Was it a month after, a year after?

           [Roberts]: A year, a year –- almost two years
           -- it was a little after November, I want to
           say –- I want to say ’05 –-

           [Court]:     Okay.

           [Roberts]:    -- 6, November.

           [Court]:     November 2005.

    The court also guided Roberts when answering defense

counsel’s questions regarding her police interview, whether she

had an unrecorded pre-interview, and whether she had an attorney

present.   During defense counsel’s cross-examination and

recross-examination of Roberts, the court frequently overruled

the State’s objections.



                                   11
    The next witness to testify was Officer Lyons, who

responded to the scene of the shooting.    The trial court posed

several questions regarding Lyons’s efforts to secure the crime

scene, the lighting conditions, and other details about the

scene.   The court also asked several clarifying questions:

          [Defense Counsel]: Do you ever recall telling
          a witness they were going to be a witness or
          they were going to get a green sheet? Do you
          recall any of this?

          [Court]:   Hold on.   Do you recall any of that,
          sir?

          [Lyons]:   I believe you’re asking the same
          question again, sir.

          [Defense Counsel]:     No, I’m not.

          [Court]:   Specific words.

          [Lyons]:   Okay.    I don’t recall.

    Following Lyons’s testimony, John Haley, a retired officer

from the Middlesex County Prosecutor’s Officer who responded to

the scene of the shootings, testified regarding the evidence

gathered from the scene.     After cross-examination, the court

engaged in a colloquy with Haley about how the crime scene was

processed.

    The State later called Roberts’s attorney, who rebutted

Roberts’s assertion that he had advised her not to tell police

that defendant recanted his confession to her.    The trial court

did not ask any questions during direct or cross-examination.


                                  12
The State then called McKnight to describe what happened the

night of the double homicide.   The court’s intervention was

limited –- the judge asked McKnight to repeat or clarify a few

points to ensure that the court’s notes were accurate.

    The State called Mayer, from the Somerset County

Prosecutor’s Office, to testify whether the firearm from

Barbashov’s business partner matched the shell casings recovered

from the scene.   During direct examination, the court asked

Mayer to clarify his testimony that two guns made by the same

manufacturer would have different markings in the barrel and to

explain what Mayer meant when he referred to “lands” and

“grooves.”   The court also elicited the location of the evidence

vault of the forensic ballistic unit.   In addition, the court

asked Mayer to clarify the term “proved positive” and how the

forensic ballistics unit labels evidence.   The court also

clarified a few questions asked by the prosecutor, including

whether Mayer had the ability to compare lead fragments in the

case microscopically, not whether he actually did; and whether

Mayer could list, “for the record,” the major gun manufacturers

capable of firing the projectiles found in this case.

    After a brief cross-examination, the court engaged in a

colloquy with Mayer.   The court asked about the differences

between a revolver, a semi-automatic weapon, and an automatic

weapon.   The judge also asked about how many weapons were used

                                13
and which casings matched.     In addition, he asked Mayer about

the significance of the term “Luger” and what happens to a

projectile when it is fired from a weapon.    The prosecutor asked

additional questions after the court’s colloquy with Mayer, but

defense counsel declined the opportunity to further cross-

examine Mayer.

    Wakefield, who was with defendant the evening of October 30

before the murders, also testified.     Wakefield stated that

authorities pressured him to implicate defendant.     The court’s

questioning of Wakefield was limited.    Sergeant Clements of the

Middlesex County Prosecutor’s Office testified on behalf of the

State regarding his role in the investigation of the double

homicide.   Clements rebutted Wakefield’s testimony that he had

been pressured to give a statement to the police.    Defense

counsel cross-examined Clements on how much time Wakefield had

been in custody before providing a formal statement, and how

much time Wakefield spent with the polygraph examiner before

providing the statement.     The judge interrupted and, at sidebar,

told counsel that Clements, who was not present during the

polygraph, could not possibly know about the procedures employed

by the examiner that night.

    During redirect, the prosecutor established that Clements

did not know how long a polygraph examiner would spend

explaining the test or administering preliminary questions

                                  14
before beginning the actual examination.     In a recross

examination, of Clements, defense counsel established that

Wakefield was in police custody for an extended period of time

suggesting that Wakefield’s disclosure was the result of

aggressive interrogation from the police.    After redirect and

recross, the court asked if the polygraph examination was

administered in a separate room and established that Clements

and Lyons were not present during the administration of the

test.   Both the prosecutor and defense counsel asked follow-up

questions after the court’s inquiries.

    The State also posed questions to the medical examiners who

performed the autopsies on Barbashov and Bautin.    After defense

counsel declined to cross-examine both witnesses, the court

engaged in questioning of Dr. Frederick DiCarlo, who performed

the autopsy on Bautin, and Dr. Andrew Falzon, who performed the

autopsy on Barbashov.     After defense counsel declined to cross-

examine Dr. Falzon, the following colloquy took place:

          [Court]: All right. So, the cause of death
          is gunshot wounds, right?

          [Dr. Falzon]:     Correct.

          [Court]:    Which -- what’s the mechanism of
          death?

          [Falzon]:     The mechanism would be shock.

          [Court]:    You have to tell the jury.



                                  15
         [Falzon]:   The mechanism of death would be
         shock.    Basically when a person sustains
         gunshot wounds in a case like this, they are
         bleeding internally. And they go into what we
         term as hemorrhagic shock where there is not
         enough blood left in the vascular system to
         sustain life.

         [Court]: All right. You’re saying shock is
         equated with loss of blood?

         [Falzon]:   Correct.

         [Court]: And what –- how do you classify this?

         [Falzon]:   The manner of death?

         [Court]:    Yeah, manner of death.

At this point, the prosecutor asked for a sidebar, during which

the parties agreed that the manner of death was the province of

the jury and should not be elicited by the judge.   The court

then asked one question regarding the time of death, and gave

both parties the chance to ask follow-up questions.    Both the

prosecutor and defense counsel declined.

    After the State rested, the defense called three witnesses:

a private investigator hired by defense counsel; defendant’s

friend, Chaney McPhatter; and defendant himself.    The defense

called Chaney McPhatter as an alibi witness, and she testified

that she thought she remembered seeing defendant at her house on

the night of the murders.   On cross-examination, the State

highlighted that McPhatter was only thirteen years old at the

time of the murders and confronted her with a statement in which


                                16
she told investigators that she did not recall defendant

visiting that night at all.

    In his testimony, defendant described the October 1 gun-

waving incident.     He denied that Mitch was involved and stated

that the gun-waving assailant exited a Taurus or Sable.

Defendant acknowledged knowing that Mitch drove a 1988 red

Volkswagen Jetta.     Defendant testified that on the night of the

murders, he was driving with McKnight, Williams, and Huff when

they saw a Taurus leaving Forest View.     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, Chaney McPhatter’s

older sister.     Leaving McKnight and Williams in the car,

defendant briefly stayed at Latoya McPhatter’s house.     Defendant

then walked to Wakefield’s house, where McKnight arrived later.

Defendant denied shooting the victims.

    During cross-examination, it was revealed that authorities

recorded a telephone conversation defendant had with his father

while incarcerated in 2006 without defendant’s knowledge.

Defendant told his father 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.



                                  17
        The trial court did not engage in independent questioning

of defendant, Chaney McPhatter, or the private investigator.

        During the final jury charge, the judge instructed the jury

that it should not be influenced by his questioning:

             [T]he fact that I may have asked questions of
             a witness or different witnesses in the case
             must not influence you in any way in your
             deliberations.     The fact that I asked
             questions does not indicate that I hold any
             opinion one way or the other as to the
             testimony given by the witness.

        In its fifth day of deliberations, the jury indicated it

was unable to reach a verdict, and the court delivered a Czachor

charge.1    A juror became ill, and, after dismissing that juror

the following day, the judge substituted an alternate juror and

instructed the jury to begin deliberations anew.

        The jury deliberated over the course of four additional

days before convicting defendant of the first-degree murders of

Bautin and Barbashov, second-degree possession of a weapon for

an unlawful purpose, third-degree unlawful possession of a

weapon, and third-degree hindering apprehension.

        Defendant moved for a new trial before sentencing, but

defense counsel did not challenge the trial court’s questioning.

After denying defendant’s motion for a new trial, the court

sentenced defendant to two consecutive life terms on the murder



1
    State v. Czachor, 82 N.J. 392 (1980).
                                  18
counts, each subject to the No Early Release Act, N.J.S.A.

2C:43-7.2, and a consecutive five-year term on the hindering

charge.

    The Appellate Division subsequently reversed defendant’s

convictions, holding that the trial court erred in substituting

a juror after the jury announced it was deadlocked.    We reversed

and remanded for the Appellate Division to consider defendant’s

other points on appeal.    State v. Ross, 218 N.J. 130 (2014).

    On remand, an Appellate Division panel rejected defendant’s

remaining contentions in a split decision.    The majority and

dissent disagreed as to whether the trial court’s questioning

constituted plain error.    Defendant filed a notice of appeal as

of right by virtue of the dissent in the Appellate Division.

N.J. Const. art. VI, § V, ¶ 1(b).

    Because the parties are limited to the issues raised by the

dissent, R. 2:2-1(a)(2), the sole issue in this appeal is

whether the trial court’s questioning rose to the level of plain

error.    The Court granted the Attorney General amicus curiae

status.

                                 II.

    Defendant argues that the trial court’s excessive

involvement warrants reversal as plain error.    He posits that

“this case presents a distortion, if not a breakdown, of the

carefully circumscribed roles of the participants in a trial

                                 19
that define our adversary system.”    Defendant emphasizes that a

trial judge may only intervene to expedite the proceedings,

clarify testimony, or assist a witness or counsel in distress.

Defendant avers that the trial court’s inquiries did not fit

within these limited purposes.

    Recognizing that he did not object at trial, defendant

claims the lack of objection below is not an impediment to

reversal.   Citing State v. Taffaro, 195 N.J. 442 (2008) and

State v. O’Brien, 200 N.J. 520 (2009), defendant notes that this

Court has previously granted reversal as a matter of plain error

where a trial court questioned witnesses.   In addition,

defendant highlights the “awkwardness” of objecting to a trial

court’s intervention at trial and asserts that the impact of the

court’s questioning may not have seemed prejudicial until viewed

cumulatively.

    Defendant points out several instances in which the trial

court’s questioning of witnesses was improper.   Specifically,

defendant references the court’s inquiries of Officers Totka and

Ng, Huff, Roberts, Wakefield, Mayer, and the medical examiners.

Defendant maintains that the trial court’s extensive questioning

of those witnesses mandates reversal of his convictions.

    The State notes that defendant did not object to the

court’s questioning at trial.    The State contends that

defendant’s failure to object at trial demonstrates that he did

                                 20
not view the court’s intervention to be prejudicial.      The State

submits that the court’s questions were primarily clarifying in

nature and that the court posed few questions to the witnesses

most pivotal to the State’s case.      The State also distinguishes

Taffaro and O’Brien on the basis that the court did not make any

inquiries of defendant or his alibi witness.      The Attorney

General agrees with the State that the trial court’s

intervention did not give rise to plain error.

                                III.

                                 A.

    When a defendant fails to object to an error or raise an

issue before the trial court, we review for plain error.         R.

2:10-2.    We may reverse on the basis of unchallenged error only

if the error was “clearly capable of producing an unjust

result.”   Ibid.   “The possibility of an unjust result must be

‘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. Williams, 168 N.J. 323, 336 (2001) (quoting State v.

Macon, 57 N.J. 325, 336 (1971)).      A defendant who does not raise

an issue before a trial court bears the burden of establishing

that the trial court’s actions constituted plain error.      State

v. Weston, 222 N.J. 277, 295 (2015).      A defendant assumes this

burden because “to rerun a trial when the error could easily

have been cured on request, would reward the litigant who

                                 21
suffers an error for tactical advantage either in the trial or

on appeal.”   Id. at 294-95 (quoting Macon, supra, 57 N.J. at

333).

    Defendant suggests that his failure to object at trial is

excusable because of the “awkwardness” of objecting to the trial

court’s conduct in front of the jury.    Defendant, however, need

not have objected to the trial court’s questioning in front of

the jury and could have done so at sidebar.    In fact, during the

trial court’s questioning of Dr. Falzon, the State requested a

sidebar and challenged the propriety of the court’s inquiry to

the medical examiner about Barbashov’s manner of death.     After

this exchange at sidebar, the court asked only one question

regarding the time of death.   That the State raised an issue as

to the trial court’s questioning at sidebar, which had the

effect of curtailing further intervention from the court,

convinces us that defendant’s capacity to object at trial was

not as precarious as he and our dissenting colleague attempt to

portray.

    Defendant also contends that his failure to object at trial

was justifiable because the impact of the court’s questioning

may not have seemed prejudicial until viewed cumulatively.      In

light of defendant’s failure to object to the nature or scope of

the trial court’s questioning in his motion for a new trial, we

are unpersuaded by this contention.     Because defendant failed to

                                22
object to the trial court’s questioning, we analyze his claim in

this appeal through the lens of plain error review.

                                   B.

    The New Jersey Rules of Evidence explicitly permit trial

judges to interrogate witnesses.        Judges are authorized to

question witnesses “in accordance with law and subject to the

right of a party to make timely objection.”        N.J.R.E. 614.

Indeed, we have recognized that the discretionary power of a

judge to participate in the development of proof is of “high

value.”     State v. Guido, 40 N.J. 191, 207 (1963).       A trial judge

may intervene to expedite the proceedings and clarify testimony.

O’Brien, supra, 200 N.J. at 534.        A trial judge may also pose

questions to help elicit facts from a witness who is in severe

distress.    Taffaro, supra, 195 N.J. at 451.

    Although a trial judge has wide latitude to question

witnesses, a judge must exercise this authority with “great

restraint,” especially during a jury trial.        Ibid.   A judge must

use considerable care when questioning witnesses to avoid

influencing the jury.     Ibid.   There is a grave risk that a trial

court may influence a jury through its questioning by signaling

doubt about a witness’s credibility or suggesting that it favors

one side over the other.     See O’Brien, supra, 200 N.J. at 523

(noting that judge “holds powerful symbolic position vis-a-vis

jurors . . . and must refrain from any action that would suggest

                                   23
that he favors one side over the other, or has a view regarding

the credibility of a party or a witness”).     A fine line

separates proper and improper judicial questioning.      A trial

court crosses this line when its inquiries give the jury an

impression that it takes one party’s side or that it believes

one version of an event and not another.     See Taffaro, supra,

195 N.J. at 451 (citing Village of Ridgewood v. Sreel Inv.

Corp., 28 N.J. 121, 132 (1958)).

    In determining whether a trial judge crossed over this

line, we must examine the record as a whole.    See id. at 454.

“[I]t is the impact of the court’s questions, and not the number

of minutes they lasted, which matters most.”    Ibid.    With these

legal principles in mind, we assess whether defendant has met

his burden of establishing that the trial court’s actions

constituted plain error.

                                IV.

                                A.

    Defendant challenges the trial court’s queries to the first

two witnesses to testify on behalf of the State, Officers Totka

and Ng.   We find the court’s eliciting defendant’s age at the

time of his interview with police regarding the gun-waving

incident and the reason defendant’s father was not in the room

to be nothing more than an innocuous intervention.      Although it

was not necessary for the trial court to draw out this

                                24
information, the court’s intervention did not indicate to the

jury that it held a favorable view of Officer Totka or that it

favored the State’s case.   In addition, the purpose of Officer

Totka’s testimony was to describe the gun-waving incident as a

basis for defendant’s motive for the October 30 shooting.    The

trial court’s questions were clearly tangential to the crux of

Officer Totka’s testimony as they did not convey to the jury

information about defendant’s motive.

    As to Officer Ng, defendant claims the trial court’s

inquiries had the effect of highlighting defendant’s failure to

report the gun-waving incident immediately or voluntarily.   Like

Officer Totka, Officer Ng testified for the limited purpose of

establishing defendant’s motive for the October 30 shooting.

The court’s questions were peripheral to this underlying purpose

and did not strike at the heart of Officer Ng’s testimony.      In

short, although the trial court’s intervention after both

officers were cross-examined was unnecessary, it was not

damaging to defendant.

    Because the judge asked limited questions of the Verizon

employee and of the state trooper, defendant does not focus on

these witnesses, and next challenges the court’s intervention

during Huff’s testimony.    We fail to discern how the trial court

prejudiced defendant by clarifying that Huff learned the real

name of Jamil McKnight only at the time of trial.   Defendant

                                 25
also highlights the court’s questioning of Huff about the

lighting conditions and avers that this effectively supported

the State’s theory that he sought to exact revenge on Mitch, but

mistakenly shot two innocent individuals.   However, this

questioning could also have buttressed defendant’s theory of the

case that it was McKnight, a man with poor eyesight, who

mistakenly shot the victims.   Thus, whether the court’s

questioning of Huff had an adverse effect on defendant’s case is

speculative at best.2   Because we may reverse on the basis of

unchallenged error only if the error was “clearly capable of

producing an unjust result,” R. 2:10-2, the court’s questioning

of Huff does not mandate reversal.

                                B.

     Turning to defendant’s claim that the trial judge’s

“harshest intervention was reserved for Sharhi Roberts,” it is

difficult to assess from the record the harshness of this


2The dissent asserts that the court’s questioning of Huff is of
“particular concern” because the judge acted as a second
prosecutor “to elicit testimony to dispel the theory posed by
defense counsel that the poor-visioned McKnight was the shooter
who mistook the red Passat for a maroon Mercury.” Post at ____
(slip op. at 16-18). Specifically, the dissent highlights the
judge’s remark, “[o]f course there were lights on,” after Huff
mentioned it was dark. The dissent concludes that this exchange
favored the State. The court’s remark favors neither since both
the defense’s and prosecution’s theories were that the shooting
occurred based on an inability to make observations.
Additionally, the dissent raises the argument that the judge in
so stating testified on the State’s behalf in questioning Huff
despite defendant’s never having advanced that argument.
                                26
intervention.    Nonetheless, the judge’s questioning of Roberts

was proper as it fell squarely within the well-recognized

judicial role of clarifying testimony.

    Significantly, the trial judge’s exchange with Roberts, who

was a State witness, took place while defense counsel was cross-

examining her.    The court guided Roberts to answer defense

counsel, who had asked Roberts to describe with “as much

specificity” as possible how Officers Clements and Lyons had

harassed her.    When Roberts simply replied, “[t]hey came to my

house.   I’ve been evicted from places,” the court intervened and

told her that counsel’s question called for specifics.   Roberts

only provided a detailed answer to defense counsel’s question

after the court guided her to answer the question with the

specific information that counsel was asking her to provide.

    In addition, before defense counsel resumed his cross-

examination of Roberts, the trial court instructed Roberts that

she had “to listen to the questions of [defense counsel] very

carefully” and she had to “think” and “answer his question.”

Contrary to defendant’s contentions, the court was not acting as

an advocate for the State, and any “harshness” toward Roberts

stemmed from the State’s witness not being responsive to defense

counsel’s questioning.    If anything, the court’s admonitions to

the witness had the effect of facilitating defense counsel’s



                                 27
cross-examination of a non-responsive witness testifying on

behalf of the State.

    Defendant also maintains that the court’s impatience with

Roberts signaled doubt about her claims of harassment.     The

record does not support this interpretation.   In fact, the court

repeatedly overruled the State’s objection to defendant’s line

of inquiry in an attempt to permit its full development.

Because the trial court’s intervention with Roberts was unlikely

to affect the result when viewed in the context of her testimony

as a whole, we do not find that intervention to rise to the

level of plain error.   That defendant himself characterizes the

trial court’s treatment of Roberts as its “harshest

intervention” foretells the difficulty defendant encounters in

showing plain error as to the court’s questioning of the other

witnesses.

                                C.

    The trial court also extensively questioned the State’s

forensic ballistics expert and the two medical examiners who

performed the autopsies on the victims.   Although the trial

court heavily intervened during this testimony, it’s questions

were harmless.   Indeed, the court’s questioning was largely

gratuitous and, as the Appellate Division correctly recognized,

“the questions . . . seemingly served only to display the

judge’s personal knowledge of the subject matters involved.”

                                28
Accordingly, although the court acted imprudently when

questioning these witnesses, the effect of the questioning was

neither prejudicial to defendant nor supportive of the State.

Because “it is the impact of the court’s questions, and not the

number of minutes they lasted, which matters most,” defendant’s

emphasis on the amount of questions the court posed to these

witnesses is unavailing.    Taffaro, supra, 195 N.J. at 451.3

                                   D.

       Finally, defendant relies on Taffaro and O’Brien, in which

the trial judge’s conduct constituted plain error.     Taffaro and

O’Brien, however, are readily distinguishable from the case at

bar.    In Taffaro, supra, the trial judge extensively questioned

the defendant in a manner that “underscored the weaknesses in

his defense.”   Id. at 448, 452.    As we explained, “the questions

had the effect of suggesting to the jury that the [trial] court

doubted defendant’s account in a case that rested heavily on

defendant’s credibility.”    Id. at 453.

       Likewise, in O’Brien, supra, the trial judge engaged in

lengthy questioning of the defendant and key defense witnesses.

200 N.J. at 526-33.   The defendant in O’Brien confessed to


3The dissent similarly makes much of the fact that the trial
court asked a multitude of questions to numerous witnesses. In
doing so, the dissent erroneously gives short shrift to
Taffaro’s instruction that we must determine the prejudicial
impact of the court’s questioning in the context of the trial as
a whole.
                                   29
fatally shooting his parents, and his sole defense at trial was

diminished capacity.    Id. at 524-25.    In advancing his

diminished capacity defense, the defendant presented a

psychiatrist as an expert witness.       Id. at 525.   We concluded

that the questions the trial judge posed to defendant’s medical

expert were “damaging to the overall fairness of the trial”

because they “[e]xpress[ed] clear disbelief in the witness’s

conclusions.”   Id. at 538.   As to the trial court’s questioning

of the defendant, we determined that “the only inference [the

jury] could draw from the judicial intervention was that [the]

defendant’s testimony probably was not true.”      Id. at 537-38.

Moreover, the trial court questioned one of the State’s

investigators in such a way that it “effectively hammered nails

into defense counsel’s ongoing cross-examination and bolstered

the State’s witness.”   Id. at 539.      Encountering a trial judge

“who appeared to disbelieve [the defendant] and his expert

witness, revealed that disbelief to the jury, and supported a

witness adverse to [the defendant],” this Court had little

difficulty in finding plain error.       Id. at 539-40.

    In contrast to Taffaro and O’Brien, the trial court in this

case did not question defendant or his alibi witnesses.       Rather,

the trial judge interjected only during the testimony of some of

the State’s seventeen witnesses.      And even then, the court posed

few questions to the four witnesses whose testimony mattered

                                 30
most in resolving the primary contested issue in this case –-

the identity of the shooter.   The trial judge asked only a few

questions of Huff, McKnight, and Wakefield, who were with

defendant on the night of the murders.

    Although the judge was at times harsh with Roberts, defense

counsel was fully able to impeach her credibility regarding

defendant’s alleged incriminating admissions.   Unlike the trial

judge in O’Brien, supra, who “effectively hammered nails” into

defense counsel’s cross-examination of a State witness, the

trial judge here accorded defense counsel flexibility in cross-

examining Roberts, as demonstrated by his repeated rejection of

the prosecutor’s objections.   Moreover, the judge actually

helped facilitate defense counsel’s cross-examination of

Roberts.    Defendant’s comparison with Taffaro and O’Brien as

support for his position falls short because those cases are

plainly distinguishable.

    Furthermore, it is unlikely that the trial court’s putative

error “led the jury to a result it otherwise might not have

reached.”   Williams, supra, 168 N.J. at 336 (quoting Macon,

supra, 57 N.J. at 336).    Notably, defendant’s credibility was

severely impaired on cross-examination.   After testifying that

he was at Latoya McPhatter’s house when the shootings occurred,

the State confronted defendant with his jailhouse call to his



                                 31
father in which he stated he was not in Middlesex County on the

night of the murders.

    The trial court’s jury instructions also indicate that the

court’s intervention did not lead the jury to a result it

otherwise might not have reached.     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 April 15.     Before the jury began its

deliberations on April 16, the trial judge carefully instructed

the jury that the questions he posed to witnesses should not

influence them.   After extensive deliberations, the jury

announced its verdict on April 29, nearly three weeks after the

court asked its last question.   In an egregious case of judicial

intervention, a jury instruction may be insufficient to offset

the prejudicial effect of improper questioning by the court.

See Taffaro, supra, 195 N.J. at 448, 454.     On this record, where

the court did not cast doubt on the credibility of defendant or

underscore weaknesses in his defense, we can fairly conclude

that the jury followed the judge’s instructions.     See State v.

Loftin, 146 N.J. 295, 390 (1996) (“That the jury will follow the

instructions given is presumed.”).

    Averring that this was a very close case, the dissent

suggests that the jury’s deliberation over five days illustrates

that the judge placed his thumb on the scale.     Courts are not

                                 32
able to draw accurate inferences from the length of

deliberations.   The only observation we can make from the

deliberations is that the jury spent five days weighing the

evidence.   Thus, the dissent’s reliance on the jury’s

deliberations to show that the trial court placed its thumb on

the scale is unavailing.

                                V.

    By intervening during defendant’s trial, the trial judge in

this case skirted perilously close to the fine line that

distinguishes proper and improper judicial conduct.      The court,

however, did not cross that line.     We emphasize that judges must

remain ever vigilant not to cross that line by asking questions

that suggest a favorable impression of a party or signal doubt

about a witness’s credibility, or overly intervene in counsel’s

questioning.

    Here, it bears repeating that defendant did not object at

trial to the court’s questioning and our review is confined to

the plain error standard.   We view counsel’s failure to object

as an indication that counsel perceived no prejudice in the

court’s questioning.   After a careful review of the record, we

cannot discern any prejudice that would warrant reversal of

defendant’s convictions.

                                VI.



                                33
    Accordingly, we affirm the judgment of the Appellate

Division and uphold defendant’s convictions.



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




                               34
                                          SUPREME COURT OF NEW JERSEY
                                            A-79 September Term 2015
                                                         077458
STATE OF NEW JERSEY,

    Plaintiff-Respondent,

         v.

MICHAEL ROSS II,

    Defendant-Appellant.

    JUSTICE TIMPONE, dissenting.

    Walk into any trial courtroom in this State -- whether

furnished in gray gunmetal or carved wood -- the centerpiece is

the judge’s bench, rising above all else and all others.      That

is not happenstance.   The message is clear:     the judge presides;

the judge decides; the judge has the final word.

    Trial lawyers are well aware of a judge’s impact on a

sitting jury.   Judges dote on jurors.     They generally exhibit

kindness and understanding toward jurors, making them feel

welcome and part of the process.       Judges often banter with

jurors, recognize when they need a break, and try to accommodate

their schedules.   As jurors enter and exit the courtroom, many

judges stand in deference.    Notably, jurors return the

deference.    Jurors may raise an eyebrow at the lawyers’

arguments and examinations but they usually take a judge’s

pronouncements as gospel.    When a judge speaks, jurors listen.




                                   1
    Jurors do not see judges as partisans; they view the judges

as impartial decision-makers who have no stake in the outcome of

the trial.    When a judge drifts from being a pillar of

neutrality, most jurors do not recognize the drift but do

recognize the subtle cues.    Often the drift is inadvertent,

singular in nature, and harmless.     But not in this case.

    Here, the trial judge’s extensive cross-examination of

fourteen of the State’s seventeen witnesses, through colloquies

extending for well beyond thirty pages of transcripts,

“cross[ed] that fine line that separates advocacy from

impartiality.”   Ridgewood v. Sreel Inv. Corp., 28 N.J. 121, 132

(1958).   His cumulative actions created sufficient reasonable

doubt as to whether the errors “led the jury to a result it

otherwise might not have reached.”     State v. Macon, 57 N.J. 325,

336 (1971).    The judge’s unrelenting questioning prejudiced

defendant and, therefore, is plain error that warrants the

reversal of defendant’s conviction.     R. 2:10-2.

    As a result, I cannot stand with the majority, and I

respectfully dissent.

                               I.
     “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.”    State v. Guido, 40 N.J. 191, 208 (1963); see


                                  2
Ridgewood, supra, 28 N.J. at 132; Macon, supra, 57 N.J. at 336.

Legal scholars have long been conscious of the impact judges

have on juries.   See, e.g., Peter David Blanck et al., The

Appearance of Justice:   Judges’ Verbal and Nonverbal Behavior in

Criminal Jury Trials, 38 Stan. L. Rev. 89, 89 (1985) (studying

relationship between trial judge’s “‘appearance,’ or conduct and

behavior” and jury’s verdict).

    Shortly after the trial of this matter, this Court

reaffirmed Guido in State v. Taffaro, 195 N.J. 442 (2008) and

State v. O’Brien, 200 N.J. 520 (2009).     Although those cases are

not binding as to the matter at hand, they demonstrate this

Court’s continued support of the long-standing limits on

judicial advocacy.

    The O’Brien Court explained the scope of N.J.R.E. 614 and

elucidated the appropriate circumstances under which a trial

judge should interject and ask questions -- namely, when a

party’s basic rights are being threatened, when it is necessary

to expedite the trial and prevent waste, or to clarify when a

witness has trouble articulating an answer.     O’Brien, supra, 200

N.J. at 534.   When a judge goes beyond those confines, the Court

determined, a defendant may be deprived of a fair trial “[i]n

light of the trial judge’s esteemed position in the courtroom.”

Taffaro, supra, 195 N.J. at 454.     Indeed, with respect to a

witness whose credibility played a “central role” in the trial,

                                 3
the Court reasoned that the judge’s “suggesting disbelief of

[the witness’s] testimony could well have had a critical impact

on the verdict.”   Ibid.

    In O’Brien, we vacated a defendant’s conviction for

murdering his parents because of the invasive role the judge

played at trial.   O’Brien, supra, 200 N.J. at 541.    There, the

defendant confessed to shooting his parents and asserted a

defense of diminished capacity based on drug intoxication and

depression.   Id. at 523, 525.   We found improper the trial

court’s direct questioning of the defendant, who had already

been extensively examined about his memory of the events; the

court’s questioning of the expert witness regarding memory loss

from the defendant’s addiction to marijuana; and the court’s

questioning of an officer’s experience.     Id. at 526-27.   The

trial court’s “rapid-fire” questioning of the defendant

“hammer[ed] home the prosecutor’s view of [the] defendant’s

memory as selective, and [left] the impression that [the court]

did not believe [the] defendant’s claim.”    Id. at 537.

    We explained that when a judge questions a witness who has

already given “perfectly plain” answers, it “strongly suggest[s]

to the jury that [the witness] is not to be believed.”       Ibid.

Similarly, with regard to the expert witness, the trial court

“[e]xpress[ed] clear disbelief in the witness’s conclusions.”

Id. at 538.   Ultimately, we found the judge’s excessive

                                  4
questioning “damaging to the overall fairness of the trial,” and

that defendant was “entitled to face a single adversary, the

State.”   Id. at 537, 539.   Accordingly, we found that a new

trial was proper because the defendant “should not have had to

bear the consequences of a judge who appeared to disbelieve him

and his expert witness, revealed that disbelief to the jury, and

supported a witness adverse to him.”    Id. at 539-40.

    Federal courts have applied the same constraints to the

analogous Federal Rule of Evidence 614.    The Third Circuit

explained that “[j]udges must be especially careful about their

conduct during trial because they hold a position of special

authority and credibility in the eyes of the jury” and cross-

examination by the court “can prove fatal to a witness’s

credibility.”   United States v. Ottaviano, 738 F.3d 586, 595 (3d

Cir. 2013), cert. denied, 134 S. Ct. 1922, 188 L. Ed. 2d 945

(2014).   “[C]ross-examination of a witness by the trial judge is

potentially more impeaching than such an examination conducted

by an adversary attorney.”    United States v. Godwin, 272 F.3d

659, 678 (4th Cir. 2001), cert. denied, 535 U.S. 1069, 122 S.

Ct. 1942, 152 L. Ed. 2d 846 (2002).

    The federal courts warn that “[a] trial judge’s isolated

questioning to clarify ambiguities is one thing; however, a

trial judge cannot assume the mantle of an advocate and take

over the cross-examination for the government to merely

                                  5
emphasize the government’s proof or question the credibility of

the defendant and his witnesses.”      United States v. Beaty, 722

F.2d 1090, 1095 (3d Cir. 1983) (quoting United States v. Singer,

710 F.2d 431, 436-37 (8th Cir. 1983) (en banc)).     “Even when the

evidence provides the court with a negative impression of the

defendant, the judge must refrain from interjecting that

perception into the trial.”     Godwin, supra, 272 F.3d at 678.

    Where a judge engages in extensive questioning, the

appellate court must apply a “balancing process” to “determine

whether the trial judge’s comments have pervaded the overall

fairness of the proceeding.”     Ottaviano, supra, 738 F.3d at 596

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

1985)).    When the judge’s questioning becomes “lengthy” or

“over-zealous,” spanning several pages of the trial transcripts,

the judge has overstepped the bounds of prudent judicial

conduct.    Beaty, supra, 722 F.2d at 1096.

    This Court’s admonition against trial-judge-overreach did

not begin with Taffaro and O’Brien.     It long predated those

cases.     Even if the expansive list of cautionary cases

instructing judges on their neutral and impartial roles that

foreshadowed this trial did not exist, the basic principles of

fairness did.     For years our judicial code of ethics was

embedded with convictions of neutrality and fairness:



                                   6
       [A judge] may properly intervene in a trial of a
       case   to   promote  expedition,    and   prevent
       unnecessary waste of time, or to clear up some
       obscurity, but he should bear in mind that his
       undue interference, impatience, or participation
       in the examination of witnesses, or a severe
       attitude   on   his   part   toward    witnesses,
       especially those who are excited or terrified by
       the unusual circumstances of a trial, may tend
       to prevent the proper presentation of the cause,
       or the ascertainment of the truth in respect
       thereto.

       [Guido, supra, 40 N.J. at 207 (quoting Canons of
       Judicial Ethics, Canon 15 (1924)).]

    Trial judges intuitively know that they cannot buttress a

party’s witness, show negative emotions about the testimony of

an alibi witness, or coach either party’s counsel without having

an impact on the jury.     As Bob Dylan once wisely said, “You

don’t need a weatherman to know which way the wind blows.”       Bob

Dylan, Subterranean Homesick Blues, on Bringing It All Back Home

(Columbia Records 1965).

    The trial court here went far beyond the purview of

N.J.R.E. 614 and all guidance on the matter.      The record reveals

that the trial judge put his thumb on the scale, time and time

again, and prejudiced defendant.       The judge’s actions were even

more significant in a factually close case like this, where

there was little physical evidence and where the State relied

heavily on the credibility of seventeen witnesses at trial --

fourteen of whom faced prejudicial interrogation by the court.

                                  II.

                                   7
    Defendant Michael Ross was charged with committing a double

murder and other related offenses.    The State’s trial theory was

that defendant mistakenly shot and killed the two victims,

thinking that one of them, who had previously threatened him,

had brandished a firearm.    Defendant denied any involvement in

the killings.

    Accounts of the killings were central to the outcome of the

trial, and the witnesses’ testimonial credibility was crucial to

the verdict.    Of the seventeen witnesses presented by the State,

the trial judge questioned fourteen of them -- at times

interrupting the attorneys’ questioning.    Many of the judge’s

actions unequivocally strengthened the testimony of the State’s

law enforcement and expert witnesses.   In other instances, the

judge developed those same witnesses’ expertise in areas that

had not been developed by the prosecution or the defense.      With

another witness, the judge exhibited incredulity in his tone and

demeanor, casting doubt upon that witness’s credibility -- whose

testimony was important to the defense.

    Examples are numerous.     The trial judge conducted a

friendly examination of Officer Lyons, a State witness.      The

examination highlighted how Lyons was instrumental in

reinvigorating this cold case and sought specific times and

dates of relevant events.    This effort by the judge undermined

defense counsel’s extensive cross-examination that challenged

                                  8
Lyons’s aggressive interrogation tactics used to elicit

statements from several of the State’s other witnesses.       The

exchange is not, as the majority has characterized it, an

instance of clarification.    The prejudicial effect comes after

the passage quoted by the majority, when the judge rehabilitates

the witness, painting him as the reviver of a cold case, and

returning to mundane details far less incriminating than

coercion.    The tenor of the judge’s exchange buttressed the

detective’s credibility and rehabilitated the witness after

defense counsel’s cross-examination.

    Similarly, the court interfered with defense counsel’s

cross-examination of Clements, one of the State’s investigators,

who was present when Wakefield, a key witness for the State,

gave a statement to the police explaining that defendant had

admitted to the murders.    Wakefield, facing charges in an

unrelated case, recanted his testimony, stating that police

pressured him into making the incriminating statement against

defendant.   Investigator Clements’s testimony attempted to rebut

Wakefield’s claims that he had been unduly pressured during

seven-and-one-half hours of questioning that included a

polygraph examination.     During lengthy cross-examination,

defense counsel elicited testimony indicating that the polygraph

examination of Wakefield actually took less time than

Investigator Clements originally stated.    The import of the

                                   9
elicited testimony was that the majority of the seven-hour

period was spent interrogating Wakefield, aiding Wakefield’s

claim (and defendant’s theory) that he was pressured into making

a statement against defendant.   In the midst of cross-

examination, the judge called counsel to sidebar and limited

defense counsel’s efforts on that point.   As the Appellate

Division majority conceded, that sidebar disrupted development

of the timeline of Wakefield’s questioning but, in context, the

panel found the disruption harmless.

    One of court’s most profound interferences occurred during

the testimony of Sharhi Roberts, a State witness.   On the stand,

Roberts disavowed a statement she gave concerning a conversation

she had with defendant during which defendant confessed to

committing the murders.   First, the judge aided the

prosecution’s direct examination, then the judge demonstrated

his incredulity of Roberts’s testimony that was favorable to

defendant.

    On the heels of other intrusions, the judge interrupted the

prosecutor’s examination, interjecting with instructions to the

prosecutor on how to probe Roberts on defendant’s recantation.

Apparently not satisfied with the prosecutor’s examination of

the State’s witness, the judge gave the prosecutor detailed

instructions on the questions to ask in order to elicit the

necessary testimony, in the presence of the jury.   Thereafter,

                                 10
the prosecutor resumed examination, no longer fumbling, but

instead asking crisper, tighter questions.

         [PROSECUTOR]: Okay. Let me ask you to take
         a long minute and look at your statement from
         January 26th, 2006, and tell us on what page
         you indicate to the three officers and to your
         attorney where you state Michael Ross told me
         he made it up. Take your time.

         [THE COURT]: Well, you should ask her whether
         it was -- was it during the taped part of the
         conversation or during another part.

         [PROSECUTOR]: Was it during the taped part of
         the conversation?

And again:

         [PROSECUTOR]:   And it’s your testimony that
         your lawyer sat there and let you say when you
         were asked the question were there only two
         times, were there only two times when you
         discussed the murders at Avenel in Forest view
         and you answered or were there any other --
         you were asked were there any other times,
         correct?   So you were asked were there any
         other times --

         [THE COURT]:   Why don’t you read the exact
         question, Prosecutor --

         [PROSECUTOR]:    Thank you, Judge.

         [THE COURT]:    -- that’s on page 18.   What page
         is that?

         [PROSECUTOR]:    Referring to page 26 --

         [THE COURT]:    26.

         [PROSECUTOR]: -- you were asked the question
         were there any other times that Michael Ross
         asked you in reference to the shooting --

         [THE COURT]:    Talked to you.

                                11
         [PROSECUTOR]:   Talked to you.

         [PROSECUTOR]:   Thank you, Judge.

         [THE COURT]:    Read the exact question please.

    In the presence of the jury, the judge instructed the

prosecutor on the manner and method of using those portions of

Robert’s testimony to draw out the inconsistency between her

testimony at trial and her statements to the police.   While the

judge found it appropriate to intervene with Roberts, he did not

press with equal force the State’s other two key witnesses --

McKnight or Wakefield -- signaling to the jury that Roberts’s

recantation was questionable, while McKnight’s and Wakefield’s

incrimination of defendant was more credible.

    Defense counsel sought to illuminate Roberts’s claim that

police harassed her into implicating defendant.   Yet, the judge

interjected several times and suggested disbelief of her

testimony:

         [DEFENSE COUNSEL]: Can you describe for the
         jury the manner in which they harassed you
         with as much specificity as you can.

         [ROBERTS]: Okay. They came to my house. I’ve
         been evicted from places.

         [THE COURT]:    I’m sorry.   Came to your house
         and what?

         [ROBERTS]: They came to my house.      Harassed
         me numerous times.



                                12
         [THE COURT]: In other words, the question is
         we need specifics.       What did they do?
         Specifically, what did they do? What did they
         say? What did they do?

         [ROBERTS]:     Well --

         [THE COURT]:     Okay.

         [ROBERTS]:     They --

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

Again, the judge intervened:

         [DEFENSE COUNSEL]: Okay. So when’s the first
         time that you can remember the police coming
         to you and harassing you?

         [ROBERTS]: The first time I remember was my
         father’s   house,  on  19   Walter   Drive,
         Woodbridge.

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

         [ROBERTS]:     I can’t remember the exact day.

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

         [ROBERTS]:     It was after.

         [THE COURT]:     Was it a month after, a year
         after?

    The court’s questioning indicated mounting frustration with

the witness:

         [THE COURT]: Was there some sort of
         preinterview that occurred before the
         recording begins?



                                  13
         [ROBERTS]:   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 judge exhibited more than momentary testiness.     Not

only do those exchanges illustrate the judge’s frustration with

the witness, they show his incredulity at testimony that was

favorable to defendant.   That palpable frustration does not aid

the defense, as the majority suggests; instead, it telegraphs

the court’s skepticism of Roberts’s testimony.

    On several other occasions, the judge engaged in wide-

ranging questioning, despite defense counsel’s limited cross-

examination or his decision not to cross-examine at all.    The

court conducted a detailed voir dire examination of the State’s

forensic pathology expert, despite no cross by defense counsel.

He also questioned the State’s ballistics expert, where defense

counsel asked only three questions.   Despite defense counsel’s

decision not to cross-examine the medical examiner, the judge

conducted lengthy questioning about the cause of death.    The

court’s questioning was far from innocuous because it opened the

door for the State’s experts to polish and expand their

analyses, bolstering their credibility.

    Defense counsel asked only a single question of Officer Ng,

an investigating officer testifying for the State.   In contrast,


                                14
the court questioned Ng and established that defendant did not

voluntarily speak with police after the October 1 incident, when

a maroon Ford Taurus or Mercury Sable pulled up and blocked

defendant’s vehicle, in which witness McKnight was a passenger,

at a traffic stop.    A passenger got out of the maroon car and

pointed a gun at defendant, causing defendant to hit two other

cars as he sped away from the threat.    The trial judge prompted

the officer further, eliciting from Ng that he found defendant’s

identification inside a vehicle at the scene of the October 1

incident, went to defendant’s house, and asked defendant’s

father to have defendant come to police headquarters.

       That extracted testimony established that defendant did not

go voluntarily to the police station after he was involved in

the car accident nor did he report that he was threatened with a

gun.    Effectively, the court sowed the seeds of distrust of

defendant, planting the inference that defendant intended to

seek redress for the incident himself through illegal means.

The trial judge’s intrusion here had the considerable potential

to negatively color the jury’s view of defendant’s

trustworthiness and credibility.

       The defense theory in this case was “mistaken identity,”

that is, the shooter was not defendant but McKnight -- someone

whom the defense claimed many of the State’s witnesses feared.

In his opening statement, defense counsel indicated that

                                 15
defendant had seen the maroon Taurus/Sable several times in the

past.    He also proferred that the car containing the victims was

a red VW Passat.    Evidence adduced at trial indicated that the

passenger who originally blocked defendant and McKnight’s

vehicle was a black man and that the victims in the red Passat

were both white men.       Defense counsel also suggested that

McKnight was the shooter and that he had very poor vision,

20/80, implying that McKnight could easily have mistaken the red

Passat for a maroon Taurus/Sable and the white victims for

black.

    Counsel attempted to support his theory with the testimony

of one of the State’s witnesses, Huff.         Huff testified that he

heard “pops,” went to the scene, and found the victims in the

red Passat, barely alive.          After defense counsel concluded

cross-examination, the court questioned Huff, eliciting

additional testimony about the lighting on the night of the

shooting, in an apparent attempt to dispel the notion that poor-

visioned McKnight was the real shooter.

         [THE COURT]: All right. And you said -- now,
         what did you say the lighting condition was
         there?

         [HUFF]:   Dark.

         [THE COURT]:      Dark?

         [HUFF]:   Yes.

         [THE COURT]:      No -- no street lights?
                                       16
       [HUFF]:   No.

       [THE COURT]:    --of the apartment?

       [HUFF]:   No.

    Refusing to accept Huff’s answer, the court made its own

determination as to the lighting, and continued:

       [THE COURT]:   Of course there were lights on.
       And what time was this around?

       [HUFF]:   I couldn’t even tell you, your Honor.

       [THE COURT]:     Okay.   What time did you start
       walking?

       [HUFF]:   It was dark outside?

       [THE COURT]:    It was dark outside?

       [HUFF]:   I guess after dinner.

       [THE COURT]:   After dinner.       What time do you
       eat dinner usually? Dinner.

       [HUFF]:   Six-ish.

       [THE COURT]:     Do you think you were walking
       around six?

       [HUFF]:   Maybe seven, 7:30.       Digest about an
       hour.

       [THE COURT]:   You were coming walking by that
       car what time do you think it was?

       [HUFF]: Well, a lot things taking place between
       that time.

       [THE COURT]:    Any idea what time it was?

       [HUFF]:   Couldn’t tell you that.

       [THE COURT]:    All right.    What kind of night was
       it?

                                    17
       [HUFF]:   It wasn’t cold yet, but that doesn’t
       happen until the kids go trick-or-treating,
       following day, so it was still -- still decent
       weather.

       . . . .

       [THE COURT]: Now, there was some light from --
       wasn’t there some light from the apartments
       themselves?

       [HUFF]: From the apartments themselves up until
       I got to this particular apartment.

       [THE COURT]:    From that particular apartment
       there wasn’t many lights?

       [HUFF]: Dark. Dark. This particular apartment.
       Dark.

       [THE COURT]:     The whole apartment was dark?

       [HUFF]:   Yes.

    This instance is of particular concern because the judge

acted as a second prosecutor in the courtroom, apparently cross-

examining a witness in order to elicit tesitmony to dispel the

theory posed by defense counsel in his opening statement that

the poor-visioned McKnight was the shooter who mistook the red

Passat for a maroon Mercury.    When the witness insisted that it

was dark and there were no lights illuminating the scene, the

judge rejected the response, replying, “Of course there were

lights on.”   The judge did more than highlight favorable

testimony for the State -- he testified on its behalf.

    Here looms the deeper issue -- the court, having the

benefit of hearing the defense’s opening statements and theory

                                 18
of the case, interjected, acting not only as a second

prosecutor, but also as a witness.     The majority admits that it

is uncertain at best that the court’s questioning of Huff had an

adverse impact on defendant.     Yet such a view minimizes the role

of this Court’s review in ensuring a fair trial, even under the

plain-error standard.   The exchange above was the culmination of

many instances of improper interjection.

    III.

    Jurors are solicitous of judges’s opinions.      The judge’s

actions in this case indicated a favoritism toward the State and

undermined the defense strategy, which is the precise course of

conduct that merits a retrial.     The trial judge revealed his

partiality to the prosecutor’s side by underscoring witness

testimony, eliciting witness testimony that had not been

developed, and even testifying on the State’s behalf.

    Significant portions of the court’s questioning ran afoul

of the confines of N.J.R.E. 614 -- it failed to expedite the

trial, provide clarification to a witness’s answer, or redress

tactics of the parties.   There were no rights threatened, no

witnesses in distress, and the trial’s only need for expedition

was due to the court’s continuous questioning.    Very few of the

instances described here can be fairly characterized as mere

clarification.   Instead, the trial court acted as a second

prosecutor in the litigation.     Especially problematic is the

                                  19
court’s intervention on multiple occasions when defense counsel

chose to engage in minimal or no cross-examination.     To simply

dismiss the court’s actions by relying on the reasoning that it

is not the quantity but the quality of the questions that

renders judicial intervention prejudicial flies in the face of

basic notions of fairness and justice.     At some point, quantity

affects quality, and here, we have both an extensive collection

of questions and the distinct pollution of prejudice.

    The majority relies heavily on defendant’s failure to

object to the judge’s interventions.     In the normal course of

the give and take of trials, motions are made and judges rule.

If a party believes the ruling to be in error, that party may

object.    Here, defense counsel made no objection to the court’s

multiple intrusions.    In reality, however, interposing an

objection would have been no easy task given the nature of the

objection in this case -- an objection to the trial judge

himself.

    Objecting to the court’s conduct as improper and

prejudicial is different in kind than the prosecutor’s objection

here, where at sidebar she reminded the court during the medical

examiner’s testimony that determining the cause of death is the

province of the jury.    Counsel should not be forced into the

Hobbesian choice of objecting and raising the ire of the judge

for the remainder of the trial, or making the strategic decision

                                 20
of not objecting to avoid heavier interference and being seen by

the jury as clearly at odds with the pillar of neutrality.

Moreover, the full effects of the judge’s intrusive actions were

not felt until the accumulation of over thirty pages of the

judge’s examinations -- and, by that point, an objection or a

paltry curative instruction would not unring the bell.

    Prudence by the court is especially critical to ensure a

fair trial when the case is close.     Here, the jury was

deadlocked at first and then deliberated for five days.     The

case was hard-fought, with a clearly viable defense that gave

the jury pause.   The Appellate Division majority acknowledged --

without accepting -- that the lengthy deliberations reflected

that the State’s evidence was not overwhelming.     In such a close

case, there was fertile ground upon which the judge’s extensive

questioning might sow mischief.    The Appellate Division majority

further took solace in the three-week break after the judge’s

last intrusions and the beginning of jury deliberations,

concluding that the judge’s intrusions had little impact on the

fair consideration of the evidence.     This is pure speculation

cloaked with the patina of justification.     In a criminal case

this close, where a person’s liberty interest is at stake, the

benefit of any doubt should go to the defendant.     On this point,

I fully agree with the Appellate Division dissent’s analysis

that “when a judge sheds the mantle of impartiality, the

                                  21
defendant’s right to a fair trial is at risk.”   A new trial is

but a small token when considering the stakes here.

    The trial court’s actions were not singular.   Contrary to

the restrictions set forth in our case law and rules of

evidence, the judge sowed doubts as to defendant’s theory of the

case by buttressing the State’s witnesses, casting doubt with

his tone and manner on a critical defense-leaning witness, and

testifying himself while adroitly avoiding examining defendant.

I embrace, therefore, the plain-error standard applied by the

majority, but part with them in their finding of harmless error

because the trial judge’s actions cumulatively had the capacity

to negatively influence the jury’s view of the defendant.

    Where the majority finds that the judge came perilously

close to the line, I find that he clearly crossed it, denying

the defendant his due process right to a fair trial.

     I find plain error and I dissent.




                               22
